Iff? ((onipll Slaai i>rl|flnl IGtbrary Digitized by Microsoft® Cornell University Library KD 7499.P57 1921 The law of evidence / 3 1924 021 713 163 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Library, 2008. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® y THE LAW OF EVIDENCE BY SIDNEY L. JHIPSON, M.A. (Cantah.) OF THE INNER TEMPLE, BARRISTER-AT-LAW SIXTH EDITION LONDON SWEET & MAXWELL Ltd. LAW PUBLISHERS 3 CHANCEEY LANE, W.C, 2 MELBOURNE, SYDNEY AND BRISBANE Law Book Co. op Atjstbalasia, Limitbdi TORONTO Thk Cabswexl Company, Limithx) 1921 Digitized by Microsoft® Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021713163 Diaitizeaby Microsoft® PREFACE TO THE SIXTH EDITION In the present edition this work has again been very carefully revised ; throughout, the Introductory matter and some of the principal topics rather more fully treated^ and the citation of cases increased by nearly eight hundred examples, so that the reader has at hand, in illustration of the text, not a mere list of reliant ^airih«(jH^es, but a practically complete digest of evidentiary decisions, with the facts, rulings, and where discoverable the reasons .for admission or exclusion, concisely given. The eases and statutes have been brought down to February, 1931. SIDNEY L. PHIPSON. 4 Paper Buildings, Temple. March, 1921. Digitized by Microsoft® Digitized by Microsoft® PREFACE TO THE FIBST EDITION It has been my endeavour in the following pages' to supply to practi- tioners and students a work upon Evidence which should take a middle place between the admirable but extremely condensed Digest of Sir James Stephen, and that great repository of evidentiary law, Taylor on Evidence. I have, as far as practicable, adhered to one uniform method of arrangement throughout — that of stating : (1) The rules of evidence ; (2) the principles upon which they are founded; (3) their various limitations;^ and (4) the illustrations to the rules. The latter have, for the convenience of the reader, been arranged not only in separate columns according to their admissibility or the reverse, but, wherever . possible, in pairs, which present analogous facts but different decisions, the contrasted cases being placed side by side at the same height in the page. _ Eeferences to the leading English text-books, as well as to the stan- dard treatise of Dr.. Wharton on the American law, have also been appended to each branch of the subject. I gladly acknowledge my indebtedness not only to the latter work, but also to the valuable writings of Professor James B. Thayer, of Harvard IJniversity, whose labours have done so much to elucidate the law of evidence; to the scholarly notes to the last American edition of Best, by (I understand) his former pupil, Mr. C. P. Chamberlayne, to which frequent reference has been made in the present volume ; and to other able American writers whose names are mentioned herein. The number of cases cited has been relatively very considerable; and the references given thereto in the text have been repeated in the Index, with the addition of the various alternative reports to the more modern decisions. SIDNEY L. PHIPSON. 7 King's Bekch Walk, Temple. , October 1893. Digitized by Microsoft® Digitized by Microsoft® TABLE OF CONTENTS FADES PREFACE iii TABLE OF STATUTES OITED xi TABLE OF CASES CITED xxv BOOK I. PRODUCTION OF EVIDENCE. CHAP. PAGES I. INTRODXJCTOBY 1-17 n. MATTERS OF WHICH EVIDENCE IS UNNECESSARY 17-26 III. MATTERS TO WHICH EVIDENCE MUST BE CONFINED — PLEADINGS PABTIOUIABS — 'VARIANCE AND AMENDMENT FACTS IN OTHER CASES EXCLUDED 27-29 IV. BURDEN OF PROOF — BRIGHT TO BEGIN — -MATTERS NOT TO BE STATED TO THE JURY — COURSE OF EVIDENCE — SPEECHES — ^REPLY THE " BEST EVIDENCE " RULE 30-48 BOOK II. ADMISSIBILITY OF EVIDENCE. Part I. — Facts. V. FACTS IN ISSUE — ^RELEVANCY — ADMISSIBILITY 49-54 VI. THE FACT OB TRANSACTION IN ISSUE — Bes Oesta 50-87 VII. AGENCY PARTNBatSHIP COMPANY COiNSPIBAOY — CO-TEES- PASS, ETC 88-102 VIII. PACTS RELEVANT TO PROVE THE MAIN FACT 103-135 rX. FACTS RELEVANT TO SHOW ' IDENTITY, OR CONNECT THE PARTIES WITH THE TRANSACTIO^Ni 136-144 X. PACTS RELEVANT TO PROVE STATES OF MIND 145-157 XI. SIMILAR facts: ADMISSIBLE, OB NOT, TO PROVE (1) THE MAIN PACT OR (2) THE IDENTITY OR CONNECTION OF THE PARTIES — ^EXCEPTIONS . 158-171 Xn. SIMILAR FACTS-^ADMISSIBLE TO PROVE STATES OP MIND. . ., 172-185 XIII. CHARACTER 186-192 XIV. FACTS AFFECTING WITNESSES, DOCUMENTS, OB THE ADMISSIBILITY OB WEIGHT OF EVIDENCE 193 XV. FACTS EXCLUDED BY PUBLIC POLICY 194-199 XVI. PACTS EXCLUDED BY PBTVILEGE 200-217 XVn. HEARSAY : — ^RULE AGAINST ' ., 218-226 XVIII. EXCEPTIONS TO THE HEARSAY RULE — ADMISSIONS. , . . 227-236 Digitized by Microsoft® Vlll TABLE OF CONTENTS. OHAP. PAGES XIX. PEBSONS WHOSE ADMISSIONS MAT BE EVIDENCE AGAINST A PABTY 237-254 XX. STATEMENTS IN THE PBESENOE, AND DOCUMENTS IN THE POSSESSION, OF A PARTY 255-262 XXI. CONFESSIONS 263-275 XXII. STATEMENTS BT DECEASED PERSONS 276-277 XXni. DECtAEATIONS AGAINST INTEREST 278-286 XXIT. DECLARATIONS IN THE COUBSE OF DUTT 287-293 XXV. DECLARATIONS AS TO PUBLIC OB GHNEEAL RIGHTS 294-306 XXVI. DBCLAEATIONS AS TO PEDIGREE 307-317 XXVU. DYING DECLARATIONS IN CASES OP HOMICIDE 318-323 XXVm. DECLARATIONS BY TESTATORS AS TO THEIB WILLS 324-334 XXIX. STATEMENTS IN PUBLIC DOCUMENTS : STATUTES, STATE PAPERS, AND GOVERNMENT GAZETTES 335-338 XXX. PUBLIC BBGISTEES AND BEOORDS 339-354 XXXI. PUBLIC INQUISITIONS. SURVEYS, ASSESSMENTS, AND REPORTS 355-362 XXXn. OFFICIAL CERTIFICATES, LETTERS AND RETURNS 363-371 XXXm. CORPORATION, COMPANY, AND BANKERS' BOOKS 372-377 XXXIV. PUBLISHED HISTOEIES MAPS DICTIONARIES GRAMMARS AND ALMANACS^SCIENTIFIC, PROFESSIONAL AND MER- CANTILE RECORDS 378-381 XXXV. REFUTATION OPINION— INFERENCE — ^BELIEF 382-403 XXXVI. JUDGMENTS : GENERAL RULES JUDGMENTS in rem • JUDGMENTS in personam 404-430 XXXVII. PROBATES VERDICTS AWARDS REPORTS INQUISI- TIONS — ^PLEADINGS=^WBITS — ^AND DEPOSITIONS IN FORMER TMALS 431-440 Part II. — ^Witnesses. xxxvin. PROCESS, kinds or — attendance with oe without docu- ments — SERVICE — ^EXPENSES— ABUSE OF PROCESS -^ PRO- TECTION OF WITNESSES 441-448 XXXIX. COMPETENCY AND OOMPEXLABILITT — OATH AND AFFIRMA- TION 449-463 XL. EVIDENCE TAKEN AT THE TRIAL EXAMINATION, CROSS-EXAM- INATION, RE-EXAMINATION NUMBER OF WITNESSES - — CORROBORATION 464-494 XLI. EVIDENCE TAKEN BEFOEE OE AFTER TEIAL AFFDAVITS INTER- ROGATORIES DEPOSITIONS — COMMISSIONS 495-513 Parit III. — Documents. XLII. AUTHORSHIP AND EXECUTION ATTESTATION ANCIENT DOCU- MENTS • — CONNECTED AND INCORPORATED DOCUMENTS ALTERATIONS — BLANKS— REGISTRATION STAMPS, ETC. . . 514-532 XLUI. CONTENTS OF DOCUMENTS GENEEALLY : PRIMARY AND SECONDARY EVIDENCE. CONTENTS OF PARTICULAR DOCU- MENTS : — PUBLIC — JUDICIAL- AND PRIVATE 533-565 XLIV. EXCLUSION OF EXTRINBIC EVIDENCE IN SUBSTITUTION OP DOCUMENTS 566-573 XLV. EXCLUSION OF EXTRINSIC EVIDENCE TO CONTRADICT, VARY, OR ADD TO DOCUMENTS 574-604 Digitized by Microsoft® TABLE OF CONTENTS. IX OHAP. PAGES XliVI. ADMISSION OF EXTRINSIC EVIDENCE IN AID OF INTERPRETA- TION 605-665 XLVn. ADMISSION OF BXTiMNSIC EIVIDBNOE TO REBUT PRESUMP- TIONS AFFECTING DOCUMENTS 666-675 BOOK III. EFFECT OF EVII^ENCE. XLVm. WEIGHT OF EVIDENCE — PRESUMPTIONS — ESTOPPELS 676-687 XLIX. ■WBONGFUL ADMISSION OR REJECTION OF EVIDBNCE, AND BEUEDIES THEREFOR 688-691 APPENDIX CRIMINAl EVIDENCE ACT, 1898 693-695 OATHS ACT, 1838 696 OATHS ACT, 1888 696=696 OATHS ACT, 1909 698-699 INDEX r. 701 Digitized by Microsoft® \, Digitized by Microsoft® TABLE OF STATUTES CITED PAGE 4 Ed. I. Statute 1 358, 359 9 Ed. II. (De Articulis Cleri) '. 212 23 Hen. VIII. c. 5 (Statute of Sewers) 357 1 Ed. VI. c. 12, s. 22 263 5 Eliz. c. 9, s. 12 446 31 Eliz. c. 4 450 4 Jac. I. c. 1 : 450 7 Jac. I. c. 12 (Shop Book Debts Act, 1609) 229 21 Jac. I. c. 16 (Limitation Act, 1623) 14, 242, 243, 244, 478, 677, 681 c. 19 (Bankrupts Act, 1623) , s. 6 451 13 Car. II. Statute 1, c. 12, s. 4 212 29 Car. II. c. 3 (Statute of Frauds), 234, 247, 516, 517, 525, 526, 527, 568, 570, 572, 576 585, 590, 632 s. 4 595 s. 7 , 580 s. 17 604 1 Wm. & M. c. 18 (Toleration Act, 1688) 573 3 Will. & M. c. 11 (Poor Relief Act, 1691), s. 6 25 7 & 8 Will. III. e. 3 (Treason Act, 1695), s. 1 450' c. 7 (House of Commons (Elections) Act, 1695), s. 5.. 336 c. 12 (Ir.), s. 4 285 12 & 13 Will. III. c. 5 (Returns to Parliament Act, 1700) 336 1 Anne, c. 9, s. 3 450 6 Anne, b. 2 (Ir.) , 349 c. 22 (Bankrupts) Act, 1706 .' 664 7 Anne, c. 20 (Middlesex Registry Act, 1708) , ss. 6, 12, 19 349 24 Geo. II. c. 23 (Calendar (New Style) Act, 1750) : . . . . 661 2 Geo. III. c. 28 (Bumboat Act) . . . . ; 405 13 Geo. III. c. 63 (East India Company Act, 1772), s. 40 512 42 Geo. III. c. 85 (Criminal Jurisdiction Act, 1802) 513 44 Geo. III. c. 102 (Habeas Corpus Act, 1804) 444 46 Geo. III. c. 92 (Writ of Subpoena Act, 1805) , s. 3 444, 447 s. 4 444, 446, 447 46 Geo. III. c. 37 (Witnesses Act, 1806) 213 47 Geo. III. Session 2, c. 68, s. 29 349 50 Geo. III. c. 102 (Unlawful Oaths (Ireland) Act, 1810), s. 5 511 51 Geo. III. c. 1 (Regency Act, 1811) 364 52 Geo. III. c. 146 (Parochial Registers Act, 1812) 341, 344 55 Geo. III. c. 194 (Apothecaries Act, 1815) 57 56 Geo. III. c. 87 (Grand Jury (Ireland) Act, 1816) s. 3 511 58 Geo. III. c. 91 361 c. 24 485 1 & 2 Geo. IV. c. 117 ." 25 5 Geo. IV. c. S3 (Vagrancy Act, 1824) .42, 189, 455, 694 s. 3 8 6 Geo. IV. c. 50 (Juries Act, 1825), ss. 23, 24 9 Digitized by Microsoft® Xll TABLE OF STATUTES CITED. PAGE 9 Geo. IV. c. 14 (Statute of Frauds Amendment Act, 1828: Lord fenterden's Aet) , s. 1 242, 244 s. 3 280 11 Geo. IV. & 1 Wm. IV. 0. 40 (Executors Act, 1830) 670 s. 2 670 c. 68 (Carriers Act, 1830) 338 1 & 2 WiU. IV. 0. 22 (London Hackney Carriage Act, 1831) 438 c. 37 (Truck Act, 1831) 683 c. 58 (Interpleader Act, 1831) 435 2 & 3 WiU. IV. c. 1 (Crown Lands Act, 1832) , s. 26 349 c. 71 (Prescription Act, 1832) 112 3 & 4 Will. IV. c. 15 (Dramatic Copyright Act, 1833) 15 - c. 42 (Civil Procedure Act, 1833) , s. 3 244 s. 26 440 c. 74 (Fines and Recoveries Act, 1833), ss. 84, 88. . . 565 4 & 5 Will. IV. c. 92 (Fines and Recoveries (Ireland) Act, 1834), s. 79 565 5 & 6 WiU. IV. c. 41 (Gaming Aet, 1835) 478 c. 50 (Highway Act, 1835), s. 76 225 c. 62 (Statutory Declarations Act, 1835) 501 s. 7 501 6 & 7 WiU. IV. c. 71 (Tithe Act, 1836), es. 60, 61, 62, 63, 64 .... 359 r- c. 76 (Stamp Act, 1836) 216 c. 85 (Marriage ,Aot, 1836) , ss. 2, 20 344 c. 86 (Bii-ths, Marriages and Deaths Registration Act, 1836) 340, 341, 342 s. 31 344- s. 38 341, 344 s. 44 341 c. 106 (Stannaries Act, 1836), s. 19 ,. 23 c. Ill (Previous Conviction Act, 1836) 38, 41, 189 c. 114 (Trial for Felony Act, 1836) 44 7 Will. IV. & 1 Vict. c. 22 (Births and Deaths Registration Act, 1837), s. 8 '. 342, 343, 344 ■ e. 26 (Wills Aet, 1837) 580 ss. 14, 15, 16, 17 520 ss. 19, 20 588 s. 21 394, 529 s. 24 618 s. 27 618 s. 33 618 c. 36 (Post Office (Offences) Act, 1837), s. 25 . . 9 c. 53 (Liberty of Ely Aet, 1837) 25 c. 69 (Tithe Act, 1837) , s. 2 359 1 & 2 Vict. c. 94 (Public Record Office Act, 1838) 536 ss. 12, 13 543, 552 c. 105 (Oaths Act, 1838) 695 s. 1 458 c. 106 (PluraUties Act, 1838) 448 2 & 3 Vict. c. 71 (Metropolitan Police Courts Act, 1839), s. 40 420 3 & 4 Vict. c. 92 (Non-parochial Registers Act, 1840) 339, 344 3'& 4 Vict. c. 92 (Nonnparochial Registers Act, 1840), s. 17 554 s. 20 344 4 & 5 Vict. c. 30 (Oi"dnance Survey Act, 1841) , s. 12 360 Digitized by Microsoft® TABLE OF STATUTES CITED. XIU PAGE 5 & 6 Vict. e. 45 ('Copyright Act, 1842), s. 11 348 c. 106 (Fisheries (Ireland) Act, 1842), s. 63 214 6 & 7 Vict^ c. 18 (Parliamentary Voters' Registration Act, 1843), s. 17 516 ss. 35, 50, 51 444 s. 76 : 379 s. 88 485 s. 94 350 ' c. 85 (Evidence Act, 1843) , s. 1 449, 451 c. 86 (London Hackney CJari-iages Act, 1843) 588 s. 28 413 c. 98 (Slave Trade Act, 1843), s. 4 512 7 & 8 Vict. c. 12 (International Copyright Act,. 1844), s. 8 348 ^ e. 45 (Nonconformist Act, 1844) , s. 2 109 . c. 56 Church Building (Banns and Marriages) Act, 1844), s. 2 365 c. 81 (Marriages (Ireland)' Act," 1844) 290, 291, 345 s. 71 344 c. 101 (Poor X/aw Amendment Act, 1844), s. 2 411 8 & 9 Vict. c. 10 (Bastardy Act, 1845), s. 6 485 c. 16 (Companies Clauses Consolidation Act, 1845) .... 555 ss. 9, ^, 98 373 s. 99 91 s. 127 559 c. 18 (Ijand Clauses Consolidation Act, 1845) 434 s. 68 , 435 c. 20 (Railway Clauses Consolidation Act, 1845) 16 e. 83 (Poor Law (Scotland) Act, 1845) , s. 80 694 c. 109 (Gaming Act, 1845) 478 s. 9 216 e. 113 (Evidence Act, 1845)* 554 s. 1 23, 540, 553, 554, 556, 561 s. 2 23 s. 3 549, 550, 552 c. 118 (Inclosure Act, 1845), s. 105 434 9 & 10 Vict, c. 93 (Fatal Accidents Act, 1846 : Lord Campbell's Act) . 418 c. 95 (County Courts Act, 1846) , s. 83 451 11 & 12 Vict. c. 42 (Indictable OfEences Act, 1848: Jervis' Act) ss. 11, 12, 13, 14, 15 444 s. 16 442, 444, 447 s. 17 502, 503, 510, 511 s. 18 455, 509, 693 s. 20 443, 447 Sched. N 509 c. 43 (Summary Jurisdiction Act, 1848: Jervis' Act) . .28, 139, 144 s. 1 29, 445, 518 s. 3 444 s. 7 443, 444, 445, 447 s. 9 29 s. 12 38 s. 14 34, 38, 43, 350, 368 " c. 44 (Justices' Protection. Act, 1848: Jervis' Act), c. 41. 405 ~ c. 78 (Crown Cases Act, 1848) 690 c. 99 (Inclosure ^ct, 1848) , ss. 13, 14 434 Digitized by Microsoft® XIV TABLE OF STATUTES CITED. PAGE 12 & 13 Vict. c. 1 (Inland Revenue Board Act, 1849), s. 6 348 c. 68 (Foreign Marriages Act, 1849), s. 17 366 12 & 13 Vict c. 92 (Cruelty to Animals Act, 1849) 95 c. 109 (Petty Bag Act, 1849), ss. 11, 17 23 s. 13 553 14 & 15 Vict. c. 40 554 ss. 21, 22 , 346 c. 93 (Petty Sessions (Ireland) Act, 1851), s. 14 509, 511 c. 99 (Evidence Act, 1851) 457, 461, 560 s. 2 : 449 s. 3 550 s. 7 24, 539, 550, 561 ss. 9, 10, 11 .'. 562 s. 13 .367, 557 s. 14 .-. . . .538, 554, 555. 560, 561 s. 16 461 s. 18 371 15 & 16 Vict. c. 56 (Pharmacy Act, 1852) , s. 7 354 c. 76 (Common Law Procedure Act, 1852), s. 55 534 c. 86 (English Chancery Act, 1852) 439 16 & 17 Vict. c. 30 (Criminal Procedure Aet, 1853), s. 1 .• 413 s. 9 : 444 c. 83 (Evidence Amendment Act, 1853), s. 1.210, 449, 451, 457 17 & 18 Vict. c. 31 (Railway and Canal Traffic Aet, 1854) 638 s. 7 * 338, 516 • c. 34 (Attendance of Witnesses Act, 1854), ss. 1, 2 444, 447 c. 36 (Bills of Sale Act, 1854) 564 c. 38 (G«ming Houses Act, 1854), ss. 5, 6 . . . : 216 c. 80 (Registration of Births, Deaths and Marriages (Scotland)' Act, 1854), s. 58 345 c. 102 (Corrupt Practices Prevention. Act, 1854) 10 c. 103 (Towns Improvement (Ireland) Act, 1854 556 c. 104 ((Merchant Shipping Act, 1854) 360, 440 B. 18 . . . .'. 360, 361 s. 270 ^ 502 s. 285 351 ss. 448, 449 252, 440 c. 125 (Common Law Procednre Act, 1854) 519 s. 18 42 s. 20 697 s. 22 472 s. 23 472, 480 s. 24 480 s. 25 482 s. 26 523 s. 27 108 18 & 19 Vict. c. 124 (Charitable Trusts Amendment Act, 1355) 565 s. 42 530 19 & 20 Vict. c. 47 (Joint Stock Companies Act, 1856), s. 40 373 c. 96 (Marriage (Scotland) Act, 1856), s. 2 345 c. 97 (Mercantile Law Amendment Act, 1856), s. 13 244 s- 14 242, 244 c. 102 (Common Law Procedure Ame^ndment Act (Ire- lan(J), 1856), ss. 23,^4 697 Digitized by Microsoft® TABLE OF STATUTES CITED. XV PAGE 20 & 21 Vict c. 43 (Summary Jurisdiction Act, 1857) 691 e. 60 (Irish Bankrupt and Insolvent Act, 1857), s. 308. . 215 s. 365 502 c 77. (Court of Probate Act, 1857) , s. 22 23, 560 ss. 62, 63 432 s. 65 432 s. 69 • 560 c. 85 (Matrimonial Causes Act, 1857), s. 13 23 g. 22 466 21 & 22 Vict. c. 25 (Births and Deaths Registration Act, 1858) 340, 344 ?. 3 ...; -1 554 c. 90 (Medical Act), B. 27 354 s. 32 110 s. 54 380 c. 93 (Legitimacy Declaration Act, 1858) , s. 8 408 22 & 23 Vict. c. 17 (Vexatious Indictments Act, 1859) 190 c. 63 (British Law Ascertainment Act, 1859) 390 23 & 24 Vict. c. 18 (Marriage (Society of Friends) Act, 1860), s. 1... 344 ~ c. 127 (Solicitors Act, 1860) , s. 22 353 24 & 25 Vict. c. 10 (Admiralty Court Act, 1861) , s. 14 23 s. IS 9 s. 35 410 c. 11 (Foreign Law Ascertainment Act, 1861) 390 c. 66.... 697 c. 96 (Larceny Act, 1861) 189 ss. 28, 29, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85. . 215 s, 58 34 s. 103 9 s. 109 413 s. 116 38, 41, 189 c' 97 (Malicious Damage Act, 1861) 151 S. 67 413 0. 99 (Coinage Offences Act, 1861), ss. 9, 12 559 s. 24 34 s. 37 189 c. 100 (OfEences Against th* Person Act, 1861), ss. 5, 27, 52, 56, 62 462 ss. 42, 43 368, 413, 462 s. 44 368, 413 s. 45 413 ss. 48, 49, 50, 51, 53, 54 456, 694 8. 52 462, 694 s. 55 456, 462, 694 c. 104 (Indian High Courts Act, 1861), ss. 10, 11 512 c. 134 (Bankruptcy Act, 1861) 122 25 & 26 Vict. c. 68 (Fine Arts Copyright Act, 1862) 542 ss. 4, 5 348 c. 80 (Companies Act, 1862) 374, 376, 411 s. 18 -. 369 s. 37 373 s. 67 373 s. 115 253 c. 91 (Medical Council Act, 1862), ss. 2, 3 380 Digitized by Microsoft® XVI TABLE OF STATUTES CITED. PAGE 26 & 27 Vict. c. 11 (Registration, of Births and Deaths (Ireland) Act), s. 5 345 c. 27 ((Marriage Law (Ireland) Amendment Act, 1863), s. 16 344 c. 49 (Duchy of Cornwall Management Act, 1863), s. 2. . 23 c. 125 (Statute Law Revision Act, 1863) 230, 446 27 & 28 Vict. c. 19 (Companies Seals Act, 1864) 374 c. 07 (Registration of Burials Act, 1864), s. 5... 340, 343, 344 c. 101 (Highway Act, 1864), s. 12 558 28 & 29 Viet. c. 9 (Affirmation (Scotland) Act, 1865) 697 c. 18 (Criminal Procedure Act, 1865), ss. 1, 7 523 s. 2 43, 44 s. 3 472 s. 4 480, 504, 508 s. 5 480, 504, 508 s. 6 ■ 189, 367, 482 s. 8 108 c. 63 (Colonial Laws Validity Act, 1865) , s. 6 549 29 & 30 Vict. c. 19 (Parliamentary Oaths Act, 1866) 661 c. 109 (Naval Discipline Act) ' 694 s. 65 694 30 & 31 Vict. c. 29 (Banking Companies (Shares) Act, 1867: Leeman's Act) , s. 1 123 c. 35 (Criminal Law Amendment Act, 1867 : Russell Giir- ney's Act), s. 3 443, 503 s. 6 321, 503, 506, 510 S.-7 510 s. 8 697 c. 59 (Statute Law Revision Act, 1867) 336 c. 70 (Public Records Ir. Act, 1867) 552 c. 84 (Vaccination Act of 1867) , ss. 29, 31 . . .' 411 c. 131 (Companies Act, 1867) . : 374, 376 31 & 32 Vict. c. 37 (Documentary Evidence Act, 1868) , s. 2 22, 337 539, 650 s. 3 539 s. 5 22 s. 6 551 c. 39 (Jurors' Affirmation (Scotland) Act, 1868) 697 c. 45 (Sea Fisheries Act, 1868) 513 c. 75 (Juries Act (Ireland) , 1868) , s. 3 697 c. 119 (Regulation of Railways Act, 1868), s. 26 . . . . 9 c. 121 (Pharmacy Act, 1868), s. 13 354 s. 15 380 , c. 125 (Parliamentary Eleotions Act, 1868) 409 32 & 33 Viot. c. 24 (Newspapers, Printers, and Reading Rooms Repeal Act, 1869) 216 c. 41 (Poor Rate Assessment and Collection Act, 1869), s. 18 361 — - c. 67 (Valuation (Metropolis) Act, 1869) , s. 9 105 s. 45 361, 677 s. 65 105 c. 68 (Evidence Further Amendment Act, 1869), s. 2.. 449, 457, 485 s. 3 166, 216, 449, 457 s. 4 697 Digitized by Microsoft® TABLE OF STATUTES CITED. XVll PAGE 32 & 3S Vict. c. 68, s. 6 190 s. 31 451 c. 73 (Telegraph Act, 1869), s. 23 9 33 & 34 Vict. c. 49 (Evidence Amendment Act, 1870) 697 c. 52 (Extradition Act, 1870) , s. 5 338 s. 14 513 c. 90 (Foreign Enlistment Act, 1870) , ss. 8, 9 37 c. 91 (Clerical Disabilities Act, 1870) 565 33 & 34 Vict. c. 97 (Stamp Act, 1870) 531 c. 99 (Inland Revenue Repeal Act, 1870) 216 c. 104. (Joint Stock Companies Arrangement Act, 1870) . . 376 c. 110 (Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870) , s. 42 344 .54 & 35 Vict. c. 70 (Local Government Board Act, 1871), s. 5 551 c. 112 (Prevention of Crimes Act, 1871), ss. 7, 15, 20.. 189 s. 9 38, 41, 189 s. 16 , - 9 s. 18 ; . .367, 558 s. 19 .174, 178, 179 35 & 36 Vict. e. 10 (Marriage (Society of Friends) Act, 1872) 344 c. 33 (Ballot Act, 1872) 350 ss. 24, 3;7 485 '■ c. 65 (Bastardy Laws Amendment Act", 1872), s. 4 485 c. 93 (Pawnbrokers Act, 1872) 16 c. 94 (Licensing Act, 1874), ss. 36, 58 348 36 & 37 Viet. c. 16 (Marriage Law (Ireland) Amendment Act, 1873), s. 4 344 c. 60 (Extradition Act, 1873) , ss. 4, 5 513 c. 66 (Judicature Act, 1873) 21, 586, 588 s 24 20 ss. 56, 57 385 s. 61 23, 557 s. 62 461 s. 76 ; 23 37 & 38 Vict. s. 42 (Buildings Societies Act, 1874) , s. 20 371 c. 49 (Licensing Act, 1874) 96 c. 57 (Real Property Limitations Act, 1874) 112 c. 78 (Vendor and Purchaser Act, 1874), s. 2 524 c. 88 (Births and Deaths Registration Act, 1874) . .340, 342, 343 s. 37 346 s. 38 341, 342, 343, 344 38 & 39 Vict. c. 36 (Artizans and Labourers' Dwellings Improvement Act, 1875) . ; 434 c. 55 (Public Health Act, 1875) 350, 425, 434, 541, 545 s. 20 163 ss. 130, 135, 297 551 s. 150 420, 516 s. 267 ^ 122 c. 57 (Pharmacy Act (Ireland) , 1875) , s. 27 354 c. 59. (Public Records Ireland Act, 1875) 552 c. 63 (Sale of Food and Drugs Act, 1875) ..110, 362 s. 6 95 s. 21 368, 456 L.E. B Digitized by Microsoft® Xviil TABLE OF STATUTES CITED. PAGE 38 & 39 Vict. c. ee (Statute Law Revision Act, 1875) 346 c. 87 (Land Transfer Act, 1875) , s. 80 371 s. 103 216 c. 90 (Employers and Workmen Act, 1875), s. 4 423 39 & 40 Vict. c. 18 (Treasury Solicitor Act, 1876), b. 1 23 c. 36 (Customs Consolidation Act, 1876), s. 259 453 8. 261 110 e. 48 (Bankers' Books Evidence Act, X876) 348, 375 s. 6 548 c. 56 (Commons Act, 1876) 360 s. 7 305 c' 61 (Divided Parishes and Poor Law Amendment Act, 1876), s. 34 485 c. 75 (Rivers' Pollutioii Prevention Act, 1876), s. 2 57 c. .80 (Merchant Shipping Act, 1876), s. 45 252 40 & 41 Vict. c. 14 (Evidence Act, 1877) 453, 694 c. 18 (Settled Estates Act, 1877) , s. 48 516 c. 21 (Prison Act, 1877) 639 c. 26 (Companies Act, 1877) 376 c. 41 (Crown Office Act, 1877) , s. 4 23 s. 5 , 23 c. 57 (Judicature Act (Ir.) , 1877) 24 41 & 42 Vict. c. 26 (Parliamentary and M-unicipal Registration Act, 1878) , s. 36 '. ; 444 c. 31 (Bills of Sale Act, 1878) 530, 632 s. 10 604 s. 16 564 - c. 33 (Dentists Act, 1878) , ss. 11, 29 354 ss. 13, 14, 15 362 c. 49 (Weights and Measures Act, 1878) , s. 16 155 c. 52 (Public Health (Ireland) Act, 1878), s. 265 551 42 & 43 Vict. c. 8 (Registration of Births, Deaths, and Marriages (Army) Act, 1878) , ss. 2, 3 ' 351 c. 11 (Bankers' Books Evidence Act, 1879), ss. 3, 4, 5 375 s. 6 375, 376, 457, 543 ss. 7, 9 375, 37B c. 34 (Ohildrens Dangerous Performances Act, 1879) .... 462 c. 49 (Summary Jurisdiction Act, 1879) 367,- 443 s. 22 349, 350, 367, 558 s. 27 367 s. 31 558 s. 33 691 s. 36 444 s. 39 34 s. 41 445, 501 s. 49 , 8 c. 76 (Companies Act, 1879) 376 43 & 44 Vict. c. 9 (Statutes (Definition of Time) Act, 1880) 25 c. 19 (Companies Act, 1880) 376 c. 41 (Burial Laws' Amendment Act, 1880), s. 10.340, 343, 344 44 & 45 Vict. c. 24 (Summary Jurisdiction (Process) Act, 1881), s. 4. 446 c. 41 (Conveyancing Act, 1881), s. 3 117, 524 ss. 44, 48 519 ss. 54, 55 587 Digitized by Microsoft® TABLE OF STATUTES CITED. ZIX PAGE 44 & 45 Viet. c. 49 (Land Law (Ireland) Act, 1881) 385 c. 58 (Army Act) [1881]* 694 s. 69 ^ 20, 556 s. 70 20, 556, 694 s. 156 456 s. 163 337, 351, 353, 365, 371 s. 164 559 — — c. 60 (Newspaper Libel .and Registration Act, 1881), a. 15 348 e. 62 (Veterinary Surgeons Act, 1881), ss. 3, 9 354 c. 69 (Fugitive Offenders Act, 1881), ss. 15, 27....- 446 s. 29 513 45 & 46 Viet. c. 9 (Documentary Evidence Act, 1882), s. 2.. 337, 539, 549, 551, 552 s. 4 . . : 551 e. 39 (Conveyancing Act, 1882) , s. 3 89, 146 s. 7 565 ss. 8, 9 519 c. 50 (Municipal Corporations Act, 1882) 555 s. 24 555 s. 231 379 c. 61 (BiUs of Exchange Act, 1882) , s. 9 614 s. 16 692 s. 20 ^ 530 8.21 584 s. 25 516 s. 30 32 s. 49 16 ss. 54, 55 686 ss. 62, 89 588 s. 64 528 ss. 69, 70 547 c. 72 (Revenue, Friendly Societies, and National Debt Act, 1882), s. 11 376 ■ c. 75 (Married Women's Property Act, 1682), ss. 12, 16 456, 694 s. 17 435 46 & 47 Vict. c. 3 (Explosive Substances Act, 1883), s. 4 34, 456 s. 6 216 c. 22 (Sea Fisheries Act, 1883), s. 17 353 c. 38 (Trial of Lunatics Act, 1883) 33 c. 51 (Corrupt and Illegal Practices Prevention Act, 1883), s. 59 216 c. 52 (Bankruptcy Act, 1883), s. 17 215 s. 27 198, 210 c. 61 (Agricultural Holdings (England) Act, 1883), ss. 33, 54 16 47 & 48 Vict. c. 14 (Married Women's Property Aot, 1884), s. 1 456, 457 c. 54 (Yorkshire Registries Act, 1884), ss. 9, 20, 21, 51. . . 349 c. 61 (Judicature Act, 1884) , s. 14 519 s. 16 444 48 & 49 Vict. c. 36 (Artillery and Rifle Ranges- Act, 1885), s. 6 552 *By the Army (Annual) Act, 1890 (53 & 54 Viet; c. 4), s. 41, the date is to be omitted from the short title of the Army Act, 1881. Digitized by Microsoft® 49 & 50 Vict. c. 60 & 51 Vict. c. XX TABLE OF STATUTES CITED. PAGE 48 & 49 Vict. c. 54 (Pluralities Acts Amendment Act, 1885) 448 -^ c. 69 (Criminal Law Amendment Act, 1885) .453, 456', 462, 694 ss. 2, 3 485, 491 s. 4 462, 485, 505, 510 s. 5 268, 510 s. 9 462 5 (Drill Grounds Act, 1886) 552 33 (International Copyright Act, 1S86), ss. 7, 8 348 28 (Merchandise Marks Act, 1887) , s. 2 34, 95 s. 5 '. 95 s. 19 216 s. 28 457 c. 35 (Criminal Procedure (Scotland) Act, 1887), s. 36. . 694 c. 57 (Deeds of Arrangement Act, 1887), ss. 5, 6, 7, 11.. 565 c. 71 (Coroners Act, 1887) , s. 4 511 s. 5 443, 511 s. 19 444 51 & 52 Vict. c. 41 (Local Government Act, 1888) 555 c. 43 (County Courts Act, 1888) , s. 28 561 s. 73 27 s. 78 445 s. 80 27 8. 81 416, 423 s. 82 , ■. 27 s. 86 '. 27 s. 87 28 s. 110 443, 444, 445 s. Ill 447 s. 112 '. 444 s. 120 689 s. 180 23 s. 184 565 c. 46 (Oaths Act, 1888) 449, 451, 695, 696, 698 ss. 1, 3 .- 458 s. 2 459, 460 s. 5 459 c. 52 (Public Health (Buildings in Streets) Act), 1888), s. 3 420 c. 59 (Trustee Act, 1888) , s. 8 283 c. 65 (Solicitors Act, 1888) 362 s. 13 434 52 & 53 Vict. c. 10 (Commissioners for Oaths Act, 1889) 366 s. 1 461 s. 2 461 s. 3 24, 461 s. 6 24 c. 49 (Arljitration Act, 18(88) 250, 362 s. 8 441 B. 11 433 s. 12 434 ss. 13, 14 385, 4.S4 s. 15 4.S4 8. 18 441, 444 c. 63 (Interpretation Act, 1889), s. 3 T 642 Digitized by Microsoft® TABLE 0]? STATUTES CITED. IXl PAGE 52 & 53 Vict. o. 63 s. 9' 20, 549 s. 20 514 s. 33 417 s. 34 ; 379 53 & 54 Vict. c. 5 (Lunacy Act, 1890) 29, 362 ss. 28, 116 357 ss. 184, 185 198 s. 186 198, 435 s. 329 109 c. 21 (Inland Revenue Regulation Act, 1890), s. 24 110 ^ ,c. 37 (Foreign Jurisdiction Act, 1890), s. 4 22, 25, 26, 364 c. 39 (Partnership Act, 1890), ss. 2, 5, 6, 7, 8, 10, 11, 12, 13, 16 90 s. 9 414 s. 15 242 s. 36 338 c. 63 (Companies (Winding up) Act, 1890) 198 c. 71 (Bankruptcy Act, 1890) , s. 27 215 54 & 55 Vict. c. 10 (Middlesex Registry Act, 1891) 349 c. 17 (Charitable Trusts (Recovery) Act, 1891), s. 5. .361, 434 c. 39 (Stamp Act, 1891), s. S 532 s. 14 235, 531 s. 65 556 s. 72 536 ss. 91, 93, 95, 97 536 c. 50 (Commissioners for Oaths Act, iSOl) 366 s. 2 24 55 & 56 Vict. c. 4 (Betting and Loans (Infants) Act, 1892) 457 c. 6 (Colonial Probates Act, 1892) , ss. 2, 3 560 c. 19 (Statute Law Revision Act, 1892) .108, 472, 480, 482, 523 c. 23 (Foreign Marriage Act, 1892), ss. 9, 10, 12, 13, 16, 18 346 c. 57 (Private Street Works Act, 1892) 409 c. 64 (Witnesses' (Public Inquiries) Protection Act, 1892) 448 56 & 57 Vict. c. 53 (Trustee Act, 1893), s. 24 91 c-. 56 (Fertilisers and Feeding StufEs Act, 1893), ». 5... 368 c. 66 (Rules Publication Act, 1893) , s. 3 338, 549 c. 71 (Sale, of Goods Act, 1893) , s. 4 526 ss. 10, 12 617 s. 11 617, 639 s. 14 124 s. 55 \ 579, 617 c. 73 (Local Government Act, 1894) 350 57 & 58 Vict. c. 41 (Prevention of Cruelty to OhUdren Act, 1894).. 68, 185, 403, 456, 694 s. 17 403 s. 18 185 s. 19 68 c. 60 (Merchant Shipping Act, 1894), ss. 64, 695. .252, 352, 370 s. 82 588 ss. 113, 114 604 s. 123 546 ss. 239. 240 346, 351 s. 254 346 Digitized by Microsoft® XXH TABLE OP STATUTES CITED. PAGE 57 & 58 Vict. c. 60, s. 255 352 s. 339 346 s. 483 360 s. 690 252, 435 s. 691 252, 361, 435, 513 s. 694 523 58 & 59 Viet. c. 9 (Documentary Evidence Act, 1895), s. 1 552 c. 39 (Summary Jurisdiction (Married Women) Act, 1895) 410 59 & 60 Vict. c. 25 (Friendly Societies Act, 1896) , s. 56 " 516 s. 100 350 60 & 61 Vict. c. 52 (Dangerous Performances Act, 1897) 462 c. 65 (Land .Transfer Act, 1897) , s. 1 432, 564 ss. 2, 25 564 s. 8 / 349 s. 14 360 61 & 62 Viet. c. 36 (Criminal Evidence Act, 1898). 451, 456, 691, 692, 693, 664 s. 1..44, 45, 101, 142, 186, 188, 210, 215, 453, 454, 455, 457, 489, 492, 494, 509 ss. 2, 3 455 s. 4 455, 456, 457 ss. 6, 7 453 c. 39 (Vagrancy Act, 1898) , s. 1 455 c. 41 (Prison Act, 1898) , s. 11, Sched 444, c. 49 (Vaccination Act, 1898), ss. 3, 4 411 c. 58 (Marriage Act, 1898) 340 ss. 4, 6, 7 344 (Evidence Act, 1898) , New South Wales 550 62 & 63 Vict. c. 33 (Board of Education Act, 1899), s. 83 551 " c. 51 (Sale of Food and Drugs Act, 1899) 91 s. 22 368 63 & 64 Vict c. 48 (Companies Act, 1900) , s. 1 369 c. 51 (Money Lenders Act, 1900) 14 1 Ed. VII. c. 22 (Factory and Workshop Act, 1901), ss. 63, 64, 65, 147. 371 s. 147 47 2 Ed. Vn. c. 8 (Cremation Act, 1902), s. 7 344 c. 28 (Licensing Act, 1902) , s. 9 349 c. 42 (Education Act, 1902) 350 3 Ed. VII. c. 36 (Motor Car Act, 1903) , s. 9 401, 486 8. 19 453 4 Ed. VIL c. 15 (Prevention of Cruelty to Children Act, 1904) 456 s. 12 456 c. 23 (Licensing Act, 1904) 362, 435 5 Ed. VII. c. 11 (Railway Fires Act, 1905) 170 c. 15 (Trade Marks Act, 1905) ,8. 50 348 s. 51 348, 370 6 Ed. VII. c. 27 (Fertilisers and Feeding Stuffs Act, 1906), s. 3 368 c. 32 (Dogs Act, 3906) , s. 1 162 c. 40 (Marriage With Foreigners Act, 1906) 346 c. 41 (Marine Insurance Act, 1906), s. 18 146, 387 B. 20 149, 387 s. 22 536 s. 89 537 s. 54 571 Digitized by Microsoft® TABLE OF STATUTES CITED. XXUl PAGE 6 Ed. VII. c. 58 (Workmen's Compensation Act, 1906), 16, 17, 240, 282, 411, 435 Sched. I. (4) 9 s. 7 252, 361 s. 8 -. 371 7 Ed. VII. e. 16 (Evidence (Colonial Statutes) Act, 1907) 549 c. 23 (Criminal Appeal Act, 1907) , ss. 3, 4, 5, 20 690 s. 9 .■ 386, 448, 511, 513 c. 24 (Limited Partnerships Act, 1907) 90 e. 29 (Patents and Designs Act, 1907) , s. 25 409 ss. 28, 52 348 s. 29 . ^ 683 s. 34 v., 9 s. 64 549 s. 77 501 s. 78 . ., 370 s. 79 348, 370, 549 8 Ed. VII. c. 26 (Naval Marriages Act, 1908) 346 c. 45 (Punishment of Incest Act, 1908) 214 s. 4 456 s. 5 464 c. 48 (Post Office Act, 1908) 552 c. 59 (Prevention of Crime Act, 1908) 558, 559 s. 10 47, 1S9, 236 c. 67 (ChUdren Act, 1908) 453, 456 s. 12 424 ss. 28, 29 511 s. 30 .462, 485, 494, 511 s. 114 464 s. 123 8, 47, 371, 403 c. 67 (Children Act, 1908), s. 124 540 Part II. 461, 511 e. -69 (Companies (Consolidation) Act, 1908) 362, 555 s. 17 369 s. 23 370 s. 25 373 ss. 32, 163 375 ss. 33, 69, 71, 220 370, 373 ss. 62, 74, 116 91 s. 78 518 s. 84 92, 150 ss. 109, 111 434 s. 115 , 253 s. 174 198, 210, 443, 447 s. 175 215, 502 s. 215 502 s. 225 23 s. 226 447 9 Ed. VII. c. 39 (Oaths Act, 1909) 697, ^8 s. T 458, 459 10 Ed. VII & 1 Geo. V. c. 8 (Finance Act, 1910) 501 c. 24(Iiieensing Consolidation Act, 1910) , s. 61 379 1 & 2 Geo. V. c. 6 (Perjury Act, 1911), s. 1 14 s. 13 485 s. 14 367, 557 Digitized by Microsoft® Xxiv TABLE OF STATUTES CITED. PAGE 1 & 2 Geo. V. e. 13 (Parliament Act, 1911) , s. 3 366 c. 28 (Official Secrets Act, 1911) 194 2 & 3 Geo. V. c. 20 (Criminal Law Amendment Act, 1912), s. 7 455 3 & 4 Geo. V. c. 2 (Army Act, 1913) 559 c. 7 (Children Employment Abroad Act, 1913) 456 4 & 5 Geo. V. c. 17 (British Nationality and Statute of Aliens Act, 1914), ss. 3, 21 367 c. 58 (Oiiminal Justice Administration Act, 1914), s. 28 350, 367, 456, 462, 485, 558 s. 29 '., 443 c. 59 (Bankruptcy Act, 1914) , s, 15 215 s. 16 ; 370, 434, 677 s. 25 198, 210, 213, 441, 443, 447, 496 s. 26 434 s. 72 461 s. 117 243 s. 132 20 s. 137 '. 337 s. 135 349, 350, 374, 408, 561 s. 139 561 s. 141 502 s. 142 ; 23 s. 144 561 s. 166 215, 216 5 & 6 Geo. V. c. 30 (Naval Discipline Act, 1915), s. 9 353 c. 35 (Naval Marriages Act, 1915) 346 c. 66 (Milk and Dairies Act, 1915) , ss. 8, 9 368 c. 90 (Indictments Act, 1915) ;27, 174 Sch. I. iR 57 s. 3 27, 28 s. 4 27 s. 5 28, 57 c. 94 (Evidence Amendment Act, 1915) , s. 5 552 6 & 7 Geo. V. c. 50 (Larceny Act, 1916), ss. 5, 6, 7, 20, 21, 22 215 e. 43 174, 178, 179, 215, 216 c. 65 (Ministry of Pensions Act, 1916), s. 6 368, 552 s. 16 23 c. 68 (Nevr Ministries and Secretaries Act, 1916), s. 11. 23, 368, 552 7 & 8 Geo. v. c. 6 (OMinistry of National Service Act, 1917) , s. 2 . . 23, 368, 552 c. 51 (Air Forces (Constitution Act, 1917), s. 10. .23, 368, 552 ~ s. 12 371 Digitized by Microsoft® TABLE OF CASES PAGE Abadom V. Abadom 475 Abljey v. Lill 387 Abbeyleix v. SutcliCfe 10, 243 Abbot V. (Massie 612, 613, 639 Abbott V. Abbott . . .340, 347, 366, 389, 555 — v. Bates 629, 662 — V. Middleton 618 AbdaUah v. Rickards 431 Abel V. Potts 352 Abinger i\ Ashton 386 Aboulbff V. Oppenbeimer 406 Abrabam v. Bullock 99 _ Abrahams v. Dimmock 14 Abrath v. N. E. Ry. 11 Q. B. D. 31, 32. m — 11 App. Cas 36 Abrey v. Crux 582, 593, 597, 603 Acerro v. Petronl 468 Aekerley, Re 618 Acme Co. v. Sutberland Co 663 Actffion, The 233, 251 Acton V. Castle Mail Co 147 Adair v. Yoiing 496 Adam v. Kerr 519 — Steamship Co. v. London Assce. Co 209 Adams v. Adams 351 — V. Batley 213 — V. Canon 382 — V. Thrift 150 Adamson, Be 325, 681 — V. Martin 9 Adamthwaite «;. Synge 539 Admiralty • Commrs. v. Aberdeen Co 246 Agace, EoBp 244, 246 Agar V. Anthenaeum Assur. .... 98 Agassiz B. London Tram Co.. .58, 59, 70, 71, 80 Agnew V. Jobson 10 Agricultural &c. Co. v. Fitzgerald 528, 571 .4insworth v. Wilding 206,208 Aird, Re 603 Airey, Re 524 Aitken v. Batcbelor 250 — r. McMeekan 386 Ajum V. Union Insur...l04, 163, 171 Akt'eselkab v. Ekman 662 Alabaster v. Harness 213 Albert v. Grosvenor Co. 604 Alcock V. Leenw 663 — V. Royal Exchange Assur.386, 471 Aldersey, Re 680 ~ Alderson ». Clay 358, 572 Aldous V. Cornwell 528 PAGE Aldridge v. Aldridge 345 — V. G. W. B,y. ...... 162, 170 Alexander r. Steinhardt 105 ■ — V. Vanderzee 15 Alison's Case 410, 419 AUcard r. Skinner 33 Allen V. AUen .-. 217, 457, 474 — V. Cameron 617, 638 — r. Dundas 408, 409, 431 — V. Flood 149 — V. Maddock 526 -^ V. Morrison 328 — r. Pink 577, 591 — r. Sundius 106 — r. "Worthy 411 — V. Yoxall 446 AUgood V. Blake 616. 621 Alliance Synd. v. Mclvor 251 Allison V. Johnson 370 AUsop V. Joy 407 Alperton Co. v. Manning 202 Alsop V. Bowtrel 365 Alston, Re 680 Altone V. Delmeanny 47.S Alwina, The . 22 Amalgamated Properties «. Globe & Phoenix Co , 477 ' Ambrose v. Clendon 55, 76 Amyot V. Dwarris 618 Amys !C. Barton i 62, 83 Anderson, Exp., Re Tollemache . . 429 — Be. 39 L. J. P 586 — i?e, 7 Ch. D 613 — Re, 1905, 2 Ch 683, 685 — r. Bk. of Columbia 209 — V. Calvert 156. 175, 176 — V. Collinson 408, 419 , — 0. Gorrie 405 • — V. Hamilton 195 — V. Sutherland 123 — V. Weston 681 .^ V. Whalley 469 Andrew v. Raeburn j_- 464 Andrews v. Andrews 625. 643, 644, 653 — r. Mitchell 689 — V. Ulthwaithe . . : 384 — V. Wirral, R. C..541, 545, 546, 556 Angell V. Duke, 32 L. T 504, 595 -^ L.R. 10 Q.B 579, 594, 597 Anglesey v. Hatherton . .133, 162, 301 Anglo-Californian Bk. e. London, &c. Co 599 Angus t'. Clifford 150 Annesley r. Anglesea 205, 307, 466, 482 Anon, 1 Stra 249 Digitized by Microsoft® XXVI TABLE OF CASES. PAGE Anon, 3 T.R 471 — 2 Atk 48 — 1 Ld. By 230, 354 — V. Anon 199 Anstee v. Nelms 384, 612, 656 Anstell V. Alexander 472 Anthony, Re 401 — V. Anthony 119, 351 Apothecaries Go. i>. Bentley .... 36 — 1'. Jones 57 Applebee, Be 668, 672 — V. Percy . . ^ 95 Appleby o. Johnson 590 Appleton, Re 670 — V. Braybrook 366 Arbonu. Fussell lOS, 125, 397, 523, 532 Armitage v. Nicholson . . . .■ 96 Armstrong v. Hewitt 525 — V. Normandy 238 — V. Stockham 366 Arnold v. Bath and' Wells (Bishop) 347 — V. Cheque Bk. 686 Arnot ». United African Co 370 Arnot's Case 374 Arnott, Re 203, 205 — V. Hayes 375, 376 Arthur v. Dudgeon 500 Arton, Re 389 Ashburton v. Pape 201 Ashbury Carriage Co. v. Riehe. . 98 Ashf ord v. Price 250 Ashforth v. Bedford 15 Ashhurst v. Mason 151 Ashley v. Harrison 75 Ashling V. Boon 531 Ashmore ». Hardy 2S2' Ashpitel V. Sercombe 258 Ashton, Re' 627, 645, 660, 661 — Be, Easp. McGowan 89 — Re, Ingram v. Papillon. .667, 669 Ashtown V. Waterford 195 Ashwell, Be 682 Asiatic Petroleum Co. v. Anglo- Persian Co 194 Askew V. Woodhead '412 Assheton-Smith v. Owen 290, 295, 297, 304, 612, 629 Assyrian, The 385 Astbury v. Astbury 242, 244 Aste V. Stumore . ; 125 Astley V. Astley 190 — V. Mills 580 Asylum v. Handysides 375 Atcherley v. Sprigg 679 Atherford i'. Beard 535 Atherton, Re 213, 215 Athill, Re 380 Athlone Peerage 346 Atkins V. TredgoM 243 Atkinson, Re 334. 517 — r. Morris. .219, 325, 326, 328, .329, 3-30 333' Atlay, Re 613, 626,' 656 Attlay, Re ,541, 564 Attorney-General v. Antrobus. . 304. 359, 360 PAGE Attorney-General v. Barker .... 555 — V. Berkeley 204 — V. Bertrand 19, 42 — V. Birmingham 385, 414 — p. Bournemouth 571 — ■ V. Bowman 187 — V. Bradlangh, 1 C. & E. 64, 104, 121 — V. —14 Q.B.D 335, 337, 661 — V. Briant 196 — V. Cleeve 133 — V. OoUom 684 — V. Cunard 214 — V. Emerson . . .111, 112, 294, 29S, 354, 675 — V. Eriche 411 — V. Esher 130 — V. Hitchcock 481, 482 — V. Horner 295, 297, 299. 301. 303, 304, 525 — V. Horner (No. 2) 542 — V. Jefferys 671 — V- Kohler 309 — 1). Lindsay-Hogg 131 — V. Merrick 360 — V. Metrop. By 496, 501 — V. Moorsom Boberts 359 — V. Nottingham.. 159, 162, 170, 195 — V. Oldham 341 — V. Pagham Co 495 — V. BadlofE 187, 200 — D. Slingsby 118,385 — V. Stephens 74, 130, 218, 225 — V. Theakstone 20, 337 — V. Vandeleur Ill, 628, 664 — ». Warwick 230, 372, 373 — V. WimWedon 420 Attwood V. Small 451 Augustien v. Challis . . .570, 573, 578 Austin V. Evans 443 Australian, etc., Soc. v. National, etc., Assn 520 Avery v. Chartsworth 517 Aveson v. Kirinaird ..55, 61, 62, 78, 83, 210, 277, 321 Ayers v. Hanson ^ Aylesford Peerage. .58, 60," 61, 77, 78, 198, 199, 220, 312, 679 Aynesley, Re 668, 669, 672 Ayrey v. British, etc., Co 99 B., Re 4.5." B. II. B 119 Babbage v. Babbage 216 Backhouse v. Jones. .76, 116, 135, 165 Bacon, Emp 411 — Be 581, 614, 670, 671, 675 — r. Bacon 203 — t'. Ohesney 243 — 1). Kavanagh 633 Baddeley v. Mortlock 191 Bndeley v. Consolidated Bk 414 Bader v. Power 338 Badische v. Levinstein. .385, .390, 464 Baerlein v. Chartered Bk 689 Bagley, Re 461 Bagot r. iBagot, 1 L.R.T. 1 498 — r. — 1 L.B.I. 308 lis — i\ Williams 416, 422 Digitized by Microsoft® TABLE OF CASES. XXVll PAGE Bagshaw v. Pimm 43 Bailey v. Bidwell 523 — V. Macaulay 197 — V. Woolstone 579 Baillie v. Biitterfield 431 Bain v. Case 352 — V. Mason 345 — V. Whitehaven Ry. . . .11, 374, 688 Baimbrigge v. Baddeley 417, 423 Baines v. Ewing 90 Baird v. Fortune 648, 663 Baker, Be, Connell v. Baker 441 — V. Amibrose 461 — V. Baker 317 — 17. Cave 372 — r. Dale 476, 480 — r. Dening 515 — V. L. & S. W. R. Ry 208 — V. Richardson 624 — I'. Sales 176 Bake well v. Davis 364, 369 Baldney v. Ritchie 543 Baldwin v. Casella 95 Balfe V. Halpenny 598 Balfour v. Tillett 443 Balkis Co., Re 517 — t!. Tomlinson 685 Ball, Re .- 331 — V. Dunsterville 516, 518 — I'. Wallasey Bd 127 Ballantyne v. Maokinnon . . . .407, 410 Ballard v. Way 336 Balls V. Westwood 685 Balme, Re 528 Bamfield e. Massey 192 Banbury Peerage 678 Banbury v. Bank of Montreal. 27, 416 Bandon v. Beeher 406 Bank of Australasia v. Palmer. . 599 — Sngland v. Anderson 664 — Ireland i'. Cogry Co 92 — Montreal v. Stuart 33 — N. S. Wales v. Piper 89 — N. Zealand v. 'Simpson .. 608, 616, 617, 622, 637 — Syria. Be 91 Banks, Re 619 — r. Goodfellow 104 Banner v. Banner 433 — 1'. Jackson 207 Barangha Oil Co., Re 374 Barbat v. Allen 688 Barber v. Holmes 351 Bardcn v. Kyverberg 133, 155 Barker v. Furlong 40 — r. Jansen 617 — r. Keat 612 Barksdaile ». Gilliatt 618 Barlow e. Rhodes 649 Barnes v. Lucille 162 — V. .Mawson 300 — V. Merritt. . .18, 172, 175, 183, 250 — V. Trompowsky 46 Barnett r. AMridge 9 — V. Allen ^5. 399, 402 — r. South Tendon Tram Co. . . 99 Barnstaple, Be . . .'. 58fi Barough r. White 241 PA OK Barraclough v. Greenhough 4.'^2 — V. Johnson 302 Barratt v. Kearns 448 Barrett v. Henry 354 — V. Irvine 89, 96, 160 — V. Dong 175 Barron v. Ryan 418 — V. Willis 33 Barrow v. Dyster 124 Barrs v. Fewkes. ..... .580, 581, 666. 671; 675 — V. Jackson. 410, 416, 420, 431, 432 Bartholomew 4'. George 465 Bartle v. Arnold 454 Bartlett v. Smith 12, 14 Barton v. Bk. of N. S. Wales. .580, 586 — I'. Dawes 623, 648 Baskett. Re 332 Basst). B 216, 217 Batchelor ». Honeywood 402 Bate V. Kinsey 204 Bateman «. Bailey 61 , 76 — V. Faher , 682 — V. Hunt f>87 Batemann, Re 653 -Bater v. Bater, 1906, P 406, 408 — ,;. — 1907, P 390 Bates P. Eley 560 -^ V. Hewitt 145, 146, 152 Batson, Be, Emp. Hastie 447 Batten, Be, Eaip. Milne 565 Battie-Wrightson, Be. .538, 560, 603 637, 661 Battyll t>. Lyles 120 Bauerman v. Radenius 248 Baugh V. Cradocke 202 Bawdon e. London, &c., Ince. . . : 99 Baxendale r. Bennett 687 — V. De Valmcr 521 Bayley v. Buckland . . . . ; 412 — V. Cook 369 BayliCfe v. Butterworth 106 Baylis r. A.-G 613 Bays, Be 447 Beale. Be 61, 653 — B. Kyte 585 Beall. Re "198 Beamish, Be 432 — V. Beamish 145 Beard. Be. Eaip. Lewis 584 — t!. L. G. Omnibus Co 99 Beardsley v. Beardsley 418 Beare v. Garrod 83 Beasley ". MeGrath 230. 235 Beatson r. Skene 194, 195 Beatty r. CuUingsworth, 1896, Times 306 — V. — 1897. Times 66, 114 Beaiiohamp, Be 427 — V. Parry 240 Beaufort r. Aird 111,675 — r. Crawshay 12, 438, 4.98 — r. Smith. .297, 302, 304, 336, 337. 358, 359 Beaumont Peerage 436, 501 Beaumont v. Fell 651 Beavan ^\ McDonnell 152 Digitized by Microsoft® xxYin TABLE OF CAyE«. PAGE Beoluianaland Co. v. London Bk. 124 Beck I'. Dyson 152 Beck r. Pierce 415 Beckett v. Mid. Ry 434 Beckwith v. Benner 205 Beddy i-. Smith : 487 Beech c. Jones 471 Beechey r. K 93 Beeson i: Darby 361 Beever f. Hanson 134 Behn v. Burness 617, 639 Beigtheil v. Stewart 582 Belbln v. Skeats 522, 563 Belfort, The 532 Bell V. Ansley 237 — V. Bell 217 — V. Ingestre 583, 600 Bellcairn, The 406 Bellerophon, The 195 Belmore v. Kent Council 130 Belt V. 'Lawes, 1882, Times, Nov., 9 — V. — 1882, Times, Deo 387 Benjamin, Be 680 Bennett v. Bacon 577, 589 — V. Bennett 669 — V. Brumfitt 515, 516 — V. Griffiths ' 9 — V. Marshall 627, 660 Bennison v. Cartwright 59, 73 — V. .Jewlson 12, 14 Benson v. Olive 438 Beresford v. St. Albans 104, 121 — V. A.-G 502 Berkeley Peerage, 4 Camp.. .295, 308, 309, 310, 311, 317, 437 1891, Times 449, 463 Bermondsey Vestry v. Ramsey . . 415 Bernascoui v. Atkinson 652 Berney v. Bead 562 Berry v. Banner 299 — !'. Berry 114 Berryman v. Wise '110 Berthon v. Loughman 391 Berwick v. Horsf all 12, 15 — • V. Murray 475 Beryl, The 385 Bessela v. Stern 2, 259, 487, 489 Best V. Woods 496 Betteley v. McLeod 446 Betts, Re 9 — I'. Betts ■. 216, 471 — V. Menzies 423, 427 Betty V. Nail 313 Bevan v. Waters 206 •^ V. WiUiams 110 Bew V. Reed 599 Bewley «. Atkinson 278, 282 Beynon, Re ; 680 Bickerton v. Walker 587 Bidder v. Bridges. 34 W.R.. .295, 297, 305, 347, 524, 525, 542 — r. — 26 Ch. D 498 Biddle v. Bond 686 Biggar v. Rock Co 99 Biggerstaffi v. Rowatt 91 Biggs V. Brennan 573 Bigsby V. Dickenson 40, 392 Bingley r. Afarshall 475 PAGE Birch I. Birch 406, 684 — v. Dcpeyster 617, 638 — r. Ridgway 108 — r. Somerville 463 Birchall, Re 580 — V. BuUough ....... .471, 531, 572 Bird V. Harris 487 — V. Keep 343, 356, 357 Birkenhead Co. v. Brownrigg. . . . 374 Birmingham, etc., Co. v. L. & N. W. Ry 200, 209 — V. Ross 616 .Birrell v. Dryer. 22, 397, 617, 637, 662 Birt V. Rothwell 21 Bishop V. Chambrg 529 Bispham v. Bispham 82 Bizzey v. Flight 526 Black V. Epping Union 411 Blackburil v. Hargreaves 441 — V. Haslam 95 — V. Mason 106, 123 — V. Vigors 95 — Bldg. Soc. V. Cunli£Ee 377 — Union v. Brooks 497 Blacker «. Lake 14 Blackett v. Lowes 300 — V. Royal Exchange Assur 663 Blackball v. Gibson 684 Blacbman, Re 651 Blackham's Case 432 Blaekledge v. Blackledge ....... 410 Blackmore v. Huxley 467 Blaekstone v. Wilson 249 Blacquiere v. Hawkins 363 Blades v. Lawrence 23, 515, Blair v. Crawford 412 Blake v. Albion Soc... 89, 97, 90, 160. 166, 172, 173, 174, 175, 181, 183 .— V. Blake 489 — V. O'Kelly 417, 423 — V. Pilford ia5 — V. Woolf 95 Blakemore, Re 9 — V. Glamorganshire Co. . . .419, 429 Blamey v. Blarney 496 Blandford v. Marlborough 380 Blandy-Jenkins v. Dunraven.112, 113, 129, 239, 240, 279, 284, 299, 358, 359 Blane v. Francis 123 Blankensee v. Mid. Ry 10 Blayney's Trusts. Re 652 Bleakley v. Smitb 516 Blewett V. Trfigonning 483 Blewitt, Re 515, 529 — V. Tritton 632 Bloomenthal i'. Ford 685 Blount V. Layard 361 Bhick 7'. Levering 476 Blundell v. Howard 162, 169 Blyth V. Fladgate 90, 415 B'oaler v. Power 427 Board v. Board 685 — of Trade r. Glenpark 364 Boddington, Re 642 Boddy r. Bodilv 166 Bodeii !•. Hensby 210 Bodmiin. Re 625 Digitized by Microsoft® TABLE OF CASES. XXIX PAGE Boileau v. Rutlin 251, 313 Bolckow V. Seymour 15 Bold V. Rayner 586 Boldron v. Widdows 118, 125 Bollard v. Spring 425 Bolton, Be 619 — V. O'Brien ....175, 176, 612, 620 — V. Sherman 250 — V. Tomlin 471 Bonaparte v. Bonaparte 406, 684 Bond V. Barro-n- Co 387 — V. Evans 96 BoneUi, Be 389 Bonfield v. Smith 66 Bonham, Exp 427 Bonhote v. Bonhote 345 Boon V. Cooper 243 Boosey v. Davidson 547, 573 Booth t). Rattle 614, 655 — V. Turle 580, 598 BooUe V. Blundell 330, 400 Boots V. Cowling 109, 880 Boston V. Boston 594 Bosvile V. A.-G 678 Boswell V. Coaks 416 Bottomley, Exp 42, 468 — Be 253 — V. Brougham . . . . ^ 198 Boucher v. Boucher 19 Bouchier v. Taylor 408 Boughey v. Boughey 346 Boughton, Be 210 Boulter, Be 623, 631, 655 — V. Peplow 234, 538 Boulton V. Boulton 497 Bourke v. Warren 401 BoTirn ». Debest 230 Bourne, Be 668 — V. Gatliff 41, 106, 107, 491, 630, 664 — V. Swan 8, 65, 891, 394 Bournemouth Comn^rs. v. Watts. 518 Bowden v. Bowden 386 Bowen v. D'Orleans 89 Bowerbank v. Monteiro 592 Bowes Be 281 — V. Shand 15 Bowker v. Williamson 531, 532 Bowles V. Johnson 441 — • V. Langwopthy 522 Bowling, Be 408, 411 Bowman v. Bowman 472 — V. Hodgson 519, 522, 563 — V. Manzelman 546 — V. Norton 205 — 1). Taylor .• • • -683 Bowsher v. Calley 254 Bowyer v. Morgan , 126 Boyce r. Chapman 10 Boyes, Be 580 _ ,.. Cook 618, 641 Boyle 1'. MulhoUand 623, 648 — r. Smith 96 — V. Wiseman 12, 213, 548 Bracegirdle v. Bailey ......191, 475 Bradburn v. Foley 124 Bradbury r. Foley 14 Bradford r. Young 432 PAGE Bradford Corp. v. Pickles 149 — Corp. r. Komney 689 Bradlaugh v. Gossett 20 Bradley v. Arthur 20, 387 — V. Clayton 214 — V. James 279, 280, 281 — I'. Riches 89 Bradshaw vi Murphy 213 — V. Waterloo \ 16 — V. Widdrington 281, 289, 689 BraSy, Be 642 — V. Todd 94 Braid .v. Braid 346, 554 Brailey v. Rhodesian Co 388 Brain v. Preece.24, 288, 289, 293, 548 Braithwaite. v. Kearns 475 Brake, Be 332, 646 Bramble v. Moss 530 Bramley, Be 619 Bramwell v. Lucas 206 Brandao v. Barnett 21 Brandford v. Freeman 39 Bray v. Briggs 601 — V. Ford 689 Brazier, Be 529 — ' V. Jones ; . . . : 562 Brembridge v. Osborne 117 Bremer v. Freeman 389 • Bremner, Be 427 Brenda Co. v. Green 107 Brennan v. Moran 669 Breton v. Cope. 235, 317, 348, 521, 543 Brett V. Beales. . .132, 296, 299, 302, 336, 372, 373, 433, 525 — V. Clowser 597 Brew V. Haren 113,. 130, 405, 433 Brewery Assets Co., Be 92 Brewster v. Sewell 547- BriokeH v. Hulse 251, 261, 402 Bridge v. Howard 368 Bridges v. Highton 132, 348, 557 Bridgewater's Case 381 Brier- v. Evison 500 Brierley v. Brierley 234, 342 Brierly Board v. Pearsall 434 Briggs, Be 90 — V. Aynsworth 40 — V. Wilson 279 Bright V. Legerton 98, 110, 286, 288, 289 Bright-Smith, Be 380, 626 Brighton Empire v. London & Cty. Bk 376 - — Syndicate v. London & Cty. Bk 376 Brimble, Be 654 Brindley v. Woodhouse 539 Brine v. Bazalgette 156, 186 Bringloe v. Goodson 522 Brinkley v. A.-G 343, 365 Brinsmead v. Harrison 415 Brisco V. Hamilton 327 — V. Lomax. .161, 168, 296, 298, 301 Bristol Corp. v. Cox 204, 205 — , Mayor of, v. G. W. Ry 501 Bristow V. Cormiean..l05, 112, 113 161, 360 — V. Miller 244 Digitized by Microsoft® TABLE OF OASES. PAGE Bristow V. SequeviUe 388, 388 Britannic Oo. v. David 35 British Assoc, &c. v. NettlefoW. 369 — Bnrmah Co., Re E(cp. Viekers 247 — C5o. V. Cunli£fe 99 — V. Sturge 537 — Home V. Royal Hosp....615, 653 — Mutual Bank v. Charnwood Ry 88, 683 — & American Tel. Co. v. Colson 122 Briton Assoc, v. Jones * 91 Brittain v. Kinnaird 405 Brittlebank r. Smith 24, 563 Broad v. Pitt '. 202 Brocas v. Lloyd 445 — • V. London (Ld. Mayor) .... 555 Brocklebank v. Sugrue 96, — V. Thompson... 229, 238, 296, 301 Broder v. Saillard 385 Broderick v. Higginson 162 Brodie v. Brodie . -. 77 • — V. Howard' 242 Bromley v. Wallace ; . . . 192 Brook V. Brook . 28 Brooke v. Brooke 24 — V. Wigg . . . .' 495 Brookes v. Tich'borne 108 Brooks V. Bagshaw 410 — V. Steele 390, 393 — • V. Torquay Council 518 Broome v. Gosden 401 Brougham v. Pattinson 170 Brounker v. Atkyns 381 Brown, Re 366, 539, 548, 643 — V. Armstrong 538 — V. A.-G 33 — V. Brown, LjB. 3 P. &. D. ... 217 — V. — , 1915, P 217 — V. — , 116 L.T 345 — V. Byrne 107, 125 — V. Capel 349 — V. Dean 436, 633 — V. E. &. M. Ry..l62, 165, 169, 171 — V. Foot 89, 95 — V. Foster 206 — V. Hawkes .16, 151 — V. Lambeth Corp 165 — «. Langley 578, 992 — V. London Corp 373 — V. Thornton 11, 363 — V. White 440 — V. Woodman 48, 542 — V. Wren 104, 121, 236 Browne, Re . . ^ 643 — «. Crashaw 451 — V. Dunn 476, 479 — V. Hope 618 Browning v. Browning 119, 345 Bruce v. Garden 231, 235 — V. Hurky 74, 82, 143 — V. Nicolopulo 60, 547 Bruffi ij. G. N. Ry 247 Bruin «. Knott 373 Brune v. Thompson 22 Bruner r. Moore 105, 587, 622, 641, 642 Briinner, Re .' 253 Bninning «. Odharas ..599, 617, 6.30 PAGE Brunsden v. Humphrey. .417, 422, 425 Bi-unswick v. Harmer 399, 402 Brunton v. Dullens 657 Bryan, Re 327, 328 Bryant v. Foot 25 Brydges «. Dix 516 Bueoleuoh «. Met. Bd. Works.. 196, 197, 416 Buchart «. Buehart 190 Bucher ». Jarrett .534, 545 Buckland «. Johnson 415 Buckley v. Cooke 499 Buckton V. L. & N. W. Ry 516 Budd V. Davison 40 — «. Lucas 95, 174, 183 Budden v. Wilkinson 209 Building Assoe. v. Smee ... .92, 530 BuUen v. Michel 48, 347, 359, 525 Bulley, Re ,. 343 — v. Bulley 233, 538, 684 Bullivant ». A.-G. Victoria 203, 204, 205 Bullock V. Corrie 204 Bu,nbury ». Bunbury 205 — •». Matthews 110 Bunting v. Marriott . . . .' 653 Burbury v. Jackson 490 Burchard v. McFarlane 442 Burchell v. Clark 536, 612 Burford v. Burford 389 Burgess ». Bennett 471 — V. Wickham 579 Burghardt v. Angerstein 342 Burin t>. Knott 363 Burke v. S. E. Ry 147 Eurkinshaw v. Hodge 669 Biirkitt D. Blanshard 251 Bijrmester v. Barron 122 Burnaby «. BaiUie. .77, 118, 199, 216, 312, 548, 555, 678 Burnby, Ewp 57 Burnes ». Pennell 92 Burnside v. DayreU 247 Burrell v. North 533 Burrough «. Martin 351, 469, 470 Burrowes v. Clonbrock 239, 603 Burrows «. Bedford School 353 Bursill «. Tanner 205, 207, 209 Bur'slem «. Burslem 497 Burstall v. Bianchi 595 Burton v. Agnew 385 — V. N. State. Ry 497, 498 — V. Plummer 470, 471 Bury 1'. Bury 343, 345 Bustros V. White 208, 209 Buteshire, The 18 Butler e. Allnut 122 — V. Butler 429, 433 — V. Ford 110 — «. Mountgarrett 79, 295, 310, 533, 681 Butterworth v. Butterworth .... 216 Buxton «. Cornish 572 Byles 1'. Cox 521 Bynbe v. Bk. of England 448 Byrne v. Londonderry Co.. 19, 99, 127 — r. Nolan 520 Byvvater. 7?e 326, 328, 332, 431 Digitized by Microsoft® TABLE or OASES. XXXI PAGE Ca'balleso v. Henty 147 Cade V. Daly 59S Cadge, Re ^ 529 Cadogan, Re 618 CahiU V. L. & N. W. Ry 336 Gaine v. Palace Co 418 Caird v. Moss 412, 417 Calcraft o. Guest 201, 204 Caldbeck v. Boon -. . . .204, 205 Calder v. Halket 405 Caley, Re 618 Calico Assn. v. Booth 29 CaU V. Dunning .521, 522 Callaghan v. Society, &c 126 Gallan, Be 680 Callandar v. Dittrich 423 Callaway, Re 560 Calley v. Richards 202 Callow V. Young .^. ; 249 Calvert V. Canterbury 284 — V Flower 477 Calypso, The 419, 422 C'ambefort v. Chapman 414 Camden v. Inland Revenue Com- mrs...25, 379, 388, 390, 391, 394 622, 630, 665 Cameron v. Wiggins 620, 638 — V. Young 589 Cameron's Co., Re 201, 546 Camoys v. BlundeU 612 Campbell, Exp., Re Wallace 4.34 — Re 205 — V. Campbell 207 — V. French 619 — V. Loader 688 — V. Rickards 391 — V. Rothwell .261,. 500 Canadian Pacific Ry. v. Frechette 126 Cann v. Gilmour 39 Cannam v. Farmer 682 Cannon v. Villars 635 Oantello v. Cantello 161, 166 Canterbury Co. v. Cooper 685 Capital Assoc, Re 613 — Fire Assoc, Re 210 — & Counties Bk. v. Henty 620 V. Rhodes 349, 580 Caratel 'Mines, Re 370 Cardiff, The 484 Careless v. Careless . ., 659 Carey v. Cuthbert 205 — «. Pitt 402 CarliU v. Carbolic Co 531 Carlin v. Carlin 389 Carlisle v. Graham Ill — V. Whaley 349 — Co. V. Bragg 584 , — V. Muse 596 Carmarthen Ry. v. Manchester Ry 57, 60, 66, 225, 572 Carnarvon v. Villebois 297, 298, 300, 302, 306 Came v. Steer 261 Carpenter v. Buller 234, 683 Carpmael v. Powis 203 Carr «. L. & N. W. Ry '685 — V. Lynch 517, 630, 631 — V. Mostyn 240, 299, 359 PACK Carritt v. Real, etc., Co 580 Carroll ». Barry 65i8 Carruthers v. Graham 438 Carter, Exp. .: 587 — Re 612 — V. Boehm 382, 387 — V. Kimball 16 — V. Pryke 165 — V. Salmon 595, 600 Cartwrigbt v. Cartwrigbt 389 — V. Sculcoates 163 — V. Vawdry 611 CaTyll V. Daily Mail 156 Case -,». Case 544 Casement v. Fulton 515 Cash V. Taylor 97 Caspari, iJe 462, 502 Castle V. Fox 641, 656 Castlebar Guardians v. Lucan. . 361 OasUedon o. Turner 629, 659 Castrique v. Buttigieg 582 — V. Imrie ; .413, 418 Oaterina Maria, The 353 Cathcart, Re 519 Cato V. Thompson 500, 591, 602, 616, 638 Caton V. Caton 516 — V. Hamnton 359, 360 Catt V. Howard 243, 469 Cauldwell v. EUger 638 Cavalier v. Pope 589 Cave V. Cave 89 — V. Harris 648 — V. Hastings 527, 632 Chadwick v. Bowman 208 — V. Burnley 617, 637 Chalmers v. Shackell 10 Cham'berlain v. Stoneham 446 -^ V. Young 624 Chambers v. Bernasconi . . . .28iS, 293 — V. Kelly 633 Chandler «. Grieves 20 — V. Home 465 — V. Webster 617 Ghandos Peerage 340 Chant, Re ; 245 — V. Brown 204 Chapel V. Washburne 2(43 Chapman v. Beard I 134 — V. Callis 590 — in Cowlan 301,302 — V. Smethurst 582 ^- V. Walton 391 Chaoppell, Re 333, 652 Ghaproniere v. Lambert 526 Charkieh, The 26 Charlesworth b. Mills 570, 572 Charlton v. Durham 242 Chamock v. Dewings 465 — V. Merchant 453, 454, 691 Cbarrington v. Wooder 605. 616, 617, 635 Charter v. Charter 328, 332, 333, 607, 608, 615, 624, 625, 628, 629, 646, 647, 651, 652 Chase ». Tx)well 60, 65,72 Chatenay v. Brazilian Co 11, 15, 390, 605, 630 Digitized by Microsoft® XXXll TABLE 01' OASES. PAOE Chatterton i\ London & Cty. Bk. 377 — V. See. of State India 195 Chaurand v. Angerstein 661 Oheadle, Re Bishop e. Holt. .641, 647 Oheese v. Lovejoy 688 Cheltenham Co. v. Price 374 Ohenie v. Watson 46 Chennel, Re 500 Chenoweth, Re, 45 Sol. Jo. . .623, 644 — Re, 1902, 2 Ch 21,106 Cherry «. Heming 517 Chertsey Union v. Surrey Clerk. . 350 Cheshire v. Bailey 99 Ohesmer v. Noyes 24,366 Ohesney v. Newsholme 114, 115 Chicago Ry. v. Chancellor 64 Chichester v. Coventry 667 — V. Quatrefages 326, 328, 330 Chilcott V. Chilcott 233 Child, Exp. Re Ottaway 473 — V. Grace 257, 260 Chilvers i.. L. C. C 176 Ohisholm v. Doulton 96 Chism V. Liipsett 541 Oholmondeley v. Clinton 204 Christian v. Coombe 362 Christie v. Unwin 405 Christmas v. Whinyates 529 Christy v. CouTtenay 670 Chubb V. Solomons 194 Church, Exp 366 — V. Imperial Gas Co 22, 25 Churchill, Re . . .78, 76, 148, 328, 629 — ». Gedney 620 Chuter v. Freeth 91 — V. Ford 366, 371 Ciocci- V. Ciocci 119 Citizens' Bank v. Bk. of N. Orleans 686 — Co. V. Brown 88, 91 City of London, The 361 — Mecca, The 403 Clack V. Clack 43 Clanricarde's Case 364 Clarence, Re 399, 400, 515 Clark, Re 618, 641 — «. Adie 393, 612, 620, 686 — V. Alexander 121 — • V. Elphinstone 161 — V. Molyneux 17, 151, 156. — V. Mullick 11 — V. R 57, 189 Clarke, Re 332, 516, 650 — V. Clarke 326, 329, 521 — V. Hall 683 — 11. Imperial Gas Co 374, 518 — V. Main 65 — V. Mid. G. W. Ry 421 — V. Ramu!! 590 — 1). Saffery 469 — V. Yorke 421 Clarkson v. Woodhouse 113 Clayton ?'. Hardwick Colliery Co. 25 — )'. Leech 590 — V. J^ugent 614, 639, 640 Cleave ik Jones 12, 200, 207 Cleeland v. McCune 489 Clegg V. Dearden 421 PAGE Cleland v. Cleland 464 Clements v. Carey 516 Olementson v. GandJ- 626 Clennell v. Lewthwaite 670 Clever v. Kirkman 581, 583 Cleverton v. DfiEernel 95 Cliff, Re 388, 390, 560 Clifford, Re 626 — V. Burton 248, 249 — V. Hunter 474 — V. Timms 362 Cloak V. Hammond, Re Taylor. . 624, 629, 644, 652 Cloake, Re 496 Clode e. L. C. C 301, 304 Closmadeuc v. Carrol 532 Clothier v. Chapman 299 Clyde Navigation ». Laird... 630, 664 Coates V. Bainhridge 247 — D. Moore '. 564 Coats V. Herefordshire Council.. 131, 16S Cobbett V. Grey 232 — V. Hudson 449, 465 — V. Kilminster 108, 109 Cobden ». Kendrick 205 Cochrane v. Moore 587 Cockman v. Mather 381 Cockrill V. Sparkes 244 Cocks V. Nash 578, 582, 589 — V. Purday 393 Codd D. Delap, 92 L.T 406 — V. — 1906, W.N 499 Coffey ». U. S. A 418 Cointat v. Mayham 579 Colchester Co. v. Tendring Licens- ing J. J 463 Coldwell V. Holme 61, 646, 647 Cole «. Kelly 123 — V. Manning 487, 490 — V. Parkin i. 518 — «. By. Co 134 — D. Saqui 118 — V. Sherard 366 Coleman v. Coleman 540 — V. Kirkaldy 359, 360 Coleraine, etc., Re 496 Coles V. Coles. .469, 472, 519, 522, 563 — «. Hulme 612 Oolget V. Norris 95 CoUedge v. Horn 250 CoUett V. Keith 232 Collier v. Nokes ... .25, 136, 3S0, 477 — V. Simpson 391, 393, 395 Collins V. Bayntun 522 — «. Bishop 679 — V. Carnegie 354 — V. Collins 233 — V. L. G. Omnibus Co 209 — V. Maule 373 Collis V. Amphlett t.305, 360 Collman ». Mills 96 Colls V. Home Stores 385 Colonial Bank «. Cady 685, 686 Colpoys )'. Colpoys 613, 618 Oolsell 1'. Budd 118 Oohimhia Ry. v. Hawthorne '. . . 134 Colyer, Re 330 Digitized by Microsoft® TABLE OF CASES. XXXlll PAGE Commissioners of Police e. Cart- man 96 — V. Donovan 350, 558, 559 Commonwealth v. Blood 533 — t>. Chance 58, 80, 144 — V. Cleary 114 — V. Gray 190 — V. Knapp, 9 Pick 266 — c. — 10 Pick 266, 272 — «. — 27 Mass 428 — V. Morrell 533 — V. Piper 170, 397, 398 — 1). Robinson 137, 173 — V. Trefethan 62, 64, 80 Compania Naviera ti. Churchill. . 5.77 Components Co. v. Naylor.39, 92, 247 Concha ». Concha. .238, 407, 409, 415, 417, 418, 420, 431, 432, 496, 500 — V. Marietta 389, 393 Connor v. Fitzgerald 280, 283 — i: Kent 691 — «. L. & P. Co 99 Conradi v. Conradi.412, 427, 429, 438 Coode <•. Coode 345,346 Coogan V. Duhlin Co 96, 99 Cook 1'. North Met. Tram. Co... 209 — r. Ward 65, 384 Cooke i\ Banks 297, 347 — r. Lloyd 309 — r. Maxwell 194, 195, 571 — V. Rickmace 417, 422, 423 — r. ShoU 407 — r. Tanswell ." 522 — r. Tomlinson 497 — V. Wilson ■ 147 Coole V. Braham..87, 240, 241, 253, 254, 488 Coolgardie Co.. Re 531 Coombe v. Coether 347 Coombs V. Coether 297, 542 Cooper, Exp 670 — fie, 20 Ob. D 145 — 1911, P 208 — f. Cooper 20 — r. Ipswich 572 — r. Law 145, 258. 347 — V. Moyd 78 — r. Marsden 375 — V. Met. Bd. Works. . .69, 247, 435 — r. Robinson 585 — r. Slade ,.... 10 — V. South 352 Cooper-King v. Cooper-King .... 389 Coote V. Boyd 666 — V. Ford 298, 305 Cope V. Bedford 364 — r. Cope 678 — r. MUler 600 — r. Mooney 432 — V. Rowlands 110 Copestake v. West Sussex 297, 304, 359 Copin I. Adamson 15, 16, 122 Coppen ('. Moore 89 Coppinger r. Norton 682 Corbett, Re 668 Cork C. C. V. Harte 338 — Gas Co. r. Bible 163 L.E. — O PAGE Cormack v. Barragry 432 Cornelius v. Phillips 57 Cornwall v. Richardson 191 Corry v. Patton 537 Corsellis, Re '. 645 — V. L. 0. C 131 Cort V. Ambergate Ry 588 Cossey v. Cossey 328, 333 Costa Rica Republic v. Erlanger. 463 Cotman v. Orton 207 Cotterill v. Hobby 128, 571 — V. Lempriere 29 Cottle V. Champion 257, 261 CottriU V. Myrick 387 Coulson V. Disborough 484 Coulter V. Dublin Ry 151 Oounsell «. London Co 612 County of Gloucester Bk. v. Rudry 91 Court Bureau, Re 23 CouHteen v. Touse 96, 469 Coventry t). G. E. Ry 685 Coward v. Hughes .-. 601 Cowell V. Chambers 336 Cowen V. Truefitt 585, 602, 654 Cowi^ V. Witt 581 Cowley V. Cowley 200, 210, 420 Cowling V. Higginson . .- Ill Cox V. Allingham 538, 560 — V. Bruce 577 — r. Couveless 12, 41 — I. English Bank 16. 31 — ('. Midland Counties Ry 98 Coyte, Re 669, 673 Crabtfee v. Hole 96 Cracknall v. Janson 683 Craf ter v. Met. Ry 107 Craig, Re 624 — V. Boyd 530 — V. Lamoureux 33 Craston v. Craston 217 Craven v. Pridmore" 131, 239, 378 Crawcour v. Salter 21, 206 Crawford v, Crawford 243 — V. GiUmor 686 — r. White City Rink 596 — Peerage 400,539 Crawshay v. Crawshay ....... 656 Crease v. Barrett 240, 276, 280, 284, 295, 296, 298, 299, 300, 301 Crediton r. Exeter 528 Creevy v. Carr 474 Cresswell v. Cresswell 520 — V. Jackson 108 Crewe v. Field 446 Crichton v. Crichton 667 Cridlan r. Marler 125 Crippen, Re 357, 413, 426, 428 Crispin r. Doglioni 309, 315, 548 Cromack r. Heathcote 202, 206 Cronk r. Frith 521 Cronmire, Re 411 Crook, Re, Exp. Collins 427 Croome r. Croome. .580, 581, 671, 675 Cropper v. Smith 683, 686 Crosbic v. Hetherington 21 Cross V. Eglin 663 — V. Sprigg 668 Digitized by Microsoft® xsxiv TABLE OF CASES. PAGE Crossfield v. Kyle Shipping Co. . . 141:, 577, 612 - — I'. Techno Ohcmical I>abs .... 65, 391, 393 Crossley v. Crowther 487 Orostbwaite ». Dean 619 Ci-ouch V. Drury 230 Croughton v. Blake 524 Crowther v. Appleby 443 Croxton t'. May 679 Cruckenden v. Fuller 77 Crum'bie v. Wallasey Local Bd.. 421 Cnittenden, Re 326 Cubbon, Re 432 Cullier v. CuUier 212 Oumberland e. Bowes 637 Cundell v. Pratt 214 Cunningham, Re, 36 Gh. D. . . .88, 98 — Re, 80 L.T 472 — ». N. T. Ry 397 Curfew, The 616, 617, 637 Curry v. Walter 197 Curtice v. London, &c., Bk 105 CuDtis V. Beaney 204 — V. Curtis 487 — V. Marsh 25 — V. Peet 387, 399 — i: Rickards 122 Curtler v. London Tram Co 8 Curzon r. Lomax 296, 297, 301 Gussons V. Skinner 519 Cuthbert v. Cumming 662 — V. Robinson ; . . 618 Cutler V. Turner 421, 423 — r. Wright 498 Cutts V. Taltal Ry 587, 604 Da Costa v. Pym 400 D'Aglie V. Fryer 346 Daines r. Hartley 399 Daintrey, Re, Ewp. Holt 200, 232 Daintry v. Broeklehurst 112 Dalgleish r. Lowther 207 Dallas, Re 91 Dal ton r. Fitzgerald ...683, 684, 6S5 Daly V. Carroll 618 — r. Cork Herald 479 — ■,•. Dublin Ry 418 Damerell v. Prothero 300 Dan V. Browne 242 Dance v. Robson 20 Daniel v. Daniel 345 — r. Pitt 252 — r. Wilkin 297, 304, 358, 359 Daniell, Re 528 Daniels v. Potter 94 Darby r. Ouseley 39, 42, 43, 176, 229, 378, 383, 477, 478 Darcy-Evans v. Darcy-Evans . . 343. 388 Darcys, Re 199 Dare Vallev Ry., Re 196 Darley Co. r. Mitchell 421 Dashwood v. Magniac . .105, lOfi, 12-1 r>2J), R63 Davey «. L. & S. W. Ry.. .16, IS, 284 Davidson )'. Cooper r>2S — V. Davidson 217 PAGE Davidson v. Logan 196 Da vies v, Humphreys 243, 285 — r. Lowndes . .295, 310, 312, 313. 316, 405 — 1-. Morgan 233, 236 — V. Otty 475 — w. Pearce 278 — i\ Ridge 242 — V. Waters 200, 207 — V. White V 376 Davis e. Artingstall 582 — V. Baird 542 — V. Ourry 126, 155 — V. Hardy 11, 484 — . V. Hedges 417, 422 — V. Jones ; 601 — r. Lloyd , 291 — V. Morton 410 — V. Symonds 574 — r. TafE Vale Ry 620 — V. Vass 562 Davis' Trusts, Re 24, 366 Davison, Re 415, 416 Dawkins d. Rokeiby.194, 236. 448, 477 Dawson, Re, Johnston v. Hill... 618 — Re, 1919, 1 Ch 667 — V. African Co 91 — V. Dawson, 22 T.L.R 289 — t'. — 23 T.L.R 399 Day c. May 595 — r. Spread , . 419 — V. Trig 625 Dayman r. Dayman 522 Deakin, Re 644 Deane v. Packwood 449 Dear r. Knight 472 Deasy r. Donoghue 584 De Bode's Case 284 Debtor. Re A, 1903, 1 K.B. ... 427 43 Ir.L.T.R 509 De Burgho's Estate, Be.299, 414, 437 Deeley's Patent, Re 409, 418 Deffcll V. White 520 De Gruyther v. De Gruyther . . . 554 De la Pole v. Dick 249 De Lassalle r. Guildf ord . . . 579, 505 Delmare f. Robello 623, 1)4:5 Delta, Tlie 412 De :Mora r. Concha, 29 Ch. D. . . 407, 415, 416 — V. — 32 Ch. D 496. 497 Denaby Collieries v. Yorkshire Miners' Assoc 101 Dench / . Dench 331 Dendy r. Simpson 16S Denham. 7iV 14."i Denn r. Spray 298. 300 Dennis r. White 25 Donnison r. Ashdown. .111, 129, 546 Dennys v. Dennys 217 Dont r. Dont .S4.S, .1J5 — V. Moore 531 Department of Agriculture v. Burke Ofi — V. Parker 190 Doprpz. Ue 526, 528 Dorby Corp. p. Derbyshire Coun- cil 213 Digitized by Microsoft® TABLE OF CASES. PAGE De Rosaz, Re 613, 615, 639, 640 Derry v. Peek 149, 150, 151 De Rntzen v. Farr 286 De Salazar, Be 24, 563 Desportes, Be 213, 215 Devala Co., Be 246, 247 Devonald v. Rosser 106 Devonshire v. Gwynne 124 — V. Nem..255, 261, 281, 286, 295, 296, 299, 300, 301, 305, 306, 541 — f. Pattinson 634, 671, 675 Dewar v. Mintoft 527 Dews V. Ryley 561, 576 Dexter v. Hayes 110 Deybel's Case 22 Dibb V. Walker ■ 245 Diekins v. Banderson 380 Dickinson v. Shee . 474 Diederichsen v. Farqubarson. . . 147 Dieppe, Be 643 Diestal v. Stevenson -. 583 Digby t;. Stedman 230 Dillard v. DiUard 238 Dillon V. O'Brien 9 — r. Tobin 290 Director of P. P. v. Blady..94, 451, 455, 456 Di Sora ». PhiUips 399, 390 Disraeli v. Jowefct 351 Dixon V. Dixon 487 — r. Hamond 686 — • V. Treasury Sol 328 Diambi Rubber Bstates, Be 246, 247, 262 ,283, 288, 289, 2(92 Doane, Be 653 Dodd, Be 352 — - V. Norris 192 Dodds V. Tuke 243 Doe V. Allen, 8 T. R.. .324, 327, 330 — tj. — 12 A. & E 324, 325 629, 661 — V. Andrews 339, 340, 341 — r. Arkwright Ill, 284, 361 — V. Bainbrigge 392, 395 — r. Barnes, 1 M. & R 341, 342, 344 — r. — 8 Q. B 110 — V. Barton, 2 M. & R. 309 — p. — 11 A. & E 684 — V. Benson 661 — V. Benyon 645 — r. Beviss 281, 285, 688 — f. Bird 249 — r. Boulter 433 — r. Bower .39, 40 — r. Brawn 110 — ,. Bi-av 340, 341 — r. Burdett 524 — r. Burt 671.675 — r. Calloway 298 — r. C.irtwright 361 — r. Catomore 529 — ,. Chambers 23, 518. 520 — , . Chichester 611, 612, 626. 648, 656 — ? . Cleveland 522 — r. Clifford 546 — r. Date '. 200,204,209 PAGE Doe 1'. Davies 12, 276, 281, 296, 309, 317, 403 Derby 414, 437, 439 Edwards 23 Egremont 200 Fleming. 110, 128, 312, 384, 679 Foster 437 Fowler 525 Francis 686 Frankis 257 Fuchau 105 Gatacre 344 Gillard 618 Griffin 313 Hardy 324, 327, 331 Harlow 414 Harris 482 Harvey, R. & M 300, 315 — 8 Ring 573 Hawkins 281, 286 Heakin 133 V. Hertford 203, 205, 207 11. Hiscoeks..607, 608, 610, 611. 624, 625, 627, 628, 629, 651, 652 f. ^Hodgson 477 V. Holton 656 V. Hubbard 608, 612, 618, 656 V. James 207 V. Jauncey 202 V. Jersey 656 r. Johnson 31 V. Keeling 524, 525 V. Kemp 161, 168 17. Kett 618 V. Lakin 239 V. Langdon 210 V. Langton 610 V. Lea 661 «.. Litherland 2.39 V. liloyd 349, 530 V. Martin, M. & Rob 544 «. — 4 B. & Ad 618 V. Mason 23 r. Mew 560 r. Michael 127, 276 V. Miles 234 r. Mills 685 r. Morgan 659 ■ V. Morris 546 ». Mostyn 562 r. Murless 241, 436 V. Needs '. 627, 658 r. Oliver 113 V. Palmer. .325, 326, 327, 331, 529 r. Paul 523 V. Pembroke 317, 521 r. Penfold 113, 522 r. Perkins 470, 471 r. Pettett 240 r. Phillips 524. 525 V. Pulman 112, 129 r. Randall 310. 315 r. Bickarby 35. 73 r. Ridgwav 62, 277 V. Roberts 358 V. Robson 2S1 r. Roe 250 r. Ross 48. 249, 250, 542. 546 Digitized by Microsoft® XXXVl TABLE OF OASES. PAGE Doe-K. Bouse 642, 652 — V. Seaton, 2 A. & E..203, 240, 361 — t). — 2 d. M. & E 684 — V. Sisson 162, 165 — V. Skinner 291 — V. Steel 233 — V. Stephenson 192 — V. Suckermore 400, 402 — V. Tarver 311, 317 — V. Tatham 221 — V. Thomas 118, 203 — V. Turford . . .280, 288, 280, 292 — V. Tyler 414 — V. Wainwright, 5 A. & B. . . 541 — ». — 8 A. & E 237, 284 — «. — 1 N. & P 48 — V. Watkins 203 — V. Webber 241 — V. Webster 234, 575, 633 — V. Westlake 629, 658 — V. Whitehead 36, 37 — V. Williams, Oowp 73 — V. Williams, 6 B. & C 241 — V. Wilson 10, 109 — V. Wittcomb 291, 292, 296, 302, 541, 542 — V. Wolley 523, 5214 — V. Young 104 Doherly v. Dwyer 529 — V. Miles 576 Doker v. Hasler 210 Bolder v. Huntingfield 22 Domvile v. CaUwell 239, 283 Donagjiy v. Ulster Co 83 Doncaster v. Day 438 Donnelly v. Ingram 368 Dorin v. Dorin 623, 643 Dorrett v. Meux 538, 560 Dorrian v. Heugh 425 Dost Aly Khan, Be 389, 530 Douce, Re 332, 516, 650 Doucet V. Geoghegan 77 Douglas, The 67 — V. Fellows 658 Dover v. Child 420 — v. Maestaer 43, 214 Dovey V. Corey 145, 149. Dowdell V. Australian Co 445 Dowden v. Fowle 238 Dowlat Koer v. Ramphal Das.'. 120 Dowling V. Dillon 406. 410 — V. Dowling 118, 140 — V. Pontypool Co. ..388, 380, 665 — V. Robinson 97, 236 Downing, Re 325, 32S, 581, 598 — V. Butcher 191 Downs -J'. Cooper 252 Drake v. Marryat 366 — V. Mitchell 415 — V. Smyth 359 — V. Sykes 324, 325, 328, 333 DraTipner, The 145, 147, 152 Dresser v. Stansfield 562 Drew V. Drew 345 — V. Harlow 556 — V. Norbury 516 — V. Prior 402 Drewitt v. Drewitt 497 PAGE Dreyfus v. Allen 662 Drinkwater v. Porter 296, 301 Drughorn v. Rederiaktiebolaget. 582 Druiff V. Parker 574, 586 Du Barrfi v. Livette 201 Duberley v. Mace 19 Dublin (Archbp.) v. Trimleston. 357 — Corp. V. Bray 555 — Ry. V. Slattery 13 Du Bochet, Re 643 Du Bost V. Beresford. .8, 65, 384, 402 Dudley, Re 448 — Co. V. Dudley Corp 18 — Tramways, Be 369, 571 Dufferin Peerage 337,346 Duffin V. Markham 42 DufEy, Re 331 Duke V. Wisden 28 Dummer v. Pitcher , 626 Dunbar v. Harvie 365 Duncan v. Oarleton 95 — V. Pope 149 — K.Toms 38 Duncombe v. Daniell 250, 544 Dundonald Peerage 289 Dunhill V. Dunhill 474 Dunlop V. Higgins 105, 122 — ■ Co. V. New Garage Co 583 Dunn V. Dunn ... .326, 520 — V. Flood 524 — V. Murray 416, 417, 422 Dunne v. English 475 Dunraven v. Llewellyn 294, 296, 299, 300 Duplex, The 409 Durham v. Beaumont 4S2, 483 — V. Durham 32, 135, 401, 452 — V. Northern 528 Durrell ». Evans 516 Dwyer v. Collins 205, 206, 207, 544, 546 — V. Larkin 246, 248 Dyce Sombre, Re 386, 391 Dyer v. Best 469 — V. Green 632 — V. Munday 368 Dymoke's Case 229, 450 Dysart Peerage. .57, 58, 60, 61, 78, 227, 240, 241, 310, 317, 470 E. W. A., Ke 415 Eagleton v. Gutteridge 530 Eames v. Hacon 432 Earl V. Lewis ; 303 — of Dumfries, The ..251, 252, 352 Barl's Trusts, Re 24 EaTwicker v. London Graving Co. 365 East Gloucestershire Ry. v. Bar- tholomew 374 — London Ry., Re 434 V. Tliames Conservators.. 362, 380 — Union Ry. v. gymonds .... 2'S8 — & West India Docks v. Kirk. 689 Eastman v. Compt. of Patents . . 619 Baston, Re\ Exp. Dixon 426 Eastwood I, Ashton 624, 684 Digitized by Microsoft® TABLE OF OASES. XXXVll PAGE Eatou V. Swansea Waterworks. . 419, 427, 429 Eccles V. Louisville Ey. Co 443 Eecleston ».' Petty 160, 313 Eeanomic See. v. Usborne. . .411, 421 Ecroyn, 400 PAGE Greenwood, Re ^J| — V. Backhouse .55 — v. Greenwood ^5* — V. Woodham ■ • • • ^J Gregory, Re ...384, ^2 — V. Tavernor J "i — V. Tuflfs 10^ Gregson v. Armstrong •••• » Gregson's Trusts, Re 640, bbl Gremaire v. lie Clerk • • 110 Gresham Hotel v. Manning. .58, tjp, 75, 115, 135 Greswold-Williams v. Barneby.. 595, 634 Greville v. Chapman 393 — 17. Hemingway 633, 649 — V. Tylee 529 Grey, Re 448 — V. Pearson 606 Grey's Brewery, Re 198 Griffin, Re, 1890, Times 57 1899, 1 Ch 668,672 Griffin's Divorce Bill 439 Griffith v.. Bourke 668 — V. DAvies 208 — V. Fleming 633 Griffiths V. Dudley 418 — V. Griffiths 326 Griffits V. Payne 161, 167 Grigg V. National Co 572 Grime v. Fletcher 356 Grimston v. Cuningham . . . .584, 639 Srindall v. Grindall 418 Groom v. Lawrence 29 Grosvenor Hotel Co., Re 434 V. Hamilton 685 Grove, Re 77, 148 — V. Buluwayo Co 66, 390 Guardhouse v. Blackburn. .145, 325, 326, 574 Gudgen v. Besset 583, 600 Gueret v. Audony 433 Guest V. Warren 419 Guillet V. Guillet 343,345 Gunn, Re 432 Gunter v. James 170 Gwynne-Vaughan v. Gwynne- Vaughan 217 Haokston 1!. Millhr 457 Haddow v. Parry 282 Hadjipateras v. Weigall 614 Haes, Re 215, 449 Hasedorn v. Reid 291 Haggenmaeher's Patents, Re 481 Haggitt r. Ineff 366 Haigh r. Belcher 53 — r. Haigh 689 — I'. West 129 Haines .. Guthrie 47, 225, 308, 313, 342 Hnlps r. Kerr 165,171 Halhead v. Young 575^ 590 Halifax Co.. Re 539, 542 Halkett v. Dudley 560, 561 Hall, Eiop 0S4 — Re. 1914, P ; ; Jos — Re, 22 L.J. Ch .■:;:; 554 Digitized by Microsoft® TABLE OF CASES. xli PAGE Hall V. Bainbridge .' 517 — V. Ball 525, 5^2 — V. Cazenove 585 — V. Hall, 1892, 1 Ch 619 — u. — 25 T.L.R 216, 217 — r. Hill 666, 667, 669, 671 — r. Levy 423 — r. Norfolk 239 Hallam v. Hallam 216 Haller v. Worman. .249, 250, 255, 258 Hallet V. Cousens 469 Halliday v. Holgate 469, 470 Hallmark's Case 145, 146, 151 258, 372 Halston, Re 623, 647. 651 Hamber v. Roberts 523 Hamblin v. Shelton 110, 128 Hamilton v. Knott 208 — r. Ritchie 619 — f. Walker 29, 691 — V. Young ; 123 Hamlyn v. Houston 90, 98 — c. Talisker 11 Hammond, Re 619, 642 — r. Bradstreet 297, 303 — r. Schofield 414 Hampden v- Wallis 257 Hampshire v. Peirce 625 Handley v. Wolverhampton Co. 107, 127 Hankinson v. Bilby 620 Hanks v. Tottenham 327 Hansen v. Dixon 11, 388 Hanson v. Shackleton 25 Hardcastle v. Bielby 96 Harding, Re 680 — V. Orethorn 145 — V. Harding 427, 429 — r. Williams '375 Hardwick, Re 501 — r. Coleman 82, 83 — V. Hardwick 623, 626, 656 Hardwicke, The 18 Hardy, Re 325, 331 — r. Ryle .- 421 Hare, Re 597 — f. Waring 349 Hargrave v. Hargrave 199 Hargreave v. Spink 21 Hargreaves, Re 195 — r. Hilliam 42 Harker v. Edwards . .' 106, 123 Harland v. Burstall 663 Harloek v. Ashberry 496 Harman, Re 580 Harmer v. Bean 569 Harnett, Re 485 Harnor v. Groves 591 Harper v. Vigors 582 Harratt v. Wise 338 Harrhy v. WaU 616, 632 Harries v. Thomas 36, 487, 489 Harris, Re, 44 L. J. Bpy 231 — Re, 10 Ch. Aipp 496 — Re. 1909, 2 Ch 626 • — t'. Dignum 74 — 1. O. W. Ry 147 — V. Harris, 39 L.J.P. & D.... 487 PAGE Harris 'v. Harris, 27 L.T 10, 166 — V. Knight 326, 329 — V. Riekett 572, 591 Harrison, Be, Turner v. Hellard 538, 560 — Re, 30 Ch. D 613, 614, 624 — r. Barton .575, 581, 599, 630, 664 — u. Blades 438, 521 — V. Mieks 663 — V. Turner 236 — V. Vallanee 237 Harrod v. Harrod 32 Harrowby, Re 673 Harse v. Pearl Co 99 Hart V. Duke 689 — <.. L. & Y. Ry. ..107, 108. 126, 134, 171 — r. Maenamara 407 — V. Newman 235 — V. Standard Co 617 Hartland «. Jukes 612 Hartlfey's Case 375 Hartley v. Coot 347 — V. Elinor 180 — V. Harriman 162 — V. Hindmarsh 543, 557, 559 — i: Wharton .'. . 32 Harvey, Exp 582, 599 — Re ; 445 — V. Anning 490 — 1'. Croydon Union 251 — V. Lovekin 213 — V. Mitchell 41, 43 — V. Ocean Co 680 — V. Rex 357 — r. Truro Council 130 — V. WUde 415, 419, 429 Haseldine, Re 613, 644 Haslam «. Cron 282, 309 — V. Hall 208, 209 Hassan v. Runeiman 597 Hassard v. Smith 152, 357 Hatch V. Lewis 391 — u. L. &. N. W. Ry 89 Hatton 'v. Harris 584 Haughton v. Bwebank . ; 96, 538 Hawes v. Draeger 190, 676 Hawker v. King 547 Hawkes, Re Ackerman v. Lock- hart 210 Hawkins, Re, Exp. Troup ..'.... 427 — r. Warre 572 Hawks V. Charlemont 162, 170, 397, 398 Hawksby v. Kane 326 Hawksford v. Giffard 411 Hay r. Sroorhouse 570 Hayes v. Willis 497 Haynes, Re 384 — V. Commonwealth 114 — V. Davis 368 — V. Doman 390, 394 — «. Haynes 679 Hayslep v. Gymer 73, 80, 81, 256, 259 Hayton v. Irwin 125, 662 Hayward v. Stephens 366 Healy v. Healy 629, 660 Digitized by Microsoft® xl TABLE OF CASES. PAOH Goldstone v. Williams 207 Gompertz v. Cook 517 Gooch, Re 85, 670, 674 Good, Re 680 Gooderqd v. Armorer 545 Goodison v. Goodison > . 522 Goodlad «. Burnett 626, 657 Goodrich, Re, Payne v. Bennett 342, 343 Goodright v. Hicks 187 — V. Moss 198, 190, 309 Goodsell e. IJoyd 582, 599 Goodtitle v. Southern 656 Goodwin v. Parton 244 Gordon v. Bk. of Syria 376 — V. Chief Commissioner 9 — V. Gordon 199, 446, 678 Gore-Booth v. Gore-Booth 583 Gorham v. Brice 162, 171 Gornall o. Mason 497, 519, 521 Gorrissen v. Perrin r* 15 Gorton «. Dyson 660 Gosford V. Alexander 385, 386 Gosling V. Birnie 686 Goss V. Nugent 587, 603 Gould V. Lakes 324, 325, 326, 327, 329, 525 Goulder v. Rook 369 Gouldsworth v. Knights 686 Gourand v. Edison 203 Grace v. Baynton 232 Graham v. M'Cashin 431 — V. Ramuz 595 Grahame v. Grahame 636 Grand Trunk Ry. u. Robinson.. 147 Grant V. Bagge 21 — V. Grant 606, 623, 627, 660 — V. Maddox 661 Graphic Arts Co. v. Hunters .... 65 Gratwick, Re .' 619, 641 Graves v. Key 234 — V. Legg 617, 639 Gray, Re 626 Grealey v. Sampson 618 Great Kruger Co., Re 443 — N. W. 0. Ry. V. Charlebois. . 406 — Northern Salt Wks., Re, Ewp. Kennedy 374 — Southern Ry. v. Darby 368 — Western Ry. v. Bristol Corp. 605, 606, 607, 608, 609, 613, 614, 615, 616, 617, 634 r. Sutton 92, 145 V. Willis .- 248 Greaves v. Ashlin 501 — V. Greenwood 310, 312, 680 — V. Hunter 402 Green, Re 660 — r. Hewett 357 — V. New River Co 404, 428 — r. Pensam 601 — 1'. Pronde 557 — r, Sevin '. . . , 40 — 11. Symona 595 — V. Waller 23 Greenough v. Eccles 472 — «. GMskell 200. 202, 20.5, 206 Greenslade v. Dare. 146, 152, l.'".:!, 400 PAGE Greenwood, Re 618 — V. Backhouse 96 — 1'. Greenwood 624 — V. Woodham 337 Gregory, Re 384, 612 — V. Tavernor 471 — V. Tuffs 109 Gregson v. Armstrong '. . . . 9 Gregson's Trusts, Re 640, 661 Gremaire v. Le Clerk 110 Gresham Hotel v. Manning. .58, 65, 75, 115, 135 Greswold-Williams v. Barneby.. 595, 034 Greville v. Chapman 393 — V. Hemingway 633, C19 — V. Tylee 529 Grey, Re 448 — V. Pearson 606 Grey's Brewery, Re 198 Griffin, Re, 1890, Times 57 1899, 1 Ch 668,672 Griffiu's Divorce Bill 430 Griffith v.. Bourke 668 — V. DAvies 208 — V. Fleming 633 Griffiths V. Dudley 418 — V. Griffiths 326 Griffits V. Payne 161, 167 Grigg V. National Co 572 Grime v. Fletcher 356 Grimston v. Cuningham ....584, 639 Grindall v. Grindall 418 Groom v. Lawrence 29 Grosvenor Hotel Co., Re V.'A V. Hamilton 685 Grove, Re 77, 148 — V. Buluwayo Co 66, 390 Guardhouse v. Blackburn. .145, 325, 326, 574 Gudgen v. Besset 583, 600 Gueret v. Audony 433 Guest V. Warren 419 Guillet V. Guillet 343, 34") Gunn, Re 432 Gunter v. James 170 Gwynne-Vaughan v. Gwynne- Vaughan 217 ITackston 1). Millhr 4.")7 Haddow r. Parry 282 Hadjipateras v. Weigall 614 Haes, Re 21.''), 449 Tliisorlorn r. Reid 291 Haggenmaohpv's Patents, Re. . . . 481 TTaggitt r. Ineff 366 Hnis'h r. Belcher 5?, — r. Haigh 689 — V. West 129 Ilnines r. Guthrie 47, 225, 308, 313, 342 TTmIps v. Kerr 165,171 TTalhead r. Young 575, 590 TTalitax C^.. Re r-iW, 542 TTalkett v. Dudley 5G0, 561 Hall. Exp 234" — Rr. 1014, P 428 — Rr, 22 L.J. Ch 654 Digitized by Microsoft® TABLE OF CASES. xli PAGE HaU !•. Bainbi-idge ." 517 — V. BaU 525, 5^2 — V. Oazenove 585 — ( . Hall, 1892. 1 Ch 619 — f. — 25 T.r..R 216, 217 — r. HiU 666, 667, 669, 671 — t . I^evy 423 — f. Norfolk 239 Hallam v. Hallam 216 Haller ». Worman. .249, 250, 255, 258 Hallet V. Oousens 469 HaUiday r. Holgate 469, 470 Hallmark's Case 145, 146, 151 258 372 Halston, Be 623, 64?! 651 Hamber v. Roberts 523 Hamblin v. Shelton 110, 128 Hamilton v. Knott 208 — r. Ritchie 619 — 1-. Walker 29, 691 — r. Young ! 123 Hamljm v. Houston 90, 98 — f. Talisker 11 Hammond, Re 619, 642 — I-. Bradstreet 297, 303 — 1-. Schofield 414 Hami)den e. Wallis 257 Hampshire r. Peiree 625 Handley v. Wolverhampton Co. 107, 127 Hankinson v. Bilby 620 Hanks v. Tottenham 327 Hansen ». Dixon 11, 388 Hanson v. Shackleton 25 Hardcastle r. Bielby 96 Harding, Re 680 — «. Crethorn 145 — V. Harding 427, 429 — i: Williams '375 Hardwick, Re 501 — f. Coleman 82, 83 — V. Hardwick 623, 626, 656 Hardwicke, The 18 Hardy, Re 325, 331 — r. Ryle .- ,. 421 Hare, Re 597 — r. Waring 349 Hargrave v. Hargrave 190 Hargreave i . Spink 21 Hargreaves, Re 195 — i: Hilliam 42 Harker ». Edwards 106, 123 Harland v. Bnrstall 663 Harloek i . Ashberry 496 Harman, Re 580 Harmer r. Bean 569 Harnett, Re 485 Harnor r. Groves 591 Harper v. Vigors 582 Harratt v. Wise ■ 338 Harrhy v. Wall 616, 632 Harries v. Thomas 36, 487, 489 Harris, Re, 44 L. J. Bpy 231 — Re, 10 Ch. Ajpp 496 — Re. 1909, 2 Ch 626 ■ — r. Dignum 74 ^ »'.(?. W. Ry 147 — !'. Harris, 39 I-.J^P. & D.... 487 PAGE Harris 'v. Harris, 27 L.T 10, 166 — t!. Knight 326, 329 — r. Rickett 572, 591 Harrison, Re, Turner v. Hellard 538, 560 — Re, 30 Ch. D 613, 614, 624 — V. Barton .575, 581, 599, 630, 664 — V. Blades 438, 521 — V. Mieks 663 — c. Turner 236 — r. Vallance 237 Harrod v. Harrod 32 Harrowby, Re 673 Harse v. Pearl Co 99 Hart r. Duke 689 — r. L. & Y. Ry. ..107, 108. 126, 134, 171 — r. Macnamara . 407 — ■ V. Newman 235 — V. Standard Co 617 Hartland v. Jukes 612 Hartley's Case 375 Hartley v. CooTc 347 — r. Elinor 189 — r. Harriman 162 — f. Hindmarsh 543, 557, 559 — f. Wharton 32 Harvey, Exp 582, 599 — Re ; 445 — r. Anning 490 — r. Croydon Union 251 — r. Dovekin 213 — 1-. Mitchell 41, 43 — ! . Ocean Co 680 — V. Rex 357 — r. Truro CouncU 130 — r. WUde 415, 419, 429 Haseldine, Re 613, 644 Haslam v. Cron 282, 309 — f. HaU 208, 209 Hassan v. Runciman 597 Hassard r. Smith 152, 357 Hatch V. Lewis 391 — V. X. &. N. W. Ry 89 Hatton ' r. Harris 584 Haughton v. Ewebank .; 96, 538 Hawes v. Draeger 199, 678 Hawker v. King 547 Hawkes, Re Ackerman i. Lock- hart 210 Hawkins, Re, Exp. Troup ..'.... 427 — r. Warre 572 Hawks r. Charlemont 162, 170, 397, 398 Hawksby v. Kane 326 Hawksford v. GitEard 411 Hay r. Moorhouse 570 Hayes r. Willis 497 Haynes, Re 384 — V. Commonwealth 114 — I. Davis 368 — t . Doman 390, 394 — V. Haynes 679 Hayslep v. Gymer 78, 80, 81, 256, 259 Hayton v. Irwin 125, 662 Hayward v. Stephens 366 Healy v. Healy 629, 660 Digitized by Microsoft® XJI] TABLE OF CASES. PAGE Heath v. Crealock 683 — «. Deane 354 — V. Weaversham Overseess . . 416, 423 Heathcote's Divorce 351 Heather, Be 668 Heath's Garage v. Hodges .. 162, 169 Hebblethwaite v. Hebt)lethwaite. 216, 217 Hebditch v. Macilwaine 156 Hedley v. Bainbridge , 98 Hedwig, The 362 Heffield v. Meadows 617, 636 Heilbut V. Buckleton . .579, 586, 597 Helliwell, Re 645 Helsham-Jones «. Hermen W2 Hemming . v. Maddick 480 Hemphill v. McKenna 420 Henderson, Re 411 — V. Arthur 590, 596 — V. Bank of Australasia .... 374 — V. Ooulson : 370 — V. Henderson, 3 Hare 416, 417, 422 — e. — 1905, 1 I.K: 627, 659 — V, Stevenson 147 — V. Williams 686 Henkel v. Pape 537 Henman v. Berliner 595 — V. Lester 477, 478, 573 Hennessy v. Keating 8, 19, 65 — V. Wright, 21 Q.B.D 194, 195, 200 — V. — 24 Q.B.D 156, 166 Henniker v. Howard 131, 248 — 13. Wigg 633, 636 Henry v. Leigh . .339, 340, 349, 544 — Coxon, The... 252, 280, 288, 290, 292, 352, 361, 440 — V. Smith 574, 578, 593 Hensen v. Dixon 488,489 Hensley v. Hensley 216 Henthorn v. Fi:aser 105 Herbert v. Tuckell . , 307 Hercules Ins. Co., Re 369 Heseltine ». Simmons. .593, 594, 597 Hetherington v. Hetherington . . 32, 199, 679 — V. Kemp 122 Hetley. Re : 598, 615, 640 Hewat's Divorce Bill 198 Hewitt V. Att.-Gen 345 — r. Spiers & Pond 94 — V. Taylor 368 Hewlett V. Allen 683 Hewson v. Cleeve 28, 183, 191 Ileyne i>. Fisehel 348 Hibberd v. Knight 210 Hibbs V. Ross 36, 97, .352 Hickey v. Campion 489 Hickman v. Berens 462 — V. Baynes 587, 603 Hicks V. Faulkner 31 — 1). Lond. Gen. Om. Co 499 Hiddle v. National, &c., Co 13 Higgins V. Dawson ...605, 608, 609, 610, 611, 615, 618, 641, 674 — r. Malyon 65 PAGE Higgins V. Senior '581, 583 Higgs, Re, Exp. Leicester 443 — V. Higgs 346 — V. Snell 176 Higham v. Ridgway 278, 282 Highett, Re 117 Hill V. Clifford.. 355, 357, 361, 362, 407, 408, 426, 435 — V. Crook 623, 643, 645 — V. Denmark 490 — V. Hibbitt 317 — V. Hill 398, 399 — V. Manchester Co 146, 258, 372, 373 — V. Philp 195 — V. Star Theatre 613 — V. Wilson 574 Hilliard v. EifEe 433 Hilo Co. V. Williamson 92 Hilton, Re, Exp. March 417, 424 Hindlej^ v. Haas 369 — V. Haslam 420 Hindmarch, Re 388 Hindmarsh v. Hindmarsh 466 Hindson v. Ashby 398, 540 Hine v. Free 577 Hinks V. Safety Co 118 Hip Foong Hong v. Nestia .... 406 Hirth, Re 92 Hiscox V. Batchellor 225 Hitchin «. Groom 15, 602, 654 Hitchings «. Northern, etc., Co. . 593 Hitchins r. Eardly 12,309 Hoare v. Allen 55, 78 — V. Lewisham 518 — V. Niblett 414 — «. Silverlock 19 Hobbs, Re 434 — -v. Hudson 213 Hobern v. Fowler 448 Hobman v. Greenwich Bd. . .47, 69 Hol)aon v. Blackburn 610 Hockin v. Cooke 25 Hocking, Re 679 Hodds V. Palfrey 488, 490 Hodge V. Matlock U. D. C...28, 91 Hodges V. Bennett 490 — V. Horsfall 633, 658 Hodgkinson ». Fletcher 132 Hodgson, Re, Beckett v. Rams- dale 414, 4S5 — V. Davies 662 Hoe V. Nathorp 554 Hogarth Co. «. Blythe Co. ..147, 612 Hogg V. Norris 241 Holeombe v. Hewson 75, 159, 160, 161, 167 Holding V. Piggott 124 Holdsworth v. Dartmouth Corp.; 373 — V. Dimsdale 231, 232, 235 Holland, Re, Gregg v. Holland. 253 586 — 1}. Bennett 105 — I'. Manchester Co 376 Hollingham v. Head 164 HoUingshead, Re 238, 239 Hollinshed v. Devane 579,597 HoUis V. Burton 257 Digitized by Microsoft® TABLE OF OASES. xliii PAGE HoUis V. Goldfinch 161 HoUtfway, Re 206, 209 Holmes v. Custance 623, 643 — V. Wilson 421 Holt V. CoUyer 629, 662 — r. Squire 240 Holtby V. Hodgson 559 Home V. Bentinck 194 — Insur., &c.; C3o. v. Victoria &c., Co 526 Homer v. Homer ..379, 607, 610, 648 Hood V. Anchor Iiine 147 — V. Beauchamp 308, 311 Hooke V. Hooke '. 466 Hooley, Re 448 Hooper, Re 651 ' — i\ Furness Ry 147 Hope «i. Beadon 544 — V. Hope 239 Hopwood t!. Hopwood . .176, 668, 673 Hoi-dern i\ Commercial Union.. 15, 632, 633 — r. Commonwealth Line 612 Horlock V. Wiggins 668 Horn r. Noel 573 Hornhuckle, Re 432 Horncastie «. Equitable Soc..592, 596 Home V. Mackenzie 470 — V. Struben 624 Horner, jBe 644 Horniblow, Re 434 Hornsey v. Plater 43 Horrocks v. Stubbs 418 Horsey v. Graham 632 Horsfall, Re 517, 684 Horsford, Re 394, 529 Horton r. Walsall Ctee 361 Horwood V. Griffith ...623, 624, 648 Hotchin v. Hindmarsh 88 Hough V. Guardian Co 99 Houghton e. Koenlg 545 Houlden t: Smith 405 Houliston V. Smyth 63 Household Fire Co. «. Grant 122 Houston r. Burns 615 — V. Sligo 412, 416, 417, 434 Howard t\ Beall 375 — «■. Canfield 471 — c. Clarke 16 — r. Howard 166 — V. Sheward 94, 123 Howartli r. Howarth 519 Howatson i>. Webh 584 Howe. Re 642, 652 — r. Burchardt 120 — V. Malkin 59, 72, 239, 284 . — 1-. Newington 435 Howell, Re 670 Howes r. Bishop 33 Howgate, Re 528 Howlan, Re 536, 538 Hewlett V. Tarte 417, 422 Hoyle. Re 234 Hubbard r. Alexander. .325, 326. 327. 328. 330, 432 — r. Lees 311, 343, 525 Hubbuck. R-e 613. 627. 661 Huhei-t r. Turner 516 PAGE Huckle J). L. C. C. 589 Hucklesby v. Hook 516 Hudde'rsfield Co. v. Lister 406 Huddleston, Re 618 — r. Furness Ry 576 Hudson «. Ash'by 385 — r. Bridge 364, 368, 369, 380 — ti. Bve 616 — 1'. Revett 530 — V. Tabor 299 Huet V. Le Mesurier 345 Huggins V. Ward 35, 37, 551 Hughes V. Dinorbin lOS — V. Metropolitan Ry. 587 — V. Vargas 195 — V. Wilson 352 Hugo !'. Larkins 385 Huish, Re 668 Hull, Re 413 — V. Horsnell 360 Hulton «. Jones 620 Humble v. Hunt o-t7, .^42 — V. Hunter 582 Humfrey v. Dale 663 Humphery v. Wake 201 Humphrey v. Humphrey 207 Humphreys !■. Humphreys. .417. 42.S Hunt, Re 32r., ,S29 — V. Andrews 133 — V. Fineburgh 20 •— V. Luck 147 . — I'. Wimbledon Local Board . . 682 Hunter r. Edney 400, 4.12 — V. Stewart 416, 417, 424 Huntington v. Lewis 387 Huntley r. Donovan 339, .142. 351, .30.2 -^ I'. Gaskell 406 Hurpurshad v. Sheo Dyal 19 Hurst I'. Beach 669, ti74 — V. Evans 10, 31, 186^. 190 Hutcheson i;. Eaton 433. 582 — V. Smith 258 Hutchins i'. Scott 528, 602, 6.54 Hutchinson, Re 326, 329 — i\ Bernard 439, 499 — r. McKinnon .17 Hutchison i\ Bowker 14, 16 Huth r. Huth 25 Hutley r. Grimstone 19,38 Hutt r. HaUeybnry College .. 208. 209 Huttou V. Ras SS. Co 360, 408 — r. W.irren 105, 106 Hux, Re 521 Hustable. Re 580. 598. 640 Hyde r. Palmer 58, 73, 75, 80, 87, 118 Hyslop, Re 668, 669, 672 Ibrahim v. R. ..22, 263. 264. 266, 267, 271. 273 Igffulden r. May 664 Ilderton v. Ilderton 363. 365 Imperial Cold Storage Co. v. Rex 442 — Loan Co. v. Stone 32 — Press r. Johnson 578 Ince, Re 586 Inchiquin i\ French 619 Digitized by Microsoft® xli\ TABLE OF CASES. PAGE Indian Zoedoue Co., Re 349, 374 Ingesti'e r. A.-G 679 Ingle, Re 652 Insjlebv v. Slack 536 luglis P. Buttery 575, 616, 617 637, 638 — ('. G. N. Ry 374, 571 Ingram r. Little 238 Inland Bevenue OommrB. v. Driver Holloway 501 Insurance Co. v. Moseley 60 Interleaf Publishing Co. v. Phillips 476, 480, 531 lonides v. Pacific Co 537 Ireland v. PoweU 301 Irish Land Commrs. v. Ryan. 406, 410 — Society v. C'rommelin 206 V. Derry. . .133, 228, 339, 341, 347, 349, 355, 356, 359, 531, 542, 688 Irvine v. Sullivan 580, 581 Irving V. Bodie 134, 262 Irwin V. Lever 543 Isaac V. Gompertz 308, 310, S14 Isaacs V. Salbstein 414 Ivat V. Finch 240 Ivory, Re, Hankin v. Turner. . 410, 420, 431 Ivy's Case 120 Jaokee v. International Cable Co. 688 Jaekman v. Jacfcman 39 Jackson, J2e, 34 Oh. D 581 — Kc, 1907, 2 Ch 680 — v. Gaton 564 — r. Irvin 104 — V. Jackson, 9 Ves 581 — f. — 1908, Times 400 — r. Thomason 472 — r. Williamson 197 — r. Woolley 244 Jacob V. Lee • • • • 544 Jacobs V. Humphrey 254 — V. Lindo 446 — V. Morris 516 — V. Tarleton 39, 40, 118 JaeohsoTi, Exp., Re PincofEs. .13, 457 Jaeomb v. Turner 434 Jacques, Re 667, 668 — r. S. Essex Co 38 .Taederen, The 662 Jaeger's Co. v. Walker 91 Jaggers r. Binnings ...242, 244, 245 Jago !'. Jago • 242 .lames v. Biou 134 — r. Evans 421, 422, 423 — »'. Prearson 580 — r. James 469 Jameson, Re 625, 626, 657 — v. Drinkald 391, 395 Jnnson v. Poole 616. 6^P> Jardine, Ewp., Re McManus .'. . . 624 Jarrett v. Hunter 630 Jiiyes r. Harris 57 Jayne r. Huglies 585 — i>. Price 112 Ji'ans, Re 043 — r. Cooke 670 PAGE Jefferies v. Austin 599 Jefferson r. Paskell 35 JeEfery v. Walton 577, 591 Jeffree v. Jeffree 43 Jeffrey, Re 659 Jenkins v. Nordeu 369 Jenks r. Ditton 444 Jenkyns v. Bushby 208 — !'. Gaisford 515 Jenner v. Ffinch . . .325, 326, 328, 334 — V. Morris 501 Jennings, Re 525 Jervey v. Styring 72, 633 Jervis v. Berridge 590 Jessop. Re 231 Jesus College v. Gibbs 546 Jewison v. Dyson 162, 168, 349 Jevrsbury v. Mummery ....413, 416. 418, 423 Johnson, Exp 564 — Be 680 — V. Barnes 556 — V. Bragge 585 — V. Clark 583 — V. Credit Lyonnaise 686 — V. Dodgson ^. . 516 — V. Hudson 542 — V. Kershaw 467 — V. Lawson 308, 309, 315 — V. Lindsay 248, 689 — V. Lyford 324, 327- — V. Marlborough 529 — v. Oceanic Co 435 — V. O'Neill 112, 113, 161, 168 — V. Raylton 124 — -0. Rees 580 — V. Thompson 61, 72, 361 — V. Trinity Church 257 — V. Tucker 204 — r. Ward 352, 362 Johnstone v. Spencer 67, 106, 298 Joint Committee v. Croston. . . . 410, 416, 423 — Stock Co. V. Brown 151 Jolliffe, Exp 431 Jolly V. Jolly 119 — V. Young 661 Jones, Re, 95 L.T.Jo 500 — Re, 21 T.L.R 210 — ■ «. Brewer 521 — V. Carrington 239 — V. Edwards 544 — V. Port 41 — V. Frost 684 — )'. G. C. Ry 201, 209 — V. German 405 — «. Gibbon 531 — V. Goodrich . .' 205 — V. Gordon 147, 150 — V. James 186, 187, 191 — V. Jones, 22 Q.B.D 213 — r. — 1895, P 13, 4.57 — D. — 9 M. & W 523 — ». — 24 T.L.R 472 — r. Lnvington 595, 696 — V. Newman : 627 — V. Perry 153 — r. Randall 335. 336, r^r-ij Digitized by Microsoft® TABLE OF CASES. xlv PAGE Jones V. Richards 163 — r. S. E. Ky. . . . .84, 114, 488, 491 — v. Stroud 470, 471 — V. Tarleton 79, 533, 548 — r. Waslay 594 — V. White 357 — V. WiUiams 109, 161, 168 Joseph V. Joseph 487 Joy V. Phillips . . ,.138, 162, 165, 169 Joyce t). Capel 97, 225 — V. Joyce 166, 201 Joynson v. Qunt 124 Judd V. Judd 491 Judge V. Cox 152 — V. Horrell 361 JufErouw Mbrecht, The 55 Justice V. Elstob 555, 573 Kaines c. Blnightly 589 Kay V. Cotesworth 15 Kearley v. Tylor 95 Kearney r. King 22, 25 Kearns v. Durrdl 600 Kearsley v. Phillips 204 Keegan v. Smith 419 Keele v. Wheeler 536 Keeling v. Ball, 521 Keen v. Keen— 324, 325, 327, 328, 333 Kegan v. Griin 238 Keighley, Re 689 — o. rvurant 90 Kell V. Charmer 387, 614, 640 Keller, \Be 23, 202, 446 KeUett V. Stockport 588 KeUy r. Colhoun 213 — V. Hammond 406, 415 Kelsey^ Be 586, 603, 669 Keimp v. Elisha 577, 588 — c. Neville 405 Kempshall v. Holland, 14 R.. .251, 462 — V. — 1895, Times 119, 489 Kempson v. Boyle 536 Kempton v. Cross 28 Kendall e. Hamilton 414 K«nnard v. AAman 385, 595 Kennedy v. Dodson 90, 160, 166, 478, 499 — !'. Doyle 291 Kennon v. Gilmer 169 Kent r. Fittal 689 — ». Mid. Ry 37 Kepitigalla Co. v. National Bank of India 377 Kerin v. Davoren 292 Kerr v. Shedden 352 Kerry Council v. Liverpool Assoc. 200, 202, 204, 209 Kestrel, The 386 Kettlcwell r. Refuge Co 91 Kevil r. Lynch 516 Keys r. Keys 199 KUffour r. Owen 548 Killick r. Price 582 King. Re 580 — r. Badeley ....615, 640, 641, 642 — V. George 624 — r. Henderson 407. 411 — r. Hoare 414, 415 PAGE King I. King, 13 L.R.I 648 — f. — 1897, Times 343, 345 — r. — 1901, Times 16G — V. London Cab Co 97, 225 — V. Norman 404 — V. Smith 587 — 1-. Waring 186 — r. Watts 82 — Charles' Trial 212 King's College Hospital v. Wheil- don 653 Kingiston v. Cooper 446 Kingstown Council o. Carson . . . 556 Kinlen v. Ennis U.D.C 635 Kinnis v. Graves 407, 420 Kirby v. Cowderoy Ill — V. Hiekson 22 Kirchner v. Venus 106 Kirk, Exp 599, 637 — V. Eddowes 59, 324, 666, 668, 672 KirkstaU v. Furness Ry 247 Kirkwood v. Carroll ...531, 592, 601 Kissam v. Link 376 Kiteat v. Sharp 232 Kitson V. Playfair 393 Klingeman, Re 389 Knapp, Re 618 — V. Harvey 207 Knaresborough Bkg. Co. v. Lor- rimer 205 B^natchbull v. Fowle 495 Knight V. Campbell 12 — V. Clements 530 — V. Cox 686 — V. Halliwell 691 — V. Martin 543, 544 — e. Waterford 285 — V. Young 400 Knowles, Re 671 Kops V. Reg ." 453 KreU V. Henry 617 Kronprintz, The 406 Kurtz V. Spence 232 L. V. L 38 La Cloche t>. La Cloche 344 Lacon, Re 667, 669 — V. Higgins 389, 549, 550 Ladies' Dress Assoc, v. Pulbrook 369 Laffan, Re 618 Lafone v. Grif5n 542 Lake G«orge Mines, Re 198 Lalor V. Lalor . . . .241, 281, 285, 575 Lamb v. Munster 213, 214 — V. Orton 207, 208 Lambert, Re, L.R. 1 P. & D. . . 366, 462, 502 — Re, 56 L.J.Ch 317, 521 — V. Home 207, 208 — V. Smith 242 L'Amie v. Wilson 376 Lampson v. Corke 234 Lamson v. London Docks 247 Lancum c. Lovell. .132, 281. 286. 291. 299, 306, ?A0 Lnnrt Corooration r. Puleston . . 20S Lander, Re '. . 573 Digitized by Microsoft® \lvi TABLE OP CASES. PAGE Landes v. Marcus 582 Lands Allotment Co., Be 151 Lane v. Bryant 72', 481 Lane's Case, 2 Co. Hep 22 1 De G. J. & S 146 Langham v. Sandford 670, 671 Langley v. Oxford 249 Lapsley «. Grierson 104 Lart, Be ... .412, 413, 427, 430, 683 Last V. Hucklesby 526 Latimer v. Birming'ham 186, 419 Latkow V. Eamer 356, 436 La Touche v. Hutton 283 La Trinidad v. Browne 500 Latter v. Goolden 195 Lauderdale Peerage ..291, 340, 354, 372, 373 Laurie v. Scholefield 636 Law V. Oapron 66 Lawder v. Lawder 468 Lawes, Be 667, 668 Lawrence v. Clarke 545 — V. Ingmire 490 — V. Maule 437, 438 Lawrie r. Lees .' 517 Lawson v. Quare 495 Laxon, Be 369 Layard, Be 618 Lea, Be 501 — li. Charringtou 558 — V. Thursljy 154, 580 Leach v. Rex 451, 456 — 1). Simpson 569, 576 Leader v. Barry 346 Leake v. Portsmouth Corp.. .161, 168 Leame v. Bray 21 Learoyd, Exp 338 — V. Halifax Co 208 Leather Co. v. Hieronimus .... 587 Leathley v. Spyer 617 Le Caux «. Eden 408 Leehmere v. Fletcher 415 Leduc V. Ward 590, 616, 638 Lee V. Alexander , 616 — V. Angas 442 — V. Bent 369 — V. Birrell 195 — V. Harrison 241 — B. L. & T. Ry 234, 577, 589 — r. ;\Ieecoek 341 — v. Merest 210 — r. Piiin 612, 666, 667, 669 Leedsr v. Cook ,546 — ?'. Lancashire 592 — Bank v. Walker 528, 529 Leeming, Re 626 Lers V. Marton 59, 76 Lefebure r. Worden '. 230 Legatt II. ToUervey 404 Lpskg v. Edmonds 77, 119, 199, 220, 2.'^5, 238, 243, 245, 678 Lo;igott V. Barrett. .575, 590, 595, 6.34 -^ v. O. N. Ry 413, 418 Leidemnnn n. Schultz 662 Leigh, Re 127 — V. .Tafk 112 Loighton r. Lpiglitou, IS Eq 668 ~ r. — 1 Str 356 PAGE Leite, Re 232 Le Lievre ». Gould 150 Lem]oyd 466 — I-. >rnslvii 201, 544 Digitized by Microsoft® TABLE OF CASES. xlvii PAGE Lloyd t>. Powell . .6, 60, 62, 68, 75, 77. 276, 278, 279, 280, 282, 284 — i: Sturgeon ITalls Co 594, 624, 649 — ('. Willan 2.->2 — V. Woodall 365 Lloyd's Bank v. Pearson 91 Loader v. London Docks 107 Lobb V. Stanley 516,585 Locke-King v. Woking Council. . . 336, . 337 Loekett i: Gary 210 — V. Nicklin 572, 591 Lockhart v. Jelly 383 Lockwood 1). Lockwood 115 — V. Smith 242 Lockyer v. Ferryman 412 ■ Lodge t'. Prichard 258 Login )'. Ooorg (Princess) 390 Lohre v. Aitchison 21 Lomas v. Barff 663 London r. Lynn 373 — Asphalte Co., Re 563 — Chartd. Bk. of Australia v. White 21 — Corp. r. Kaufman 447 — County Coun. v. Clode 304 V. South Met. Gas Co.. 642, 664 — Freehold Co. v. Suffield 583 — Gas Co. i\ Chelsea 207, 209 — Gen. Omnibus Co. e. Lavell. . 8 ■ — Joint Stk. Bk. v. Simmons . . 147, 149 — School Board v. Harvey.. 558, 559 — & General Bank, Be 253, 502 — & Northern Bank, Re . . .198, 206 Exp. Jones 122 — & TUbury Ey. r. Kirk 209 — & Westminster Bank r. But- ton 253, 375 — & W. Loan Co. v. Bilton . . 104 Long V. Long 16, 93, 217 — e. MUlar 526. 527 Ix)ngmore v. G. W. Ry 107 Longstaffe, Re 495 Lons-Sutton. Re 680 Lord «'. Colvin 390, 474 — r. O'Leary 198 — Advocate v. Blantyre. . .161, 168, 676 V. Walker's Trustees 630 — Seaton, The 252, 361 Ix)Uffhboro' Bd. v. Curzon 247 Louis, Re 526, 598 Lovat Peerage 308, 310 LOvatt V. Tribe 152, 392, 395 Love r. Gaze 670,674 Loveland, Re 618 LoveU r. Wall 394, 585, 602. 606, 616, 665 — t . Wallis 496 Low. Re 411 — i>. Bouverie 91, 150, 682, 686 Lowden v. Blakey 205 Lowe V. Darling 532 — i: Fox 528 — I'. Howarth 413 PAGE Lower Rhine Assoc, v. Sedgwick 5>S7, 612, 633 Lowery v. Walker 57G Lucas V. Beach 531 — r. Bristow 603 — r. Cooke . 348 — r. Delacour 228, 245 — r. Novosolieski 105, 122 — .. WiUiams 6, 8, 47, 108. 390, 400, 573 Lucy r. Mouflet 257, 258 Luke v. S. Kensington Co 599 Lumley v. Gye 499 — V. Osborne 500 LuttereU r. Reynell 114, 224, 488 Lyall V. Edwards 616, 617, 637 Lyell V. Kennedy, 23 Ch. D. . . . 208 — V. — 27 Ch.D 204, 207, 233 — «. — 56 L.T. . .287, 288, 291, 339 — r. — 9 App. Cas. . .200, 201, 200, 207 — .'. — 14 App. Cas... 20, 287, 288, 313, 317, 340, 341, 345. 347, 405, 435, 555 Lygon V. Strutt 525 Lyle r. Elwood 384 — V. Richards 14, 1.5", 623 Lynch v. Gierke 554 Lyndica, The 362 Lynn r, Beaver 671 Lyon r. Reed 684 Lyons r. Wilkius ■. . . 619 Lyttleton Times Co. v. Warners 616, 635, 637 JI. V. D 216 Maas V. Pepper 580 McAllum V. Reed 361 Macalpine. v. Calder 9 Macassey v. Thompson 619 . McAttee v. Hogg 453 " Macaulay v. PoUey 249 McBride ». McGovern 225 McCance r. L. & N. W. Ry 685 McCarthy v. Kennedy . . .97, 336, 552 McClean v. Kennard 599, 664 M-Clory v. Wright 486 McCoUin V. Gilpin 581, 582 M'Combie r. Anton 438 McOonnell v. Brennan 57 M'Cormick v. Gamett 390 M'Corquodale v. Bell 208 M'Cowan v. Baine 617 M'Craw t: Gentry 520, 521 McCue, Re 150 McCullough V. Munn 108, 125. 397 542 M'Devitt r. Connolly .' 123 MacDonald, Re, Dick r. Fraser. . 242, 244 — r. Antelme 497 — II. Longbottom 617, 636 — r. Whitfield ...579, 582, 592, 599 M'DonneU r. Alcorn . . .408, 410, 418 — V. Conry , 204 Mncdonnell r. Evans 477 M.aodougal i . Young 129. 543. 5."i7, 565 Digitized by Microsoft® xlviii TABLE OP OASES. PAGE Macdougall v. Knight, 14 App. Cas 688 — «. — 25 Q.B.D. . . .412, 416, 422 McDougall V. Field 593 MeDowall ». G. W. Ry 127 Macduff, Be 624 M'Elveney v. •Connellan, 195 M'Fadden v. Murdoek 387, 398 M'Gahey v. Alston 110 M'Gingle v. M'Gingle 641 M'Gorinan v. Kierans 375 Macgregor v. Dover Ry 25 McGregor v. Telford 411 McGrory v. AId«rdale Oo 591 MoGuffie V. Burleigh 526 Machell v. Ellis 250 M'Hugh V. M'Hugh 623, 644 M'lver V. Humble 352 M'Kenna, Be 409, 432 — «. Howth 239, 378 McKenna v. Eager 560 Mackay v. Robinson 622 Mackenzier Re 618 MeKenzie v. British Linen Co. . . 97, 685, 687 Mackintosh v. Marshall 146 M'Knight v. Gardner 571 Maclaren v. Davis 18, 41, 690 McLeod V. Power 414 M'Loughlin v. Dwyer 214 M'Mahon v. Lennard 110 McManus v. Bark 578 McMullen v. Hickman Co 532 McMurray v. Spicer 631 Macpherson v. Warner 604 McQueen v. Phipps 399 McVity V. Tranouth 531 Maddock, Re 584 Maden v. Catanach 451, 458 Magdalen Hosp. v. Knotts...37, 104. 112, 120, 129, 130 Magee, Re 366 — V. Lavell 649 — V. Mark 10, 119, 486 Magnay v. Knight 569 Magnus v. Nat. Bk. of Scotland. 406 Magrath, Re 646 Maguire's Case 374 Mahalm v. M'Cullagh 485, 490 Maher, Re 685 — V. Ldnigan 673 Mahon, Re 562 — V. Dublin Co 25 Mahony v. East Halford Oo 146 — V. Waterford Ry 37 Maillard v. Page 578, 592 Maingay v. Gahan 408 Maisel «. Financial Times ...... 186 Makeown v. Ardagh ...623, 625, 651 Makin v. A.-G. N. S. Wales.... 158, 163, 164, 172, 174, 175, 180, 184 Malcolm v. Armstrong 592 Malcolmson v. Morton 629, 663 — V. O'Dea 112, 113, 132, 299, 372, 435 Malins, Re 329 Malone v. Lestrange 290 — ■,\ O'Connor 290 PAGE Malone v. Spillessy 474 Maloney v. Laskey 580 Malpas V. h. & S. W. Ry...577, 589 Mai ton V. Nesbit 392, 395 Man V. Ricketts 523 Manchester, The 251 — Brewery v. Coombs. .. .58, 65, 75, 115, 135, 160, 167, 384, 516 — Corp. V. Lyons 359 — Trust V. Furness 147 Mander v. Ridway 532 Mangena v. Wright 191 Mangerton, The 356, 361 Manley v. Berkett 582 — V. Palache 689 — V. Shaw 19, 449 Mann v.- Nunn 595 Manning v. Lechmere 278 — t). L. & N. W. Ry 171 Mansell v. Clements .82, 400, 403 Manser v. Dix 206 Maplin Sands, Re 473 Marchant, Re 526, 580 Marconi v. British Co 385 Marcus, Re .520 Maria das Doreas, The 353 Marianski v. Cains 251 Marine Invest. Co. «. Haviside . . 532 Marks i;. Beyfus 195, 196 — V. Lahee 286 Marlborough, Re 580, 671 Marriage v. Lawrence 132, 230, 372, 373 Marriott v. Chamberlain 207 — V. Hampton 419 — V. Marriott '409 — V. Stanley 126 — V. Yeoward 147 Marsden, Re 501 Marsh v. Collnett . .348, 524, 535, 543 — V. Dayley 257 Marshall v. Berridge, . .630, 664, 683 — V. Cliff 249 — V. Ford 136, 545 — V. Lamb 110 — V. Lynn 603 — V. Marshall 343 — V, Orient Co 9 Marsham, *Re 463 — V. Prince 238 — V. Skett 167 Marshfield, Re 375 Marston v. Downes 546 Martin v. Butchard 209 — V. Drinkwater 674 — V. Johnston 135, 289, 392, 395 — V. Loel 620 — V. Pridgeon 29 — V. Spicer 596 — V. White 136, 545 Marzetti v. Smith 125 Mash V. Darley . .260, 413, 428, 490, 543, 557, 558 Maskelyne v. Stollery 14, 15 Mason, Re 203 — V. Motor Co 53] — r. Schuppisser 590 — !-. Wood 122, 564 Digitized by Microsoft® T.\BLS OF OASES. xlix PAOE Masper v. Brown 413 Massey ». AUen. . . .278, 282, 287, 289 — V. Massey 479 Mathew r. PurcMngs 379 Mattiews, Re 680 — f. Bloxsome 586 — «. Foulshaw 625,653 — «. Munster 251 — V. Smallwood 536 Maugham v. Hubbard 470 Maughan v. Sharpe 625 Maunsell v. Ainsworth 445 Mawson v. Heartsink 482 May, Be, 28 Oh. D 416 — Re, L.R. 1 P. & D 586 — r. BeUevUle 516 — V. KeUy 119, 489 — I . May 341 — f. Newton 501 — V. Piatt 585, 591, 602 — f. Taylor 237 Maybank v. Brooks 610, 618, 639 MayeU, Re 654 Mayhew, Re 619 — r. Nelson 248 Maynard c. Con. Kent. Corp. . . . 531 Mayo, Re, Chester t'. Keirl. .625, 653 Meagoe i\ Simmons 470 Me.irs (-. Western Co 66 Meath r. Belfield SOO — V. Winehester. .234, 240, 524, 525 Mechelin r. Wallace 601 Medley r. London Trams 43 Mee r. Parren 624 — r. Reid 460 Meering r- Grahame- White Co. . . 505 Meinhertzhagen v. Walters .... 668 Melbourne Co. v. Brougham .... 239 Melen «. Andrews 260 Melhulsh v. Collier 113, 116, 134 Mellona, The 71, 251 Mellor V. Denham 531 — p. Thompson 464 — r. Walmesley 289, 624 Meluish v. MUton 431 Melville's Case 22 Mercantile Agency v. Flitwick Co. 597 — Bk. of Sydney ». Taylor. .578, 582, 589, 599, 636, 637, 647, 649 —Trust V. Elver Plate Trust. . 414, 419, 427 Mercer n. Denne. .194, 287, 288, 289, 290, 295, 296, 297, 299, 300, 301, 304, 306, 355. 356, 358, 359, 525 — ('. Whall 38 Mercier r. Mereier 669 Meredith r. Footner 248, 24S Meres r. Ansell 568, 591 Merrick f. Wakley 339, 349 Mersev Docks Board v. Liverpool Gas Co 72 Metropolitan Asylums v. HiU . . . 159, 162, 170, 387, 397 — Ev. r: Jackson 13, 17 Jletfers r. Brown 130, 238, 245 Mennier. Be 486 Meux's Exors." Case 247 Ut — D PAOEl Mexborough v. Whitwood 213 Meyer, Be 517 — V. Sefton 467 Meyrick v. James 496, 500 MieheU v. Eabbetts 525 Micklethwaite v. Newlay Co. . . 675 Micklethwart's Case 197 Middleton v. Melton 47, 243, 282 Midland Ry. v. Martin 420 — ['. Eobinson 380 Midlothian, The 2.=il Mighell V. Johore (Sultan) 23. 26, 364, 463 Milbank v. Milbank 207,209 Miles V. Bough 571 — V. Haselh-urst 608 Millard v. BaUey 612, 647 Miller, Re 427 — - 1'. Appleton 446 — V. Babu Madho Das 689 — V. Johnson 251 — V. Kimbray 95 — V. Kirwan 209 — r. Salomons 45S — r. Tetherington 663 — V. Travers. .332, 601, 642, 651, 655 — V. Waterford 213 — r. Wheatley. . .110, 113, 126, 281, 288, 201, 299, 344, 365, 538, 541, 662 Milles r. Lamson 399 Mills, Be 618 — V. Barber 31 — r. Colchester Corp 336 — r. MiUs 289 — V. Oddy 546 Milne v. Leisler. .6. 59, 60, 61, 71, 74, 84, 133, 291, 488, 491, 688 Milner. Re 619 — ■ t>. Harewood 684 Milton i\ Pronk 127 Milward v. Forbes 232 Minton r. ' Geiger 591 Mitchell V. Croyden 20 — ('. Henry 662 — V. Stephens 9 Moffett V. Gough 541 Mohamidu v. Pitchey 431 Mohan v. Broughton 427, 430 Moises V. Thornton . .354, 365, 518 Mollett I). Eobinson 579 Molloy V. Kilby 499 Molyneux v. Hawtrey 146 Monarch Synd. r. Pollock 597 Monkton r. A.-G 296, 308, 309, 310, 311, 316 Monroe r. Twistleton 210 Montifore r. Menday, &c., Co - 20 Montreal Co. v. Robert 91 Moons e-. De Bernales 432" Moore v. Campbell 536, 664 — V. Garwood 15 — e. Knight 244 — r. Moore 331 — r. Ransome 171 — I . Trulock 151 — r. TerreU 207 — r. Ulster Co 43 Digitized by Microsoft® TABLE OF CASES. PAGE Moosebvugger v. Moosebruggei' . . 464 Moi-due ?'. Palmer 584 Morewood r. Wood 294, 307 Morgan, Exp., Re Simpson 13, 588, 683 — r. Bi'ydges 475 ~ V. Griffith 579, 595, 597 — V. Nicholl 437, 439 — r. Thorne 412 Moriarty v. L. 0. & D. Ry 98, 113, 116, 134, 238 Morison v. L. & 0. W. Bank. . 90 Morley r. Loughnan 33 — V. Morley 475 Morrell v. Cowan 586, 617, 636 — V. Fisher 649 — V. Frith 14 — V. Morrell 327, 332 — V. Stiidd 587, 642 Morris, Re - • 29 — V. Baron 587, 603, p04 — 1!. Bebhell 97,491 — V. Davies 77, 199, 312, 678 — V. Delobbel-Flipo 570 — V. Edwards 209, 210 — r. Hauser ri44 — ?■. Sal'berg 94 — r. Watson 632 Morrison r. Lennard 465 — c. M'Ferran 670 — r. Moat 202 Morrow r. Morrow 78, 484, 487 Mortimer r. M'Oallan . . 75, 348, 400, nnr., 548, 552, 554 Morton r. French 516 — r. Tewart 580 Museley r. Davies 296, 300 — r. Victoria Co 202, 203 Mossam v. Ivy 294, 3.81 Mostyn r. Fabrigas 390 — r. Mostyn 651 — r. West Mostyn Co 205 i\rottpram r. Eastern Cties. Ry. . . 556 Jlonflet I . Cole 360, 379 Mould ' . Williams 405 iMoult r. Halliday 21, 107 Monlton r. Edmonds 541 Mounsev v. Blakmire 611, 643 Mourmand i. Le Clair 624, 6.32 >Ioii«ell r. L. & N. W. Ry 89 Mowtitt r. Castle Steel Co 518 Muirhead v. Commercial Cable Co 686 Mulliolland v. Killin 429 MuUiner r. Florence 21 Mumford ,. Gething 616, 633 Muncey r. Dennis 124 Mundell, Re, Fenton v. Camber- lege 447, 475, 47!) Miinstcr /'. Cox 415 Mnrlv r. McDermott 634 :\rurphy. 7?f', 7 L.R.I. . .325, .oaL', 650 — Re, I.R. 8 Eq. 520 — V. Manning 126 Murray c. Gregory 234 — r. Mahon 470 — V. Milner 199, 300 — i\ Stair 583, 600 PAGE Musgrave r. Emmerson 286 — V. Inclosnre Commrs 132 — V. M'Avey 411 Mutual Co. )'. liillmon ..62, 64, 79 .Myers e. Sari • 629, 662 Nadin v. Bassett 497, 498 Nagle V. Shea 200, 522 Narracott v. Narracott 187, 191 Nash V. All Khan .458, 460 — V. Inman 17 — I'. Stokvis 225 — V. Turner 522 Nason v. Clamp 475 Nassau Co., Re 369 Natal Co. v. Good 425 — V. Pauline Synd 92 Nathan v. Ogdens 577 National Assoc, v. Smithies .... 214 — Bk. i: Fftlkingham..531, 575, 616 — Debt Corp., Re 369 — Folding Co. v. National Co'.. 118 — Provl. Bk. of England v. Jack- son 517 — Society, etc. v. Scottish Na- tional Society, etc 621, 623, 627, 646, 658 Naylor v. Goodall 633, 658 Neal r. Devenish 28 — r. Irving 96 Neale i\ Fry 381 — r. Gordon-Lennox 251 — r. Neale 610, 640, 642 Neave r, Hatherley 690 Neavprson r. Petei'borough Coun. 663 Needham i>. Bremner 407. 408, 419, 433 Neile v. .laekle 256 Neill )■. Devonshire. .11,3, 132, 161, 168, 298, 299, 358, 426, 541 Xpilson f. Harford 15 Nelson r. Walters 435 Nelson v. Bridport 389, ,393 — r. Couch 416, 417, 420, 422 — V. Whittall 519 Nesbitt r. Parrett 197 Npvill V. Fine Art Co 15 New Chinese Co. r. Ocean Co. . . . 577 — London Credit Synd. v. Neale. 592 — Romney Corp. v. New Romney Commrs. . . : 357 New's Trustee v. Hunting. .231,-237, 238, 245, 253, 677 Newbold & JFet, Ry,, Re 434 .Xewbould r. Sniitli 279, 28.'! Newliy r, Sims 369 Newcastle r. Broxtowe 295, 300 Newell r. Radford 6.31 Npwpii, AV 250 Xcwington r. Lpvy 423 Xi'wis i\ Lark 53^ Npwland v. Steere 442 Newlands r. National Assoc. ... 99 Newlove i\ Shrewsbury 572 Newman r, Belsten 64, 85, 153 — r. Gatti 579, 586, 594, 596 — r. .Tones 96 — /■, I'iprppy 625, 663 Digitized by Microsoft® TABLE OF CASES. li PAGE Newmark v. National Co 542 Newsam r. Oarr 191 Newtoii r. Chaplin 204, 546 — r. Harland 446 — f. Newton, 5 L.T. N.S 324 — r. — 12 Ir. Ch. R.. .327, 32S, 333 . — r. Ricketts 386 Nichol 1 . Godts 591 Nicholl V. Jones 208 Nichols c. Dowding 468 ■ — f. Downes 235 — r. Parker 299 Niehols v. Kingdom Co 542 Nicholson v. Mulligan 670 Nickall f. Fawkes 619 Nielsen v. Wait 662 Nlfa, The . . 125, 614. 637, 662 Nightingall r. Smitli 618 Nisbett, Re 146 Noble V. Kennoway 162, 169 — r. Ward 587, 603, 604 Nodin i-. Murra.T 537, 540 Nokes 1-. MUwai-d 291, 345, 365 Nolloth r. Simplified Soc 530 Norden SS. Co. r. Dempsey 662 Xordon r. Defries 208 Norman i . Mathews 464 — r. Strains 431 Xormanshaw r. Normanshaw . . . 201 North r. Miles 94, 254 — r. North 38. 333 — Australian Co. v. Goldsbor- ough Co 198. 208, 479, 480, 481,^ 504, 508 — Cheshire Co. r. Manchester Co. 65, 3S2. 394 — Eastern Rt. r. Hastings. .615, 630. 663, 664 t. Dalton 421 North Stafiford Ry. r. Hanley Corp 288, 289, 305, 555 North Western Salt Co. v. Elec- trolytic Co 20 Northen's Estate, Be 624 Northumberland Co., Re 369 Norwich Equitable Co., Re .... 253 Norwood V. Stephenson 363 Nos worthy, Re 326. 329 Nothard r. Pepper 252, 361 Nottingham Guardians v. Tom- kinson .198, 199, 216, 467 Nonvion v. Freeman 406 Nutting r. Page ". 58, 72 Nve f. Macdonald 366 — r. Niblett 25 Oakes 1. Turquand 369 O'Brien c. Condon 520 — . . Sheil.85, 148, 153. 281. 670, 674 '— ,-. l^-s.'=en ; 328, 580 O'Connor r. Malone.290. 433.464. 501 — r. Mar,ioribanks 210, 211 O'Donnell ' i . O'Donnell 2o. 622. 629, 661 Ofner, Re ...610. 611. 623, 647, 650 Ogden I . Gas Co 171 O^ilvip. r. Foljambe 631 Ogle r. Vane 587 PAGE O'Gorman i. O'Gorman 78, 84. 488, 491 O'H. i: O'H 114 Ohlsen /■. Terrero 499 O'Keefe v. Walsh 43, 93, 94 Oldenburgh, Re 389 O'Leary r. Douglass 327, 328, 333 Oliver r. Hunting 526, 527 — r. Nautilus Co 231, 577, 589 OUey V. Fisher 585 O'Loughl^n r. Bellew 644 Olympia Co. v. Produce Co ... 107 Omealy r. Newell 366 Omiehund '• Barker ..364, 365, 451, 458, 463 Ommaney i . Butcher 671 Omychund r. Earlier (S.N. Omi- ehund V. B.) 48, 230 O'Neill V. Read 230 — r. Drohan 90 Onward Bldg. Soe. i. Smithson. . 683 O'Reilly i: Weldon .38 Orianada, The 460 Orient, The 417 Oriental Co. r. Surat 10, 225 O'Rourke r. Commrs. for Rail- way.'! 196, 585 — r. Darbi.?hire 203 Orrell. Re 406 Orrett r. Corser 278, 282 Orsman r. Robinson 592 Osborn r. Thompson 31 Osborne i. Chocqueel 162, 169 Osgood r. Manhattan Co 238 O'Shca r. Wood 203, 442 Ottos Kopje, Re 685 Otway, Re '623 Outram r. Morewood 422 — r. Outram 465 Ovens, Re 521. 522 Over r. Harwood 33, 36 Overend r. Oriental Corp 582 Ovey, Re 623 Owen r. Moberley 488, 490 — r. Wynn 203 Owner t-. Beehive Co 548 Oxford , . GiU 149 — Rate. Re 25 — Tram. Co. i . Sankey 29 Oxley . . Pitts 462 P. r. S 679 Pacific, The 22 Paddock r. Forrester .' 2.31 — r. Fradley 631, 633 Page r. Slid. Ry 591 Paget r. Marshall 585 ^ r. Paget , 671 Painter i: Austin 242 Palermo. Tlie 195. 198, 208 Palmer. Re. 58 L.J.P. . .326, 32S, 3.34 — Re. 1898. 1 Q.B 4.33 — r. Flack 689 — r. Johnson 590 — I . Marlear 471, 477 — I . Mallett 415 — r. Newell 176, 668. 672 — r. Palmer 313 Digitized by Microsoft® lii TABLE OF CASES. EAGE Palmes, Re 309 Pankhurst v. Hamilton 262 — V. Howell 668 Pape V. DriscoU 156 Papendiek r. Bridgwater. . .239, 240, 279, 284 Paris V. Lymington Co'uncil .... 131 Parisian, The 475, 496 Parker, Re 623, 644 — V. Alder S8, 95 — V. Briggs 588 — 0. Lewis 415, 427 — u. Morrell 243, 245 — u. S. E. Ry 147, 148 — V. Sutherland 29 Parkin v. Moon 476 Parkinson v. Simon 393 Parmeggiana v. Sweeney 523 Parnell v. Wood 376 — Commissiaa 60, 67, 75 Parrott, Re, Exp. Cullen 520 — V. Watts 60, 61, 72, 284, 616, 631, 633 Parry v. May 543 Parsons, Re 678 — Exp., Re Townsend 570 — V. London C.C 418 — V. Mitchell 624 — u. New Zealand Co 577, 588 — e. Parsons 646 Partridge v. Ooates 543 Pasmore v. Booisfield ; . . . 110 Patman v. Harland 146 Paton V. Ormerod, 1892, Times.. 521 — V. ~ 1892, P 526, 528, 657 Patrickson v. Patriekson 345 Patterson v. Patterson ........ 499 Pattle V. Anstruther 630 — V. Hornibrook 583, 600 Paul, Re, 24 Q.B.D 124 — Re, 23 T.L.R 560 — V. O'Reilly 145 Payne, Re 91 — V. Bennett 309, 311 — V. Ibbotson 471 Payton v. Snelling 65 Peace v. Brookes 520 — V. Hains 668 Peaceable v. Watson 284 Peacock v. Harper 231, 486 — V. Harris 59, 60, 63, 74, 76, 85, 153 Pearce, Re .' 623, 643, 644 — V. Foster 203, 204 — V. Hooper 522 — V. Lonsdowne 16, 18 — V. Whale 110 Pearl Co. v. Johnson 600 Pearson v. Dublin Corp 91, 150 — V. Lemaitre 175, 176 — V. Pearson 579, 590, 594 Pease v. Phelps 242 Peat V. Clayton 685 Peck V. Peck 285, 471 Peckforton Castle, The 353 Pedley v. Dodds 648 Peek V. N. Staff. Ry. . .152, 612, 638 — i>. Ray 242 PAGE Peel, Re 623, 646 — Re, Exp. Crossley 146 Peel's Case 369 Peggfr V. Neath Co 530 Pell V. Daubeny 446 Pemberton v. Hughes 406 Pendrell v. Pendrell 190- Penn v. Bibby 688 — V. Jack 39 Penniman v. Hill 465 Penny v. Hanson 126, 15S — V. Wimbledon Council 88 Penruddock v. Hammond 205 People V. Cole 475 — V. Molineux 164 — V. Sharp 140 — V Zucker 137, 141 Percival v. Nanson .... .280, 282, 285 Percy Supper Club v. Whyte ... 122 Perkins v. Jeffery. .163, 170, 172, 173, 185, 488, 492 — V. Vaughan - 60, 74, 225 Permanent Trustee Co. v. Fels. . 366, 538, 548, 550, 557 Perrott v. Perrott 58 Perry v. Barnett 106, 123 V. Gibson 462, 474 — V. Perry S45 — V. Phosphor Co 376 — V. Smith 202 Persse v. MitoheU 679 Perth Peerage ; 347 '— Trams, Re 530 Perton, Re.. 12, 104, 233, 236, 278, 279, 282, 309, 311, 315, 316, 679 Peruvian Ry. v. Thames Co 91 Fetch V. Lyon 249 Petition of Right, Re 21 Peto V. Hague 246 Petrie v. Nuttall 306, 426, 428 Peverett, Re 521 Peyton v. St. Thomas' Hosp 247 Pfiel V. Vanbatenberg 117, 118 Pharmaceutical Soc. v. Mercer. . . 354 Phelan v. Slattery 629, 659 Phelps V. Prew 210,546 Phene's Trusts, Re 104, 680 Phibbs, Re 521 Phillips, Re 91 — c. Briard .106, 125 — V. Bury 408 — V. Cole .• 240 — V. Davis 472 — t'. Earner 473 — 0. Hudson 239, 356, 358, 378 — V. Im Thurn 682 — «. Probyn 642 — V. Royal Co 99 — V. Ward 415 — V. Warren 117 Philpot «. Bath 112, 129 Phosphate Sewage Co. v. Molle- son 416 Pickard t;. Sears 685 Pickavance v. Pickavance 410 Pickering, Re 203 — »'. Barkley 223 — V. Noyes 209 Digitized by Microsoft® TABLE OF CASES. liii PAGE Pickersgill «. Rodger 626 Pickett e. Paekham 104, 121 Piekford v. Oorsi 425 Pickles V. SutclifEe 21 Pickup V. Thames Ins. Co 30, 31, 32, 104 Pierce v. Corfe 527 — t). Gardner 526 Piers r. Piers 679 Piggott V. Eastern Counties Ry. . . 170 Pike V. Ongley 123 — I'. Street 603 Pilkington v. Gray 522 Pilley t!. Robinson 414 Pilot f. Craze 94 Pinr V. Coyle 414 — r. Gurell 298 Pink, Re 668 Pinney, Re 330, 618, 674 — r. Hunt 431, 538, 560 — V. Pinney 431, 560 Pipe r. Fulciher 297, 299, 303 Pirie v. Anderson 352 Pitcher r. Bourn 461 Pitman v. Maddox 230, 287 Plaice c. Allcock 106, 162, 169 Planohe V. Braham 15 Plancq v. Marks 163, 171; 486 Plant 1). Bourne 616, 632 — V. Taylor . .296, 308, 309, 310, 317 Piatt V. A.-G 77 Plaxton V. Dare 296, 297, 525 Playfflir v. Playfair 346 Plevins v. Downing 587 Pluckrose v. Edwards 497 Plumer r. Briscoe '. . 523 — V. Plumer 243 Plummer v. Bentham 363 Plunkett V. Cohbett 194 ^ f. Lewis 667, 672 Plymouth Soc. v. Trades Assoc. . . 207 Pneumatic Co. "r. Leicester Co... 427 Pocock t'. Billing ■. . 241 Polini V. Gray 288, 336 Pollard V. PoUard 161, 166 — r. Scott '. 303, 378 Pollastrini v. Ppllastrini ...487, 497 PoUoek, Re 668, 673 — r. Garle 376 Pomei'o I'. Pomero 16 Pomeroy r. Baddeley 465 Pommeroy v. Malvern Council . . 420 Pontifex r. Hartley ..,.111, 575, 590 — V. Jolly 38 Poole V. Dicas 24, 288, 290 — V. Griffith 357, 538 — o. Warren 522 — Harbour Oommi-s. v. Pike. . . . 620 Popple V. Sylvester 421 Portal i!. Emmens ; 373 Porter. Re 554 — V. Moore ; 686 Portland v. Hill 296, 298, 301 Portsmouth, The 147 Postlethwaite v. Freeland 617 — ^ r. Riekman 203 Potez r. Glossop 681 Potter V. Peters 527 PAGE Poulett Peerage 198, 199, 678 Poulton «. Adjustable, &c., Co. 409, 410, 418 — V. Moore 683 Pound V. Wilson 472 Powell, Exp., Re Matthews. .21, 146 — ». Adamson 414 — V. Browne 587 — «. Crewe 119 — V. Edmunds 597 — V. FaU 170 — V. Harper 73, 81 — V. Heffernan 112, 132 — V. Hodjetts ., 94 — V. Kempton Park Co 619 — V. Lond. & Pro. Bk 518, 530 — V. M'Glynn 35, 36, 97, 231, 234, 236 — V. Nevitt 447 — V. Powell 333 Power V. Freeman 200 Powers, Re 244 Powis Peerage 356 Poynton v. Poynton 386 Praed v. Graham 151 - Prager v. Prager 344 Prescott V. Flinn ..97, 159, 160, 166, 167, 181 Preston v. Luck 583, 585 — V. Peeke 585 Price V. Burva 256, 2i59 — V. HoUis 252, 549 — V. Littlewood 300, 347 — • V. Manning 469, 472 — V. Mouat 631 • — V. Seaward 38 — V. Torrington...287, 288, 290, 292 — -0. Woodhouse .234, 261, 538 — V. Worwood 36, 104, 121 Priestman v. Thomas, 9 P.D. . . 406, 410, 416, 418, 422, 431 — V. Thomas, 1883, Times 324, 326, 331 Prince r. Samo 233, 236, 483 Prince of Wales Assoc, v. Palmer 356 Prindle r. Glover 141 Prinsep v. Dyce Sombre 357, 680 Printing Co., Re, Exp. Cammell 145, 374 — V. Drucker 436, 439 Prioleau v. U.S.A 463 Prison Commrs. v. Clerk of Peace 639 Pritehard ». BagSfhaw 251, 538 — V. Draper 243, 245 — V. Hitchcock 404 — V. Walker 110 Pritchett v. Honeyborne 300 Pritt r. Fairclough 291 Proctor V. Lainson 238 — V. Raikes 208 — V. SmUes 201, 206, 208 Procurator-Gen. v. Williams. 309, 315 Produce Brokers Co. v. Olympia Co 105 Property Ins. Co., Re 198 Prosser r. Lancashire Co 532, 577, 589 — I . Wagner 408 Digitized by Microsoft® liv TABLE OF CASES. PAGE Proud'foot V. Hart 635 Provis V. Reed . . .192, 327, 330, 5T5 Prudential Assoc. «. Curzon 409 — Oo. V. Edmonds 680 Pryor v. Petre 675 PuUen V. White 43 Purcell V. Macnamara 157, 404 Purgold r. Purgold 216 Putnam «. Bates 238 Pwlbaeli Co. v. Woodman 107 Pye (•. Britisli Synd 583 — r. Butterfield 213 Pylje «. Croucli 282, 438 Pyle Works, Re 69, 374, 588, 592, 599 Pym V. Campbell 583, 600 Pyper v. Manchester Liners. . . . 361, 435, 502 Quartz Co., Re, Exp. Yo'Ung. . . 473 Queen's Case, The 98, 134, 270, 458, 482, 483 — Proctor V. Fry 309, 346, 554 Queensland Co., Re, Davis v. Martin 518, 530 Quihampton v. Going 526, 548, 603, 669 Quin V. Quin . 153, 162 Quinlan v. Evison 368 Quinn i\ Leathern . . ; 94, 149 E. !'. Abbott 322 — V. Abergavenny 485 — V. Abergwilly 226, 440 — V. Abraham 58, 73, 81 — V. Abramovitcb 137, 140 — V. Acaster 456 — V. Ackroyd 267 — V. Adiams . . . , 138 — v. Adamson 578, 589 — V. Adderbury 2.38 — «. Adey 200 — V. Adlington 178 — «'. Alckles 545 — V. Albutt 375, 537 — V. Aldridge 271 — V. Alexander 181 — ■ V. Allen 47 — r. Althaiisen 344, 384, 573 — V. Anderson 25, 502 — V. Angel 174 — V. Anker 489 — V. Antrim, 1S95, 2 I.R 19, 483, 691 — r. — 1901, 2 I.R 19 — )'. Antrobus 299 — V. Appleby 260 — )', Applpgate 487 — V. Armagh 213, 214 — r. Arnall 270 — V. Ashdown 93 — )'. Attenbury 82 — V. Aubrey 35 — V. Audley 33, 34 — V. Aughet 417 — V. Austin 319, 322. 438, 507 — V. Badash 30, 35 — V. Bailey 174, 1S1, 183 PAGE R. V. Baines 447 — V. Baird 172, 182 — V. Baker, 2 M. & Rob 318, 319 — r. — 1S95, 1 Q.B. . . .14, 53, 482 — V. — 1 Or. App. R 177 — i;. — 11 Cr. App. R. 136 — D. — 28 T.L.R 269 •— V. Baldry 264, 271 — B. Ball, R. & R 173, 178 — P. — 6 Cr. App. R.. .137, 454, 493 — V. — 1 Moo. O.C 177 — r. — 1911, A. C 42, 137, 140, 141, 158, 160, 161, 104, 165, 166, 185 — /•. — 1915, A.C 180 — 0. Ballard 175 — V. Balls 173 — V. Bamberger 260 — V. Banks 102, 477. — V. Barker 248, 269 — V. Barnard, 19 How. St. Tr. 141, 163, 488, 491 — r. — 43 J.P 399, 401 — (', Barnes, 1906, Belfast Neirs Letter . 352 — I. — 10 Cox 563 — r. — 74 J.P.Rep 691 — r. Barris 545 — ( . Barron . .173, 18.1, 417, 424, 425 — r. Barron (No. 2) 425 — 1'. Barstow 268 — r. Bartlett 211 — V. Baskerville 485, 486 — )■. Bate 266, 272, 273 — V. Bateman 268 — r.. Bates 190, 505. 506 — V. Bathwick 365, 524 — V. Baylis 452 — V. Baynton 211, 212 — V. Beacall 110, 128 — V. Beard 149, 154, 677 — J-. Beards 141 — • V. Beck 9, 139, 144. 164 — V. Beckett 401,' 403 — V. Bedfordshire 294, 299 — V. Bedlngfield 58, 80, 319 — V. Beeston 437, 438, 505 — r. Beezley 473 — V. Beighton 167, 173 — V. Bell 450 — V. Bellis 342. 343 — ; V. Benjamin 48S, 494 — r. Benson, 151 C.O.C. Sess. Pap 195 — i\ '■ — 2 Camp r)fi.S — t>. — 3 Cr. App. R 454 — r. Berenger 21 — V. Berger 138, 295, 206, 297, 290, 301 — tJ. Bernadotti 319. 321 — V. Bernard 70, 142, 398, 478 — i\ Berry 490 — r. Best 266 — V. Bexiey 260 — V. Bickley 486, 487 — I). Biggin 454, 455 — V. Birch 559 — r. Bird, 5 Cox 93, 438 Digitized by Microsoft® TABLE or CASES. E. r. PAGE Bird, 19 Cox 44, 268, 453 Bii'dscye ('i7 Birmingham 27S, 2S0, 2S4 Bivtles ;M4 Bjornsen .■i!i2 Blniby ."lan Black ."il2 Blackburn 266, 272 Blake 101 Blntherwick 4S.'>. 489 Bleasdale 68, 174 Blick 428 Blind oS7 Bliss.... 58, 72, 119, 2.S9. 240, 2S4, 295, 29(!, SOI Bloodworth 487 Blount 425 Boaler 109, 110, 128 Bodle 473 , Bond, 4 Cox- 509 , — 9 C. & P 477 , — 1906, 2 K.B,..57, 82, 159, 172, 173, 174, 175, 181, 184, 185 Bono 376 . Booth ISO, 200, 267, 268 Boswell 266, 272 Bottomlej-, 1893, Times ... 478 — lis L,T, Jo .'^20, 321 Boughton 275 Boulton 100, 119 Bourdon . . . , 543, 537, 558, 5G0 Bow 4SS Bowden 265, 272 Bovver 13 Bowes 100 Boyes 214 Boyle, 20 T,L 44, 268 — 1914. 3 K.B.. .160, 106,-184 Brackenridge 425 Bradlaugh 375, 486 Bradley 33. 584 Bradshaw 126 Brailstord 14 Brain 35 Braintree 218, ii47 Brambre 211 Bramley 199 Brampton 3.S9 Brandreth 93 Brannngan 144 Brasier 452 Brewer .• 202 Brice ,SS Brickhall 29 Bridgwater 4.'>4, 455, 690 Briggs 40, 137, 163 Bright 140, 484, 513 Brightside Bierlow . . . 1.^3. 161. 298. 200. 419 Bristol JJ 419 Britten 260 Brixton 549 BroadJiurst 187 Bromhead 175. 260 Brooke 473 Bros .'103 Bronghton 209 Browhill 139. 144 ' PACK I . Brown, 7 K. & B 425 r. — 2 F, & P 173, 177 r. — L,R. 1 C.C 482 r. — 9 Cox 203 r. — 68 ,T.P. Rep 272 r. — 6 Cr. App. R 487 r. — 7 N.S.W 197 r. Browne 464 I . Bryant 175 r. Buckingham .342 i: Buckley.. 64, 79, 138. 139, 143, 221. 287, 288, 292. .508 r. Budd 104 r. Bull. 12 Cox 507 ,. — Q C. & P 47;^., 484 r. Bundy 399 r. Burdett 105 r. Burke 116, 425, 465, 481 r. Burley 266, 272 r. Burlison 163, 492 /■, Burns 45 ,-. Bushell 223. 224, 467 I . Butcher, 1 Lea 270 , . — 04 J.P ."107, 508, 512 r. Butler, 2' C. & K 67. 82, 179, 269 I. — 142 C.C.C. Sess. Pap... 322 r. Buttery 409, 432 r. Cain 265, 270. 272 r. Campbell 253 I . Cambrian Ry 434 r. Cantwell 75, So, 154 r. Capping 42 r. Carsill 41, 53. 190. 483 r. C^aroubi 33 r. Carpenter 132. 195, 196 r. Carrol 506 r. Carter 175, 178, 179 ,-, Cartwright 399 r. Casement 100 r. Cason 167 V. Cass 271 r. Castleton 9. 137 r. Castro -352 r. Caton 100 r. C«ttermoul 391, 398 I . Cavendish 33, 34 r. Chambers 483 r. Chandler 445 r. Chantler 455 r. Chapman, 471 C.C.C, Sess. Pap 180 *-. — 29 T.L.R 268, 273. 510 , . _ 7 Or. App. R 399 ,.. _ 8 c & P 473 r. Chappie 89. 95. 101 r. Charles §9. 93 r. Oharlesworth 425. 452 (-. Cheadle 577, 578. 589 I'. Cherry 215, 268. 273 r. Cheshire 179 r. Chidley 268 ,: Child 438 r. Childs 505 ,-. Chitson. .lO,".. 48S. 491. 492. 404 r. Chomaten Tabu 140 r. Christian 539 Digitized by Microsoft® Ivi TABLE OF CASES. R. V. FAOE Christie. .41, 58, 59, 64, 72, 79, 80, 81, 114, 255, 256, 259, 260, 321, 462, 487, 488,- 494 Christopher. .437, 505, 506, 509 Clapham 291, 342 Clapton 110, 128 Clarke, 2 Stark 190, 482 — 119 L.T. Jo 39 Cleary 319 Clement 446, 447 Clewes. .137i 138, 140, 265, 274 Cliburn 484 Coadiy 15 Cobhett 86,194 Cobden 68 Cockbum 507 Cockroft 190 Cohen 455, 507 Colclough 173, 178 Cole. . .159, 160, 161, 165, 166, 187, 269 Coleman 388 Coles 559 Coley 271 Coll. . . .488, 488, 494, 508, 569 Colpus 273 Compsou 274 Cohde 84 Coney 486 Conning 502 Connolly 100 Connor 93 Cook, 34 T.L.R 267, 273 — 147 C.C.C. Sess. Pap.. . 386, 474 Cooke, 1 C. & P 446 — 8 C. & P. 173, 177, 197 Cooper, 5 C. & P 274 — 1 Q.B.D.— 9, 82, 102, 138, 143, 148, 181, 257 — 2 Q.B.D 15 — 1905, Times 171 — 3 Cox 174, 184, 185 — 10 Cr. Appi R 166 Coote 267, 268 Cope 100 Cork JJ., 15 Cox 236 — 43 Ir.L.T.R 416, 425 — 1914, 2 Ir 104, 121 Cotton, 3 Camp 298, 483 — 12 Cox 180, 508 Coulter 165, 170 Court 268, 271 Courvoisler 39 Cowle 322, 439, 512 Cowper, 13 How. St. Tr. . . 64, 80, 139, 148, 167 — 24 Q.B.D 516 Cox, 1 F. & F 256, 260. 269, 274 — 14 Q.B.D 203 — 1898, 1 Q.B.. .8, 46, 47, 117, 401, 403 — 62 J.P 452 Coyle 250, 257, 488, 494 Cramp 260 Crane 150 Craven 319 i R. V. - V. - V. V. V, - V. V. - V. V. V. V. V. — ■ V. V. V. V - V. V. V. V. ,— . V. V. V. V. V. - V. - V. ' V. V. V. V. V. - V. V. V. V. V. V. V.' V. ■ — V. V. V. V. V. V. - V. V. V. V. - V. V. V. - «. - «. - r. V. V. V. V. V. V. - r. PAGE Creau 38, 89, 139 Crediton 342 Cresswell . .'. 109, 681 Crickmer 70 Crippen 41, 139, 142 Crockett 321 Crossfield 263 Crouch, 1 Cox 39, 393 — 4 Coxi 388, 400, 402 Croucher 507 Croydon 265, 270 Cufifey 100 CuUifotd 41, 189 Curgenwen 104, 146 Curnock ... .256, 256, 259, 260 Curtis 41, 269. 504 Dale, 7 C. & P 83 — 16 Cox 38, 185 Davies, 1897, 2 K.B 57 — 85 L.J.K.B 462 — 29 T.L.R 677 Davis, L.R. 1 C.C 36, 175 — 6C. &P 146, 174 '— 7 C. & P 38 — 149 C.C.C 484 — 85 L.J.K.B 485 Dawson 29 Day, 6 Cox 505, 506, 507 — 147 C.C.C. Sess. Pap. 271 Daye 443, 514, 546 Debenham . . .230, 339, 347, 372 De Bcrenger 335, 336 Dent, 1 C. &K '. 389 — 71 J.P.Rep 452, 462 Derrick 399. 515 Derrington 266 De Salvi 424 Desmond 93 Devereux 79, 161, 167, 225 Dexter 190, 469 Dibble 269, 428, 480 Dickman 44, 399 Dillon 569 Dilmore 437, 505 Dimes 487 Dingley 266, 272 Dixon 95 Dodson 110, 128 Doherty, 13 Cox 274 — 16 Cox 44, 45 Donnall 141 Donnellan . . .142, 153, 174, 454 Doolin 438, 475 Doran 573 Dossett 183 Dossi 487 Dougal 266 • Dove 395 Dowling 39 Downer 98, 203 Dowse 44 Drabble 367 Diage 175,178, 179 Drake 523 Drew 265 Drummond .276, 319 Druvy 425 Dublin ." 405 Digitized by Microsoft® TABLE OF CASES. Ivii R. V. - V. V. V. V. V. V. V. V. V. V. 0. - v. V. V. V. V. V. V. - V. - PAGE Duffy 39, 86 Duguid 92 Buncombe 471 Dunn .174, 178, 179 Dunton 513 Dwyer 93, 100, 691 Dykes 33 Dyson 27, 149 Dytehe 139, 144, 449 Eastern Counties Ry 689 Edge 533, 548 Edmunds 505 Edwards ., 80, 140, 143 Egerton 71, 141, 488, 492 Ellicom'be 545 . Elliott * 33 Ellis, 6 B. & C 57, 67, 492 — 1 M. & S 162 — 1899, 1 Q.B 56 — 1910, 21 K.B 143, 182, 256, 454 EUsom 487 , Ellwood 137 Ellington 424 Elworthy 537, 545 Ely 22, 25 Bmmett 178 Enoch 265 Entrehman 460 Erdheim 215, 229, 268, 509, 543, 569 Eriswell 226, 300, 307, 438, 440 Erith 226, 308, 313 Errington 321 Esdaile 28 Essex 259 Evans 70, 573 Everett 44, 45 Exeter . .112, 118, 120, 280, 284 Fagent 319, 320 Fairie. .159, 170, 233, 427, 429 Farley 203 Farnborough 14 Farquharson 264 Farr 533, 545 Farrell 507 Farringdon 524 Farrington 188 Faulkes 146 Feigebaum 488 Fennell, 7 Q.B.D 270 — 98 C.C.C. Sess. Pap. . . 178, 179 Fenton 533 Ferguson 454 Fermanagh 29 Ferrers 392 Ferry Frystone. . .225, 437, 440 Firth 68 Fisher, 1910, 1 K.B 182 — 43 Sol. Jo 454 Fitzgerald, Ir. Cir. Rep... 320, 323 — Tay 449 — 1 Lea 351 Fitzpatrick, 3 How. St. Tr. 212 — 129 L.T.Jo. 319 PAGE R. V. Fitzpatrick (1910), 46 Ir. L.T.R 320, 322 — V. Fitzsimons 545 — V. Flaherty 233 — V. Flannagan 170, 173, 180 — 1). Flavell 441, 444, 447 — V. Fleming 271 — V. Flemming 506 — V. Fletcher, 51 L.T 445 — «. — 1 Lew. C.C 268, 483 — V. Flintshire 585 — V. Flutter 275 — V. FoUett 386 — V. FoUey 114 — V. Fontaine Moreau. .418, 426, 429 — V. Port)es 173, 174, 177 — V. Fordingbridge 110, 111, 117, 128, 521, 541, 547 — V. Porster 174, 177 — V. Forsyth 452 — V. Foster, 24 L.J.M.C 177 — V. —6 0. & P 61, 81 — V. —1 Lew. C.C 268 — V. Fowkes 59, 80, 488 — V. Pox 15, 102 — V. Prance 506 — -e. Prances 392, 395 — V. Francis 47, 172, 174, 175, 179, 181 — V. Prancklin 335, 337 — V. Franklin 47, 189 — V. Prantz 138 — V. Praser 13 — V. Prewin 265 — V. Friel . .' 424 — V. Froggatt 40 — V. Frost 92, 100 — V. Pry 29, 691 — V. Fryer 118 — V. Fuidge 181 — V. Fursey 70 — V. Gadbury 188, 189 — V. Gallagher 453 — V. Galvin 504 — V. Galway, 31 Ir. L.T.R. ... 19 — V. ~ 1906, 2 I.R 407 — V. Gandfield 82 — V. Garbett 200, 214, 268 — ». Gardner, 2 Camp. 337 — «. — 9 Cox 267, 269 — V. — 1S99, 1 Q.B 44, 509 — V. — 85 L.J.K.B 260, 266, 269, 275 — V. Garner, 3 F. & P 180 — V. — 54 J.P 480, 504, 508 — V. Garnet • 212 — .V. Garrett-P'egge 518 — V. Gaunt 411 — V. Gay 486 — «, Gazard 196 — V. Geering 170, 180 — V. George 13 — V. Gibbons, 1 C. & P.. . .^202, 265 — r. — 31 L.J.M.C 139, 190 — V. Gibson, 18 Q.B.D. . .59, 80, 255 — ». — Car. & M 198 — V. Gilham 265, 266, 271 — V. Gilkes 405 Digitized by Microsoft® Iviii 'I'AIU.K 01'' I'ASEy. PAGE nillis ..L'ikl, 208, 268, 272, 27:! Gilmore 42-1 Gilson 409, 4;!2, 57^! Oirod 38, 173, 175, 17!) GldstiT ..62, 84, 102, 321, 397 Olvnne 419 Goddard, 15 Cox. . . J>U. 80, .•!21 — GO J.P 2(11, 27.5 Godhino 140, 180, 265, 267 Goldstein 492 Goodfellow 507 Gordon, 21 How. St. Tr 59, 63, 79, 09, 552 — 1781, 2 Doug 478, 553 — 8 Or. App. R . 468 Gorrie 681 Gould 270, 275 Governor of Lewis Prison 337, 464 Graham 66, 487 Grant 118, 140 Gray, Ir. Cir. Rep. . . 143, 225, 269, 275, 320 — 4 F. & F 173, 180, 184 — 68 J.P.Rep 10, 488, 491 — 6 Or. App. R..232, 253, 371 Green, 6 C. & P. 270 — 63 J.P 456 — 30 T.L.R 33 Greenaway 442 Greenherg 448 Greene 335 Greenley 70 Greeniyay 487 Greenwich 250 Gregory 356 Griffin, Rus. & Ry 270, 275 — 6 Cox 202 Grimwood, 1 Price ...348, 352 — 41 Sol. Jo 425 Grimberg 30, 35 Grout . ; 455 G'uerin 42, 464 Guinea 470 Gully 364 Gunnell. . . .65, 86, 146, 152, 215 Gurney 38 Gutteridge 116 Gwyn 554, 555 IT 456 Hacker 19 Had-wen 453, 455 ITagan, 8 C. & P 438 — 12 Cox 140 — ( 'r. App. R 35 ITailey . .' 495 rininps 229, 542, 553 Hall. 57 L.T 411 — 12 Cox 547 — N.Z.L.R.. .142, 164, 170. 172, 173, 180, 898 — 1 Lew. C.C 26S Hamilton 4S1 Hampsooi 1-l.t Hiincox 197 Handcoek 213 Harborne 104 Harding, 1 Cr. App. R. . . .",57 R. r. Harding, :! Cr. Aiip. R. . . — V. — 1 Arm. M. & ( ) — V. Hardwick, 11 East t)l, — u. — 1 C. & P -- .. Hardy, 24 How. St. Tr.. . 0-1, 79, 8.", 102, 196, 229, — r. — 74 J.P.Rep — /'. Hare — /•. Hargrenvos — )'. Harney — ;'. Harris, 4 Cox — v. — 10 Cox — 0. — 1 Moody C.C -— I). — Joy 270, — t). — 7 C. & P — r. — 4 F. & F 141, — ». — '82 J.P 505, — V. Hartel — V. Hartington — r. Plarvey, 8 Cox — u. — 11 Cox ... .8, 108, 3S8, — i\ — 115 C.C.C. Sess. Pap.. — «. Haslam 454, — V. Haslingfield — V. Hatts — !■. Havaril . .' — r. Hawden 457, — r. Hawos — r. Hawkins — r. Haworth 545, — 0. Hay — V. Hayward — V. Hazy — i\ Head, Peake Ev 341, — ( . — 67 J.P.Rep — B. Hpiil 268, — r, Hoiilihy — ij. Heaphy — );. Hoard — r, Hearn 266, — V. Heaton ' — V. Pledges 115, — 1). Heesom 140, 148, 173, 180, — V. Hemingway — V. Hendy 399, 402, .506. — V. Hennessy — V. Herlihy 196, — V. Hertford College — I'. Hoseltine 387, 391, .392, — V. Heuser — r. Hewgill — r. I-Iewitt 2(55. — r. Hicks 1 73, — IK Hiokey — I . Tligginbottom — i\ Higginson — r. HilditPh — I'. Hill, 2 Den 400, — I-. — 1 Cr. App. R 71, — I. — 7 Cr. App. R 4.3, — r. — 10 Cr. App. R. . .08, 69, — '•. Hillam — r. Hinckley — '■. Hind .319, 320, — r. Tlinlov . — r. Hirst 201, 209, I'A(iIC 17!) 272 2,38 265 . 63, 1.-4, 476 179 142 41 508 507 37 509 275 474 184 510 38 407 196 470 321 487 562 271 17:5 474 342 224 547 202 203 47 372 179 269 81 691 189 272 141 231 175, 507 41 020 479 479 619 398 480 83 274 184 . 259 142 305 40 452 182 136 185 215 547 .321 533 275 Digitized by Microsoft® .TABLE OF L'ASES. lix PAOE R. r. Hoblnstock 179 — r. Hockham 556, 569 — I-. Hodge 10 — r. Hodgkinson 453 — r. Hodgkiss 188 — r. Holchester 44 — I . Holcroft 424 — I'. Holden 473 — r. HoUoway 503, 506, 512 — r. Holmes, L.R. 1 C.G 190 — r. — 1 Cox 271 — r. — 2 F. (& F 452 — r. — 43 Sol. Jo 454 > — r. Holt. 5 T.R 26, 337 — r. — 30 L.J.M.C.. . .166, 173, 181 — r. — 14 Or. App. R 386 — r. Holtham 266 — r. Holy Trinity 573 — I . Hoodless 114 — r. Hooley 142 — r. Hopkins 174, 190 — ;•. Hopper 483 — . . Horn 33 — r. Hornbrook . .' 271 — f. Home Tooke 5."i, 86, 402 — r. Horner ' 274 — r. Horsford 42. 79, 80, 83. 180 — r. Horton 176 — r. Hough ^ 177 — r. Houghton Le Sprins 571 — r. Howard 110, 563 — !- I-. Howarth 484 — 1-. Howell 321 — r. Howes 274 — r. Hubbard 310 — r. Hube 573 — r. Hucks 15 — V. Hudson 454 — r. Hughes. 1 C. & K. ...197, 198 — I . — Ros. Cr. Bv 4S0, 603 — r. Hulet 450 — r. Hull 1.38 — r. Hulton 4i)7 — .. Hunt, 3 B. & Aid.. .59, 60, 71, 79. 100. 101, 120, 533. 538, 548 — r. — 1 How. St. Tr 212 — r. — 13 Cr. App. R 150 — r. Hunter 541, 543 — 1 . Hurley 47 — I . Hurrell 569 — r. Hutchings ..407. 409, 411, 421 — V. Hyde 506 — r. Imrie 465 I . Ibrahim 267 — r. Income Tax Coms 387 — r. Inger 271 — r. Ings 8 — r. Ingrey 115 — ,. Ivimy ISO. 504, 505. 507 — r. Jackson 100, 268, 463 — r. Jacobs 266, 272 — c. .Takeman 107. 120 — r. James. 1902. 1 K.B 33 — r. —2 Cr. App. R 271 — r. Jameson 378, 4«3 — .-. Jarvis, L.R. 1 CO.... 266. 271 — I-. — 7 Cox 176 — r. Jefferson 34 iwr.K R. i\ Jeffreys 42 — r. Jenkins, L.R. 1 C.C...:!in. ^,22 '— r. — Rus. & Rv...2(i5, 270, 27.") — c. Jessop 64. 80. 02, 102 — r. Johnson, 2 C. & K 62. 83 — r. — 103 L,T,Jo 233 — r, — 7 Kast 122 — I. — 1914, Times 9 — 1 , Joiner 13 — r. Jones, Rus. & Ry 271. 275 — r. — 2 Camp 2.'?, 110 — I . — 1 Den 203 — c. — 2 C. & K 553 — I . — 12 Cox 271 — p. — 14 Cox 17S, 178 — 1', — 15 Cox 104, 679 — r. — 19 Cox lis. 121 — I , — 27 L,T 272 — r. — 49 J.P 265, 505, 506 — r. — 114 C.CC, Sess. Pap... 45 — I , — 26 T,t,.R 454 — r — Best 19 — r, — 1905, Times 43. 44 — r. Joyce 98 — i . Kaln 45 — r. Katz 503, 504. 511 — r. Kav 65, 87 — r. Kea 19S, 199 — r, Kelly 2.-T. 260 — r. Kenilworth, 2 T.R 409 — r. — 7 Q.B 547 — r. Kennawav 488, 492 — r. Kent 405 — r. Kerry 601 — V. Kersey 264 — r. Kersrhaw 266 — r. Ketteridge 197 — r. Kiddle 115 — c King, 17S2, 2 T.R 535 — r. — 1807. 1 Q.B, .,1.", SS. 400, 403. 42.T — I, — l.'il C.CC. Sess. Pap... 271 — r. — lllL.T 487 — 1!. — 10 Cr. App. R 454 — r. Kingham 115 — f. King-horn 375 — r. Kinglake 201, 214, 690 — r. Kingsland 399 — r. Kingston, 20 How. St. Tr, 407, 408, 410, 412. 418. 42.", 426 — r. — 4 C. & P 265 -^ r. Kinloch 470 — r. Kirkham 137 — I . Kitson 545. 573 — i: Klosowski 180 — r. Knaptoft 576 — r. Kuight. 20 Cox 267. 268 — r. — 32 L,Jo 691 — / , — 41 Sol. Jo 42 — r, Knill 485 — r. Knollys 20 — r. Knox 224 — r. Krause 102 — I . Kright 266 — V. Knrasch 101. 186. 190 — . , Labouchere . , 6, 113. 133. 156. 262. 481 — IV Lai Ping 460 Digitized by Microsoft® \x TABLE OF CASES. PAGE R. c. Lambert 86 — r. Lamson 83, 398 — V. Lang 271 — I . Langbridge 504, 505 — . . Langton 109, 469, 470, 571 — r. Langunnor 578 — V. Laud 224 — V. Laugher 265 — r. Laurence 42 — I . Laurent 268, 273 — i: Lawson 109, 110 Lawton 541 Layer 194 Layton 392, 395 Lea 67 Leach 120 Leatham 201, 216, 270 Lee, 4 F. & F. ..437, 505, 506 — 24 T.L.R 10 — 1 Or. App. R 41 — 7 Or. App. R 114, 115 Lee Kun 465 Lees, 71 J.P..503, 504, 508, 510 Leigh 299, 305, 357 Lemoine 513 Leppard 321 Letenosk 164 Leversou 201, 204 Lewis 35, 573 Liebling 266,503 Lightfoot 453 Lidburn 212 LiUyman 81, 113, 115, 483 Lindsay 33, 233 Lingate 273 Little 472 Livock 454 Llanfaethly. .442, 535, 537, 546 Lloyd, 4 C. & P 320 — 6 C. & P 270, 271 — 7 C. & P I 67, 185 Loake 167, 400 Lockley 681 Loettun 464 London (Bishop) 619 — C.C 435 — JJ 690 — (Lord Mayor) 461, 456 Long 70, 269, 271 Longman 81 Lordesmere 133, 426,428 Loughran 448 Lovegrove 491 Lo^ett 34 Lowe 22, 338 Lower Heyford 279 — t>. Lutbenham 342 — V. Lucfchurst 265 — V. LufiEe 199, 678 — V. Lumley 104, 680 — V. Lunny gl — r. Lushington 9 — V. Lydon 178 — i:. M'CaCEerty 93 — !-. Macarthy 190 — /■. McCann 47 — V. McCarthy 337, 338 — f. Macclesfield 691 — a — V. — V. — V. ■^- V. V. V. V. — V. — 1). V. V. — V. V. 1!. — r. — 1. — V. — ■ V. — V. — V. — r. — V. ■ — V. — r, — V. — V. — r. R. - V. - V. - V. V. V. V. V. V. - V. V. V. V. V. — ■ V. ■ — V. V. - V. V. - ». V. - V. V. V. V. V. - v.- V. V. V. - V. V. V. V. V. V. - V. V. V. V. V. V, - V. V. V. V. V. V. - t'. V. V. V. V. - r. V. PAGE McCormack 195 M'Cue 404, 428 JI'Donagh 126 Macdonald 563 McDonald 461 McDonnell, 5 Cox 172, 184 — 25 T.L.R 457 McGrath 70, 39i8 M'Hugh 266, 273 M'Kenna 264, 432 Mackenzie 56 McKenzie 29,584 MoNamara 114 McNichoU 264 M'Naghten 392, 395 Macrae 691 Madden 44 Madhub Giri 676 Mahony 368 Mainwaring 554 Males 271 Mallory . . . .211, 253, 256, 257, 260, 262, 269 Mallow 523 Malvisi 137 Mann . .260, 469, 471, 506, 508 Manning 93 MansfieW, 14 Cox 271 — Car. & M 82, 89, 179 — 1 Q.B 678 Marriott 512 Marsella 507, 508 Marsh •. 197 Marshall, Car & M....438, 507 — 63 J.P.Rep 454 Marsham 42, 691 Martin, 6 St. Tr. N.S. ... 86 — 2 Camp 347 — 12 Cox 8, 9 — 17 Cox 13 — 5 Cr. App. R 491 Mason 392, 396 — 10 Cr. App. R 148, 173, ■174, 177 Masters 45 Mawbey 366 May 504 Maybriok 44 Mead 149, 154, 310, 320 Meade 677 Mean . .56, 57, 68, 69. 160, 166 Meath 81 Medley 99 Megson 116, 319, 321 Melik 197 Melville 552 Merry 115 Merthyr Tydvil 573 Metcalfe 41, 269 Metz 190, 464 Mlldrone 459 Miles 410, 424 Millard 173, 177 Millen 265 Miller, 1 Lea 364 — 65 J.P. Rep 68, 185 Millhouse 44, 45 Slillingtou 150 Digitized by Microsoft® TABLE OF CASKS. Ixi R. c. - V. V. V. V. - V. V. V. V. V. V. V. 0. - V. - 11. V. V. V. V. V. V. V. V. V. - ». V. PAGE Mms 270 Milton, 1 C. & K 297, 30.S — Ir. Cir. Rep 462 Mirams 215 Miskin Higher 186 MitcheU....255, 257, 260, 319, 320, 321, 32S, 439, 506, 508 Mobbs 140 Mohr 66 Monahan 518 Monks ^59, 487 Moore, 2 Den 265, 270 — 61 Ii.J.M.C. . .452, 458, 460 — 14 T.L.R 126 — 10 Or. App. R 71 Moors 545, 572 Morgan, 6 Cox 438 — 14 Oox 319 — 1 Lea. CO 459 — 5 Or. App. R 118, 455 — 13 Or. App. R 182 Morley '. 450 Morris 424 Morrison 43, 454 Mortimer 57, 69, 120, 159 Mosley 320, 321 Mothersell 372 Murpliy, 8 C. & P.. .93, 94, 100; \101, 110, 392 — 1 Arm. M. & 475 — 1 Lea. C.C 452 — Ir. (Mr. Rep 321 — 49 Ir. L.T.R 30, 33 Murray 462 Murton 320 Murtrie , 259 Mylins ..... .345, 351, 449, 463 N. E. Ry 421 Naguib 33, 34, 128, 233, 343, 346, 389 Neal 486 Nem Cream. .141, 143, 180, 322 Netherthong 525 NeviUe, Oraw. & Dix. .400, 403 — 1 Pea. N.P.C 170, 233 Newman, 3 C. & K. . .465, 562 — 1 E. & B 133, 134, 262 — Dears, C.C 540 — 2 Den. C.C 559 Newtoii, 2 Moo. & Rob. . . 233 — WiUs Circ. Bv 396 — 1 C. & K 110 — 1 F. & iF 504 — 147 CCC. Sess. Pap.. 93 — 109 L.T 150 — 7 Or. App. R 197 Nicholas 84, 116, 452 NichoUs. 1 P. & F 179 — 10 Cox- 342 — 128 CCC Sess. Pap. 84, 506, 512 Nicolas 322 Noakes. 5 C. & P 486 — 1917, 1 K.B 507 Noble 47, 116 Noel 215 Norbury 503 Norcutt 115 R. V. - V. ■ — ■ V. V. V. - V. V. V. V. PAGE Norfolk 297, 303 Norris 35 Northampton 133 North Petherton 342 Norton 255, 256, 259 Nuncham Courtney 225 Oates 336, 337 O'Brien 63, 86, 93, 142 O'ConneU. .59, 79, 86, 102, 107, 108, 127, 148, 150, 155, 174, 184, 547, 548 — Arm. & Trev 236 Oddy 159, 163, 174,, 178, 179 4^ O'DonneU 13, 102^ 142 OUphant 56 OUis 167, 173, 174, 179, 182, 185 Olsen 43 Omant 507 Oneby 320, 323 Onslow 448 Oppenheimer 16, 385 Orchard 473 Orton 136, 216, 378 Osborn 44 Osborne, Car. & M 81 — 1905, 1 K.B 59, 81, 113, 114, 115, 255 Osman 319 Owen 462 Oxford (Bishop) 619 Oxfordi^ire 249 Page 569 Palmer 140, 398, 399 Pamenter 201, 211, 269 Parker, 3 Doug. . .114, 488, 4S4 8 Cox 265 — 11 Cox 506 Parratt .^ 265 Parsons ." 553 Partridge 138, 271 Patch 74, 141, 142, 144 Pataney 115 Pateman 139, 141 Paul .-. 462, 474 Payne, L.R. 1 C.C... 453, 486 — Sol. Jo 205 — 8 Cr. App. R 486 Peacock 503, 505 Pearce . .140, 163, 488, 491, 543 Pearey -. 490 Pearson ...... 13, 89, 136, 250 Peel, 2 F. & P 321 — 50 Sol. Jo 165, 183 Pembridge 292, 347, 577, 588, 592 Pembroke 318, 450 Penfold 38, 42, 189 Perfitt 44 Perkins 319, 322, 452 Perry 318, 319, 322 Perryman, 112 CCC Sess. Pap 191, 478 — 147 CCC Sess. Pap.. 380 Petcherini 59, 63, 79, 85, 154, 229 Peters 379, 380 Digitized by Microsoft® 1X11 TABLE OF CASES. R. V PAGE Petricks 495 Peti'ieus 563 Phillips, 1 Lew. C. C 177 — Rus. & Ry. 569 PJiilp 233 Pickersgill 321 Picton 8, 16, 337, 381 Pike, 3 C. & P. . .276, 319, 452 — 1902, 1 K.B 216 Pitts 487 Plumb 43 Plumer ... .60, 68, 74, 82, 122, 143, 225, 261 Plummer 93 Pook 64, 79, 255 Pope, 18 T.L.R 45 — 2 Or. App. R. 269 Posnett 29 Pounteney 265 Powell, 63 J.P.Rep 525 — 3 E. & B 556 — 3 Cr. App. R 150, 175 Power 13 Preston, 1 Salk 447 — 1909, 1 K.B 454, 455 Pi-estridge 504, 506 Price 93, 136 Priclmore 94, 100 Priestly 40 Pritchard 89 Probats 167 Proud 178 Pruntey 505 Qualter 321 Quilter 172, 184 Quin 43 Quinii 93, 100 Quigley 320, 321, 508, 510 Raleigh 224 Randell 15 Ransford 102 Rappolt 455 Raudnitz 3.3.8 Rawden 571, 573 Reading 212 Reaney 321 Rearden 67 Reason, 1 Str 320 — 12 Cox 271 — 1 Or. App. R 89 Rees, 6 C. & P 110 — 1888, rimes... 504, 505, 506 Reeve 266, 271 Reffit 381 Regan 537 Remnant 483 Reynolds 109 Rhodes, 1 Lea. CO 351 — 1899, 1 Q.E 173, 175, 181, 453 Riclinrds, 1 F. & F....302, 395 — 5 r. & P 271, 274 Richardson, 2 F. & F..175, 178 — 3 F. & F 196 — 1 Cox 218 — S ( 'ox 38 — Wills ."....141, 142 Riekard 8, 108, 388, 400 — v. PAGE R. I-. Itidsdale 114 — V. Rigby 340, 345 — V. Rigg 512 — V. Riley, 18 Q.B.D 190 — 4 F. & F : 504 — 18 Cox 19 Rimes, 439, 464, 473 Rishworth 219, 226, 313, 343, 467 Roberts, 1 Camp 67 — 14 Cox 110, 128, 561 — 98 O.C.C. Sess. Pap.268, 512 Robinson, 1898, 1 Q.B 411 — 86 L.J.K.B 513 — 1915, 2 K.B 137 — 1917, 2 K.B. . .263, 269, 275 Roden 174, 181 Rodney 161, 166, 185 Rogan r 188 Rogers, 111 L.T 46, 47, 342, 343 V. — 10 Cr. App. R 167, 185, 487 V. Rome 266 V. Rose ; 264, 271 V. Rosenson 15 V. Rosier 274 i: Rosser 19, 449 r. Rouse, 137 C.C.C. Sess. Pap 38 r. — 194, 1 K. B 455 !'. Rowland, 1 F. & F 569 V. —62 J.P.Rep 83, 115 i>. — 1910, 1 K.B 140, 175, 179, 457 V. Rowlands 177 V. Rowton 159, 186, 187, 188, 189 V. Rubens 100 r. Rudd, 1 Lea. C.C 263 V. — Cowp 486 V. Rue 274 V. Rusby 485 . V. Rush 115 V. Russell. Car. & M 198 V. — 9 How. St. Tr 224 ■0. Rutherford 83, 386 V. Ryland 424 V. Ryton 524 «-. Sadler 319, 441, 444 v. Saffron Hill 547 v. Sagar 120 V. St. George 483 V. St. Giles 521, 523 V. St. Katharine .342 p. St. Martin's 470, 473 r. St. Mary 288, 290 ■r. St. Marylebone 138 r. St. Maurice . ■. 22 ('. St. Pancras 407 r. St. Paul 518 1). St. Peter's 347 V. Salisbury 57, 68 r. Sanders 35, 690 )'. Sansome 509 )'. Saunders, 1899, 1 Q.B.. . 219. 220, 225 .. — (i.". .r.P.Rop 453 Digitized by Microsoft® TABLE OF CAWKS. Ixiii R. V. - V. V. V. - V. - V. V. V. V. V. - I'. - I'. V. PAGE Savage, 13 Cox 233, 3S0 — 5 C. & P 438 Sbaira 175 Scaife, 1 Moo. & Rob.. .320, 322 — 17 Q.B 438, 507 Scammonden 578 Scanlon 505 Scarlet 197 Schama 30, 34, 35 Schofield 269 Scott, 1 Dears. & Bell ... 264 — 2 Q.B.D 559, 563 Scroop 212 Seale 375 Searle 395 Seterg 571 Seddon 411 Seham Tousry 481 Seigley 484 Sellers 320 Senior 454 Sern6 45, 424 Sexton 265, 270 Shaftesbury •. . . 212 Shakespeare 268 Sharman 463, 689 Shaw, 6 C. & P. ..... 266 — 16 Cox 482 — 1 Lew. C.C 141 — 104 L.T 461 Shearfield 223 Sheean 454 Shellaker . .160, 167, 173. 185, 491, 493 Shepherd 265 Sheridan 572 Sheriff, 35 L. Jo 453 — 20 Cox 45 Shimmin 45 Shippey 103, 139 Shrimpton 44, 188, 189 Shurmer 510, 511 Silverlock 386, 388 Simmonds, 1 C. & P. -. 473 — ^ Cox 236, 251 Simmons 361, 484 Simmonsto 233 Simons, 117 C.C.C. Sess. Pap 110, 458 — 6 C. & P 211, 231, 269 Simpson, 1 Moo. C.C 265 — 15 Cox 344, 384 — 62 J.P. Rep 504, 510 — 1914, 1 K.B 407, 425 Sippett 269 Skeen 215 Slade 584 Sleeman 265, 271 Smith, 1 East. P.C 46 — Rus. & Ry 437 — Enss. Cr. 2284« 266 — 2 Riiss. Cr. 2183 274 — 8 B. & C 557, 559 — 65 J.P.Rep. ..320, 321, 323 — 1 Lea. C.C 428 — 10 Cox 320, 323 — 17 Cox 443 — 18 Cox 255. 259 PAGK Smith, 20 Cox ...173 180, 181 — 1 Cr App R .... 3!»!) — 2 Cr. App. R. . .... 472 — 3 Cr. ApD. R. . .108, 1(19 — (! Cr. App. R. . .... '■'>'■] — 8 Cr. App. R. . 400 — 11 Cr. App. R. . . .41, 1.36, 148, 170, 172, 203, 206. 256, 396 — 47 L. Jo .... 40 — 11)1.1. 84 L.J.K.B.. .13, 38, 173, 181, 453 — 87 L.J.K.B 41 — 1918. 2 K.B 17;^,. 179 — 92 L.T 120, 175. 182 Smithies 211 Spencer, 3 F. & F 191 — 7 C. & P 265 — 20 Cox 107, 108, 127 150, 155, 174 Spilsbury 266, 319, 321 Spitzell 478 Spoden 39 Sporton 175 Stacey 69, 111, 128, 570 Stannard 44 Stanton 271, 424 Staunton 301, 396 Stephens, L.R. 1 Q.B 99 — 16 Cox 173, 175, 180 Stephenson, 31 L. J.M.C. . . 507 — 68 J.P. Rep 57, 71, 126, 155 Stevens.. 19, 139, 140, 144, 164 Stewart 41, 189, 502, 507 Stimpson 40, 143 Stoddart 30, 31, 34 Stokes 266 Stone 160, 161, 166, 487 Stonyer 68 Stourton 199 Strafford 534 Stratton 41 Stripp 509 Stroner 116, 473 Stroud 259 Stuart 443 Stubbs 486 Sullivan, 16 Cox 47, 264 — 22 L.R.I 691 — 24 L.R.I 67 Summers 47, 189 Surrey 559 Sutton, 8 A. & E 299, 305 — 4 M. & S.. .19, 335, 336, 549 Swendsen 188, 212 Swinnerton 260 Sykes 264 Syme 197., 620 Tabrum 518 Tait ..1 507 Tancock 424 Tanner 104 Taplin 190 Tate ..256, 259. 260, 486, 491 Taylor, 8 C. & P 265 — 5 Cox 180, 184 — 9 Cox 393 Digitized by Microsoft® Ixiv TABLE OF CASES. R. V. — V. — V, B, — e, — V. — c, — 0, V. V, — V. V. V, V. — V. PAGE Taylor, 10 Cox 110, 128 — 13 Cox 39 — 96 L.T.JO. . ., 342 — 37 Ir. L.T.R 268, 269 Tepper 505 Thanet 196 Thomas, 1892, 1 Q.B 419 — 11 dox 561 — 13 Cox 509, 569 — Dyer 224 Thompson, L.R. 1 O.C 453 — 13 Cox -507 — 70 J.P 33 — 1893, 2 Q.B.— 89, 263, 264, 266, 270, 272 — 1912, 3 K.B.. .59, 64, 79, 80, 84, 139, 143, 144, 153, 154 — 1918, A.C 138, 143 — 4 Cr. App. R..255, 256, 260 — 7 Cr. App. R. . . .174, 185 — r 33 T.L.R 9, 42 ThornhiU 19 Thornton 267, 271 ThuHeU 275 Tibbits 94, 100 THlard 178 Tolson, 23 Q.B.D 146, 151 — 4 F. & P 343, 398 Tomey 453 Tomlinson 379 Tong 485 Tonks ..• 424 Topham 424 Torpey . . .'. 33 Towell 141 Tranter 125. 402 Treloar 139, 144 Trevelli 45 Trowbridge 467 Tubby 268 Tnberfield 191, 392 Tucker 620 Turner, 1 Moo. CC...257, 260, 269, 274, 428 — 6 How. St. Tr 187, 450 — 1910, 1 K.B.-^i 24, 47, 189, 190, 229, 233, 236, 264 Twelve Bishops 212 Twiss 138, 143 Twyn 450 Tyler, 1 0. & P 265 — 1891, 2 Q.B 531 Tyrone 20, 410, 576 Udall 212 Ulmer 507 Tinkles 264 Upchurch 265, 270, 271 Upper Osgoldcross 419 Van Butchell 321 Varley 399 Veltheim 471 Verelst 110 Vernon 265 Viasani 8 Vidil 505, 506 Vincent, 9 C. & P 84, 383 Voisin 109, 267 R. V. V. V, D. V. V. V. V. V. V. V. - V. V. V. — - V. V. V. V. V. V. V. V. V. - V. V. V. V. FAOB Yoke 68, 70 Wade 452 Wainwright 42, 58, 64, 79, 138, 220, 265 Wakefield 456 Walford 182 Walker, 1 Cox 236, 251 — 1 F. & F .• 508 Walkley 271 WaU 438 Wallace 338 WaUer 189, 190 Walters and Sachs 180 Waltho 285, 268 Wanklyn 45 Ward 34 Warden of the Fleet. .418, 429 Wardle 420 Warickshall 264, 270 Wark 92, 93, 94, 102 Warner 41, 266, 272 Warren, 25 T.I/.R 453 — 147 C.C.O. Sess. Pap.94, 100 — 14 Or. App. R 42 Warren Hastings 381 Warringham 265 WaterCord 691 Watson, 2 Stark. R 194, 468; 537 — 6 C. & P 483 — 32 How. St. Tr..93, 196, 199 — W.N. 1916 138 — 8 Cr. App. R.. .342, 466, 487 Watt 116, 134, 180 Watts 605, 506 Wealand 462 Weaver 554 Webb, Ry. & M 465 — 11 Oox 449 — 37 Sol. Jo 109 Wedge 342 Weeks 177 Wellings 507 Wells 84, 86, 167, 173, 176, 181 Welman 68 Welsh 269 Welton 507 Wenham 353 West 188 Westacott 139 Westfall 455 Westminster, etc.. Commit- tee 105 Westwood 189, 253 Whalley > 8 Wheatley 40 Wheeler 53, 458, 484, 513 Wheeling' 264 Wheelock 576 Whelan 480, 483 Whiley 68, 178, 177 Whitaker 92, 94, 101 White. 2 Cox 41, 82, 141 — 4 F. & F 10 — Rus. & Ry 92 — 17 How. St. Tr 263 — 1 Lea. C.C 452 Digitized by Microsoft® TABLE OF CASKS. lx\ PAGE r. Whitehead, 1 Dow. & Rv. . 101, 102, 103, 155 r. — 3 C. & K 159, 165, 170 r. — L.R. 1 C.C 452 r. Whiting 44 i\ Whifley 238 V. Whitmarsh 320, 323 I'. WhitworUi 320, 321 r. Wick St Lawrence... 407, 409 r. Wicker 507 V. Wickham 578 r. Widdop 445 V. Wilbourne 115 0. Wild 266 r. Wilde ,- 21 t>. Wilkins 220, 225 I'. Wilkinson 509 V. WUks 182 r. Willetts .S48 I'. WiUiam 3SS ■ r. Williams, 7 C. & P 452 - r. — 8 C. & P 3S7 f. — 6 Cox 469 ■ t>. — 11 Oox 264 r. — 12 Cox 437, 440, 505 ■ I-. — 4 F. & F 507 r. — 29 T. L. R 460, 472 r. — 36 T.ri.R 41 ■ r. — 8 Cr App K 399, 480 r. Williamson 165, 170 r. Willis, 1916, 1 K.B.. .486, 573 r. WUlmott 197, 461 f. Willshire 34, 104, 417 1 . WBowski 347 r. Wilson, 8 Oox 507 f. — 12 Cox 507, 508 f. — 3 F. & F 110, 128, 384, 671 r. — 26 L.J.M.C 455 f. — 1 Lew. C.C 154 r. — 11 Cr, App. R 454 r. — 55 L. Jo 34 V. Wilton 507, 608 I'. Wink 114 r. Winslow 42, 139, 180 r. Winsor ; . . .265, 271 r. Wiseman 58, 76 f. WiUiers 26 .-. Woburn 238 I. Wong 267 V. Wood, 5 Jnr 188, 379 r. — 1907. Times 9 r. Woodcock 318, 320, 508 r. Woodier 207 r. Woods 483 r. Woodward 25 r. Wookev 453 r. Wooldflle 614, 610 r. Worth 284. 2S7. 2,■. Wye ,. . .407, 409 I..E. E+ • PAGE R. r. Wylde 543 — I'. Teoveley 558 — ('. Yorkshire 691 — c. Young 505 — V. Zulueta 143 R.'s Trusts, Re 199 Rabey v. Birch 459 Radciiffe e. Buckley 611 — r. Marsden 296,302 — f. Pacific Co 411 — )'. Union Insce 335 Radford f. Risdon 327 Raffles ('. Wichelhaus 583. 585, 628, 657 Raggett ('. M'usgrave 258 Railway Co. r. Maples 533 Rainlww v. Kittoe 499 Rajah Venkata c. Inuganti .... 532 Ramadge v. Ryan 385, 391, 393 Ramsbothnm i: Senior 205 Ramsbottom r. Moi-tley 572, 597 — V. Tiinbridge 572, 597 Ramsden r. Dyson 685 Randall c. Hill's Dock Co 683 Handle i-. Blackburn 236 Rnpp r. Latham " 244 Ratoliffe r. Ratcliffe 346, 554 Rattenberry, Re 667 Rattenbury r. Mninro 204, 443 Ravee, Farmer 417 Raven, ??,- 328, 627, 653, 658 — V. Stevens 353 Ravenga <\ Mackintosh ....148, 157 Rawlins v. Rickards 289 Rawlinson r. Scholes 485 Rawson v. Haigh 76 Rawstone v. Preston Corp 208 Ray. Ke 627, 658 — r. Mansfield 67 Raymond c. Raymond 594 — r. Tapson 447 Ravner, Ke 379, 610, 619 Read i'. G. E. Ry. 418 — r. Lincoln (Bishop) 378, 381, 411 — r. Perrett 691 — r. Price 244 Rearden r. Minter 522 Reav. Re 523 Recepta. The 352. 57T. 584, 588 Recher c. North British, etc., Co. 196 Redfern i'. Redfern 216 Reece v. Tyre 205 Reed r. Jackson. . .298, 299, 306, 584 — B. James 474 — V. King 472 — r. Nutt 368 — r. Passer 344 Rees r. Watts 414 Reeve r. Berridge 146 — V. Whitmore 236 — V. Wood 456 Reffell r. Morton 490 — r. ReBfell 586 Refuse Co. i>. KetUewell 99 Regan r. Regan 346, 654 Reichardt r. Shard 99 Reiehel r. Magrath 412, 414, 418 Digitized by Microsoft® Ixvi TAHLE OP CASES. I'AGK Ueifl I'. Batte 572 — V. Margison 539 — V. Eigby 516 Reigate u. Union, etc., Co 582 Reilly v. Fitzgerald 432 Remon v. Hayward 15 Renner r. Tolley 587 Rennie r. Clarke 69, 128, 570 Renshaw r. Dixon .148, 557 Reusse' v. Meyers 352 Revell, ICrp., Re Tollemaclic 253 Revill, Re 501 Reynolds, Re 234 — V. Fenton 20 — V. Wheeler 582 Rhodes, Re, 36 Cli. D 080 — Re, 37 Ir.L.T.Jo 680 — V. Airedale Commrs 417, 4?. '■ Rice, Re 52-! — V. Howard 469 Rich V. Johnson 132 — V. Pierpont 391, 395 Richards v. Bassett 298, 301, 305 — V. Davies 619 — V. Gellatly , 256, 258 — V. Gogarty 286 — V. Hough 463, 499 — V. Morgan 251 — V. Sanders 366 Richardson v. Anderson . . . .549, 550 — V. Dunn 258 — V. Mellish 352 — V. Neaves 60 — V. Peto V 250, 251 — V. Rowentree 147 — V. Watson 629, 662 — V. Willis 367 — V. Younge 242 Riches v. Riehes 487 Rickards v. Lothian 95 Ricketts v. Turquand 612, 656 Rickman v. Carstairs 606 Riding v. Hawkins 38 Ridley v. Gyde 50, 76, 77 — V. Plymouth Bkg. Co 247 — V. Ridley 475 Ridsdale v. Clifton 381 Rigg V. Manchester Ry 66 Rigge V. Burbidge -. . 422 Rimmer v. Webster 587 Ringer v. Fogossa 484 Rio Tinto Co. v. Socifitg des Mfitaux 416 Ripley, Re 329 — ti. Arthur 18, 406, 416 Rippingall ». Rippingall 119 Riseley v. Shepherd 34,'? Rishton v. Nesbitt 79, 308, .315 Rist V. Hobson 516 Ritchio 11. Malcolm 431 River Stoamer Co., Re 232 — Weir Commrs. v. Adamson. . 607 609 Robh ('. Green .TOO — V. Starkey 544 Robert v. Marsh 601 Roberts, Re 250 — V. Allatt 214 PAGE Robeits V. Doxon 467 — V. Edidington 352 — V. General Steam Co 147 — 1). Humphreys 33, 34 — ii. James , 131 — V. Oppenheim 205 — V. Security Co 518, 587, 600 — r. Woodward 95 Robertson v. Amazon Tug Co. . . 596 V. Flynn 650 — i: Jackson 387, 662 — V. Money 662 Robin, The 387 Robins v. Bridge 446 Robinson, Re 20 — V. Bradshaw 501 — V. Brown 545 — r. Buccleuch 342, 343. 365, 371, 679 — V. Collingwood 110 — V. Cowpen Bd Ill, 130 — V. Davies ; 499 — r. Duleep Singh 416, 433 — r. Fenner 406 — V. Geisel 414 — r. Gregory 555 — I . Jones 25 — r. Markis 225 — 1'. Mollett 106, 107, 123 — r. Newman 360 — V. Preston 5S1 — 1. Robinson, 2 P.D. ..20, 21, 416 — )'. — 1 S. & T 233, 243 — r. Rudkins 581 — r. Smith 25, 127 Robinson's Case 242, 413 Robson r. Andrada 237 — r. Atty.-6en 316 — r. Kemp 55, 76, 205. 206 Roby, Re 670, 680 Roch V. Callen 669 Rochefoucauld v. Boustead, 65 L.J.Ch 200, 203, 204, 208 — e. — 1897, 1 Ch.. . .580, 582, 598 Roden r. Iiond. Small Arms Co. 616. 617, 637 Rodgers v. Richards 29 Rodriguez v. Tadmlre 191 Rodwell V. Redge 109 Roe V. Davies 496 — 11. Fen-ars 233 — V. Mutual Loan Fund... 664, 683 — v. Naylor 147, 148, 464. 501, 566, 570 — -0. Nix 198, 435 — )'. Parker 298 — V. Roe 345 — V. Siddons 634 Rogers V. Allen 132, .357 — r. Custnnce Mi — «. Hadley 600 — r. Hawken 266 — r. Lambert 686 — r. Manley 40 — r. Quinn 231 — V. Wood 295, 298, 300, 305 Rohmann r. Rohmann 346 Rolfe r. Hampden 224 Digitized by Microsoft® TABLE 03? CASES. Ixvii PAGE RoUand v. Hart 89 Bonkerdorff r. Taylor 361 Root V. King 335 Roots e. SneUing 632 Ropnor r. Stoate 107 Roscommon Peerage 554 Rose o. Clarke 532 Rose-Troiip v. Sleeping Car Co.. 16, 389 Roselle i'. Buchanan 207 Rosenheim v. Northumberland Soe. 371 Rosher,. Be 21 Ross V. Boyd 44, 453 — V. Gibbs 202 — e. Helm 110,572 Rossiter v. Miller -. v 630 Rost V. Railway Co. . . .'. 8 Rothbury, The 18 Rotherham v. Mid & G. W. Ry.. 66 Rouch V. G. W. Ry 55, 59, 76 RoupeU V. Haws... 69, 118, 120, 137, 140, 167 Rouse, Re 501 RousUlon V. Rousillon ........ 31 Routledge v. Hislop 413, 420 — V. Ramsay 14 Rowbotham ». Dunnett 580 Rowe, Re, Pyke v. Hamlyn 603 — V. Brenton ..132, 168, 300, 35S, 467, 539 — V. Grenfel 132 Rowlands v. De Vecchi 122, ^8, 291 292 Rowley v. L. & N. W. Ry.. . .38o! 387 Royal Exchange Assur. r. Tod. . 630, 637, 664 Royal Warrant Holders' Assoc, v. Deane 65, 391, 394 Ruben r. Great Finsall Co 88, 685 Ruck V. Ruck 216, 217, 427, 429 Rud* V. Bowles 528 — V. Wright 300 — r. Skelton See 109 Ruddeman «. Smith 95 Buddy r. Mid. G. W. Ry 247 Ruel V. Tatnell 620 Rugg t>. KingsmiU 681 Bnmball v. Metropolitan Bk 124 Rundle r. Beaumont 351 — V. Hearle 133 Ruscoe V. Grounsell 533 Rush V. Peacock ' 242 — V. S-mith 474 Rushworth ;■. Craven 133 Russell V. Jackson 204 — V. Pilson 465 — V. Smyth 136 — r. Waterford Ry 416,422 Rutherford v. Ounan 89,96 Ruthven v. De Bour 202 Rutland's Case 567, 568 Rutter, Re 341, 588 Ryall V. Hannam 652 — r. Kidwell 589 Ryan r. Ring. .287, 288, 290, 292, 293 — r. Ryan 554 Ryder v. Wombwell 13 R viand v. Jackson 43 PAGE S. «. B 9, 119 S. I.. S., 1907, P 216, 475 — w. — 24 T.L.R 119 Sadgrove i'. Brydon 530 — ». Hole 156 Sadlier v. Biggs 541, 629 St. Leonards v. Ashburner. .111, 623 Saloman v. Saloman 360 Salford Corp. v. Lever 204 Salmon v. Webb. . 578, 579, 592, 597 Salte V. Thomas 349 Sammon v. Bennett 208 Sanders v. Sanders.. 18, 105, 117, 120 — V. Waugh 169 Sanderson v. Graves 587 — V. Collins 99 Sandford v. Remington 205 Sandilands, Re 517 Sarat Ghunder Dey v. Gopal Chunder Lala 686 Sari V. BourdUlon 617, 638 Sastry Velaider v. Sembecutty. . 679 Saunders v. Baldy 425 — .V. Cockrill 590 — 17. Hamilton 422 — V. Kent 587 Saunderson v. Piper 602, 613, 614, 654 Savage v. Savage 465 Savory, Re 515 — 17. World of Golf 632 Sawyer v. Birchmore 206 Saxlehner v. Apollinaris Co... 64, 148 Saye & Sele, Barony of. .199, 536, 549 552, 678 Sayer, Re 618, 639 — 17. Glossop 343, 400, 442, 535, 537, 548, 554 — V. Kitchen 545 Scales V. Key 104 Scarf V. Jardine 416, 682 Searfe r. Hallifax 254 Schenley, Re 526 Schloss 17. Stevens 662 Schmaltz v. Avery 582 Schneider i-. Norris 516 Schofield, Exp 215 Scholefield, Re 11, 618 Scholfield v. Londesborongh 530 Seholes v. Chadwick ...239, 240 Scholey v. Walton 242 Sehott, Re 328, 332 Sehumack ». Lock 248 Schwabacher v. Heimer 133, 238, 240, 283 Schwalbe, The . . .59, 70, 71, 248, 251 Seotstown Estate Co. «. Jackson. 435 Scott, Re, 1903, 1 Ch 667, 668 — Re. 97 L.T 581 — 17. Brown 20 — 17. Brownrigg 580 — i\ Commonwealth 201, 211 — V. Coulson 601 — r. Jones 545 — V. Marshall 254 — I'. Pilkington 406 — r. Sampson 133, 191, 383 — I . Scott 464 Digitized by Microsoft® Ixviii TABLE OF CASES. PAGE Scott e. Thompson 191 Scottish Shire Line t'. London, etc., Co 387 Scottish Co. V. Poole 537 Scrutton v. Childs 614 — V. Stone 168 Scully V. Scully 541 Seago V. Deane 595 Seal, Re, Seal v. Taylor 623, 649 — V. Claridge 520 Seale-Hayne v. Jodrell 645 Seaman v. Netherclift 448, 478 Seaward t;. Bennington 213 Sec. of State v. Charlesworth . . . . '20 Seccombe, The 18 Sedgwick, Re, Exp. Hob'bs 152 Seed V. Higgins 65, 391, 893 Segelcke, Re 603 Seibert v. People 64 Selfe V. Isaacson 465 Seligman ». Huth 600 Sellen v. Norman 122 Sells «. Hoare 458 Selwin v. Brown 672 Selwood V. MUdmay 626, 656, 657 Serjeant v. Nash 685, 686 Serrao «. Noel 406, 416, 424 Seton V. Lafone 685, 687 Sewell V. Corp , 123, 365 — V. National Telephone Co 97 Sewers Commrs. v. Gellatly .... 414 Seymour, Re 518 Shackell e. West 29 Shackle v. Shackle 78 Shailer v. Bumstead 62, 242 Shanahan, Re 215 Shanklandl v. Baine 420 Shardlow v. Cotterell 632 Sharman, Re 326, 520 — «. Brandt 582 Sharp, Re, 10 Morr. Rep 434 — Re, 190S, 2 Oh 625 — «. New«holm 82 Sharpe ». Foy 89 — V. Jackson 24, 366, 563 — V. Lamb 18 — «. Maeaulay •. . 395 Sharpies v. Rickard 532 Shaw V. Day 423, 427 — 1). Broom 240, 241 — V. Herefordshire 406 — V. Roberts 483 — V. Shaw 448 Shea V. Green 475 — V. Wilson 83 Shearburn ». Chertsey Council.. 131 Shearn, Re 529 Shears v. Jacob 520 Shedden «. A.-G. and Patrick... 295, 310, 312, 316, 384, 408 Sheen «. Bumpstead, 1 H. & C. 155, 383 — )). — 2 H. & C 108, 149, 392 Sheers v. Thimbleby 528, 630 ►Shelling v. Farmer 433 Shelton v. Livius 597 Shephard, Re 679 Shepheard v. Bray 348, 430 PAGE Shepherd t>. Robinson 251 Sherratt r. Mountford 610, 623, 644, 660 Sheward, Re 580, 589 Shewring ». Shewri^g 452 Shields, Re 668, 673 — V. Boucher 308, 314, 315 Shilling V. Accidental Co 64, 85, 153, 221 Ship Money Case, The 55 Shoe Machinery Co. v. Cutlan. . 417, 418, 424 Shore v. Bedford 202 — I. Wilson 387, 605, 612, 615, 621, 639, 662, 664 Short V. Lee 110, 127, 359 Shortrede «. Cheek 616, 633 Shortt V. Robinson 362, 369, 483, 691 Shrewsbury «. Blount. .98, 103, 149, 151, 154, 155 ^ V. Hart 372 — Co V. Shaw 585 — Peerage .,309, 313, 315, 336, 360 Shuman v. Shuman 679 Sibert e. People 80 Sibley, Re 640 Sidmouth v. Sidmouth 670 Sievier v. Duke 191 Sikes V. Marshal 230 Sillick V. Booth 118 Sills V. Brown. ...126, 387, 391, 392 440, 512 Simmonds «. Woodward 625. 649, 651 Simmons v. London J.-S. Bk.... 247, 251 — V. Mitchell 399 — «. Rudall 529 Simpson, Re 588 — V. IMsmore 136, 523 — V. Margitson 15, 642, 661 — 1). Robinson 151, 156, 267 — V. Sinclair 50 Sims V. Marryat 20 — V. TroUope 564 Sinclair v. Sinclair 412 — V. Stevenson . . .' 544 Sinclair's Divorce Bill 439, 512 Singapore, The 252, 352 Singer v, Audsley 500 — Co. V. Wilson 13, 457 Singleton «. Tomlinson 526,618 Sinnot e. Kehoe 538 Sir R. Peel, The 385 Skaife v. Jackson 242 Skeate v. Slaters 13 Skilbeok «. Garbett 122 Skillen, Re 618 Skinner r. Hunt 558 — V. Shew 75 Skrino «. Gould 147 Skyring v. Greenwood 376 Sladiden ». Sergeant 480 Slttde «. Tucker 202 Slnne Peerage 310, 313 317, 358, 539 Digitized by Microsoft® TABLE OF CASES. Ixix PAGE Skaey i: Wade.. 117, 21S, 311, 312, 317, 471 Slate, Enp 585, 681 — Re 626 — tj. Hodgson 525 — V. Iiawson 243 Slatterie «. Pooley 229, 234, 538 Slattery r. People 257 Sligo t>. Ouran 490 Slingsby r. A.-G 385, 679 — c. Grainger 626 Slinn. Re 326, 330 Sly r. Sly 284, 288, 292, 521 Small f. Nairne 439, 499 — 1. Warr 96 Smart.»Ke 528 — r. Williams 230, 354 Smee ». Smee 38 Smith. Re. 1891, 1 Ch 442 — Re, 1916. 2 Oh 613 — Re. 15 P.D 520 — Re. 20 T.L.R. . .560, 612, 626. 657 — Re. Oswell f. Shepherd 517 — r. AUison 192 — r. Andrews 361. 525 — V. Bailey 90, 97 — r. Beadnell 232 — I. Bedouin Co 577, 589 — i. Blakcy..lO. 59. 74, 248, 278, 279, 280, 282, 283. 287, 288, 290 — I . Blandy 232 — r. Brownlow ..297. 304, 358, 359 — 1-. Chadwick 61? — r. Conder 325, 526, 669, 673 — V. Cook 391 — i: Cramer 59, 76 — r. Daniell 202 — 1. FeU 202 — r. Gooch 285 — r. Henderson 136 — 1-. Haghes 150 — r. Jeffryes 591, 638, 657 — r. Johnson 417 — r. Keal 94 — V. Lister 297, 300, 303, 304 — V. liyon 237 — o. Mid. Ry .391 — r. Morgan 245 — r. Philpott 369 — f. Reynolds . .- 123 — V. Ridgway 648 — r. Sain^ury 402 — r.. Shann 186, 419 — D. Smith, 1 L.R.I...111, 120, 128. 313, 541, 547 — r. — 3 Bins. N.C 240 — V. — 1890. Times 216 — r. — 10 Ir. Rep. Eq .t47 — r. S. E. Ry 107 — I . Tebh'tt. L.R. 1 P. & D. . . 104 — r. — KR. 1 P. & D. . . .309, 310 — V. Thompson ('.38 — «. \Miittingham 243 — I-. Wilkins 165 — V. Wilson 622, 620, fi'U — r. Young 544 Smout V. Ilbery 104 1 PAGE Smyth V. Anderson 230, 235 Smythies, Re 668 Sneath v, Taylor 369 Snowball, Easp., Re Douglas .... 162 — V. Goodricke 254 Sociedada, The 252, 352 Soci^tfi Anonyme t>. Scholefield. 663 — Gfinfirale v. Tramways Union or Walker 92, 530 Solicitor, Re a, 25 Q.B.D 215 — Be a. 36 Sol. Jo 435 Solomons, Re 198, 533 Sol way. The . .233, 246, 251, 252, 440 Sombre v. Troup 104 Somerset i'. France 294 — I , Hart 96 — r. Wade 96 SotUichos V. Kemp 638, 642 South American Co., Re 406 Eastern Ry. t'. Railway Commrs 619 — Hetton Coal Co. v. N. E. Ry. 17 — Staffs Tram. Co. !>. Ebsmith. 375 V. Sickness Co 421 Southern v. Thomas 395 — V. Woolaston 618 Southwark Co. v. Quick 209 Soward r. I.«ggatt 31 Spaight V. Twiss 357 Spargo f. Brown 225 Speeding f. Young 491 Spenceley. Re 432 — V. De Willott 161, 165, 478 — r. Schulenburgh 208 Spencer, Re 614 — V. BaUey 500, 548 — «. Billing 467 — V. Lotz 636 — i). Hompson 413, 418 — t'. Williams 415, 419, 420, 431 Spencer's Will, Re 580, 598 Spicer v. Cooper 662 — V. Martin 596 Spike V. Thompson 360 Spittle V. Walton 452 Splents V. Lefevre 246, 311, 314 Spokes V. Grosvenor Hotel Co. . . 213 Spooner e. Browning 96 Spratt, Re 327 Spurway v. Spurway 77 Staben v. Freeman 467 Stacpoole v. Reg. 300 Staden e. Staden 199 Staines «. Stewart 324, 333 Stalworth v. Inns 562 Stamford Co. v. Smith 231 Standen v. Christmas 133 Rtanger r. Searle 400 Stanley v. Stanley 618, 648 — e. White 59. 72, 131, 161, 162 Stanton f. Percival 230. -238 — r. Richardson 616 Staple of England v. Bk. of Eng- land 518, 687 Stapleton v. D" Alton 624 Stapylton v. Clough 83. 103. 276. 288, 292, 298, .577 State v. Campbell 512 Digitized by Microsoft® l.xx TABLE OF CASES. PAGE State r. Daley 81 — V. Picton 263 — r. Shelley ' 58 Stond, Re .' 580 — D. Dawber 567, 603 — V. Heaton 2S6 Steai'ine Co. v. Heintzman 390 Stearns v. Doe 225 Stebbing v. Spicer 523 Stebbings v. L. & N. W. Ry 482 Steeds v. Steeds ...... .415, 581, 588 Steel, Re 384, 612, 655, 656 — ('. Lester 352 Steele v. M'Kinley 586 — V. Mart 585 — V. Savory 447 Steeveus' Hospital v. Dyas. .372, 529 Steinkellei- v. Newton 439, 470 Stephen v. International Co..... 147 Stephens, Re 540 — V. Foster 471 — V. Wanklin 498 Stephenson, Re, Donaldson v. Bamber 625, 629, 658 — V. Garnett 412 ^ V. Heathcote 619 — V. Tyne Commrs 397, 488 Stevens v. King 618, 619 — V. Tillett 409, 416 — V. Woodward 95 Steward v. Dunn 104 Stewart, Re 668 — V. Cauty 127 Stewart's Case 258 Steyner v. Droitwieh 294, 381 Stiles V. Cardife" Co 95, 248 Still t). Halford 562 Stobart v. Dryden. .83, 103, 192, 225, 227, 277, 318, 321, 575 Stock V. McAvoy 670 Stockbridigfe v. Quicke 69, 291, 344, 365 Stockdale v. Hansard 20 'Stockfleth V. De Tastet 232 Stoddard v. Watchmakers' Alli- ance 15 Stokes «. Mason 20 — 1). Stokes 410 Stones V. Byron 449 — V. Dowler 572 Stonor 1). Fowle 561, 576 Storey v. Bermondsey 689 Storr V. Scott 235 Stott V. Fairlamb 5fl3 Stowe V. Joliffe 350 — V. Querner 12, 537, 538 ■Stowell V. Robinson 587 Strachan, Re 196 — V. TIniv. Stock Exch 479 Stacy «. Blake 250 Straker v. Reynolds 442 Stratford v. Hogan 203 Strathlorne Co. v. Baird 106 Strauss v. Goldschmidt 500 StVeeten v. Black 465 Stretten v. Stubljs 232 Strickland v. Maxwell 637 Stringer v. Gardiner ..618, 623, 647 Strode v. Winchester ..286, 580, 598 Strong V. Bird 668, 672 Strongltharm v. North Lonsdale Co 127 Strother v. Barr 571, 573 Stroughill V. Buck 684 Stuart V. Balkis Co 441, 447, 498 Stubbs V. Sargon 639 Studds V. Watson 527 Studdy V. Sanders 205,206 Sturgeon v. Wingfield 684 Sturla V. Freceia. .287, 288, 289, 292, 293, 299, 307, 315, 316, 339, 341, 347, 348, 349, 354, 355 356, 359, 360, 362, 363, 365 Sudgrove v. Bryden ». . 518 Suffell V. Bk. of England 529 Sugden, Re 682 — V. St. Leonards 48, 63, 64, 79, 219, 324, 325, 327, 329, 331, - 490, 541 Suisse V. Lowther 669 Sule V. Garzena ' 162 Sullivan v. Creed 25, 127 — V. Sullivan .613, 614, 640 Summer's Trusts, Re 679 gummers v. Moorhouse .... 614, 650 — V. Moseley 474 Sumner v. Brown 473 Sussex Peerage— 278, 280, 282, 287, 319, 388, 389, 390, 393 Sutro V. Heilbut 12S Sutton V. Gregory 290 — V. Sadler 104, 135, 324, 327, 330, 680 Swan V. Miller 246, 247 — V. North British Co. ...... 687 — V. Swan 427, 429 Swann v. Barber 591 Swansea Corp. v. Quirk 204 Sweet, Re 447, 521 — t!. Lee 639 Sweeting v. Pearce 106, 124 Sweetman v. Sweetman 145 Swift V. M'Tiernan 361 Swifte V. Swifte 432 Swiftsure, The 280, 285 Swinnerton v. Stafford 525 Swire, Re 584 Sybray v. White 252 Sykes, Re 327, 529 — V. Dunbar 198 — V. Sykes 466, 560 Sylph, The 417 Symes v. Goodfellow 689 Symmers v. Reg. 373 Symonds v. Gaslight Co 258 — V. Rees 420 Tadman 1). Henman 686 Taff Vale Ry. v. Amalgamated Soe 619 — V. Davis 620 Tait ". Beggs 249, 689 Talbot V. Ousack 470, 471 — V. Lewis 300 — V. Marshfleld 203 — V. Seeman 335 Digitized by Microsoft® TABLK OF CASES. PAGE Tanner v. Taylor 470 Tannian v. Synnott 202 Tanswell v. Scurrah 475 Taplin v. Atty 543 Tate 1). Hyslop 89, 95 Tatham v. Haslar 32 — V. Wright^ 564 Taunton, Re 117 Taylor, Exp 344 — Be, 22 Ch. D 603 — Be, 34 Ca. D (360 — Re, 1910, 1 K.B 597 — V. Barclay '. 21 — V. Cartwright 668 — V. Clemson 405 — e. Devey 296 — V. HoUard 412, 416 — V. Parry 113, 161, 168, 623 — ti. Smith 526 — V. Willans 149, 157, 250 — l\ Wilson 29, 428 — V. Witham 278, 279, 280, 281, 285 — f. Yorkshire Ins. Co 89 Tfeebay v. Manchester Ry 590 Teign Valley Co. v. Woodcock. . 232, 236, 238 Temperley v. Smyth 147 Tcmperton r. Russell 28 Tennant, Re '. . . 685 — o. Hamilton 169, 478 Thames, etc., Co. v. Gunford. . . 387 Thellnson v. Gosling 335, 337 Theodor KSrner, The 209 Thomas, Re ^1, 289 — V. Ansley 569 — V. Connell 63. 65, 87 — V. David 465, 481, 482 — V. Exeter Post 406 — V. G. W. Collieries 107 — ». G. W. Ry 107 — V. Howell 619 — f. Jenkins .' . . . 295 — V. Jones 261, 490 — V. Morgan 152' — o. Newton 200 — V. Roberts 564 — V. Russell 149, 155, 405 — V. See. of State India 204 Thompson, JBe, L.R. 1 P. & D.. . 332 — Re, 12 P.D 313 — Re. 91 L.T 312, 679 — Be, 39 Ir.Ii.T.Jo 680 — r. Adams 536 — f. Cartwright 89 — r. Clarke 413, 418, 423 — v. Clydesdale Bk 147 — r. Donaldson , 432 — I-. Farmer 171 — V. Gibson 421 — V. Hickman 585, 602 — V. Nelson 604 — V. R 158, 163, 164, 179. 488, 493, 690 — r. Tievanion 55, 58. 59, 78 Thomson «. Austen 232, 236 Thorn. Re ^ 331 — T . Dickens 332, 650 PAGE Thorne r. Cann .~ 580 — V. Jackson 22, 25 Thornhill, Re 679 Thornton v. Royal Exchange Co. 397 Thorpe ». Eyre 433 Throckmorton v. Holt 62, 64 Th-urston v. Slatford 543 ThurteU e. Beaumont 10 Tichborne Case, 1872, Times ... 207 — vol. i 569 — (passim) 118 Ticket Co. v. CoUey 393 Tiley v. Cowling 430 Tilk I'. Parsons 75 Tinkler v. Walpole 352 Tinline. Re 668 Tisdall V. ParneU 357, 360 Tobakin v. Dublin Co 208 Tobin V. L. & N. W. Ry 126, 248 Tod v. Winchelsea 543, 570 Tod-d i>. Anderson 20 — V. Johnson 604 — r. Rowley 162, 169 Todrick r. Wilson 126 Tolemau v. Portbury 87 Tolhurst f. Associated, &e., Mfrs. 624 Toll r. C. P. Ry 134 Tollemache, Re, Exp. Anderson . . 552 Tolman t\ Johnstone 478, 481 -'Tombs r. Tombs 119 Tomkins v. A.-6 352 Tompson e. Dashwood 156 Tonge, Re 326, 327, 332 Tooker r. Beaufort ..23,358 Toosey e. Williams 122 Tootals Trusts, Re 560 Topham r. McGregor . . .467, 470, 471 Toronto Ry. f • Toronto Corp 420 Torret «. Cripps 516 Toulmin v. Copland 417 Towhill, Re 652 Towle V. Topham 649 Townend v. Toker 586 — V. Townend . .'. 447 Townsend v. Moore. .61, 326, 328, 401 — V. Townsend 626, 657, 669 Tracy Peerage, Mins. Ev 354 — Hubb, 673 317 — 10 C. & F 386, 388, 547 Trafford' v. St. Faith's Council303, 525 Tranton v. Astor 337 Travers v. Blundell 626, 655 — V. Mason 124 Treasury Sol. v. White 498, 688 Trego V. Hunt 594 Trelawney v. Coleman 62 Trench v. Doran 580 Trevivan r. liawrence 685 Trewhitt «. Lambert 572 Trimlestown v. Kemmis. .40, 233. 240, 279, 280, 28i. 528 Trimmer, Re 581, 599, 647 Trimoner v. Bayne 670 Trinidad Co. v. Cory at 684 Troke r. Felton 126 Trotter, Be 520 — r. Maclean ....122. 287, 288, 290 Trueman r. Loder 106, 662 Digitized by Microsoft® Ixxii TABLE OF CASES. PAGE Trust, &c., Corp., Re 443 Tucker, Be 244 — V. Bennett 32, 578 — V. Burrow 670 — V. Lawson 133 — «. Linger 106, 124, 220 — V. Oldbury. .83, 239, 240, 248, 276, 278, 280, 282, 289 — «. Wilkins 347 Tuf ton V. Whitmore 439 Tugwell V. Hooper 203 TuUock V. Dunn 242 Tunley v. Evans 243 Tupper V. Foulkes 518 Turley v. Thomas 21 Turncock v. Turncock 678 Turner, Re, 1906, W.N 389 — Re, 1910, 1 K.B 545 — Re, 29 Ch. D 199, 309, 342 — Re, Times, Feb. 8th, 1912 331 — V. A.-G.. 242, 246, 281, 286. 581, 598 • — «. Bowley 13 — V. Culpan 564 — V. Haji 147 -^ c. Hutchinson 246, 290 — V. Stallibras 127 — V. Turner 616, 638 — ■ V. Warren 450 Turquand, Eaip., Re Parker .... 21 — V. Knight 203, 206 Turton v. Turton . . 104, 119, 121 Tussaud, 72c 667, 668, 670, 671 Tustin V. Arnold 59, 72, 24S Tutton ». Darke 25, 380 Twyman v. Knowles 573 Tyas V. Brown 208 Tyler e. Kingham 368 Tyrrell v. Painton 32 Tyrwhitt v. Tyrwhitt 580 — V. Wynne 161 Uhde «. Walters 662 Ulster Bank «. Synott 636 Ulverstone Union v. Park 199 United Shoe Co. v. Brnnet 14 — States «. MoRae . ; 213 University College «. Taylor .... 526 CTniverso Inspe. v. Merchants Co. 124 Upjohn V. Hitchens 634, 663 Upton V. Hume 156 Urquhart «. Butterfield 18, 250 Usher v. Henwood 46.5 Uxbridge v. Winchester 409 Vacher v. Cocks 65, 87, 257, 261 Vadala v. I/awes 406 Vagg, Exp 427, 430 Vagliano r. Bk. of England . 377. 518, 686, 687 Vaise ». Delaval 197 Vallance, Re 560 Valletort Co., Re 147 Valter's Trusts, Re 343 Van Diemen's Land Co. «. Table Cape Bd 629, 634, 664 Van Omeron r. Dowick 26. 122 Van Praag v. Eve.ridge 601 PAGE Van Sandau v. Turner 20, 21 Van Straubenzee v. Monck 325 Van Wart v. WoUey 250 Vandeleur v. Glynn 231 Vandenbergh v. Spooner 630 Vander Donckt v. Thellusson.. 388, 389, 390 Vandespar v. Duncan 662 Vandewall v. Tyrrell 74, 76 Varlcas v. French 438 Vaughan, Re, 26 Sol. Jo 462, 501 — Re. 17 T.L.K 615, 625, 651 — «. De Winton 168 — • V. Martin 469 Vaughton v. L. & N. W. Ey. '. . . . 10 Vaux Peerage 337, 381 Veale v. Reid 38 Vear. Re j625 Venables «. Sweitzer 213 Venn, Re 613 Verney r. Verney 420 Veronica Case, The 42 Verry v. Watkins 192 Vezey v. Kashleigh 587, 604 Viatka, The 353 Villiers v. Skelton 602, 614, 654 — V. Villiers 48 Vincent e. Col? ' 572 Vine St. ' Superintendent, Re. . 22 Vines t;. Arnold 423 — V. Vines .327 ' Viney v. Barss 167 Virgo 1). Virgo 418, 428 Vitoria, Re 407, 411 Vivian v. Moat 282, 283, 290 Volant V. Soyer 200, 210 Von Eckhardstein v. Von Eckhard- stein 190 Von Linden, Re 548 Vowles V. Young. . .307, 309, 310, 315 Vyner «. Wirral Council 295, 297, 303 W. V. S -. . . 119 Waberley 'r. Cockerel 567 Waddington* v. Roberts 122 Waratafe. Re, 96 L.T 474, 408 — Re. 1908, 1 Oh 642 — r. Wilson 249 Wainewright r. Wainewright. . . 325. 326, 327, 328, 330, 334 Wait, Re 619, 641 Waite, Re 312 Wake 1'. Harrop 517, 581 Wakefield v. Cooke. .409, 411, 412, 421 — V. Llanelly Ry 689 Wnkelin v. L. & S. W. Ry., 1896. 1 Q.B 32 — r. — 12 App. Cas. ..30. 31, 35 Wnkoman (•. West 378, .379 Walbrnn, Re 640 Wnldele v. N. T. Ry 72 Waldridge «. Kennison 232, 235 Waldron v. Coombe ". 366 — 1'. Jacob 631 Waldy 1-. Gray 292. 541 Wnlos r. Wales 161, 166 Wiilford ti. Fleetwood 20 Digitized by Microsoft® TABLE OF CASES. Ixxiii PAGE Walker, Re, 53 L.T 199, 216 — Re, 16 Manson 198 — r. Beauchamp 341 — «. G. W. Ry 98 ■ — ■ V. Manchester, etc.. Banking Co 377 — «. S. E. Ry 558 — V. Walker 113, 134, 156 — i>. Wilsher 231, 232 — V. Wingfield 341 Walker's Case 137 Wallace v. Cook 361 — V. Roe 517 — u. Wallace 344 Waller, Re, White v. Scoles. .612, 650 Wallls V. Llttell 600 — V. Soutter 385 — V. Russell 619 Walsham «. Stain ton 207, 208 Walter v. Haynes 122 Walters v. Le Blanc 527 — e. Lewis 66, 73 — t). Sinith 31, 191 Walthamstow Coun. v. Han\YOod. 122 Walton V. Green 78 — V. Tophakyan 414 Want V. Moss 585 Ward, Re 128 — V. Cox 225 — V. Duncombe 91 — V. Gamgee 461 — •«. Hobbs •. 150 — V. li. G. Omnibus Co 99 — - V. Lumley 528 — V. Marshall 205 — «. Murray 21, 548 — V. SinfieM 482 — «. Wells 438 Warne v. OhadweU 176 Warner v. Mosses 495, 498 Warren v. Swineburne 24, 563 — V. Warren 122 Warrick v. Queen's Coll., L.R. 3 Bq 203 — ». — 40 L.J.Ch 300 Warwick «. Foulkes 156 Watcham v. A.-G 613, 614, 624, 629, 634, 655 Waterford Corp. v. Price... 146, 230, 258, 372, 373 Waterpark v. Funnel 616, 617, 634, 642 Waters «. Braithwaite 126 Watkins v. Nash 583 — o. Rymill 148 — ». Vince 96 Watkinson v. Wilson 663 Watson V. Jaeger 662, 691 — V. Jones 448 — V. King, 8 C.B 249, 569 — ». — 4 Camp 351 — t'. Little 199, ,404, 428 — f. Rodwell 18, 473 — r. Smith 16, 31, 149, 151 — r. Woodman 244 Watt V. Watt ....157, 191, 232, 516 Watteau v. Fenwiek 88 Watts r. Fraser 153, 167, 176 PAGE Watts V. Lyons 116, 134, 220 — u. Vickers 105, 122 Waygood v. James 409 Wayland «. Met. Ry 208 Weall V. James 414 Weatherley v. Weatherley 166 Webb V. Alexandria Co 124 — V. Austin 684 — V. Baldwin 131 — 1?. Byng 641, 648 — «. Catchlove 196 — V. East 213 — V. Hewitt 568 — V. Smith 244, 245 Webber v. Corbett 627, 658, 660 — «. Stanley 133, 648 Webster, Re 679 ■ — V. Armstrong 422 — V. Cecil 601 Wedd V. Porter 123 Wedgwood v. Hart 37 Weed v. Ward 385 Weeding, Re 625 Weeks ». Birch 239, 419, 685 — V. Maillardet 632 Wegg-Prosser v. Evans 414 WeigaU e. Runciman 608 Welfiersheim's Case 374 Weinberg «. Weinberg ....233,487 Weld-Blundell e. Wolseley 387 Welland «. Middleton 355, 361 WeU«r 1). Stone 248 Wells f. Holland 14 — V. Jesus Coll 300 — V. Smith 89, 150 — V. Wells 660 Wels/bach Co. v. New Sunlight Co. 500 Wemyss «. Hopkins 422, 425 Wenman v. Mackenzie. .414, 415, 433 Wentworth v. Lloyd 201 Wernher, Re 431 West, Re 581 — V. Blakeway 568 — «. Steward 530 — V. West 194 — Devon Mine, Re 251 — Riding Bk. v. Elmore 599 Westacott v. Hahn 124 Westcott V. Westcott 216 Western of Canada Co., Re . . . 499 — Corp. V. Poole 537 Westinghouse t'. Mid. Ry. ..208, 209 Westlake v. Westlake 346, 389 Westmacott v. Westmacott. .346, 554 Westmoreland Co., Re 443 — V. Peilden 411 Weston, Re, L.R. 1 P. & D 333 — Re, 1907, 1 Ch '. 232 — V. Emes 589 Westwood B. Chettle 34 Whaley v. Carlisle 21, 285, 36o — V. Masserene .280, 489 Wharam v. Routledge 477 Wharton Peerage 313, 336 Whateley v. Spooner . . .526, 669, 673 Wheatley v. Smithers 98 — «. Williams 206 Wlieeldon v. Burrows 616, 034 Digitized by Microsoft® Ixxiv TABLE OF CASES. PAGE Wheeler v. tie Marchant.201, 202, 208 — V. Morris 127 Whicker v. Hame 431 Whickham v. Ashe 57 Whistler v. Ruskin 387 Whitaker v. Tatham. . .COS, 628, 671 — V. Wisbey 569 Whitcomb v. Whiting 245 White, Re 679 — ■ V. Barry Ry 31 — V. Bywater 380 — V. Cox 559 — V. Credit Assoc 207 — V. Dowling 251, 261 — • 1). Morris 436 — V. White 233, 259 Whiteehurch v. Cavanagh 99, 685, 686 Whitehead v. Scott 18 Whitehouse v. Hemmant 686 — V. Hugh 588 Whitelegg, Re 389, 497 Whiteley, Re 196, 242, 254, 495 — V. King " 328 Whitelocke v. Baker 307 — V. Musgrove 52S Whitfield V. Aland 470 — V. Brand 573 — V. Langdale 626, 656 Whitford v. Tutin 570 Whiting V. Turner 521, 522 Whittaker v. Kershaw 416, 422 Whitton V. Whitton 343, 345 Whittuck V. Waters 313, 344 Whorwood, Re 618, 639 Wbyman v. Garth ....476, 519, 522 Whyte V. Nutting 250 — V. Whyte 432 Widgery v. Tepper 421 Wiedemann v. Walpole.256, 257, 258, 259, 261, 438, 487, 489 Wigglesworth v. Dallison 105 Wigley V. Treasury Sol 313, 342 Wihen v. Law 342 Wilberforce v. Hearfield 359 Wilcox V. Gotfrey 487, 489 Wild V. Holt 161, 168 Wilder v. Wilder 435 Wilding I), Sanderson, 76 L.T. ... 462 — V. — 1897, 2 Oh .584, 585 Wilkins v. Birmingham Corp. . . . 434 — V. Gill 435 — V. M'Giuity 105, 622, 642 — V. Stevens 669 Wilkinson v. Blades 427 — v- Clark 159, 167, 369 — V. Dntton 29 — V. Graves 156 — «. Stoney 15 Williams, Ke, 42 Ch. D 618 — Rc,-iMZ,.T 659 — V. Arkle 670 — V. Bannouth Council 588 — V. Birmingham Co 677 — • V. Davies 411 — V. E. I. Co 33, 35, 46 — ij. Eady 2."i — V. Goodehild 300, 302 PAGE Williams v. Goose 38 — V. Innes 252 — «. Jones, 10 Ves 670, 671 — V. — 36 W.R 591 — V. Morgan 300, 428, 633 — V. Moss's Empires 587 — V. Pinckney 682 — V. Powell 19 — V. Preston 249 — V. Quebrada Ry 203 — V. Richards 162 — V. Star Co 195 — V. Stern 588, 604 — V. Vauxhall Colliery Co 418 — V. Wilcox 347, 688 — V. Williams, L.R. 1 P. & D.. . 233 — !). — 17 Ch. D 145 — w. — 12 W.R 438 — 11. — 32 Beav 85, 148, 153, 670, 674 — V. — 1916, P 497 Williamson v. Freer 150 — V. Williamson 377 Willies V. Farley 73, 81, 254 Willis V. Bernard 62, 78, 83, 688 — V. Curtois 641 Willmett V. Harmer 10 Wills «. Palmer 276, 281, 680 Wilson V. Beddard 515 — V. Bowie 477 — V. De Coulou 461 — V. Love .' 15 — ,1). Morley 603 — V. O'Leary 326, 327, 330, 669, 674 — V. Rastall 201, 203 — V. Robinson 156 — V. Salamandra Co 95 — V. Squire 646 — V. Thornbury 108 — r. Turner 249 — V. Wilson, L.R. 2 P. & D. . . 82 — v. — 9 P.D 512 — V. — 1903, P 384, 388, 389 Wilton V. Phillips 342 — V. Webster 63, 78, 83 Wiltshire v. Naylor 446 Wiltzie V. Adamson 258 Windsor, Re 654 Winfield v. Shoolbred 495 Wing r. Angrave 680 — V. Epsom Council 559 Wingfield, Ewp., Re Florence .... 21 Winslow, Re 210 Winsor v. Reg 453 Winstanley v. N. Manchester Overseas 630 Winstone, Re 680 AVinter v, Henn 192 — V. Wroot 83 Winterbottom v. Derby 131 Wintle, Jie 342 Wisden v. Wisdcn 445 Withncll V. Gnrthnm 299 Witt V. Witt 83 Wodock V. Robinson 578, 589 Wolf r. Halford 597 Wollaston v. Hakcwill 5.38 Digitized by Microsoft® TABLE OF (lASES. Ixxv PAGE Wolmerliausen, Be 243, 244 Wolsey t'. PetMck 50, 81, 83, 289 Wolton 0. Gavin 110 Wolverhampton Co. i. Hawks- ford 374 AVolverton, Re 623, 627, 660 Womerslcy «. Dally 106, 124 Wood, Re, Ward t.. Wood... 603, 669 — V. Baxter 582 — V. Cooper 469 — r. Cox 191 — r. Durham 191 — V. Mackinson 474, 475 — V. Priestner 636 — r. Eowcliffe 624 Woodfine, Re 474 Woodhouse v. Balfour 521. 522 — e. Woodhouse 203, 204 Woodmoth v. Cobham . . . : 278 Woodward, Re 340, 344, 543 — V. Buchanan 161, 166, 168 — V. Goulstone 325 Woodworth v. Sugden 500 Woolam V. Hearn 574 Woolfe .'. Home 582 WooUey v. N. L. Ry.. . .205, 208, 209 Woolway v. Rowe Ill, 239, 240 Working Men's Soc, Re , 445 Worman r. Worman 406, 417 Wordey. Eccp 366 Worswick, Re 208 Worth V. Brown 96, 255 Worthington v. Dublin Ry. . . 205, 209 — V. Moore 523 Wray, Re 581 — V. Wray 625, 649 Wrenn, Re 332, 6.50 Wright, Re. 39 Tr.L.T.R 516 — Re, 44 Ir.L.T.R 529 — r. Bagnall 683 — V. Beckett 480 — V. Cobb 400 — V. Court 94 — ».. Day 69 — ti. Graham 562 — r. Hearson 479 — V. Holdgate 199, 678 — r. Kerrigan 83 — V. TJttler 277, 321 — V. L. G. Omnibus Co.. .410, 413. 416, 422 1»AGE \V right V. Mills 194 — V. Sauudcrson '. . 521 — V. Tatham, 1 A. & E, . .436, 437, 439, 440, 519 — u. — 7 A. & E .58, 83, 116, 135, 219, 220, 382 — u. — 5 C. & F 58, 65, 75, 82, S4, 135, 145, 257, 262, 384, 391, 401, 403, 484 — V. Wilkin 499 — 11. Willcox 40 — i: Wright. 49 Sol. Jo 93 — «. — 1904, Times 490 Wyatt, Re 91 — V. Bateman 218, 225 — V. Berry 522 — V. Gore 1 94 — t). Palmer 406 Wyke V. Rogers 582, 599 Wylson V. Dunn 527 Wynne v. Tyrwhitt -. . . .276, 524 Wynne's Case ". . . . 612 Wyse V. Leahy 360, 623 Wytcherley v. Andrews 431 Xenos v. Wickham 97, 583, 600 Yanotsze Ins. Assn. v. Indemnity Co 379 Yarmouth Ry., Re 549 Tates «. Kyffin-Taylor 418 — V. Pym 663 Teats V. Yeats 625 Yool «. Ewing 678 Yorke «. Smith 570 — V. Yorkshire Co 387 Youill V. Scott-Robson 616. 634, 662, 663 Young, Eatp., Re Kitchin 10. 243, 404, 415, 427 — «. Austen 578, 592, 603 — «. HoUoway 413, 430, 431 — )'. Raineock 684 — r. Schuler 59, 75, 516. 517, 519, 581 — Manfg. Co., Re 500 ZoucH Peerage 310, 340 Zumbeck r. Biggs 442 Digitized by Microsoft® Digitized by Microsoft® LAW OF EVIDENCE. Sixth Edition. EKRATA AND ADDENDA. 3 14 16 19 20 42 45 85 87 126 142 145 147 152 165 165 166 188 188 188 190 192 259 311 356 371 382 411 411 440 454 LINE 7 from top. 7 from top. last line. 14 from top. 26 from top. 30 from top. 12 from end. (left col.) 29 from top. (right ool.) 2 from top. (right ool.) 17 from top. (left ool.) 36 from top. 8 from end. 3 from end. (left col.) 26 from end. 2nd line. 34 from top. (left ool.) 20 from end. 16 from end. 9 from end. 8 from end. 5 from end. 13 from top. (right col.) 4 iSr 5 from top. 14 from top. (right ool.) last line. 3 from end. 12 from top. last line but one. last line. 22 from end. after " ss. 27-121 " add ", 240-2." /or " 211-3 " ?c(M« " 240-2." after " alone." read " The latter view is now enforced by the Admn. of Justice Act, 1920, s. 15." add "As to what amounts to an admission of the truth of a charge, so as to render a conviction unappealable, see E. V. Graham Campbell, 65 Sol. Jo. 46." a/;«r" 241" add " ; Lipton v. Powell, 65 Sol. Jo. 275)." for " 42)." read "42 ; post, 464)." foj- "ss. 513-22]." read "ss. 514-22, 556]." for "Accident " read " Accidental." after "so" add " ; cp. The Queen's Case, 2Brod. ABing. 299-301]." powers " insert " ; Stonehouse v. Masson, 151 L. T. Jo. 296)." after after " found " add "136)" add ' after 9 from top. at A.'s lodgings" and on line 39 for " inadmissible " read " admissible." ; but where the dealing has been variable, knowledge will not be inferred (Roe v. Naylor, 87 L. J. K. B. 958, 963, C. A.)." after " 712 ; " add " affd. 87 L. J. K. B. 958, C. A. ; " after " proved " add " ; cp. E. v. Zulueta, ante, 143]." after " 108 " odd! " ; Eoe v. Naylor, 87 L. J. K. B. 958, 963, C. A.)-" aftei- " 508 " insert " ; cp. Pollard v. f.,post, 166." for "corroboration, ijosf, p. 491-4" 7ead "ante, 119; post, 190, 491-4." /or " may " read " might." for " statute " read " undermentioned statutes.'" after "answer" insert "(E. v. Eowton, inf.)," and /or "are" read "were." after "deceased " insert " (R. i . Biggin, 1920, 1 K. B. 213 ; " for " 477-9 " read " 477-83." delete "a doctor" and for "procuring an abortion upon" read " committing an unna- tural offence with" /or "52 "read "53." add "See post, 440, 512." aft^r "113" read "; Frost v. Clanway Co., 1920, 1 K. B. 423; ■' Turton D. East &c. Co., 90 L. J. K. B. 267)." after " 347-8 " add ", 538-49 ; " /or "and Irish" read "Irish and Colonial" after "28" add " ; and Admn. of Justice Act, 1920, a. 9." aftei- " sed qu." read " and in actions under Ld. Campbell's Act, the contrary has been held, Calmenson v. Merchants' Warehous- ing Co., 1921, W. N. p. 59, H. L. ; Bamett v. Cohen, 37 T. L. R. 629; cp. Bird V. Keep, ntife, 356;" /or "his" rend "him.'' Digitized by Microsoft® ERR A TA A ND A DDENDA . PAGE LINE 454 14 from end. 464 13 from top. 484 11 from top. 486 17 from end. 505 29 from top. 606 5 from end. 506 4 from end. 512 11 from top. 512 20 from end. 517 29 from top. 532 top line. 532 top line. 536 11 from top, 539 6 from top. 548 28 from top. 562 13 from top. 563 3 from top. 565 1*2 from top. 565 4 from top. 565 5 from top. 565 7 from top. 570 13 from end. 575 30 from top. 575 30 from top. 581 20 from top. 613 3 from top. 630 4 from top. 630 24 from top. 661 34 from top. 661 35 from top. 081 13 from top. after "250" read "; E, v. Wood, 1920, 2 K. B. 179)," after " sup." add " ; R. v. Bottomley, 1909, 2 K. B. 14 ; " after " C. A." add " ; Lipton v. Powell, 65 Sol. Jo. 275)." after "contra)." add "Children under fourteen cannot be aooomplioea in felony, but may in other oases. Whether aooomplices or not, it is desirable to caution the jury as to acting on their testimony (R. V. Cratohley, 9 Cr. App. B. 232; R. V. Tatam, 15 id. 132)." after "Blackburn J." delete to end of sentence, and substi- tute "see cases cited infra, 8]." after "J.;" add " R. v. Katz, 17 T. L. R. 67; R. v. Holloway, 65 J. P. 712;" and after " contra " add " R. v. Guerin, cited ante, 42, 464 ; " fm- "Tay. s. 412" read "Tay. 8th ed. s. 482, who queries R. V. Vidil ; " after "sup." add "; and conflicts with the new cases cited in the Addenda for insertion on p. 440)." for "Ross." read "Eos." after " unless " insert " under." after "sup.)." add "And an unstamped Deed of Arrangement has been received to prove an act of bankruptcy, though rejected in proceed- ings to recover property comprised in the deed {Re Shaw, 90 L. J. K. B. 204)." after "As to" insert "unstamped Insurance slips, see post, 537 ; and as to" after " XXX." insert " See 84 J. P. Jo. 508 ; and " /or "293" rearf" 339." after "775" insert ", and Enolin v. Wylie, 10 H. L. C. 1, 10)." add "As to the reciprocal enforcement of judgments in the U.K. and other parts of the Empire, see Admn. of Just. Act, 1920, s. 9." for " 102-13 " read " 502-13." for " 1887 (50 & 51 Vict. o. 57) " read " 1914 (4 & 5 Geo. V. c. 47)." for "(ss. 5, 6)" read " (s. 5)." XM for "s. 7" read "s. 6." for "11" read "25." for "this Act" read "the similar Act of 1887." for"; c.p. Passenger's Tickets, ante, 147" read", cited ante, 147-8; cp. Brough V, Netherton, W, N. 1921, 127)." /or "590," read "590)," after "637" insert", and Haye's Estate, 1920, 1 I. R. 103)." for " 661 ; " read " 661) ; " for " 673) ; " read " 673 ; " after " (3) ; " insert " Wigram, Prop. VI. ; " after " clause " add " in the will." after " erased " add " in the probate." after "186)." insert "As to children as accomplices, see ante, 486." 205/21 Tlie Eastern Press, Ltd., London H Reading. Digitized by Microsoft® THE LAW OF EVIDENCE BOOK I. PRODUCTION OF EVIDENCE. CHAPTER I. INTRODUCTORY. LAW, — Substantive and Adjective. Law is commonly divided into Sub- stantive Law, which defines rights, duties, and liabilities ; and Adjective Law, which defines the procedure, pleading, and proof, by which the substantive law is applied in practice. The rules of Procedure regulate the general conduct of litigation; the object of Pleading is to ascertain for the guidance of the parties and the Court the material facts in issue in each particular case; Proof is the establishment of such facts by proper legal means to the satisfaction of the Court. The first-mentioned term is, however, often used to include the other two. PROOF, in this sense, is effected by-^(o) Evidence, (6) Presumptions, (c) Judicial Notice, and (d) Inspection. (a) EVrDENCE. Definitions. Evidence, as the term is used in judicial proceedings, means the facts, testimony, and documents which may be legally received in order to prove or disprove tiie fact under inquiry. Taylor applies the word to 'all the legal means, exclusive of mere argu- ment, which tend to prove or disprove any fact the trijih of which is submitted to judicial investigation' (s. 1). This, however, is too wide, since, though it excludes 'mere argumenf (t. e. presumptions of fact), it would include pre- sumptions of law, judicial notice, and inspection, which are not usually ti'eated under this head. On the other hand, the word is sometimes, though it is submitted unduly, restricted to facts (Hunter, Roman Law, 3rd ed., 1050), and sometimes to testimony and documents exclusive of facts (Staph, art. 1; Gulson, infra). Bentham defines evidence as 'Any matter of fact the effect, tendency, or design of which is to produce in the mind a persuasion concerning the existence of some other matter of fact; a persuasion either affirmative or disaffirmative of its existence. Of the two facts so connected, the latter may be distinguished as the principal fact, and the former as the evidentiary fact' (I Jud. Ev. 17, 18, 24). This definition is adopted by Best (ss. 11, 33). Both writers, however, include testimony and documents under the head of * evidentiary facts ' (Benth. i Jud. Ev. 51-5 ; Best, ss. 10, 14, I..E. — 1 Digitized by Microsoft® 2 . THE LAW OF EVIDENCE. [book i. 27-31, 123). Prof. Thayer defines evidence as 'Any matter of fact which is furnished to a legal tribunal otherwise than by reasoning, or a reference to what is noticed without proof, as the basis of an inference as to some other matter of fact' (Cas. on Ev. 1st Ed.j 2; 3 Harv. L. Eev. 142) ; but in this definition he appears to include not only facts in a narrow sense, but oral, written, and 'real' evidence as well (Pr. Tr. on Ev., 263-4; though see 391, 396). Sir J. Stephen, excluding facts as evidence, restricts the latter term to " (1) Statements made hy witnesses in Court, under legal sanction, in relation to matters of fact under enquiry; such statements are called oral evidence; and (2) Documents produced for the inspection of the Court or judge; such documents are called documentary evidence" (art. 1). This restriction, however, conflicts with other parts of the Digest, e.g. an ad- mission, which by art, 15 is a relevant 'fact,' is declared by art. 64 to be primary 'evidence'; while elsewhere, after asking 'what is evidence?' it is added, 'the only possible answer is that one fact is, or is not, relevant to the other,' a definition which, if taken literally,, would admit facts but eiclude testimony and documents [5th ed. Introd., p. xii.; see further, post, 51-2]. Mr. Gulson gives- several deflnitipns which, however, are not easy to reconcile; for while, like Stephen, he contends that facts are not evidence, but only its subject-matter (Philosophy of Proof, ss. 12, 260-8), he yet speaks constantly of 'evidentiary facts' and 'circumstantial evidence,' and defines evidence itself sometimes as the science, art, or process of ascertaining or verifying facts (ss. 17, 24), sometimes as proof (ss. 24-6), sometimes as the means of proof, by which he refers to observation, perception, or the exercise of the senses (ss.. 24-6, 168-9, 177, 183, 223-4, 254, 259-60) and sometimes as the result obtained by applying these means of proof to facts (ss. 174, 226, 230, 266, 314, 319). On the whole, what he appears chiefly to regard as evidence is either the act of perception itself (exercised by the Court, or the reporting witness) or the result of its application to facts, as distinct from the facts themselves. But he con- cedes that the distinction between facts and evidence is an arbitrary one, and that any fact which generates probability is in some sense a means of proof (ss. 203,260), and while excluding facts because they are the subject-matter of testimony, inconsistently admits testimony although it is the subject-matter of perception (ss. 323, 345).. At the present day, however, this question can hardly be considered an open one, for the whole practice of the Courts proceeds on the assumption that facts are ' evidence ' both actually and technically. Thus, to .. take only one of innumerable instances, in an action for breach of promise, tj;ie fact that the defendant was silent on a certain occasion has been held to be statutory ' evidence ' corroborative of his promise to marry {Bessela v. Stern, 2 C. P. D. 266, C. A.), though it would not fall within either Stephen's or Gulson's definition. The latter's contention that perception by the Court, as distinct from the fact perceived, is itself evidence, seems equally untenable, for though it is usual to speak of ' the evidence of one's own senses,' yet in law it is that which is adduced by the parties, not that which is furnished by the Court in the way of sight, hearing, or reasoning faculty, which atone consti- tutes ' evidence ' for whose wrongful admission or rejection the Courts provide a remedy (cp. 1 Benth. Jud. Ev. 250-4; Thayer, Pr. Tr. Ev. 264). Facts.^ No satisfactory definition of the term ' fact ' has be.en, or perhaps can be, given. Broadly it applies to whatever is the subject of perception or consciousness. But juridically it has generally to be distinguished from law Digitized by Microsoft® CHAP. I.] INTEODUCTOEY. 3 {post, 13-lfi), sometimes from opinion {post, chap, xxxv.), and sometimes from testimony and documents {supra). These distinctions, however, are purely arhitrary, and it is not possible always to apply them consistently. Bentham divides facts into physical or psychological; events or states of things ; and positive or negative {i.e. the non-existence of positive facts) [Benth. i, 39-50; Best, ss. 12-13; Staph, art. 1 (the definition in the fi'rst two eds. is omitted in later eds.); Gulson, ss. 27-121; Chamberlayne, Ev. ss. 38-53; Thayer, Pr. Tr. Ev. 190-2]. Classifications. The subject of evidence is not one which lends itself readily either to definitions or divisions. Few of its terms have acquired settled or imambiguous meantags, and no two writers adopt the same classifi- cation. Bentham gives in all nine heads of evidence: (1) Ab intra and Ab extra (Immediate and reported) ; (2) Eeal and Personal (from things and persons); (3) Voluntary and Involuntary Personal; (4) Depositional, Testi- monial and Documentary; (5) Oral and Scriptitious Depositional Testimony; (6) Direct and Circumstantial; (7) Ordinary and Makeshift {i.e. with full or only partial security for correctness) ; (8) Pre-appointed and TTnpre- appointed; (9) Original and Unoriginal. The following divisions or distinc- •tions, however, which are commonly observed in practice, comprise all that are really essential to be noticed : — Direct, Circumstantial and Real Evidence. By Direct evidence is meant that a given fact is proved either by its actual production, or by the testimony or admissible declaration of some one who has hipiself perceived it. By In- direct, Circumstantial, or Presumptive evidence is meant that other facts are thus proved, from which the existence of the given fact may be logically in- ferred. The two forms are equally admissible, and the testimony, whether to the factum probandum or the facta probantia, is equally direct; but the superi- ority of the former is that it contains at most only one source of error, f alli- bilily of assertion, while the latter has, in addition, fallibility of infer- ence. Little is to be gained, from a comparison of their cogency, since, save in the case of actual production (see twfra> Eeal Evidence), both forms admit of every degree of cogency from the lowest to the highest. — The principles underlying direct and circumstantial evidence are by some writers considered to be identical, the credibility of one and the probability of the other being said both to rest upon inference (1 Stark. 3rd ed. 12-13; Steph. Introd. Ind. Ev. Act, 49-64; Markby, Ind. Ev. Act, 5-6; Thayer, Pr. Tr. Ev. 263-4; Wigmore, Ev., ss. 25, 475-6; Salmond, Jurisp., 1st ed. 58-5). Others regard faith and inference as radically distinct, and base belief in human as- sertion not on inference, but on instinct confirmed by experience (1 Benth., Jud. Ev., 110-138; Greenleaf, s. 7; Best, ss. 15, 132; Tay., ss. 50-1; Eeid, Human Mind, c. 6, s. 24; McKinnon, Phil, of Ev. 40). Mr. Gulson maintains that whereas inferences must be based on the known laws of nature, and those underlying circumstantial evidence are so based, there is no known law of nature which entitles us to conclude that voluntary, as distinct from involun- tary, communications truthfully represent the knowledge of the speaker. He adds that whether the human will be, or be not, subject to any laws of causa- tion at all, is "controverted; but even if it be, such laws are buried in obscurily (ss. 175-6, 503; Dumont, Jud. Ev. 19; Norton, Ev. 2nd ed., s.^ 109; post, 331-322). However this may be, the forensic rules applicable to the two topics are so essentially different that it is not possible satisfactorily to treat them Digitized by Microsoft® 4 THE LAW OF EVIDENCE. [book i. under a common head and in practice they never are so treated. [Tay. ss. 63-9 ; Best. ss. 293-5; Steph., Intro, to Indian Bv. Act; Id. Gen. View of the Cr. Law, 203-5 ; Wills, ,Circ. Ev., 6th ed., 19-52 ; Amos, Jurispr. 333-5 ; Hunter, Roman Law, 3rd ed. 1050-1; Gulson, ss. ,123-8, 199-218; Wigmore, Ev. ss. 24-6, 21'5-6; Whart., Civil Ev., s. 8; Id. Crim. Ev., ss. 10-20. The terms Cir- cumstantial and Presumptive are in general used convertibly; but some writers distinguish them as genus and species (Wills, sup,), and others as the converse (Gulson, s. 490)]. Real Evidence. Material objects, other than documents, produced for the inspection of the iCourt, are often called Real evidence. This, when obtainable, is the most satisfactory kind of all, since, save for identification or explanation, neither testimony nor inference is relied upon, but the fact speaks for itself (see further, Inspection, infra, 7). Bentham states that real evidence is always circumstantial (i, 55 ; iii, 33-4) ; but this is not sss When the object produced is an evidentiary fact from which the principal fact may be inferred, the evi- dence is circumstantial ; when its own existence or some visible quality of it, is itself the principal fact, the evidence is direct (Best, s. 196 ; Gulson, ss. 227-8). Sir J. Stephen has been criticised for omitting this topic from the Indian Ev. Act and Digest. His explanation is, that though, in addition to oral and docu- mentary evidence, a third class might be. formed of things produced in Court, not being documents, this division would introduce needless intricacy, since as the condition of material things is usually proved by oral evidence, there is no need to distinguish between o^al and material evidence (In trod. Ind. Ev. Act, p. 14). The phrase ' Real' evidence,' indeed, is unsatisfactory and like many other evidential terms is used in different senses by different writers. Ben- tham defines it as that of which any object belonging to the class of things is the source, persons being included in respect of qualities belonging to them in common with things, while he defines ' personal ' evidence as that furnished by human agents either voluntarily by discourse or signs, or involuntarily by changes of deportment (i Jud. Ev. 51-2; iii, 36). Voluntary conduct, i.e. that which serves to convey an indication of the mind of a person, is also, though less expliciily, classed by him as ' personal ' evidence (i, 69n. ; iii, 11). Later, he ftdds that 'physical real evidence, whether arising from a real or personal source,'. is either immediate, i.e. where the thing itself is present to the senses of the Judge, or reported, i.e. where its existence is testified to by the percipient witness, in which case it is immediate to the witness, but reported to the Judge (i. 69w; iii, 33-4). Best adopts these terms and divisions, save that he classes (1) involuntary changes of deportment, and (3) voluntary conduct, as real and not as personal evidence (ss. 38, 196-8). Mr. Gulson criti- cises both writers for ignoring the distinction which he supposes to exist between facts and evidence (see ante, 3), and remarking (erroneously so far as Bentham is concerned), that their 'reported real' and 'personal' evidence are practically identical,, defines ' real ' evidence as ' the evidence of immediate perception exercised upon the fact itself,' ' the evidence obtained by the Court through the mere exercise of its own perceptive faculties ' (ss. 283-4, 226, 430). He thus makes perception (not alone of things, but of acts and persons also), the test of real, or immediate, evidence, and not the facts perceived, which latter, as we have seen, he regards not as evidence, but merely its subject- matter. Moreover, placing documents in the same category as other material objects, since both are equally the subject-matter of inspectipn (ss. 313-20) Digitized by Microsoft® CHAP. I.] INTRODUCTOEY. 5 he classes all evidence other than ' real ' in the above sense, as ' oral/ or trans- mitted (ss. 174-85). But, as he admits that oral evidence is 'itself entirely addressed to the senses of the tribunal ' (ss. 323-345)* this seems a distinction without a difference and would reduce all evidence to the single category of ' reaJ.' In truth, however, witnesses and documents each combine both kinds of evidence, immediate in respect of their production to (or, as Mr. Gulson would have it, their perception by) the Court, and transmitted or reported in respect of any facts they narrate. — Prof. Wigmore discards the phrase 'real evidence' as misleading, and substitutes 'Autoptic Proference,' explaining that "a fact is evidenced autoptically when it is offered for direct perception by the senses of the tribunal." He adopts the latter locution, " in order to avoid the fallacy of attributing an evidential quality to the thing itself," and adds that " bringing a knife into Court is not strictly giving evidence of its existence." By this, however, he does not apparently seek to deny that the knife when produced is evidence in- the sense that it " proves or disproves itself," but merely means to convey that " it is not evidence in the particular sense of giving testimony, or offering circumstantial evidence of its existence." (Ev. s. 24; Pocket Code, ss. 113-114). [Best, ss. 28, 196-214; Gulson, ss. 174-85, 222-9, 262-6, 313-16; Wigmore, Bv. ss. 24, 1150-68; Chamber- layne, Ev. ss. 27-31. The last named writer overloolcs iii. Jud. Ev. 33-4 quoted sup., and so attributes to Best, instead of Bentham, the division ' immediate and reported.* His account of Best's and Mr. Gulson's views is, in some other respectsj also not quite accurate. For a detailed examination of ' Real ' evi- dence, by the present writer, see Yale Law Journal, May, 1920], Original Evidence and Hearsay. Statements tised OvrcumstantiaUy and used Testimonially. The terms ' original * and ' unoriginal ' are used by Bentham to denote a sub-division of ' Testimonial ' evidence, under which lat- ter head he classes any probative statement whether made on oath or not. He describes evidence as ' original ' when the principal fact is transmitted to the Court by the percipient witness, and ' unoriginal ' when it is transmitted by some intermediate person (i. Jud Ev. 57). Best adopts this division, but makes an important extension thereto, applying it to all evidence, whether 'testimonial' or not, and in order to adapt the terms to the enlarged area, defines ' original ' evidence more generally, as ' that which has an independent probative force of its own,' and ' derivative ' (second-hand or secondary evi- dence), as that which derives its force from some other source (ss. 29-30, 89, 472, 492-5). This classification is characterized b^ Mr. Gulson as plausible, but deceptive, because it is not possible to draw any definite line between the two species. TSere is no evidence, he contends, that can properly be called ' original ' except that acquired by tlie immediate perception of the Court (see 'real' evidence, supra.) |Compared with this all otlier evidence is more or less derivative. But since, according to Mill, there is scarcely any direct per- ception tliat does not itself involve some element of inference, it follows that very little even of immediate or ' real ' evidence is entirely original (ss. 230-7). The term Original evidence, however, is also used, in contradistinction to Hearsay, in another and rather different sense from the above, that requires to be specially emphasized. In this sense it means any statement made out of Court, whose materiality depends on the fact that it was made, and not on tht fact that it was true ; while Hearsay (second-hand) evidence means any state- ment made out of Court which is offered as evidence of the truth of the matters Digitized by Microsoft® 6 THE LAW OF EVIDENCE. [book i. asserted. Thus, statements constituting a fact in issue, e.g. a libel, contract, threat, or notice, but which are used merely to show what was written or said on the given occasion, and not that the contents of the libel, etc., were true, are original evidence ; while an entry in a shop-book, debiting a customer with goods, and used directly to prove the sale, is hearsay, and only admissible " by exception. So, statements constituting a fact which is merely relevant to the issue, e.g. a police-report to the same effect as a libel, but tendered merely to show the bona fides of the defendant in .publishing the libel (B v. Ldbouchere, post, 133), or a complaint, in a case of rape, tendered merely to confirm the testimony of the prosecutrix or negative her consent {post, 113), is original evi- dence; while these statements, if sought to be used as proof of the truth of their contents, would be hearsay, and only admissible in excepted eases. The test of whether a statement belongs to one class or the other is, therefore, not the nature of its contents, but the evidentiary purpose for which it is used ; so that the same statement may be original evidence when tendered for one pur- pose and hearsay where tendered for another, [post, 60-2, 103, 113-16, 218, 225 ; 31 L. Q. Eev. 230-1; 26 Harv. L. Eev. 150-3]. This distinction between the use of a statement as a fact (whether in issue or relevant), and its use as a probative assertion or narrative, though not always adequately recognized, or easy to apply (see e.g. Lloyd v. Powell Co., post 62; Milne v. Leister, post 74), is one of paramount importance. Indeed, Mr. Gulson regards it as " the chief, if not the whole, diificulty of the art of judicial evidence " (s. 366). It is un- fortunate, however, that the terminology to express it should be so inapt and unenlightening as seriously to imperil the distinction itself. The terms 'Cir- cumstantial ' and ' Testimonial ' have been suggested as substitutes in this connection (Wigmore, Ev. s. 25) ; and although the former is not strictly ap- propriate to statements which may often be actually in issue, nor the latter to those that are not made upon oath, yet they will be found convenient as in- dicating more clearly the iwo contrasted uses. The various statements dealt with in chaps, vi.-x., xxviii., xliv.-vii., herein, are examples of statements used circumstantially, i.e. as original evidence;- those in chaps, xvii.-xxxiv. are examples of statements used testimonially, or rather quasi-testimonially, i.e. as hearsay, admissible or not by exception [Tay. ss. 576-87; Best, s. 495 Steph. Digest. Note viii.; Eos. N. P. 17th ed. 51-3; Id. Cr. Ev., 13th ed. 23-5 Gulson, ss. 186-98; 285-312, 357, 364-5; Wigmore, Ev., ss. 25, 475, 1361 Chamberlayne, Ev., vol. iv., pp. vii.-xiv., s. 2580]. Primary and Secondary Evidence. As commonly used, these terms apply to the kinds of proof that may be given of the contents of a document, irrespec- tive of the purpose for which such contents, when proved, may be received (Steph. arts. 64, 70; Gulson, ss. 337-43, 443-4). — 'Primary evidence means the best or highest kind, that which the law regards as affording the greatest certainty of the fact in question ; thus, production of the original document, or proof of an admission of its contents by the party against whom it is tendered, is considered primary in this sense. Secondary evidence means inferior or substitutionary evidence, that which itself indicates the existence of more origi- nal sources of information; thus,- a copy, or the testimony of a witness who has read the document, is secondary. In Lucas v. Williams, 1892, 2 Q. B., p. 116, Lord Esher remarked : " Primary evidence is evidence which the law requires to be given first; secondary evidence is evidence which may be given in tiie absence of that better evidence, when a proper explanation of its absence has Digitized by Microsoft® CHAP. I.] INTBODUCTOEY, 7 been given." This, however, is only approximately true, for the law in some pases requires secondary evidence to be given first, and in others allows the production of primary evidence to be optional {post, 560; cp. 535, 543). The terms primary and secondary are also occasionally applied to proof of hand- writing {post, 400, 515), and attestation {post, 519) ; and Mr. Taylor regards depositions as secondary evidence of oral testimony (s. 464; contra, Gulson, s. 354, and posf, 436-7). Second-hand and Secondary Evidence Distinguished. Used in the above sense, the term second-hand {i.e. hearsay) evidence is applicable both to oral and written statements; it deals only wiiii their use as evidence of the truth of the facts asserted; and it is in general inadmissible, however unanswerably the absence of the original source may be accounted for, e.g. by the death, absence, or lunacy of the percipient witness {post, chap. xvii.). The term secondary evidence, on the other hand, is by common usage confined to docu- ments; it deals only with the means of proving their contents; and it is in general admissible whenever the absence of the primary source has been satis- factorily explained {post, chap, xliii.), [Best, s. 494]. (b) PRESUMPTIONS are either of law or fact. Presumptions of law are arbitrary consequences expressly annexed by law to particular facts; and may be either conclusive, as that a child under seven is incapable of com- mitting a felony; or rebuttable, as that a person not heard of for seven years is dead, or^that a bUl of exchange has been given for value. They are sometimes defined as inferences, directed by law to be drawn from particular facts (Steph. art. 1; Austin, Jurisp., 4th ed. 507; Best, s. 304) ; but, strictly speaking, as Prof. Thayer points out, a compulsory inference is a contradiction in terms, the law having no mandamus to the logical faculty. It would be more correct to say that the law requires ,Courts to abstain from drawing inferences, and to accept one fact as the legal equivalent of another (Pr. Tr. Ev. 314:5, 317). Presumptions of fact are inferences which the mind naturally and logically draws from given facts, irrespective of their legal effect. They are always rebuttable. [Post, chap, xlviii.; and see Circumstantial evidence, ante, 3]. (c) JUDICIAL NOTICE is the cognisance taken by the Court itself of certain matters which are so notorious, or clearly established, that evidence of their existence is deemed unnecessary. [Stephen, in the first two editions of the Digest, described these as " facts which need not be proved," but in later editions calls them "facts proved otherwise than by evidence" (Pref. to 3rd ed.) ; Tay. ss. 3-31; Best, ss. 252-4; see fully, post, 19-26]. {d) INSPECTION, VIEW, COIIPARISON. Inspection has been defined as a substitution of the eye for the ear in the reception of evidence, and as a general rule is allowed whenever it is practioable, a,nd will assist the tribunal in arriving at a decision. The practice dates back for some seven centuries to the old trials by inspection, which' were the appropriate means of deter- mining certain questions, e.g. age; identity, the genuineness of records, may- hem, pregnancy, &c. At first some of these were tried by the Court itself, but in doubtful cases reference was made to the jury, and gradually this became the usual rule. [Thayer, Cas. Ev. 2nd ed., 720 ; Hale, P.C. cited post, 119; Tay., ss. 554-66; Best, 196-7; Wigmore, ss. 24, 1150-68; Gulson/ ss. 174-85, 222-9, 313-36 ; and see Eeal evidence, ante, 4]. Digitized by Microsoft® 8 THE LAW OF EVIDENCE. [book i. Valuable inferences are commonly derived through this channel from, e.g. the demeanour of witnesses under examination, the condition of premises in dispute in an action, the appearance of the instruments used in committing a crime, or from verified models and plans. So, in an action for damages for the bite of a dog, the dog was produced in .Court, that the jury might judge of its disposition {Line v. Taylor, 3 P. & P. 731). Under Several statutes, also, the age of the persons may be similarly determined, e.g. the Vagrancy 'Act, 1834, s. 3 {B. v. Viascmi, 30 J.P. 758), the Summary Jurisdiction Act, 1879, s. 49, the Children Act, 1908 (8 Ed. VII. c. 67), s. 123 {B. v. Cox. 1898, 1 Q.B. 179), and this is sometimes done without statutory authority {R. V. Turner 1910, 1 K.B. 346) ; while in cases of disputed handwriting {•post, 108), pirated trade-marks or engravings, and the like {Lucas v. Wil- liams, 1892, 2 Q.B. 113), direct comparison between the genuine and dis- puted specimens, made either by the tribunal itself or sometimes by witnesses and others out of Court {id,; and cp. Du Bast v. Beresford, 2 Camp. 511), is not only allowable, but often a most efScacious test. In the inferior iCourts, questions of this nature are often decided upon a view by the Court alone, without witnesses. And in infringement and passing-off cases, mere comparison by the Court has sometimes been held suflBcient [Bourne v. Swan, 1903, 1 Ch. 211, and cases cited; Hennessy v. Keating, 1908, 1 I.E. 43,''C.A. ; 42 Ir L.T.R. ] 69, H.L. per Ld. Ashbourne, "I go on the evidence of my own eyes. Looking at the bottles and looking at the labels, I aia unable to see any colourable imitation ;" per Ld. Macnaghten. " The eye no 'doubt is the best test. Gen- erally, but not always, the comparison is enough"]. In Lond. 0. 0. Co. v. Lavell, 1901, 1 Ch. 135, C.A., however, the Court remarked that a view was not to be put in the place of evidence, but was to enable the tribunal to understand the questions raised and to follow and apply the evidence. As to Confrontaition for purposes of identification, see post, 465-6 ; but a person attending on subpoena cannot, it seems, against his will be asked to stand up in Court for identification {Farulli v. F., 1917, P. 28). ■ Production when compulsory. On charges of larceny, the -Court usually insists upon 'the stolen property, if found, being produced, unless it is of a perishable nature, or its exhibition would be inconvenient or offensive; but generally the production of 'real' evidence is not compulsory (Tay. 555- 555A. ; Best, s. 197; Gulson, ss. 322-30; post, 47), ^nd indeed, where the jury may be unduly affected or prejudiced thereby, it may either be wholly refused {Bost V. By. Co., 41 K.Y. 1069; Golden Co. v. Buxton, 97 Ped. Eep. 415), or permitted only in conjunction with expert or other competent testimony (Tay., ss. 556-7), or subject to caution as to its dangers {B. v Picton, 30 How. St. Tr. 457, 480; B. v. Ings, 33 id. 1051, 1088). Thus, in an aption for injury by a collision, Wright, J., in the absence of the doctor and unless by consent refused to allow the jury to view the injured limb {Curtler v. London Tram- way Co., Times, Feb. 13, 1891) ; and, in a case of disputed handwriting, Black- burn, J., refused to allow a comparison to be made without the help of experts {B. V. Harvey, 11 Cox 546, approved B. v. Bichard, 13 Cr. App. R. 140 ; post, 108). In both civil and criminal cases, moreover, the judge may adjourn the Court to enable the jury to view any material property or thing during the trial, a course which may be adopted even after the summing-up {B. v. Whalley, 2 lO. & K. 376; B. v. Martin, 12 Cox 204) ; though the jury must not communicate with the witnesses during such view {B. v. Martin sup ) |Tay., ss.' 558-66]. i Digitized by Microsoft® CHAP. I.J INTflODUCTORY. 9 Detention. Preservntion, Inspection. Samples, Photographs, Experiments. Under 0. 50, rr, 3-5, the Court or a judge may in civil cases order the detention, preservation, or inspection of any property or thing forming the subject-matter of the proceedings; as well as samples or photographs to be taken, observations to be made, or experiments to be tried, so as to obtain full information or evidence. Such inspection may be by judge or jury ; and obstacles which impede it may be ordered to be removed {Bennett v. Griffiths, 3 L.T. 735). Sinular powers exist in Admiralty cases by 24 & 25 Vict. c. 10, s. 18; in Patent Actions by the Patents Act, 1907, s. 34; in Arbitrations and References by 0. 36, r. 48 {Macalpine v. Calder, 1893, 1 Q.B. 545; Barnett V. Aldridge, 4 T.L.R. 16; but a view of which one party only has notice invalidates the award, Gregson t. Armstrong, 70 L.T. 106) ; and in County Court cases by C.CJR. 1903, 0. 12, r. 3 and 0. 22, r. 17 (an inspection of a lady's mouth by a dentist was, however, refused under these rules as not being " any property or iMng the subject-matter of the action," Mitchell v. Stephens, 29 L. Jo. 389). Irrespective of the above, however, medical inspection of a party may be ordered in various cases, e.g. in Chancery to determine pregnancy {Re Blakemore, 14 LJ. Ch. 336) ; in Nullity suits (Oakley, Divorce, 5th ed. 130-5, and refusal to submit is evidence against the party, £?. t. B., 21 T.L.R. 219; contra ia criminal cases, inf,); in actions for Railway accidents (31 & 32 Yict. c. 119, s. 26) ; and under the Workmen's Compensation Act, 1906, Sch. I (4) {Marshall \. Orient Co., 101 L.T. 584) ; though bankrupts cannot be compulsorily examined with a view to their life insurance (-Re Betts, 19 Q.B.D. 39>. So, scientific experiments may be ordered {post, chap, xxxv.), artistic tests undertaken {Belt v. Lowes, 1882, Times Nov. 17), or specimens of handwriting executed, in or out of Court {post, 109), during the trial. Criminal Cases: View, Search, Physical Examination, Finger-Prints, etc. In criminal cases the power to order a view before the trial is restricted to proceedings on, or removed into, the Crown side of the Q.B. [6 Geo. IV. c. 50, SS.-23, 24; C.O.R. 1906, rr. 148, 233 (p) ; as to view during trial, see R. v. Martin sup."]. But the police, though they have no general power of search, may, on arrest of a prisoner for felony or misdemeanour, seize and retain all material doeumente and articles in his possession, for production in Court, and even impound articles belonging to and produced by a witness {Dillon "v. O'Brien, 16 Cox, 245; R. v. Lushington, Exp. Otto, 1894, 1 Q.B. 420; B. V. Thompson, 33 T.L.R. 506, C.C.A.; post, 138; though as to money, see Gordon v. Chief Commissioner. 45 L. Jo. 505). And by warrant, under the Larceny Act, 1861, s. 103, and the Prevention of Oimes Act, 1871, s. 16, this power is greatly extended. So, letters and telegrams may, by warrant of a Secretary of State, be detained and opened at the Post OfiBce and, if admissible, used 4b— evidence (7 Will. IV. and 1 Vict. c. 36, s. 25, extended by 32 & 33 Vict. c. 73, s. 23; K. v. Cooper, 1 Q.B.D. 19). Generally, also, prisoners may be compulsorily _examined as to their mental condition, physical ma^s, measurements, finger-prints, circumcision, &c. [R. V. Beck, Pari. Rep. pp. x-xi; R. v. Johnson, Times, Jan. 29, 1914; R. V. Castleton, 3 Cr. App. Ca. 74; post, 136; though in Scotland the legality of photographing the accused against his will, has been questioned {Adamson v. MaHin, 1916, 1 Sc. L.T. 53; cf. Faridli v. F., 1917, P. 28)], or asked to put on a particular garment for identification {B v. Wood, Times, Digitized by Microsoft® 10 THE LAW OF EVIDENCE. [book i. Dec. 14, 1907) ; but on a charge of concealment of' birth, the medical examina- tion of a female, against her consent, is illegal (Agnew v. Johson, 13 Cox 635), and a prisoner's refusal to be examined as to a certain disease has been held no evidence eigainst him {B. v. Gray, 68 J.P.R. 327). PROOF IN CrVIL AND CRIMINAL CASES. The rules of proof are in general the same in civil and criminal proceedings, but the following differ- ences must be noted : (1) In civil, but not in criminal, cases, the rules of evidence may be relaxed by consent of parties, or order of the Court. Thus the parties may agree to try their case wholly or partly upon affidavits {post, chap, xli.) ; or make admissions for the purpose of dispensing with formal proof at the Mai {post, 18) ; or obtain leave in chambers either to interrogate each other before trial or, in certain cases, to prove particular facts at the trial by affidavit or hearsay, and documents by secondary evidence {post, chap, xli.) ; or obtain discovery and inspection of the opponent's documents (0. 31 ; 2 Russ. Cr. 2073) . Stamp objections, also, can only be taken in civil cases {post, chap. xlii.). More- over, admissible evidence is sometimes excluded {Harris v. H., 27 L.T. ^38), or inadmissible evidence let in {Smith v. Blakey and Abheyleix v. Sutcliffe, cited post, chap. xix. ; Oriental Co. \. Surat, 1 L.E. 20 Bomb. 99, 103, 212 ; Exp. Young, Re Eitchin, 17 Ch. D. 668), by express or implied contract between the parties.. ' (2) The provisions relating to Character, Complaints, Confessions, Dying Declarations, and the Competency and Compellability of witnesses are wholly or partly peculiar to the criminal law. ■ (3) 'Civil cases may be proved by a preponderance of evidence {Cooper v. Slade, 6 H.L.C. 746, 772) ; criminal charges must be proved beyond a reason- able doubt {B. V. White, 4 F. & F., 383 ; B y. Hodge, 2 Lew. C.C. 227; 42 Sol. Jo. 835, per Lord Ludlow; B. v. Lee, 24 T.L.R. 627; Wills Circ. Ev., 6th ed., 287-304, 315-9). This distinction, which dates from the end of the eighteenth century, was due to the reaction, then setting in, against the rigours of the penal code, and was originally applied in favorem vitce to capital cases only [10 Am. L. Rev. 642; Wigmore, s. 2497; Tay., s. 112; Best, s. 96; Steph., art. 94]. As to the amount of evidence required to support issues resting on the prose- cution or prisoner respectively, see post, 34. Whether criminal charges arising in civil proceedings must be proved with equal strictness is doubtful. The affirmative is supported by Taylor and Stephen, sup. : and, in an action on a fire policy, it has been held that the proof of a plea of wilful burning must suffice to convict of arson {Thurtell v.- Beaumont, 1 Bing, 339) ; so in actions for libel with pleas in justification imputing forgery {Chalmers v. Shachell, 6 C. & P. 475), or bigamy {Willmett t. Harmer, 8 C. & P. 695). The weight of opinion, however, is contra, the reasons for the criminal rule being inapplicable to civil cases. Thus, in actions for penalties under the Corrupt Practices Act, 1854, a charge of bribery might be proved by a mere preponderance of probability {Cooper v. Slade, sup.; Magee v. Mark, 11 Ir. C.L.R. 449, per Pigot, C.B. diss. Fitzgerald, B.) ; so, as to the forgery of a deed in an ejectment action {Doe v. Wilson, 10 Moo. P.O. 502, 531) ; and in actions on burglary policies {Hurst v. Evans, 1917, 1 K.B. 352), or against carriers {Vaughton v. L & iV.TT. By., L.R. 9 Ex. 93; Boyce v. Chapman, 2 Bing. N.C. 222; Blankensee v. Midland Ry. Co., 28 L. Jo. 325), the felony Digitized by Microsoft® CHAP. I.J INTRODUCTOEY. 11 of the defendenfs servants need not be strictly established; and the weight of opinion in America is to the same effect (10 Am. Law Eev. 643; Wigmore, 3. 2498; Thayer, Pr. Tr. Ev. 558 n.). LEX FOBI. Unless otherwise provided by statute, questions of evidence are determined by the lex fori and not by the lex loci contractus {Bain v. Whitehaven ^y., 3 H.L.C. 1, 19; Hamlyn v. Talisker, 1894, A.C. 203, 213). Thus, copies of foreign documents though admissible in a foreign Oouxt, will be rejected unless complying with English Law (Brown v. Thornton, 6 A. & E. 125) ; and conversely, a document admissible here has been rejected on an Indian Appeal {Glarlc v Mullick, 3 Moo. P.C. 252, 279). [Tay., s. 49; Dicey, Confl. of Laws, 2nd ed. 708, 712.] With regard to Interpretation, the general rxdes are that, unless a different intent is expressed in the document, wills and contracts affecting realty are governed by the lex situs, wills of personally by the lex domicilii, and contracts, &c., affecting personalty by the lex loci contractus {Bain y. Whitehaven By., sup.; Re Scholefield, 1908, 2 Ch. 408) ; or where such contracts are made between residents in different countries, by the law intended by the parties, i.e. generally the lex loci solu- tionis {Hamlyn v. TalisTcer, sup.; Chatenay v. Brazilian Co., 1891, 1 Q.B. 79 ; Hansen y. Dixon, 96 L.T. 32). FirNCTIONS OF JUDGE AND JITRY. LAW AND FACT. The duty of the presiding judge at a trial by jury is four-fold: He must (1) decide all questions as to the admissibility of evidence; (2) instruct the jury as to any specific rules of law or practice affecting its production or effect; (3) deter- mine at the close of the case whether any evidence has been given fit to be considered by the jury; and (4) explain to them the general principles of law applicable to the issues, discriminating, where necessary, between questions of law which belong to the Court and questions of fact which, in general, belong to the jury (Tay., s. 23). To this it may be added that, in summiag-up, he is entitled, provided he leaves the issues of fact to the jury, to express his own opiaion on the merits of the case {post, 13). (1) Admissibility of Evidence. Questions as to the admissibilily of evidence are questions of law, and determinable by the judge; questions as to its credibility and weight, are questions of fact, and in general belong to the jury. Whether there is any evidence, therefore, is for the judge; but whether there is sufficient evidence is for the jury. It has even been held that where testimony is entirely unimpeached, a judge may act on it without leaving its credit to the ^ury {Davis v. Hardy, 6 B. & C. 225). Under the head of admissibilitjr fall questions whether a declaration is part of the res gestce; a fact sufficiently ' similar ' to show_ knowledge or system {post, chap, xii.) ; a commimication privileged; a confession voluntary; a declarant in a pedigree case legitimately connected with the family ; a dying declaration made without hope of recovery ; the issues on a plea of res judicata identical ; a witness competent, justified in refusing to answer, or sufficiently ill for his deposition to be read; evidence admissible as corroborative {post, 484-94) ; or a document duly executed, stamped or produced from proper custody or after sufficient search [Tay., ss. 23-4, 517; Best, s. 82]. Disputed facts. Moreover, where the question of admissibility depends on the proof of some preliminary, but disputed fact, it must in general be decided Digitized by Microsoft® 12 THE LAW OF EVIDENCE. [book i. by thfr' judge alone, since as the jury are only sworn to try the issue, it is not practicable to take an interlocutory verdict, or receive evidence de bene esse, leaving it to be decided at the end of the case whether it should have been received or not (BenriKon v. Jewison, 12 Jur. 485; Bartlett v. Smith, 11 M. & W. 483; Lewis v. Marshall, 7 M. & G. 729, 743-4; Cleave v. Jones, 7 Ex. 421; Boyle V. Wiseman, 11 Ex, 360) ; and this is so, even where the given fact happens to be also in issue in the action and ultimately determyjable by the jury. Thus, in pedigree cases, the judge may decide to receive a declaration, though the relationship of the declarant is the very point in issue {Doe v. Davies, 10' Q.B. 314;'Be Perton, 53 L.T. 707, 709); and, if a prima fade case is made out, he is not bound to hear evidence on the voi/r dire to rebut the fact {Hitchins v. Eardley, L.E. 2 P. & D. 248) ; and the same rule is said to apply to proof of handwriting, in order to admit entries in a register, and of agency in order to admit the declarations of the agent (Doe v Davies, sup.). So, in an action of contract, where the defendant, on notice, produced a docu- ment which the plaintiff denied to be the contract, Byles, 3., held the determin- ation of this point to be for him, though, by consent, he took the opinion of a jury thereon as an interlocutory issue {Froude v. Hohbs, 1 F. & P. 612). And where a plaintifE had denied, in chief, that the contract on which he sued was in ii/riting, this was treated as a question for the judge on which evidence contra could at the option of the defendant, be either at once interposed, or postponed {Cox v. Couveless, 2 id. 139). On the other hand, in an action on a policy, where the defendant, on notice to produce, denied the existence of any policy, the judge was held to have acted rightly in admitting the plaintiff's copy and leaving the question of the existence of an original, to the jury, Bramwell, B., remarking that " where the objection to the copy con- cedes that there was primary evidence in existence, but defective in some collateral matter, e.g. as to the stamp, the judge must before he admits the copy, hear and determine the objection. But where it goes to the very foundation of the action, he should not decide the matter, but receive the copy and leave the main question to the jury " {Stowe v. Querner, L.E. 5 Ex. 155). The jury may, also, it seems, be asked whether they believe the testimony as to the loss of a document, so as to justify the admission of secondary evidence {Berwick v. Horsfall, 4 C.B.N. S. 450). Evidence to prove or disprove facts of this nature should, however, in general, be interposed when the question arises, and not postponed {Boyle v. Wiseman, 11 Ex. 360; Cox v. Couveless, sup.). Moreover, in deciding the question, the better opinion is that the judge is not confined to strictly legal evidence, but may rely, e.g. on affidavits {Knight v. Campbell, per Pollock, C.B. cited Tay., s. 517; Duke of Beaufort v. Crawshay, L.E. 1 C.P. 699) ; nor need these preliminary facts be proved beyond reasonable doubt, it being sufficient, if they are merely prima facie established {Hitchins v. Eardley, sup. ; Tay., s. 24A) . An erroneous decision thereon may, however, be reviewed {Cleave v. Jones, 7 Ex. 421). As to inspection of a document by the judge, to determine its claim of privilege, see post, 200. (2) Production and Effect. It is the duty of the judge to explain, and of the Jury to observe, any legal rules which regulate the production or effect of evidence, e.g. which side has the burden of prOof ; what presumptions apply ; when corroboration is required ; when statements are evidence, arid for what purpose and against whom; and when documents are conclusiive or when Digitized by Microsoft® CHAP. I.J INTEODUCTOKY. 13 merely prima facie evidence. He may also advise them to give more credence to oral evidence than affidavits, and to direct and positive testimony than the speculative opinion of experts [Tay., s. 25] . Moreover, the judge may and should assist the jury with his advice vrhen the testimony is conflicting, and even state his view as to the general merits of the case. Thus, though he is not justified in directing that they must find the facts in a particular way, he may state his view that they should be so found, or ought not to be accepted by the jury at all; and he is entitled to tell them that a prisoner's story is a remarkable one, or that it differs from other accounts he has given of the same matter {B. v. O'Donnell, IS ,0r. App. B. 219). So, in a murder trial, though it is inadvisable, it is not improper for him to suggest to the jury further theories of the cause of death than those presented by the prosecution or defence {R. v. Smiih, 84 L.J.K.B. 13, 3153). (3) Case for the Jury: Civil Cases. Formerly, if there was a aeintilla of evidence to support the issues, the judge was bound to leave it to the jury ; but now, in every ease, it is for the judge to decide whether there is any evidence from which the jury can reasonably find for the party on whom the burden of proof rests (Ryder v. Womhwell, L.E. 4 Ex. 32, 3§; Oiblin v. McMullan, L.E. 2 P.O. 317, 335; Metropolitan By. v. Jackson, 3 App. Cas. 193, 207-8 ; Eiddle v. National, &c., Co., 1896, A.C, 372 ; Sleeate v. Slaters, 1914, 2 K.'B. 429). If there is no evidence, or a more scintilla, it is his duty to withdraw the case from the jury and enter judgment for the opposite party (Ryder v Womiwelt, sup.; Turner v Bowley, 12 T.L.E. 402, per Lord Esher). And the test whether the evidence only amounts to a scintilla, is to assume it uncontradicted, and then inquire whether the jury would be justified in founding a verdict, thereon (Exp. Morgan,, 2 Ch. D. 72, 90, per Mellish, L.J.). On the other hand, if there be conflicting evidence, it must be left to the jury (Dublin By. v. Slattery, 3 App. Cas. 1155) ; and in doubtful cases, it is always prudent to take this course, leaving its justification for future decision (Tay^, s. 25a). Moreover a plaintiff cannot, unless he consents, be non-suited on the mere opening of counsel without his evidence being heard, or on merely taking it as read, and if this has been done the Court of Appeal will hear it before deciding the case ; so a defendant, even though the judge is about to decide in his favour, has the right to have his evidence lieard before a decision is given (Exp. Jacobson, re Pincoffs, 22 Ch. D. 312 ; Singer v. Wilson, 3 App. Cas. 376 ; Fletcher v. L. & N. W. Ry., 1893, 1 Q.B. 133; Jones v. J., 1895, P. 301). Criminal Cases'. — If at the close of the case for the prosecution, there is not sufficient evidence to go to the jury, the judge is not, in the absence of a submission by the defendent, bound to stop the ease, for the defendant must take his chance of the defence disclosing incrim- inating matter (R. r. Martin, 17 Cox 36; R. v. George, 1 Cr. App. E. 168) ; and even where the judge mistakenly rules that there is sufficient evidence to go to the jury, a conviction founded on further facts disclosed by the defence, will not be quashed (R. v. Power, 1919, 1 K.B. 572; R. v. Eraser, 7 Cr. App. E. 99 ; R. V. Pearson, 73 J.P. Eep. 449 ; R. y. Bower, 1919, 1 K.B. 173 ; contra, R. V. Joiner, 4 Cr. App. E. 64, is apparently not sustainable) . (4) Law and Fact. Generally speaking, in jury-trials matters of law are determinable by the judge and matters of fact by the jury; Ad questionem facti non respondent judices, ad qucestionem juris non respondent juratores. In certain exceptional cases, however, liiatters of fact are determined by the Digitized by Microsoft® 14 THE LAW OF EVIDENCE. [book i. judge ; and incidentally, matters of law are often determined by the jury, since, where their verdict is general, i.e. for plaintiff or defendant, or giiiliy or not guilty, it is compounded both of the facts and the law applicable thereto. But though they have a right to find such general verdicts, the jury may, if in doubt as to the law or its application, find the facts specially, leaving the Court to pronounce judgment on the whole matter [Tay., ss. 23-48; Best, ss. 80-82; Gulson on Proof, 211-3. As to Law and Fact generally see Thayer, Pr. Tr. Ev. 183-262; Markby, 2 Law Mag. 4th series, 311; 31 Law Mag. 1; 12 Harv. L. Rev. 457-60; 545; 15 id. 271; 34 id. 123; 29 Yale L. Jo. 253; and as affecting appeals, see 108 L.T. Jo. 360, and Boulton on Case Stated, 107-129].' By matter of law, in this connection is usually meant some duty, or standard, which it is the province of the Court to apply and enforce; by matter of fact, some issue of fact which is raised on the pleadings (Bartlett v. Smith, 11 M. & "W. 483; Bennison v. Jewison, 12 Jur. 485; Thayer, Pr. Tr. Ev. 184-193). But this distinction is not always reliable. Thus in English Courts, although the existence of English law is a question of law to be deter- mined by authorities and argument, the existence of Scotch, Colonial or foreign^law is treated as a question of fact to be determined by evidence; so that, in the House of Lords or Privy Council, what was a question of fact in the Court below to be established by evidence, may become on appeal a question of law to be judicially noticed {post, 20). Again, what is 'reason- able ' is sometimes treated as a question of law and sometimes as one of fact. Indeed, the decision of the point often depends, not on any inherent distinc- tion, but merely on the construction of some particular statute. In civil cases the objection that a given matter is for the judge or jury respectively should be raised at the trial, and is too late on appeal (Mashelyne v. Stollery, 16 T.L.E. 97, H.L.) ; but in a criminal trial the judge has no power to draw inferences from the finding of the jury ; and where the latter had stated in answer to the judge that they believed the evidence for the prosecution, and he thereupon entered a verdict of guilty, the conviction was quashed {E. v. Farnirough, 1895, 2 Q.B. 484). Law. The following questions, inter alia, are deemed to be matters of law, and determinable by the judge : Whether the rate of interest is excessive, or a bargain harsh and unconscionable, under the Money-lenders Act, 1900, since the word 'Court' in the Act can only refer to the judge {Abrahams v. Dim- mocJc, 1914, 2 K.B. 372; Wells v. Holland, 41 Ir. L.T. Eep. 217) ; whether certain acts " tend to produce public mischief " {R. v. Brailsford, 1905, 2 K.B. 730, 747) ; whether an article is so dangerous as to impose a special duty on the user {Blacker v. Lake, 106 L.T. 533) ; whether a custom {Bradbury v. Foley, .3 C.P.D. 129, 131) or a covenant in restraint of trade {United Shoe Co. \ Brunei, 1909 A.O. 330, 341), is reasonable; or whether on a charge of per- jury, the matter sworn to is 'material' (Perjury Act, 1911, 1 (6) ; cp. B. v. Baker, 1895, 1 Q.B. 797). The Construction of Documents, e.g. statutes, records, deeds, wills, or ordinary correspondence, is usually held to be matter of law and not of fact {Lyle v. Richards, L.E. 1 H.L. 222, 241 ; Hutchison v. Bow- ker, 9 L.J. Ex. 240 ; Tay., 10th ed. s. 43 ; post, chap, xlvi ; contra Thayer, Pr. Tr. Ev. 203-7) ; but in either case it is for the Court and not the jury. Thus it is for the judge to say whether a writing constitutes a suflScient acknow- ledgment under the Statutes of Limitation {Morrell v. Frith, 3 M. & W. 402 ; Routledge v. Ramsay, 8 A. & E. 221), or whether a sum payable on a breach Digitized by Microsoft® CHAP. I.] INTEODUCTORY. , 15 of contract is a penally or liquidated damages {Wilson v. Love, 1896, 1 Q.B. 626, C.A.) . And, although the question of "parcel or no parcel" is for the jury, the judge must direct them as to any documents affecting that question {Lyle V. Richards, sup ; post, chap. xlvi). It is for him, also, to construe a contract or a patent specification after tiie ' meaning of any peculiar terms, or the existence of the surrounding circumstances, if disputed, has been ascertained by the jury; it being the duty of the latter to take the construction from the Court, either absolutely, if there be no such terms or circumstances to be ascertained, or conditionally, if there be such {Neilson v Harford, 8 M. & W., 806 ; Hitchin v. Groom, 5 C. B. 515 ; Bowes v. Shand, 3 App. 455, 462) . So, as to the construction of policies; although, if the question whether they cover particular goods depends on a latent ambiguity requiring resort to parol evidence, it is for the jury {Hordern v. Commercial Union, 56 L.T. 240). The construction of ,foreign contracts is for the judge, after proof of transla- tion, and of the local meaning of the terms {Ohatenay v. Brazilian Co., 1891, 1 Q.B. 79; Copin v. Adamson, 31 L.T. 242, 258; post, 390, as to for- eign law, see infra Pact), 'as also is that of lost documents whose contents have been proved by secondary evidence {Berwick Y.'Horsfall, 4 C.B.N'.S. 450). The inspection of a record is likewise the peculiar province of the Court {R. V Huchs, 1 Stark. 521) ; and where the judge considered that a certain word was 'My.' {i.e , Mary), he excluded evidence that it was 'Mrs.,' and refused to leave the question to the jury {Remon t. Hayward, 2 A. & E. 666). So, where the question was whether a deed was delivered as an escrow and the facts were contained in an accompanying letter, its construction was held for the judge alone {F'urness v. Meek, 27 L.J. Ex. 34; post, chap. xlv.). On the other hand, where a contract is wholly oral {Maskelyne v. Stollery, 16 T.L.E. 97, H.L.), or partly oral and partly written {Bolckow v. Seymour, 17 CB-KS. 107; Moore v. Garwood, 4 Ex. 681), or perhaps consists of a series of informal documents {Stoddard T. Watchmakers' Alliance, Times, Dec. 14, 1901, C.A.; contra, Kay v. Cotesworth, 7 Ex. 595), the question is for the jury. So, where the question was whether the defendant had adopted the acceptance of a bill, the construction of a letter written by him, taken in connection with his subsequent conduct, was held for them {Wilkinson V. Stoney, 1 Jebb & Symes, 509). And in cases of libel, whether in civil or criminal proceedings {Nevill v. Fime Art Co., 1897, A.C. 68; Tay.,*s. 42), written threats {R. YrCoady, 15 ,Cox 87), incitements {R. v. Fox, l5 W.E. 109), or false pretences {R. v. Cooper, 2 Q.B.D. 510; R. v Randdl, 16 Cox 335; R. V. King, 1897, 1 Q.B. 214, 219; R. v. Rosenson, 12 Cr. App. E. 235), although it is for the ju,dge to decide whether the written words were capalle of the meaning alleged, it is for the jury to say whether they in fact hore it. Fact. Questions of fact are in general for the jury. Thus, it is for the jury to determine the question of actual knowledge, real intention, bona fides, or express malice (Tay., s. 38). So, the existence of a nuisance, the un- soundness of a horse, the unseaworthiness of a ship, the competency of a tes- tator, or his subjection to undue influence, are for them {id.) ; as also, in eases outside the Workmen's Compensation Act, sup., whether an agent's act was within the scope of his authority {post, chap. vii.). In Divorce cases, where adultery is in issue on the pleadings, it is for the jury, when not, for the judge {Long v. L., 15 P.D. 218 ;Pomero v. P., Times, Dec. 20, 1884; Farulli V. F., 61 Sol. Jo. 110). And even where facts are admitted, the inferences Digitized by Microsoft® 16 THE LAW OF EVIDENCE. [book i. therefrom, if doubtful, are still for the jury {Dawy v. L. & S. W. Ry., 12 Q.B.D. 70, 76, C.A. ; Pearce v. Lonsdowne, 69 L.T. 316, 317) ; otherwise they are for the judge {B. Y.'Oppenheimer, 1915, 2 K.B. 755). The meaning of technical terms is a question of fact for the jury. {Bowes v. Shand, sup.) e.g., the trade meaning of " bales " (Gorrisson v. Perrin, 2 Q.B. N.S. 681), " June and (or) July " {AlexaMer v. Vanderzee, L.E. 7 C.P. 530), or " payment in from six to eight weeks " {Ashforth v. Bedford, L.R. 9 C.P. 20); as also the question whether the facts proved constitute a "representar tion " under the Dramatic Copyright Act, 1833 {Planche v. Braham, 8 C. & P. 68). And where it is doubtful whether a word is used in its ordinary sense, or not, the question is for the jury (Simpson v. Ma/rgetson, 17 L.J.Q.B. 81) ; though words of doubtful import used in Acts of Parliament should, it seems, be explained to the jury by the judge, e.g. the meaning of " town " under the Railway Clauses Consolidation Act, 1845 (Elliot v. S. Devon By., 2 Ex. 725). Where an offer was of 'good' barley and the acceptance of 'fine,' the jury were allowed to find that these terms meant different things, but not that the acceptor by ' fine ' meant ' good,' the .Court holding there was no contract (Hutchison v Bowher, 5 M. & W. 535). The following questions of fact, however, are by exception for the judge: (1) The existence of any disputed fact on which the admissibility of evidence depends (ante, 11-12). (2) The question of what, in certain cases, is reason- able, e.g. the question of reasonable and probable cause in actions for malicious prosecution and false imprisonment. Here, if the facts are in dispute, it is for the jury to find whether the defendant took reasonable care to inform himself of the true state of the case, and honestly believed in the charge (Brown v. Hawkes, 1891, 2 Q.B. 718; Watson t. Smith, 15 T.L.E. 473; Bradshaw v Waterlow, 1915, 3 K.B. 527), but for the judge, aided byHheir answers, to determine whether the facts so found amount to "reasonable and probable cause " for the prosecution or arrest (Lister T. Perryman, L.E. 4 H.L. 521 ; Abrath t. N. E. By. Co., 11 App. Cas. 247; Cox y. English Bank, 1905, A.C. 168). So, the question of reasonable suspicion under the Pawnbrokers Act, 1872, although one of fact, is for the judge (Howard y. Clarke, 20 Q.B.D. 558, 562; cp.. Carter v. Kimball, 29 L. Jo. 398). And the same rule applies to what is a reasonable time for the performance of certain acts, e.g., for an executor to remove goods from the testator's mansion (Co. Litt., s. 69) ; though these cases have been greatly reduced by Statutory or jCommon Law rules defining the meaning of reasonable time in many mercantile and other transactions. Thus, what is a reasonable time for notice of dishonour of a bill of .exchange, which used to be a question for the judge, is now regulated by the Bills of Exchange Act, 1882, s. 49, sub-s. 12 ; so, what is a reasonable time in which to quit land is specially defined by the -Agricultural Holdings Act, 1883, ss. 33, 54. But in general, where no fi'xed legal rules apply, this question is one purely for the jury. [Tay., ss. 30-36.] It seems doubtful whether foreign law, though treated as a question of fact, is for the jury or judge. In R. Y Picton, 30 How. iSr. Tr. 536-40, 864-70, Lord Bllenborough left the question to the jury; see also Tay., s. 48; and Bose-Troup v. Sleeping Car Co., Times, Feb. 3, 1911, per Buclmill, J.; Contra, Copin v. Adamson, 31 L.T. 242, 255, 258, where three judges held that foreign law, like the construction of foreign documents, was for the judge alone. Digitized by Microsoft® OHAP. I.] INTEODUCTOEY. 17 Mixed Law and Fact. In the following, which are usually termed mixed cases (Tay. 26), although they are treated by Austin as questions neither of law nor fact, but of the application of the given law to the given fact ( Jurisp. vol. I., 236), and by Thayer as questions of fact merely (Pr. Tr. Ev. 193-202, 253), the functions of judge and jury are divided. Thus, in actions for Neces- saries, it is a question of law for the judge whether the goods are capable of being necessaries, regard being had to the station in life of the infant, but a question of fact for the jury whether he was already adequately supplied with similar goods {Nash v. Inman, 1908, 2 K.B. 1, 13, C.A.). In actions of Negligence, it is a question of law for the judge whether, -from the given state of facts, negligence can be inferred, and a question of fact for the jury whether it ought to be {Metropolitan Ry.\. Jackson, 3 App. Cas. 193, 207). And in cases of Libel or Slander, it is a question of law for the judge whether in the circumstances, the words used were capable of a defamatory meaning, and one of fact for the jury -v^hether they bore it {ante> 15) ; the question of privilege, if the underlying facts are undisputed, or have been found by the jury, is also one of law for the former, while that of malice, dis- entitling to privilege, is for the latter {Clarh v Molineux, 3 Q.B.D. 237),; and on a defence of ' fair comment ' on ' a matter of public interest ' the judge decides the latter point and the jury the former {South Hetton Coal Co. v. N. E. By., 1894, 1 Q.B. 133, 141, O.A.). iWhether an accident ' arose out of, and in, the course of employment,' under the Workmen's Compensation Actj 1906, is a mixed question, involving a finding of fact by the jury as to the nature and scope of the employment, and the cause of the accident, and one of law for the judge as to whether on the construction of the Act, these findings come within it {Hutchinson v. McKinnon, 32 T.L.E. 283, H.L.). L.E.— Z Digitized by Microsoft® ( 18 ) CHAPTER II. MATTERS OP WHICH EVIDEN^OE IS UNNECESSARY. No evidence is required of matters which are either, (a) Admitted for the purposes of the trial or '(6) Judicially noticed. (a) ADMISSIONS FOE PITRPOSES OF TRIAL. Admissions for the pur- pose of dispensing with proof at the trial, which must be distinguished from those tendered as evidence, the former not being usually receivable in other proceedings and the latter not being usually conclusive^ may be made as follows : In Civil Cases, (1) By the Pleadings, or default thereof {Bipley t. Arthur, 86 L.T. 735). Subject to the exceptions infra, or to amendment by leave, these are conclusive and exclude any evidence at the trial for or against the admitted matters {The Buteshire, 1909, P. 170; The Bothbwry, 10 T.L.R. 60; The Hardwicke, 9 P.D. 32 ; Maclaren r. Davis, 6 T.L.R. 373) ; so, generally as to admissions in a Preliminary Act, which are even stronger than those in the pleadings {The Seecombe, 1912, P. 21, 59). (2) Pursuant to notice under 0. 3^, rr. 2-5. By rule 2, the party notified may admit "any docu- ments, saving all just ea;cepiio«s/' which dispenses with formal proof, but preserves other objections {Dudley Co. v. D. Corp., 120 L.T. Jo. 531) ; the admission of a copy, however, does not dispense witii proof of the original {Sharpe v. Lamb, 11 A. & E. 805), and the admitted document should be formally put in at the trial and marked by the registrar {Watson t. Rodwell, 32 Ch. D. 153). By rule 4, he may also admit " any specific fact or facts " mentioned in the notice; such admissions, however, are only available for the particular person giving, and cause affected by, the notice, and may be amended or withdrawn on terms. (3) By agreement, or otherwise, before or at the trial by the parties or their agents. Thus, a solicitor's letter, written to the opposite party, and containing admissions, will bind his client, and may entitle the opponent to sign judgment {Ellis v. Allen, 1914, 1 Ch. 904). And an admission made by counsel at the trial for the purpose of dispensing with proof, has been held to preclude any evidence on the point .{Urquhart v. Butterfield, 37 iCh. D. 357, 369, 374, C. A.) ; but in jury trials an opposite view seems to obtain {Barnes v. Merritt, 33 T.L.R. 419, C.A., cited post, 183; Whitehead v. Scott, 1 Moo. & Rob. 2) ; at all events where the inference from admissions is doubtful, evidence to support or rebut the suggested, views is receivable, and should be left to the jury {Davey v. L. & 8. W. By., 13 Q.B.D. 70, 76, €.A. ; Pea/rce v Lansdowne, 69 L.T. 316 ; Sanders V. S., 19 Ch. D. 373, 380 C.A.) ; though an application to adduce such evidence made for the first time on appeal has been rejected {Sanders v. S., sup.). [Tay., s. 734; Ann. Pr. Notes to 0. 33; Ros. N.P. 78-9 ; Gulson, ss. 463-5]. Digitized by Microsoft® CHAP. II.] JUDICIAL NOTICE. 19 Admissions of the present kind do not, however, exclude evidence of the facts admitted in all cases, on account of the danger of fraud, e.g., in probate suits; {Hutley J. Grindstone, 5 P.D. 24:),. divorce cases (Boucher v. B., 1 E. 494; and cp. post, 333), peerage claims (Hubbaek, Ev. of Succ. 97; Palmer Peerage Lav, 339), or suits for declarations of title to property (Williams v. PoweH, 1894, W.N. 141). In Criminal Cases, except by a plea of guilty, admissions dispensing with proof, as distinguished from admissions or confessions which are evidential (as to which see post, chap, xxi;), are npt allowed either in cases of felony or misdemeanour [B. v. Thornhill, 8 lO. & P. 575; B. v. Stevens, 151 C.C.C. Sess. Pap. 182; cp. A.-G. Y. Bertrand,JjSi. 1 P.C. 520; Steph. art. 60; Best, s. 97] . A plea of guilty, however, only admits the ofience charged, and not the truth of the depositions (B. v. Biley, 18 Cox 285; Foucar v. Sinclair, 33 T.L.E. 318). (6) JUDICIAL NOTICE. Courts will take judicial notice of the various matters enumerated below, these being so notorious or clearly established that evidence of their existence is unnecessary. [Tay., ss. 4-21; Eos. N.P. 80-84; Best, ss. 253-254; Steph. art. 58; Thayer, Pr. Tr. Bv. 277-312; id. Cases on Ev., 2nd ed., 19-23.] Scope of the Bule. The doctrine of Judicial Notice extends to all depart- ments of law, and is not confined to that of evidence. And it applies npt only to judges, but also to-juries with respect to matters coming within the sphere of their everyday knowledge and experience {B. v. Bosser, 7 C. & P. 648) . Thus the latter, as well as the former, may be asked to notice, without proof, the mean- ing of the imputation "Frozen Snake'" in a libel case {Hoare v Silverloclc, 12 Q.B. 624, 633). Generally matters directed by statute to be judicially noticed, or which have been so noticed by the well-established practice or pre- cedents of the lOourts, miist be recognised by the judges ; but beyond this; they have a wide discretion and may notice much which they cannot be required to notice. The matters noticeable may include facts which are in issue or rele- vant to the issue, as well as the contents of documents and their methods of proof; and the notice is in some cases conclusive, and in others {e.g. the gen- uineness of signatures) merely prima facie and rebuttable. Although, however, judges and juries may, in arriving at decisions, use their general information and that knowledge of the common_ affairs of life which men of ordinary intelligence possess (S;yme v. Londonderry Oo., 1903, 2 I.E. p. 480, approved Mennessy v. Keating, 1908 1 I.E. p. 83; Duberley v. Mace, 6 B.W.C.€. pp. 84, 86, C.A.; B. v. Jones, cited Best, s. 254), they may not, as might juries formerly (Thayer, Pr. Tr. Ev. 170, 298), act on theif own private knowledge or belief regarding the case but, if they have material facts to impart, should be sworn as witnesses [Tay., s. 1379 ; Best, ss. 38, 88. As to judges, see Hurpurshad v. Sheo Dyal, L.E. 3 Ind. App. 259 ; B. v. An- trim, 1895, 2 I.E. 603, 649; 71 J.P. Jo. 290, 302; as to Juries, see B. v. Bosser, 7 C. & P. 648, per Parke, B. ; Manly v. Shaw, lOar. & M. 361 ; B. v. Sutton, 4 M. & S. 532]. When so sworn, a judge (unlike a juryman, Tay., s. 1379; post, 197-8), must not, either when acting alone or with others, adjudicate on his own testimony, save, possibly, in- formal, immaterial, or undisputed matters [B v. Hacker, 5 How. St. Tr. 1181 ; and see 6 id. 1013 n. ; B. v. Antrim, 1901, 3 I.E. 133, 141, 164; B. v. Galway, 31 Ir. L.T.E. 160; Digitized by Microsoft® 20 THE LAW OF EVIDENCE. [book i. K. V. Tyrone, 4A Ir. T.L.E. 264; Mitchell v Gray den, 30 T.L.K. 526; "Wig- more, s. 1909]. Nor may judges act on information gained in other cases {Rohinson v. B., mf.; post, 29). (1) Law. Frocedure. Custom. Law. Judicial notice will be taken of the existence and contents of all Public Statutes; and all Acts of Parliament of whatever nature passed since 1850, unless the contrary is expressly provided (52 & 53 Vict. c. 63, s. 9; post, 549).; as well as of every branch of unwritten law obtaining in Ehgland or Ireland (Jud. Act, 1873, s. 24). Thus if in a common law Court, points of equity, or ' of parliamentary, ecclesiastical or adiniralty law arise, they must be determined not by calling experts, but by the Court itself, either of its own knowledge, or by inquiry, or by hearing authorities and argument (Sims v. Marryat, 17 Q.B, 281, 288, 292; Chandler V. Grieves, 2 H. Bl. 606 n.; Reynolds v. Fenton, 3 C.B. 187, 191, where notice was taken that Irish suits were commenced by process and not by verbal sum- mons). Scotch, colonial, or foreign law, however, is not judicially noticed, but must be proved as a fact by skilled witnesses (ante, 14; post, 388), except Scotch law in the House of Lords, or Colonial law in the Privy Council, where what was a question of fact in the Court below to be proved by evidence, becohies a question of law to be judicially noticed {Cooper v. C, 13 App. Cas. 88; Lyell V. Kennedy, 14 id 437). As to notice by British Consular Courts of foreign local law, see Sec. of State v. Gharlesworth, 17 T.L.E. 265. Illegality, if appearing on the face of a contract, will be judicially noticed, whether pleaded or not; aliter where it is merely deducible from Surrounding circumstances {North Western Salt Co. v. Electrolytic Co., 1914, A.C. 461, which appears to modify Scott v. Brown, 1892, 2 Q.B. 724, and Re Robinson, 1912, 1 Ch. 717 C.A.; see also Montifore v Menday, &c., Co., 1918, 2 K.B. 241). Procedure. Judicial notice will be taken of the procedure and privileges of both Houses of Parliament {Stockdale v. Hansard, 9 Ad. & E. 1; Brad- laugh V. Gossett, 12 Q.B.D. 271) ; though not of Orders in Council, nor trans- actions in parliamentary journals {A.-G. v. Thedkstone, 8 Price 89; R. v. Knollys, 1 Ld. Pay. 10, 15, as to proof of which see chap, xliii.). Also of the Articles of War, and the Eules of Procedure now superseding them made under the Army^ Act, 1881 (ss. 69, 70) ; though not of a book called the "Eules and Eegulations for the Government of the Army" {Bradley v. Arthur, 4 B. & C. 304), nor of the Eegulations for the Territorial Force, which must be proVed by Government printers' copy {Todd v. Anderson, 1912, Sc. (J.) 105). Also' of the Eules made by the Lord Chancellor or other authorized ofiBcials under various Acts {e.g. under the Bankruptcy Act, 1914, s. 132) ; and of the jurisdiction and rules of procedure of the various divisions of the High Court (Jud. Act, 1873, s. 24; Eos. N.P. 82; Tay. s. 19) ; though the proceedings and practice of inferior Courts, unless regulated by statute, are only noticed by themselves, and not by each other, or by the High Court (Steph, art. 58 (5) ; Van Sandau v. Turner, 6 Q.B. 773, 784; Dance v. Robson, M. & M; 295). The Courts will also notice the privileges of their own officers and solicitors {Stokes v. Mason, 9 Bast, p. 426 ; Walford V. Fleetwood, 14 M.'& W. 449) ; and all matters appearing in their own pro- ceedings {eg. that an indictable conspiracy has been committed by some of the parties, Scott V. Brown, 1892', 2 Q.B. 724; Hunt v. Finehurgh, inf.); though not, it has been said, the names of their officers {Frost v. H&yward, 10 M. & W. 673; in Hunt v. Finehurgh, Times, Dec. 8, 1888, however, judicial Digitized by Microsoft® ciiAi". ii.J JUDICIAL NOTICE. 21 notice was taken that one of the solicitors named on the record had been suspended) ; nor a mere printed, but unidentified, copy of the Law Society's Rules {Picieles v. SutcUffe, 37 L.J. 543). And judicial notice will not be taken that the issue under trial is identical with one previously tried before the same judge and so is res judicata {Robinson v. B., % P.I?. 75; cited fost, 416. Custom. Notice will be taken of local customs of descent, e.g. Gavelkind and Borough-English {Re Chenoweth, 1902, 2 Ch. 488) ; the general practice of conveyancers (fie Rosher, 53 L.J. Ch. 722) ; the rules of average adjust- ment {Lohre V. Aitchison, 3 Q.B.D. 558, 561) ; and all customs which have been either (1) settled by judicial decision — e.g. the rule of the road {Leame V. Bray, 3 East, 593; Turley v. Thomas, 8 C. & P. 103), the lien of inn- keepers on their guests' goods for the amount of their bills {Mulliner. v. Flor- ence, 3 Q.B.D. 484), the lien of bankers on their customers' securities {Brandao v. Bamett, 3 C.B. 519, 530 ; Lond. Chart. Blc. of Australia v. White, 4 App. Cas. 413)^ the fact that debentures are negotiable instruments, though not so expressed {Edelstein v. Schuler^ 1902, 2 K.B. 144), the custom of hotel-keepers to hold their furniture on the hire-purchase system {Crawcour V. Salter, 18 Ch. D. 30; Exp. Turquwnd, Re Parker, 14 Q.B.D. 636), and of horsedealers to receive horses on sale of return {Exp. Wingfield, Be Florence, 10 Ch. D.. 591) ; or (2) certified to- and recorded in any of the Divisions of the High Court — e.g the customs, certified by the Recorder of London, of foreign attachment {Crosbie v. Heiherington, 4 M. & Gr. 933), or of shops being market-overt {Hargreave v. Spinh, 1892, 1 Q.B. 25) ; the old rule that each Court only notices customs held by or certified to it, is probably super- seded by the Judicature Act, 1873 (Steph. art. 58 (4) note). Recent cas- toms will be judicially noticed in the High Court if shown {e.g. by reported decisions, Exp. Powell, Re Matthews, 1 Ch. D. 501) to have been determined therein at all events more than once {Exp. Turquand, sup.) ; and so, also, as to County Courts {George v. Davies, 1911, 2 K.B. 445) ; though such customs may, of course, be displaced by proof of later ones {Moult v. Halliday, 1898, 1 Q.B. 125). (2) Constitutional, Folitical, and Administrative Matters. Judicial no- tice will be taken of all public matters affecting the government of the country — e.g. the accession and demise of the Sovereigns of this country; the existence and titles of all other acknowledged Sovereign Powers, judges being bound to know whether a State has been recognised as independent or not {Taylor v. Barclay, 2 Sim. 213) ; the days of general elections (Tay. s. 18); the date and place of the sittings of Parliament (fi. v. Wilde, 1 Lev. 396; Birt v. Rothwell, 1 Ld. Raym. 210, 343) ; the principal oflScers of State and heads of departments, whether past or ptesent {Whaley v. Carlisle, 17 Ir. C.L.R. 792, where the Court judicially noticed that Lord Hawkesbury had been Foreign Minister in 1803) ; the judges of the Supreme Court, but not, it seems, those of inferior courts {Van Sandau v. Turner, 6 Q.B. 773, 786) ; and the marshals and sheriffs, though not their deputies {Grant v. Bagge, 3 East, 128). So, judicial notice will be taken of a war in which this country is, or has been, engaged [B. v. B^renger, 3 M. & S. 67; Ward v. Murray, Times, Mar. 5th, 1900, where the siege and relief of Kimberley on certain dates were noticed; Be A Petition of Bight, 1915, 3 K.B. 649, 658, where it was noticed that certain districts in England had been attacked by aircraft; Be Digitized by Microsoft® 22 THE LAW OF EVIDENCE. [book i. Vine St. Superintendent, 1916, 1 K.B. 368, 274-5, where it was noticed that' German civilians in this country were carrying on war by intrigues, spying, and the use of wireless telegraphy, light-signalling, and carrier pigeons, and were communicating information to enemy submarines and Zeppelins; The Pacific, 33 T.L.E. 529, where it was noticed that Swedish firms were exten- sively engaged in facilitating the entrance of contraband goods into Germany ; The Alwina, 32 id. 494, 495, where it was noticed that Germany having no con- venient coaling stations, it was difficult for her ships to be coaled except by sub- terfuge] . On the other hand, where a war has not been publicly proclaimed, nor noticed in any statute, it must be proved to the jury (1 Hale 164; Fost, C.L.d. 1, c. 2, s. 12) ; and a war beween foreign Powers will not be noticed {Bolder V. Huntingfield, 11 Ves. 292; sed qu.). (3) Territorial and Geographical Divisions. Judicial notice will generally be taken of the extent of British jurisdiction; but where this is in doubt, the Court may and should apply under the Foreign Jurisdiction Act, 1890, s. 4, to one of H.M.'s principal Secretaries of State, who is to furnish the informa- tion required, which shall be " conclusive evidence " of the matters stated (Foster T. Globe Syndicate, 1900, 1 Ch. 811) ; and if this has not been done, evidence will be receivable on the point (Ibrahim v. Bex, 1914, A.C. 599). Notice will also be taken of the territorial and administrative divisions of the country into counties (including those that are maritime), towns', parishes, &c. (Deybel's Case, 4 B. & Aid. 243 ; R. v Ely, 15 Q.B. 827 ; R. v. St. Mau- rice, 16 Q.B. 908) ; and of the geographical position and general names of districts and parts/ of the sea as marked in the Admiralty charts (e.g. that the term " the St. Lawrence " applies to both the gulf and river of that name ; Birrell v. Dryer, 9 App. Cas. 345, per Lord Blackburn). But the Court will not take judicial notice of the precise, extent or limits of the various counties and divisions ; nor whether particular places are, or are not, situated therein ; nor of the local position of particular places with respect to each other. Thus it has refused to notice that " Bedford Eow, Holborn," was in the county of Middlesex, or that " the Court of Eequests held at Kingsgate Street, Hol- born," though established by- Statute, was the Court of Eequesta for that county (Thorn v. Jachson, 3 C.B. 661; cp. Church v. Imp. Gas Co., mf. 25), or that a particular part of the Tower of London was within the City of London (Brune v. Thompson, 2 Q.B. 789), since in the first case it was notorious that parts of Holborn were within the City of London, and in the last that parts of the Tower were within the County of Middlesex. So, in Kearney v. King, 2 B. & Aid. 301, notice would not be taken that " Dublin " meant "Dublin in Ireland," since there might be other Dublins elsewhere; nor in Kirby v. HicTcson, 1 L.M. & P. 364, would the Court notice that Park Street, Grosvenor Square, was within twenty miles of Eussell Square. (4) Official Gazettes. The official gazettes of London, Edinburgh, and Dublin will be noticed on their mere production (31 & 32 Vict. c. 37, ss. 2 and 5) ; but the entire Gazette and not a mere cutting must be produced (R. v. Lowe, 15 Cox 286). See post, 337-8. (5) Official Seals and Signatures. Judicial notice will be taken of the following seals and signatures : The Great Seals of the United Kingdom and of England, Ireland and Scotland respectively (Lord Melville's Case, 29 How. St. Tr. 707) ; the Privy Seal and Privy Signet (Lane's Case. 2 Co. Eep. 17 6) ; the Eoyal Sign Manual and the signatures of the principal Secretaries Digitized by Microsoft® CHAP. II.] JUDICIAL NOTICE. 23 of State, with any matters stated thereunder (Mighell t. Sultan of Johore, 1894, 1 Q.B. 149, e.g. the certificate of the Secretary of State for India, authenticating the signature of an Indian official, post, 364) ; though not, it has been said, those of the Lords of the Treasury {R. v. Jones, 2 Camp. 131) ; the Treasury Solicitor's iSeal, howeyer, will be noticed (39 & 40 Vict. c. 18," s. 1).; also that of the Minister of Pensions (Ministry of Pensions Act, 1916, s. 6), those of the Ministers of Labour, Food, Shipping and of the President of the Air Board (New Ministries, &c.. Act, 1916, s. 11), and that of the Air Council (Air Force Act, 1917, s. 10), and of the Minister of Na- tional Service (Ministry of Nat. Service Act, 1917, s. 2) ; the "Wafer Seal and "Wafer Privy Seal framed under the Crown Office Act, 1877, ss. 4, 5 (3a); the Seal and Privy Seals of the Duchies of Lancaster (Tay. s. 6) and Cornwall (26 & 27 "Vict. c. 49, s. 2) ; the Seal of the Corporation of London (Doe V Mason, 1 Esp. 53) ; though not that of the Bank of England or other Corporations {Doe v. Chambers, 4 A. & E. 410 ; Bos. N.P. 132, unless admis- sible under 8&9 Vict. c. 113, s. 1, post, 553), nor it seems, those of Couniy Councils unless expressly so provided, eveii where seals are conferred by Statute (Tay. s. 14; no seals are given to Parish Councils, id.) ; the Seals of the Old Superior Courts of Justice {Tooher v. Beaufort, Say. 297), of the Old Admiralty Court (Green v. Waller, 2 Lord Eay. 893), and of the Pre- rogative Court of Canterbury- (Kempton v Cross, Cas. temp. Hardw. 108) and all seals authorized by statute to be used by any court of justice (Doe v. Edwards, 9 A. & E. 554; the statement to the contra,ry in Eos. N.P. p. 80, omits this case) — e.g. the Chancery Common Law Seal (12 & 13 Vict. c. 109, s. 11) ; and the Seals of the Courts of Probate (20 & 21 Vict. C..77, s. 22), Divorce (20 & 21 Viet. c. 85, s. 13), Admiralty (24 & 25 Yict. e. 10, s. 14) and Bankruptcy (Bpy. Act, 1914, s. 142; Bpy. Eules, 1915, rr. 60-72). - The Judicature Acts confer no seal on the Supreme, or High, Court or its divisions (Be Court Bureau, 1891, "W. N. 9; Steph. art. 58, note); but judicial notice is by statute required to be taken of the signatures of the judges of the superior Courts to any judicial or official document (The Evi- dence Act, 1845, s. 2, as modified by Jud. Act, 1873, s. 76; unless, at least, such signatures appear not to be affixed in the usual manner. Blades v. Law- rence, L.E. 9 Q.B. 374) ; and of the Examiners (0. 37, r. 18) ; and a seal is -given to the Central Office of the Eoyal Courts of Justice and its various departments (Tay. s. 1539), documents duly stamped therewith being receiv- able in evidence without further authentication (0. 61, rr. 6, 7; post 553) ; so with documents purporting to be sealed with the seals of the various District Eegistries (Jud. Act, 1873, s. 61). Judicial notice is also required to be taken of the seal and signatures of the judges and registrars in Bank- ruptcy (Bankruptcy Act, 1914, s. i42 ; as to Ireland, see Re Keller, 22 L.E.I. 158), and of any person authorized under the Act to take affidavits (B.EE., 1915, r. BO) ; of the seal of the Enrolment Office in Chancery (12 & 13 Vict. c. 109, s. 17) ; and that of the Couniy Courts (Couniy Courts Acts, 1888, s. 180), and the Court of the Vice-'Warden of the Stannaries (The Stannaries Act, 1836; e. 19). So, by the Companies Act, 1908, s. 225, judidal' notice is, for the pur- ' .poses of that section, to be taken of the signature of any officer of the High Court in England or Ireland, or of the Court of Session in Scotland, or of the Eegistrar of the Stannaries; as well as of the Seals and Stamps of their respective offices. But the signatures of the Attorney-General or Public Digitized by Microsoft® 24 THE LAW OF EVIDENCE. [book i. Prosecutor, evidencing consent to a prosecution, will not be judicially noticed, but must be proved in the ordinary way {B. v. Turner, 1910, 1 K.B. 346; posf, 189-90). In addition to the above, the seals authorized by statute to be used by numer- ous public offices and bodies are often either directed to be judicially noticed or rendered admissible in evidence without proof of their genuineness*— e.^. those of the Patent and Record Offices {post, 649) ; of the Boards of Trade, Local Government, Poor Law, Public Health and Agriculture ; of the Commis- sioners of Railways and Canals, Public Works, Prisons and Charities; and of the Apothecaries Co., &c. (Tay. ss. 6n, 19). So, under the Commissioners for Oaths Act, 1889, ss. ,3, 6, and 1891, s. 2 (which replace 0. 38, r. 6), judicial notice is required to be taken of the seals and signatures to affidavits &c., required for the purpose of any Court or matter in England, or for the registration of any instrument in the United Kingdom, of all persons authorised (otherwise than by the law of any foreign country) to administer oaths &c., in any place out of England. Such per- sons are, in Scotland, Ireland, the Channel Islands, or H.M.'s dominions (colonial or foreign) — any judge, court, notary-public, or other person law- fully authorized (0. 38 r. 6) ; and in foreign countries — the various diplo- matic and consular agents. And similar notice will be taken of a colonial notary's seal and signature, although the document, e.g. a release, is not attested for the purpose of being used in Court (Brooke v B., 17 ;Ch. D. 833) ; as also of a foreign notary's protest abroad of a foreign bill (Ghesmer V. Noyes, 4 Camp. 139). But judicial notice will not be taken of an English ~ protest of a foreign bill (id.) it being necessary either to call the notary, or where the entry was- made by a deceased clerk in the course of duty, to prove this fact (Poole V. Dicas, 1 Bing, N.C. 649) ; though in Brain v. Preece, 11 M. & W. 773, 775, Lord Abinger, while admitting that it was usual to call the notary, doubted whether this was necessary, "for suppose the clerk were dead, still I think the protest would be sufficient evidence." Nor will the seals and signatures to affidavits of notaries-public &c., when authorized merely by foreign law, be judicially noticed (Re Earl's Trusts, 4 K. & J. 300) ; these must be verified independently by a British consul or vice-consul (Brittlebank v. Smith, 50 L.T. 491 ; but not by a foreign consul-, even though there he no British consul, Re De Salazar, 21 W.E. 776), or by certificate of the High Court of the foreign country (per Field, J., cited Stringer, Oaths, 3rd ed. 47-9), or by the consul' of such country in England (Warren v. Swin- burne, 9 Jur. 510; cp. Davis' Trusts^ 8 Bq. 48). [See post, 563; Stringer, 3rd ed. 46-55; Sharpe V. Jackson, 39 L. Jo. 400; Ann. Pr., Notes to 0. 38, r, 6 ; as to non-contentious matters, see also Statutory Declarations, post, 601-3]. Colonial and foreign judicial documents purporting to be sealed with the seal of their respective courts are, however, admissible under 14 & 15 Vict. c. 99, s. 7 (post, 561).^ As to affidavits, &c., sworn out of, but required for use in, the Superior 'Courts of, or for the registration of deeds in, Ireland, and the judicial notice of the seals or signatures of the persons before whom such affidavits, &c., are sworn, see Jud. Act (Ir.) 1877; find E,S.C. (Jr.), 1905, 0. 38, r. 7. (6) Matters notified, and Companies incorporated, by Statute. Matters notified by a public Act of Parliament must be judicially noticed— e^. ttiat the Isle of Ely is a franchise in the nature of a riding and liable for the repair Digitized by Microsoft® CHAP. II.] JUDICIAL NOTICE. 25 of its bridges since 7 Will. IV & 1 Vict. c. 53 (jB. v. Ely, 15 Q.B. 827 ; cp. Thorn y. Jackson, sup. 23) ; or that the office of assessor and collector of the land-tax and assessed taxes is a " public annual " one, under 3 W. & M. c. 11, s. 6 {R. V. Anderson, 9 Q.B. 663). ^ So, in Church v. Imperial 6as Co.. 6 A. & E. 846,; 856, it being objected that it did not appear from the record that the defendants were a corporation or sued in that capacity, the Court took judicial notice that they were in fact the corporation of that name created by 1 & 2 Geo. IV. c. 117. And in Macgregor v. Dover Ry., 18 Q.B. 618, the objection being that there was no proof tiiat the S. E, Ey. ;Co. mentioned, in the pleadings was the statutory corporation of that name, the Court remarked, "We know by a public Act that there is such a corporation as the S. E. Ry. Co., and must assume its identity with the one named in the pleadings and no other." As to the seal of the Corporation of London, see ante, 23. (7) Notorious Facts. The Court will take judicial n'otiee of facts which are notorious — e.g. the ordinary course of nature; the standards of weight and measure {BocTcin v. Goolce, 4 T.R. 314; O'Dormell v. O'D., 1 L.B. Ir. 284; 13 id. 226); the public coin and currency (Kearney v. King, 2 B. & Aid. 303), and its difference of value in early and modern times (Bryant V. Foot, L. R. 3 Q.B. 497) ; the course of post, the stamps of post-offices on letters, and the fact that postcards are unclosed documents whose contents are visible to those dealing with them, and so have been read and published (Rolinson v. Jones, 4 L.E. Ir. 391; Huth v. H., 1915, 3 K.B. 32, 39, C.A., post 91, 106) ; the meaning "of common words and phrases, e.g. of "nominal rent" in a modern statute (Oamden v. Inland Rev. Oommrs., 1914, 1 K.B. 641, C.A., expert evidence on the point being inadmissible), or that beans are a species of pulse (R. v. Woodward, 1 Moo. C.C. ?23) ; the existence of the uni- versities of Oxford and Cambridge, and the fact that they are national institu- tions for the advancement of learning and religion (Re Oxford Rate, 8 E. & B. 184) ; the difference of time in places east and west of Greenwich (Curtis v. Marsh, 3 H. & N. 866) ; the Almanac annexed to the Common Prayer Book as being part of the law of the land (Collier v, Nokes, 2 C. & K. 1012; Tutton V. Darke, 5 H. & N. 647; post, 380) — e.g. the number of days in a given month (1 Eol. Ab. 824), or that a certain day of a month was a Sunday (Hanson v. Shackleton, 4 Dowl. 48), though not, it has been said, matters not therein contained — e.g. the time of sunset on a particular day (Collier v. Nokes, Tutton v. Darke, sup ; Mr. Taylor queries this, s. 16 n) . Nowadays, however. Courts in referring to the Almanac have as little thought of any particular edition as in referring to the Bible or ^sop's Fables (Thayer, Pr. Tr. Ev. 292 n). Under the Definition of Time Act, 1880 (43 & 44 Vict. c. 9), expressions of time in legal documents are to be construed with reference in Great Britain to Greenwich mean time, and in Ireland to Dublin mean time. — The Courts have also noticed that the streets of London are crowded and dangerous (Dennis v. White, 1916, 2 K.B. 1, 6) ; that boys are naturally reckless (Clayton ~v. Hardwick Colliery Co., 32 T.L.R. 159, n.L.; Williams t. Eady, 10 T.L.E. 41; Robinson v Smith, 17 T.L.E. 235, 423; Sullivan v. Creed, 1904, 2 I.E. 317; Mahon v. DuUin Co., 39 Ir. L.T.E. 126) ; that cats are ordinarily kept for domestic purposes (Nye v. Niblett, 1918; 1 K.B. 23) ; but not that rabbit coursing is necessarily a nuisance (Ayers v. Hanson, 56 Sol. Jo. 735). Digitized by Microsoft® 26 THE LAW OF EVIDENCE. [book i. Eefreshing Memory of Judge. When in doubt as to any matter to be noticed, the judge may refer for information to appropriate sources — e.g. to dictionaries for the meaning of words {post, 379-380), to histories, firmans and treaties to -^determine the status of a foreign ruler {Th& Oharkieh, 43 L.J, Ad. 17) ; or to the officials of a public department (id. : Mighell v. Sultan of Johore, 1894, 1 Q.B. 149; Foreign Jurisdiction Act, 1890, s. 4, amie, 22). He may also, it seems, refuse to take judicial notice of the given matter unless the party interested produces the necessary books of reference {Van Omeron V. Dowich, 2 Camp. 43, where Lord Ellenborough declined to notice the King's proclamation without produjction of the Gazette containing it) ; and so, also, as to the contents of the Articles of War, where these were not pro- duced {R. T. Withers, cited in B. t. Holt^ 5 T.E. p. 442; Tay., s. 21; Steph., art. 59). As to how far dictionaries, almanacs, &c., are admissible in evidence independently of this ground, see post, 379-80. Digitized by Microsoft® ( 37 ) CHAPTEE III. MATTEES TO WHICH EVIDENCE MUST BE CONFINED. PLEAD- INGS. PAETICULAES. VAEIANCE AND AMENDMENT. PACTS IN OTHBE CASES EXCLUDED. EVpENCE MUST BE CONFIWED TO THE ISSUES. The maxim that Evidence must he confined to the Issue expresses in a loose form the two-fold exclusion of facts (1) by pleading and substantive law; and (3) by the law of evidence as to relevancy (Tay., ss. 298, 316; Best, bs. 351-3; Thayer, Pr.- Tr. Ev. 269). The present chapter deals with the former only, the rule here being that evidence must be directed and confined to the proof or disproof of the issues as settled by the pleadings, or statements equivalent thereto, and supple- mented by the particulars, where any have been delivered; and that no other grounds of complaint or defence, nor any matters not necessary by law to establish those under trial, can be proved, e.g. on a charge against an undis- charged bankrupt of obtaining credit without > disclosing his bankruptcy, the fact that he has no intention to defraud is immaterial, the intent forming no ingredient of the ofEence {B. r. Dysoif, 1894, 2 Q.B. 176; post, 149). Pleadings. Civil Oases.. In Actions in the High Court the pleadings must contain, and contain only,, a statement in a summary form of the material facts on which the parties rely for their claim or defence ; but not the 'evidence by which the case is to be proved (0. 19, r. 4) ; nor, unless first denied by the other side, any facts which the law presumes in a party's favour, or as to which the burden of proof lies upon his opponent (0. 19, r. 35). The" laxity of present day pleading is, however, notorious and has been severely criticised by a high authority: — "The present practice appears to have most of the vices of the old procedure in Chancery. There are pleadings, it is true, but they are for all practical purposes disregarded. ' The plaintiff is allowed to- prove what he likes, and set up any case he can. The judge has no longer to deal with a case formulated on the pleadings, but to make up his mind whether, on the facts proved, there is any, and what, case at all. This dis- advantage is accentuated when there is a jury " {Banhury v. Banh of Mont- real, 1918, A.C. 626, 710, per Ld. Parker). As to where there are no plead- ings, see 0. 18a and Odgers PI. 8th ed. 79-80 ; and- as to County Courts see the County Courts Act, 1888, ss. 73, 80, 82, 86. Criminal Cases. Under the Indictments Act, 1915, every indictment shall now contain, and be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, described in ordinary Ian-, guage, and avoiding as far as possible technical terms, but without necessarily stating all the essential elements of the offence (s. 3 ; Sch. I. r. 4). And charges for more than one felony or misdemeanour, or for both felonies and mis- demeanours, may also be joined in the' same indictment (s. 4) , if they are Digitized by Microsoft® 28 THE LAW OP EVIDENCE. [book i. founded on the same facts, or form, or are part' of, a series of offences of the same or a similar character [Sch. I. r. 3; post, 511]. Farticulars. Civil Cases. The object of particulars, which are now usually- endorsed on the pleadings, is to limit the generality of the issues, so as to inform the parties of the case they have to meet and thus prevent surprise at the trial. They are not intended to disclose the means by which the case is to be proved — e.g. the nature of an opponent's evidence, or the names of his witnesses merely as such (Temperton v. Russell, 9 T.L.E. 318, 322; Duke v. Wisden, It L.T. Q1). In the absence of leave to amend, the parties are bound by th^ir particulars, evidence dehors is inadmissible, and the jury can- not award more than these disclose _(fl^o«fg'e v. Matlock U. B.C., 75 J.P. Eep. 65, .C.A.) ; but if particulars have been waived,' such evidence cannot be excluded {Hewson v. Cleeve, 1904, 2 I.E., 536, 551, cited post, 183). A mere order for particulars, however, does not operate as a stay unless so directed, and the proper course when it has not been obeyed is not to exclude the evi- •denoe but to postpone the hearing (Brook v. B., 12 P.D. 19.) [Ann. Pr., Notes to 0. 19, rr. 6-8; 0. 36, r. 37; Bullen, PI. 6th ed., 37-41; Eos. N.P. 88-90; OdgersPl. 172-183]. Criminal Cases. Under the Indictments Act, 1915, s. 3, particulars neces- sary to give reasonable information of the nature of the charge, must now be given in the indictment; and the prosecution will probably, in accordance with. the old rule, be confined thereto (EoS. Cr. Ev. IgjS; Arch. Cr. PI. 61-62). In summary cases, however, no objection can be taken by the defendant to any defect in the information, complaint, or summons, either in substance or form (infra. Variance) ; though where he is prejudiced by the want of infor- mation he may apply to adjourn the hearing (Eos. Cr. Bv. 162; B. v. Esdaile, 1 P. & F. 213; Neal v. Devenish, 1894, 1 Q.B. 544). Moreover, the insuffici- ency of particulars is not a matter upon which a case can be stated (Neal v. DevenisJi, sup.). Variance and Amendment. Formerly the parties could only succeed strictly secundum allegata et probata; if the proofs differed from the allega- tions, the variance was fatal. Now, ho.wever, though, the case made at the trial must not substantially differ from that appearing on the record, very large powers of amendment are conferred upon Courts with the object of pre- venting a miscarriage of justice. Thus : In Civil Cases in the High Court the judge may at any time, on just terms, allow all such amendments in the pleadings as are necessary to determine the real questions in dispute between the parties (0. 28) ; and County Courts have a similar power (whether there is anything in writing to amend by or not) under the C. jC. Act, 1888, s. 87, and C. C. B., 1903, 0. 14. So the particulars may be amended, or a further and better statement thereof ordered on proper terms (0. 19, x. 7). In Criminal Cases, also, if it appears to the Court, either before or at the trial, that the indictment is defective, the Court may order such amendments to be made as it thinks necessary and a,s can be made without injustice ; and may make such order as to the costs thereof as it thinks fit (Indictments Act, 1915, s. 5). Inferior Courts. Under the Summary Jurisdiction Act, 1848 (11 & 12 Vict. c. 43), no objection can now be raised by the defendant to any informa- tion, coriiplaint, or summons on the ground of any defect in substance or in Digitized by Microsoft® CHAP. III.] VAKIANCE AND AMENDMENT, &c. 29 form, or of any variance between such information, &c., and the evidence pro- duced (s. 1) ; though (in the case of variances only) where the defendant has been misled thereby, the hearing may be adjourned (ss. 1, 9). Under this Act no express power of amendment is given; but the justices have, it seems, such power both in cases of defect in substance {Badgers v. Richards, 40 W.E. 331, where two charges were improperly joined in one information and it was held that one should have been struck out, or the com- plainant called upon to elect, but that the summons should not have been dismissed), and in those of variance {Exeter Corp. v. Heaman, 37 L.T. 534) ; in addition, in the latter case, to the power to adjourn given by ss. 1, 9. The power to amend is; however, limited to defects or variances of minor import- ance. Thus, where neither summons nor conviction has set out the essential ingredients of the offence, tliis is a defect in substance which .is fiatal,, no amendment of either will be allowed and the conviction may be quashed on case stated or certiorari {Cotterill v. Lempriere, 34 Sol. Jo. 348; R. v. McKenzie, 1892, 2 Q.B. 519). So, as to the graver cases of variance; thus, there is no power to amend, or adjourn where one offence is charged and a different one proved {Martin v. Pridgeon, 1 E. & B. 778, in which the defend- ant was summoned for drunkeneness and riotous behaviour under one Act and convicte'd of drunkenness under another ; B. v. Brickall, 33 L. J.M.C. 156, where the charge was for assaulting a constable in the discharge of his duty, and the conviction for common assault) ; or where the wrong person is charged and not merfely the right one misdescribed {Oxford Tramway Co. v. Sankey, 54 J.P. 564). As to those exceptional cases in which justices may convict of a minor offence, although the. facts point to a more aggravated one with which the defendant is not charged, and over which they have no juris- diction, see B. "V. Dawson, 42 J.P. 456, and Wilkinson v. Button, 3 B. & S. 821; or under one section of a Statute where the complaint is made under another, see Shackell v. West. 2 E. & E. 326. Facts in other Gases Excluded. It is a general rule that each case must be decided on its own evidence, and not on that adduced in any other {Hamil- ton V. Walker, 1892, 2 Q.B. 25; Groom v. Lawrence, 46 L.J. 329; Calico Assn. V. Booth, 5 B.W.C.C. 82, 84, 86, |C.A.; Taylor v. Wilson, 106 L.T. 44; Parker v. Sutherland, 81 J.P. Eep. 197; B. v. Posrtett, 9 Cr. App. E. 64; B. V. Fermanagh, 42 Ir. T.L.E. 6) ; nor should the facts in other cases be referred to {post, 39). Thus, although, if each case is based solely on its appropriate evidence, the decision in a first case may be posi^oned until a second has been heard {B. v. i^'ry, 19 Cox 135), yet where justices had based their decision of one charge partly upon evidence given on a second, arising out of the same facts, both convictions were quashed, the former for the above reason, and the latter because the defendant was deprived of his defence of res judicata {Hamilton v. Walker and B. v. Fermanagh, sup.). It is safer, therefore, for justices not to hear evidence as to separate offences before arriving at a decision as to one ; and if, on appeal, it is impossible to ascertain to which offence the conviction applies, it vnll be quashed {Parker v. Suther- land, sup.). Tinder the Lunacy Act, 1890, E. 42, however, the same evidence may be, used on two summonses where the facts are similar {Be Morris, 132 L.T. Jo. 513, C.A.). As to when depositions &c., in former, or earlier stages of the same, trials are admissible, see generally post, chaps, xxxvi.-vii., Ixi. ; and as to previous convictions, post, 41-2. Digitized by Microsoft® ( 30 ) CHAPTER IV. BURDEN OF PROOF. RIGHT TO BEGIN. MATTERS NOT TO BE STATED TO THE JURY. COURSE OF EVIDENCE. SPEECHES. REPLY. THE BEST EVIDENCE RULE. BURDEN OF PROOF. The burden of proof lies upoDr the party who sub- stantially asserts the affirmative of the issue. [Tay., ss. 364-377; Best, ss. 265-277; Ros., 8th ed., N.P. 95-96; Steph., arts. 93-97 a; Gulson on Proof, ss. 509-13; Thayer, Pr. Tr. Br. 353-389; Wigmore, Ev. chaps. 86-7; and see 6 Harv. L. Kev. 135; 17 id. 208; and 17 Am. L. Rev. 892.] Principle. This rule, derived from the maxim of Roman laWj.ei incumhit probatio, qui dicit, non qui negat, is adopted partly because it is but just that he who invokes the aid of the law should be the first to prove his case; and partly because, in the nature of things, a negative is more difficult to establish than an affirma'tive (Best, ss. 266-270; Tay., s. 364). Meaning and Scope of Rule. As applied to judicial proceedings the phrase "burden of proof" has two distinct and frequently confused meanings: (1) The burden of proof as a matter of law and pleading—the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) The burden of proof in the sense of introducing evidence (Thayer, sup.; Ohamberlayne's Best, s. 265 ra). (1) Burden of Proof on the Pleadings. The burden of proof, in this sensBj rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the plea&ings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting under any circumstances whatever. If, when all the evidence, by whomsoever introduced, is in, the party who has this burden, has not dis- charged it, the decision must be against him {Pickup v. Thames Ins. Co., 3 Q.B.D. 594, 600; Wahelin v. L. & S. W. By., 12 App. ;CaSr 41, 45). So, in criminal cases, even where the second, or minor, burden of introducing evi- dence is cast upon, or shifted to, the accused, yet the major one of satisfying the jury of his^ guilt beyond a reasonable doubt is always upon the prosecut;ion and never changes; and if, on the whole case, they have such a doUbt, the accused is entitled to the benefit of it and must be acquitted (JB. v. Sioddart, 25 T.L.R. 612 ; R. v. Schama, 84 L.J.K.B. 396 ; R. v. Badash, 87 id. 732 ; 13 Cr. App. R. 17; R. v. Murphy, 49 Ir. L.T.R. 15; R. v. Orinherg, 33 T.L.R. 4:28; post, 35). ' In deciding which party asserts the affirmative, regard must of course be had to the substance of the issue and not merely to its grammatical form, which latter the pleader can frequently vary at will; iporeover, a negative. Digitized by Microsoft® OHAP. IV.] BURDEN OF PEOOF. 31 allegation must not be confounded with the mere denial of an affirmative one. The true meaning of the rule is that where a given allegation, whether affir- mative or negative, forms an essential part of a party's case, the proof of such allegation rests on him {Airath v. N. M. By., 11 Q.B.D. 440, 457, per Bowen, L.J.; DoBY. Johnson, 7 M. & Gr. 1047, per Tindal, C.J.) ; e.^ in an action against a tenant for not repairing according to covenant {Soward v. Leggatt, ■7 C. & P. 613), or against a horse-dealer that a horse sold with a warranty is unsound {Oshom v. Thompson, 9 id. 337), proof of these allegations is on the plaintiff J so in actions for malicious prosecution, it is upon him to shew the absence of reasonable and probable cause {Abrath v. N. E. By., 11 App. Cas. 247; Ooo; v. English Bank, 1905, AjC. 168); while in actions for false imprisonment, proof of the existence of reasonable cause is upon the defend- ant, since arrest, unlike prosecution, is itself a tort and demands justification {Hides V. FauTkner, 8 Q.B,D. 167, 170 ; Watson v. Smith, 15 T.L.E. 473 ; cp. Walters t. Smith, 1914, 1 K.B. 595). An alternative test, in this connec- tion, is to strike out of the record the particular allegation in question, the onus lying upon the party who would fail if such a course were pursued {Mills V. Barber, 1 M. & W. 425, 437; Tay., s. 365). In all but the simplest cases, however, the burden of the issues is divided, each party having one or more cast upon him. Thus, in actions of contract, proof of the contract, performance of conditions precedent, breach and damages, is upon the plaintiff; while the defendant has the onus of facts pleaded in con- fession and avoidance, e.g. infancy, release, rescission, accord -and satisfaction, fraud, &c. So, negligence is upon the plaintiff, but contributory negligence upon the defendant {Wahelin v. L. & 8. W. By. sup.; White v. Barry By., 15 T.L.E. 474; though, as to the shifting of these burdens, see inf. 35). Again, in an action by A. to restrdn B. from trading in a certain locality in breach of the latter's covenant, to which the defence is a denial of the covenant, and in the alternative that it is unreasonable, the onus of proving the covenant is upon A. and its unreasonableness upon B. {Bousillon t. B., 14 Ch. D. 351). And in an action for damage to goods shipped under a charter-party contain- ing the usual exceptive clause as to dam>age by perils of the sea, the onus, where nothing is admitted by either party, -is upon the plaintiff to prove the contract and non-delivery; upon the defendant to prove damage by perils of the sea; and upon the plaintiff in reply to prove negligence of the defendant disentitling him to the benefit of the clause {The Olendarroch, 1894, P. 226). As to loss under the exceptive clauses of a burglary policy, see Hurst v. Evans, 86 L.J.K.B. 305. (2) Burden of adducing Evidence. It is in the second sense that the term is more generally used, and must be applied in the following pages ; and while the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates {Pickup v. Thames Ins. Co., Wahelin v. L. & S.W.B., and B. v. Stoddart, cited sup.). The onus probandi in this sense rests upon the party who would fail if no evidence at all, or no more evidence, as the case may he, were given on either side — i.e. it rests, before evidence is gone into, upon the party asserting the affirmative of the issue; and it rests, after evidence is gone into, upon the party against whom the tribunal, at the time the question arises, would give judgnient if no further evidence- were adduced (Best, s. 265 n; Ahrath v. Digitized by Microsoft® 32 THE LAW OF EVIDENCE. [book i. N. E. By., 11 Q.B.D. 440, 456; WaUlin v. L. & S. W. By. Co.. 1896, 1 Q.B. 189 n, 196 n). This rule holds not only as to matters which are the subject of express allegation, but to those which relate merely to the admissibiliiy- of evidence or the construction of documents — e.g^ if either party desires to impeach the competency of a witness {Harrod V. E., 1 K. & J. 4), or to give secondary evidence of a lost deed, the burden of proving the incompetency or loss is upon him (Steph. art. 97); so, with the party who contends that a written contract is incomplete and desires to add parol ierms thereto {Tucker v. Bennett, 38 Ch. D. 1, 9) ; and if a contract is ambiguous the plaintiff has the burden of showing that his interpretation is correct {Falck v. Williams, 1900, A.C. 176, 181). As to the burden of proving documents duly stamped, see post J 5. , New Trials. An, erroneous decision as to the onus of proof will, if it has occasioned substantial injustice, entitle the injured party to a new trial (Pickup -v. Thames Ins. Co., sup.; The Glendarroch, sup.; see post, 39). EXCEPTIONS. There are commonly said to be two cases in which the burden of proof (in the sense of adducing evidence) does not rest upon the party substantially asserting the affirmative; or which, if they occur during the trial, will operate to shift such burden to his opponent. (1) Where a disputable presumption of law exists, or a. prima facie case has been proved, in favor of a party, it lies upon his adversary to rebut it. The burden of proof may be shifted, not alone by rebuttable presumptions of law as contended by Mr. Taylor (s. 367 n), but also by presumptions of fact of the stronger kind, or indeed, by any species of avidence sufficient to raise a prima facie case (Best, ss. ,273, ,319-21 ; Odgers on Pleading, 7th ed. 293; Abrath v. N. E. By., sup.; Pickup v. Thames Ins. Co., slip.). Behuttahle presum,ptions : Civil Cases. Thus, a party suing on a bill of exchange need not allege, nor at the outset prove, that he gave consideration, or is a holder in due course, since these presumptions are in his favour ; but if fraud or illegality be shown, the burden is shifted and he must show that sub- sequently to such fraud, &e., he gave value in good faith (Bills of Ex. Act, 1882, s. 30; Tatham v. Haslar, 23 Q.B.D. 3,45). So, when suing upon any contract, he need not allege, nor at the outset prove, the defendant's full age, proof of a plea of infancy being upon the defendant {Hartley v. Wharton, 11 A. & E. 934), nor sanity {Imperial Loan Co. v. Stone, 1892, 1 Q.B. 599), proof of insanity and the plaintiff's knowledge thereof, an essential part of the plea, being also on the defendant {post, chap^xlviii.). So, a party ind- peaching a marriage on the ground of insanity must prove it {Durham v. D., 10 P.D. 80) ; though in Probate cases an opposite rule prevails, the party propounding the will having, in addition to the burden of proving due exe- cution, 'that of establishing testamentary capacity {Tyrrell v. Painton, 1894, P. 151, C.A.). Again, though a party asserting another's death must prove it, yet, if he show that such person has not been heard of for seven years by those most likely to hear, the burden of disposal is shifted to his adversary, for the law then presumes death (posi, chap, xlviii.). 8o the legitimacy of a child born during wedlock is presumed; but if its parents are shown to have been judicially separated more than nine months before its birth, the presumption is ]-eversed {Hetherington v. Hetherington, 12 P.D. 112; see fully post, chap, xlviii). In civil eases, too, the so-called presumption of Innocence, throws the burden of proof upon the party alleging an unlawful act. Thus, in an Digitized by Microsoft® CHAP. IV.] BURDEN OF PEOOr. 33 action for shipping inflammable goods on a certain ship without giving notice to the captain, the burden of proving the failure to give notice was held to be upon the plaintiff, since a criminal aot was thereby imputed (Williams v. East India Co., 3 East, 193 ; as to what evidence is sufficient to shift this burden, see post, 35-6). ihe presumption omnia prcBSumuntur rite esse acta will also generally suffice to throw the burden of proving fraud, &c., upon the party asserting it; though there is a conspicuous exception to this, where from the fiduciary or Confidential relationship of the parties, or other circumstances, one of tiiem has been enabled to exert undue influence over the other, in which case it lies upon the dominant party to support, and not upon the servient party to impeach, the righteousness of a trahsaction beneficial to the former. This exception applies not only to the relationships of parent and child, guardian and ward, solicitor and client, doctor and patient, but to all other cases where a predominant influence has in fact been obtained, and benefits inter vivos received (Alloard v. Skitmer, 36 Ch. D. 145, C.A. ; Morley y. Loughnan, 1893, ] Oh. 736 ; Pollock, Contracts, 8th ed. 642-81 ; White & T.udor, L.C. 8th ed. 259-302). But it does not apply (1) to benefits received by Will {Craig v. Lamoureux, 1920, A. C. 349, which appears to supersede the dictum to the contrary of Ld. Hatherley, in Fulton v. Andrew, L.E. 7 H.L. 469-70) ; nor (2) to the relation of husband and wife, whifch in civil cases raises no presumption of law as. to marital coercion {Brown v. A.-G., 1898, A.C. p. 237; Barron v. Willis, 1899, 2 Ch. 578, 585; Howes v. Bishop, 1909, 2 K.B. 390, C.A.; and cp. BanTe of Montreal v. Stuart, 1911, A.C. 120) ; though aliter in. certain not very clearly settled cases of felony and misdemeanour if com- mitted by the wife in the husband's presence (B. v. Torpey, 12 Cox 45 ; R. v. Bylces, 15 id. 771 ; B. v. Caroubi, 28 T.L.R. 248 ; B. v. Green, 30 id. 173 ; 1 Euss. Cr. 7th ed. 91-100; Eos. Cr. Ev. 13th ed. 816-18; Archb. Cr. PI. 25th ed. 21-3). Criminal Cases. Generally in criminal cases (unless otherwise directed by statute), the presumption of innocence casts on the prosecutor the burden of proving every ingredient of the offence, even though negative averments be involved therein (Tay., s. 371; Over v, Harwood, 64, J.P. 326). Thus, on charges of rape, indecent assault, &e., the burden of proving non-consent by the prosecutrix is on the prosecution {R. v. Bradley, 4 Cr. App. E. 225 ; R. v. Horn, 7 Cr. App. E. 200.) -And the prosecution is bound to negative any exception favourable to the defendant which is engrafte'd in the statutory description of the offence, though not one contained in a separate clause {Roberts v. Humphreys, L.E. 8 Q.B. 483; B. v. James, 1902, 1 K.B. 540; R. V. Audley, 1907, 1 K.B. 383). If, however, the facts proved raise a rebuttable presumption of law against him, the burden is shifted; thus on an indictment for manslaughter by negligent driving, proof of the killing, which is presumeld to be unlawful, throws on the prisoner the onus of showing proper care {R. v. Cavendish, I.E. 8 C.L. 178; R. r. Elliott, 16 Cox 710; R. v. ■Murphy, 49 Ir. L.T.E. 15; Archb. Cr. PI. 22nd ed.' 748). And, generally, facts in confession and avoidance are upon him, e.g. insanity {R. v. Smith, G Cr. App. E. 19; R. v. Rutherford, Times, Ap. 9, 1919; cp. The Trial of Lunatics Act, 1883), or in bigamy cases that the first marriage was void {B. V. Lindsay, 66 J. P. 505; B.j. Thompson, 70 id, 7; B. v. Naguib, 1917, 1 K.B. 359, C.C.A.; post, 233), or that the accused is not a British subject L.E. — 3 Digitized by Microsoft® 34 THE LAW OF EVIDENCE. [book i. {B. V. Audley, sup.). Moreover, the Legislature has, in many cases, relieved the prosecutor from his original onus by throwing the proof of authority, con- sent and lawful excuse on the defendant — e.g. on charges for the unlawful possession of house-breaking implements (34 & 25 Vict. c. 96, s. 58), coining tools {id. c. 99, s. 24), or explosives (46 & 47 Vict. c. 3, s. 4), or for selling goods with forged trademarks (50 & 51 Vict. c. 28, s. 2) ; and see for a long list of such statutes, Tay., s. 374 n. So the Summary Judisdiction Act, 1879 (42 & 43 Vict. c. 49, sub-s. 2, extending a similar provision in the Act of 1848, s. 14), dispenses with disproof by informants, or complainants, of " any exemption, exception, proviso, excuse or qualification, whether it does, or does not, accompany in the same section the description of thg offence in the Act creating the offence," which would be in favour of the defendant (see Roberts v. Humphreys, sup., as to a similar proviso). Distinction when Burden on Prosecution or Prisoner. When the burden of the issue ig on the prosecution, the case must as we have seen {ante, 10), be praved beyond a reasonable doubt; though a prima facie case made by the prosecution and not rebutted by the accused, may often amount to this, and suffice for conviction {R. y. Lovett, 1 Cr. App. R. Ill; R. v. Schama, 84 L.J:K.B. 396). When, however, the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty ; it is sufficient if he succeed in proving a prima facie case for then the burden of such issue is shifted to the prosecution, which has still to discharge its original and major onus that never shifts, i.e. that of establishing, on the whole case, guilt beyond a reasonable doubt {R. v. Cavendish, I.E. 8 C.L. 178; R. v. Stoddart, 25 T.L.E. 612; R. v. Schama, sup.; R. V. Ward, 1915, 3 K.B. 696; ante, 30). Thus, on a charge of posses- sing house-breaking implements without lawful excuse, proof of such excuse being upon the accused, the latter proved that he was a bricklayer, which made his , possession prima facie lawful. At the trial, however, the judge directed that the burden was still on the accused to negative a felonious, intent. On appeal it was held that this direction was wrong, and that when a prima facie excuse had been shown, it was for the prosecution to rebut, and not for the accused to establish, an innocent intent {R. v. Ward, sup.; R. v. Schama, sup.) I. A defence of insanity must, however, be proved beyond a reasonable doubt {R. V. Jefferson, Times, July 20th, 1908, per Bigham, J., reversed on other grounds, 1 Cr. _App. E, 95; c.p. R. v. Wilson, 55 L. Jo. 157) ; and in bigamy cases, strict proof must apparently be given of the validity of a former foreign marriage whether its onus is upon the prosecution or defence {R. V. Naguib, sup) . Conflicting presumptions, however, neutralize each other, and leave the case at large to be determined solely on the evidence given. Thus, X, having married A. in 1864, and B. in 1868 is, in 1868, convicted of marrying B. in A.'s lifetime. Having also in 1879 married C. and in 1880 married D., he is afterwards again tried for marrying D. in C.'s lifetime. To rebut the pre- sumption that C.'s marriage is valid he proves the previous conviction for bigamy, showing A. to have been alive not only in 1868, but, since the con- tinuance of life is presumed, also in 1879. Held, these presumptions being conflicting, the question whether A. was alive in 1879 was one of fact, to be determined solely upon the evidence given {R. v. Willshire, 6 Q.B.D. 366; Westwood V. Chettle, 98 L.T. Jo. 228). Digitized by Microsoft® CHAP. IV.] BUEDEN OF PEOOF. 35 Prima facie Case. The burden of proof may also be shifted by evid.encie raising a prima fade case. Thus, in a breach of promise action in which the defence, after admitting the promise and refusal, was that the plaintiff was unfit from illness to marry, it was held that the burden of proof that she was fit, ie. ready and willing to perform the contract, rested in the first instance on the plaintiff, but that very slight evidence thereof, e.g. that she was follow- ing the. ordinary pursuits of life, was sufficient to shift the burden of disproof to the defendant (Jefferson v. Paskell, 85 L.J.K.B. 398,C.A.). So, in eject- ment for underletting without a license, proof of the underletting is on the lessor, but if he show that some one other than the lessee is in possession, apparently as tenant, the onus is shifted to the lessee to show that the occupier is not such {Doe v. Rickariy, 5 Esp. 4). In an action against underwriters for the loss of a ship, to which the defence is concealment of material facts, the onus of establishing this defence is upon the defendants; slight evidence of non-communication, however, will suffice to throw on the plaintifE proof of the opposite-^e.gf. evidence that he knew the ship had been burnt at the time of the insurance,, since no underwriter, had he known this, would have executed the policy {Elhin y. Janson, 13 M. & W. 655). Again, in an action of negli- gence against a solicitor for letting judgment go by default, proof of the default cast the burden of justification on the defendant {Godefroy v. Jay, 7 Bing. 413) ; and a similar burden is cast upon a mine-owner on proof of the neglect of statutory precautions {Britannic Co. v. David, 44 L. Jo. 764, H.L.). So, though the onus of proving contributory negligence is on the- defendant {ante, 31), yet if the plaintifE's evidence, in chief or on cross- examination, discloses this, the burden of introducing evidence will shift {Wahelim, v. L. & 8. W. By., 13 App. Gas. 41, 47-8). As to prima fade evidence that the driver of a vehicle is the servant of the owner, see Powell v. McGlyrm, cited posi, 97, 236. Similarly, on charges of stealing or receiving, proof of recent possession oi the stolen property by the accused, if unexplained or not reasonably explained, of if though reasonably explained, the explanatjoh is disbelieved, raises a presumption of fact, though not of law, that he is the thief or receiver accordr ing to the circumstances; and upon such unexplained, or not reasonably explained, possession, or disbelieved explanation, the jury may (though not must) find him guilty {R. v. Schama, 84 L.J.K.B. 396; E. v. Norris, 86 id. 810; S. V. Badash, 13 Cr. App. E. 17; B. y. Aubrey, 11 id. 182; B. v. Hagan, 9 id. 37) . It is not, however, for the accused to prove honest dealing with the property, but for the prosecution to prove the reverse {B. v. Lewis, 14 id. 33) ; and if an explanation be'given which the jury think may be true, though they are not convinced that it is, they, must acquit, for the main burden of proof (i.e. beyond reasonable doubt) rests throughout upon the prosecution, and in this case, will not have discharged {B. v. Schama, sup.; B. v. Orinberg, 33 T.L.E. 428; B. v. Norris, sup.; B. v. Badash, sup.; B. v. Brain, 13 Or. App. E. 197; B. v. Sanders, 14 id. ii.). As to what amounts to recent possession in such cases, see post, chap. ix. So, where a person, is charged with having in his possession diseased animals ^^ithout giving notice to the police, proof of the existence of the disease to the defendant's knowledge has been held sufficient to raise a prima facie case, shifting the onus of proving that he gave notice on to the defendant \Huggins v. Ward, L.E. 8 Q.B. 521 ; in WiUiams v. E.. I. Co., ante, 33, as the best evidence of non-notice had not Digitized by Microsoft® 36 THE LAW OP BVIDENCJE. [book i. been given, the burden was held not to shift, but this case would probably not now be followed; see post, 46-8]. And on a charge of non-vaceination, testimony by the officer who produced the register showing that no certificate under the Act had been furnished by the defendant, was held to shift the onus to the latter (Over v. Harwood, 64 J.P. 336). So the inference of age from appearance may shift the burden of proof (Archb. Cr. PL 23rd ed. 890). But on a charge of receiving stolen goods mere proof of a previous conviction for larceny, though admissible by statute to show guilty knowledge {post, 174-5), is not sufficient to shift the, onus of disproving such knowledge to the defendant {B. v. Davis, L.E. 1 |C.C. 272). So, where a publican was charged with keeping open licensed premises after hours for the sale of intoxi- cants, proof that the premises were open after hours, though the witness had been refused intoxicants therein, was held to be equally consistent with, guilt or innocence and not to raise a prima facie case {Harries v. Thomas, 86 L.J.K.B. 813). (3) Where the subject-matter of a party's allegation (whether affirma- tive or negative) is peculiarly within the knowledge of his opponent, it lies upon the latter to rebut such allegation [Tay., ss. 376a, 377; Best, ss. 374- 377; Euss. Cr., 7th ed., 1995-7]. The principle of this exception has been recognised chiefly, though not exclusively, in the older cases and by the Legislature. This, in actions under the old game laws, though the plaintifE had to aver, and give general evidence, that the defendant was not licensed to kill game, yet proof of a definite quali-, fication was on the defendant (Steph., art. 96 d) ; so in proceedings against an apothecary for practising without a certificate, the defendant had the onus of proving his certificate {Apothecaries Co. v. Bentley, 1 C. & P. 538). These cases, however, have been considered to rest partly upon the construction of the Acts; and in the absence of statutory provision, the better opinion now seems to be that, in general, some prima facie evidence must be given by the complainant in order to cast the burden on his adversary. The difficulty of proving a fact peculiarly known to an opponent may, it has been said, affect the quantum of evidence demanded in the first instance, but does not change the rule of law {Doe v. Whitehead, 8 A. & E. 571 ; ElUn v. Janson, 13 M. & W. 655). "It has been said that an exception exists in those cases where the facts lie peculiarly within the knowledge of the opposite party. The counsel for the plaintiff has not gone so far as to say that in all such cases the onus shifts, and that the person in whose knowledge the truth lies is bound to prove or disprove the matter in dispute ; this cannot be maintained, and the game law cases can be explained on special grounds" {Abrath v. N.'E. Ry., 11 Q.B.D. 440, 457, per Bowen, L.J. Cp. Powell v. M' Glynn, sup.; Hibbs v. Boss, L.E. 1 Q.B. 534, 541, 543). In ,Steph. art. 96, the rule is well stated as follows: "In considering the amount of evidence necessary to shift the burden of proof, the Court has regard to the opportunities of knowledge, with respect to the fact to be proved, which may be possessed by the parties respec- tively." Thus, in actions of ejectment on the ground of forfeiture for non- insurance, proof of non-insurance lies on the plaintiff, though the amount of evidence which is necessary to shift the burden will vary according to the cir- cumstances, e.g. in Price v. Worwood, 4 H. & N. 513, the facts that the defendant had failed to insure for the two previous years, and on the occasion in dispute, had stated that he required the money for other purposes, were Digitized by Microsoft® CHAP. IV.] RIGHT TO BEGIN. MATTERS NOT TO BE STATED. 37 held sufficient to effect this object; while in Doe v. Whitehead, 8 A. & E. 571, the mere refusal of the defendant, both prior to, and on notice at the trial, to produce the policy or receipt for premium, was held insufficient. So, where the forfeiture was in respect of a covenant not to permit an auction on the premises without the lessors' written consent, the onus was held to be upon the plaintiff, to prove the non-existence of such consent (Toleman v. Portbury, L.R. 5 Q.B. 288; cp. Wedgwood v. Hart, 2 Jur. N.S. 288). And, in R. v. Harris, 10 Cox 541, where the charge was of boarding lunatics without the necessary certificate, prima facie evidence of the absence of a certificate was exacted before the onus was cast upon the defendant. On the other hand, it was said by littledale, J., in Doe v. Whitehead, sup., and Willes, J., and Channell, B., in Toleman v. Portbury, sup., that had tiie above actions been on the covenant, and not for the forfeiture, the onus of proving insurance would have lain on the defendant. So, where goods are booked with a railway company by through ticket, proof that the damage occurred off the defendants' line is upon them ^{Mahony v. Waterford By., 1900, 2 I.R. 273; Kent v. Midland By., L.R, 10 Q.B. 1). And proof of" a matter peculiarly and solely known in the defendants' office, e.g. the date upon which tiiey registered their own policy, has been held to lie upon them {Gen- eral Accident Corp. v. Boiertson, 1909, A.C. 404, 413; cp. also Huggins v. Ward, ante, 35). And in ejectment, where the plaintiff shows, but negatives, a source from which the defendant's possession may lawfully be derived, it lies upon the latter, as peculiarly within his knowledge, to show some other {Mag- d-alen Hosp. T. Kngtts, 8 Ch. D. 709, 724, C.A.). In many cases, indeed, the Legislature hab .expressly thrown the burden of proving matters, of defence which may be supposed to lie peculiarly within the knowledge of the defend- ant upon the latter — e.g. under the Foreign Enlistment Act, 1870, ss. 8, 9, the- burden is upon the builder of the ship to prove that he did not know she was to be employed in contravention of the Act. EIGHT TO BEGIN. MATTERS NOT TO BE STATED. Civil Cases. The right to begin, which may prove a benefit or a burden according to the -strength or weakness of a party's case — since in the former event it enables him to make the first impression upon, as well as, where his opponent calls evidence, to have the last word to, the jury ; while in the latter it may cause the collapse of his own case before he has time either to profit by the weakness of his opponent's, or to trust to the effect of his address to the jury, — ^is partially, but hot wholly, determined by the burden of proof. [Tay., ss. 378-84 ; Ros. N.P. 284-8; Best, ss. 637-9; Archb. Pr. 627-31.] In one sense, the plaintiff always begins, for without an exception the plead- ings are opened by him and not by the defendant.' The following are the generally accepted rules, however, as to the right to begin in the sense of open- ing the case to the jury; (1) Where the onus of proving any one of the issues, however numerous they may be, rests upon the plaintiff, and he will undertake to give evidence upon it, he is entitled to begin. (2) Although there may be no issues lying upon the plaintiff, yet 'he is entitled to begin in all actions in which he. claims substantial and unliquidated damages, (e.g. actions founded on libel, slander, injuries to the person, covenant, or assumpsit). (3) If the onus of proving all the issues lies on the defendant, .he is, subject to the exception last mentioned, entitled to begin. But his mere admission at the Digitized by Microsoft® 38 THE LAW OP EVIDENCE. [book i. trial of the plaintiff's whole prima facie case .will not he sufficient to give him this right, if he might have made the admission by his pleadings [Mercer y. Whall, 5 Q.B. 447; Pontifex v. Jolly, 9 C.P. 302; Price v. Seaward, Car. & M. 23; Tay., s. 379; Eos. N.P. 284; 45 L.T. Jo. 196, 299]. In probate Suits, the pairty propounding the will begins if either its validity or the competency of the testator be impeached (Smee v. 8., 5 P.D. 84) ; but if these points are admitted, and fraud, undue influence, revocation by a later will (Hutley v. Orimstone, 5 P.D. 24), or by destruction (North v. N., 25 T.L.E. 322), or by a codicil (even though itself impeached for testamentary incapacity, fraud, or undue influence. Riding v. Hawleins, 14 P.D. 56), be pleaded, the party so pleading begins. In Nullity Suits, even where both sides allege incapacity, the petitioner begins (L. v. L., 53 Sol, J. 32). On petitions for revocation of patents, the respondent is entitled to begin (0. 53a, r. 12). Criminal Cases. In criminal trials the prosecittion always begins. If the prisoner is defended, the counsel for the prosecution opens the case; if un- defended, and there is no peculiarity in the facts, an opening statement is often omitted; while there is no prosecuting counsel, there can be no open- ing, since the prosecutor, not being a party {post^ %^Q), is never allowed to address the jury, or act as advocate, \R. v. Brice, 2 B. & AH. 606 ; R. v. Gurney, 11 Cox 414, 422 m]. In summary cases before justices, however, every complainant or informant is, by statute, entitled to conduct his own case, and to examine and cross- examine witnesses, as well as to give evidence [Summary Judisdiction Act, 1848, ss. 12, 14; Duncan y. Toms, 51 J.P. 631; 75 J.P. Jo. 495]. Matters not to be opened or stated to the Jury. In opening the case to the jury, no communication must be made of (1) the amount of damages claimed in any action (41 Sol. Jo. 204) ; nor of (2) the fact that money has been paid into court, nor its amount (0. 22, r. 22; Williams v. Goose, 1897, 1 Q.B. 471 ; Jdcq.ues v. 8. Essex Co., 20 T.L.E. 563 ; and this is so, even in libel actions, with a sta,tutory plea of payment, Veale v. Reid, 117 L.T. Jo. 292; so," also now in Ireland, O'Reilly v. Weldon, 124 Ir. L.T.E. Jo. 170) ; nor (3) in criminal cases, of any previous conviction against the accused unless this is an essential ingredient of the offence, i.e. unless the act charged is only criminal if done after a previous conviction [see Previous Conviction Act, 1836; Larceny Act, 1861, s. 116; Prevention of Crimes Act, 1871, s. 9; Faulhner v. R., 1905, 2 K.B. 76, 80-2 ; R. v. Penfold, 1902, 1 K.B. 507 ; as to when previous convictions, though not opened, may be proved before ver- dict, see inf. 41-2]. If any improper disclosure under (1), (2), or (3) has in fact been made, the case should be tried before a fresh jury. Similar crimes may, however, be opened when such evidence is admissible {R. v. Rich- ardson, 8 Cox 448, 449; E. v. Girod, 22 T.L.E. 720; R. v. Dale, IB Cox 703; R. V. Smith, 84 L.J.K.B. 215). (4) Although conversations or declarations by the accused may generally be opened to the jury, since any discrepancy between opening and evidence may operate faYourably on their minds, a Confession should not be, as it may prove inadmissible [R. v. Hartel, 7 C. & P. 773, per Parke, B. ; R. v. Davis, id. 785 ; R. v. Creau, 8 Cox 509 ; R. v. Rouse, 137 C.C.C. Sess. Pap. 220, per Darling, J., an objection, however, that might apply to all evidence; it is, however, not uncommon to state its general effect merely. (Archb., 23rd ed. 208)]. Nor (5) will counsel be allowed, either in civil or Digitized by Microsoft® CHAP. IV.] COURSE OP EVIDENCE. 39 criminal cases, to open facts he does not intend to prove (Darby v. Ouseley, 1 H. & N. 8 ; Eesolution of the JuSges, 1881, cited Bos. Cr. Ev., 13th ed. 186, and Archb., 23rd ed., 211) ; and should he inadvertently do so, a reply will be allowed (post, 44) . So (6) he may not address the jury upon matters of law (1 Steph. Hist. Cr. L. 552; 22. v. Clarke, 119 L.T. Jo. 287) ; nor (7) quote to them scien- tific works (R. V. Crouch, 1 Cox 94; R. v. Taylor, 13 id. 77; post, 392-3) ; nor (8) refer to the facts of other cases (B. v. Spoden, 119 L.T. Jo. 286 ; Gann V. Gilmour, 132 id. 474; ante 29; though ia the Tichborne trial, vol. 7, p. 174, this rule was largely relaxed, and in B. v. Courvoisier, 9 C. & P. 362, the Court allowed counsel to read a judge's views on circumstantial evidence, provided he adopted them as his own). Relevant matters of public history. or general notorieiy may, however, always be referred to (B. v. Bowling, t St. Tr. N.S. 390; B. v. Dufy, id. 915-8). New Trials. In civil cases, if an erroneous ruling •as to the right to begin or reply (Brandford v. Freeman, 5 Ex. 734), or as to the course of evidence (Doe V. Bower, 16 Q.B. 805), has occasioned substantial injustice, but not otherwise, the injured party will, as in cases of erroneous decisions regarding the onus of proof, be entitled to a new trial (Tay., s. 387; Ros. N.P. 288; ante, 32). As to new trials for improper admission or rejection of evidence see, generally, post, chap. xlix. COURSE OF EVIDENCE. Parties' evidence must be heard. Unless by consent, a judge cannot, as we have seen, decide for or against a party, on his counsel's opening without hearing his evidence, or on merely taking it as read {ante, 13). The evidence must be heard. Where One or Several Issues. Splitting a Case. Where there is a single issue only to be tried, the party beginning must exhaust his evidence in the first instance, and may not split his case by first relying on prima facie proof, and when this has been shaken by his adversary, adducing confirmatory evi- dence (Jacobs v. Tarleton, 11 Q.B. 421; Ros. N.P. 278; Archb. Pr. 631).. Where there are several issues, any one of which lies upon the plaintiff, he may 'at his option, either (1) go into his whole case (both origiaal and rebutting) in the first instance; or (2) as is more usual, merely adduce evidence on those issues which lie upon him, reserving the right to call rebutting evidence should his opponent make out a prima facie case (Penn v. Jacfc,. L.R. 2 Eq. 314; Tay., s. 385; Ros. K.P. 278; Archb. Pr. 631). Thus, in a libel action where justification is pleaded, the plaintiff may formally prove the libel (or read it, if it has been admitted), but refrain from going into the box until the defendant's case is closed, when he may give evidence in reply ; or he may be sworn at once and meet the defendant's case by anticipation. So, in a com- pany's action for calls, the defence being misrepresentation in the prospectus, proof of which lies on the defendant, the plaintiffs may either prove the defendant's contract to take the shares and reserve their answer to his charge until the defendant has called his evidence, or elect to meet this as part of their original case (Components Tube Co. v. Naylor, 1900, 2 I.R. 1, 74, 84-5, where the disadvantage of the latter course was strikingly shown). The rebutting case, however, may not in general be divided any more than the original one (Jackman v. Jachman, 14 P.D. 62) ; although where three plain- tiffs propounded a will to which undue influence by all was pleaded, counsel was allowed to open the whole case, call one plaintiff to prove due execution Digitized by Microsoft® 40 THE LAW OF EVIDENCE. [book i. and deny undue influence by hinij but reserve the others for rebuttal (Ful'do V. ioueW, 77L.T. 220). Evidence in Reply and Eebuttal. Must not he confirmatory. Evidence in reply, whether oral or by affidavit, must, as a general rule, be strictly confined to rebutting the defendant's case, and must not merely confirm that of the plaintiff (0. 38, r. 27; Gilbert v. Comedy Co., 16 Ch. D. 594; Trimlestbwn T. Kemmis, 9 C. & P. 749, 781). Thus, where the latter had closed his case without calling a defendant, who did not appear, the plaintiff was not allowed to call him in reply {Barker v. Furlong, 1891, 2 Ch. 172). So, in an action on a bill, where endorsement to the plaintiff was in issue, his case resting on mere proof of the indorser's handwriting, and the defendant, denying know- ledge of the transaction, or authority to sign, had tendered evidence that the plaintiff was too poor to give value, proof by the plaintiff to rebut this was excluded as being merely confirmatory {Jacobs v. Tarleton, sup.; Eos. K.P.* 278). Moreover, where the issues on the claim and counterclaim are identi- cal, evidence in rebuttal cannot be called, as it must necessarily be confirma- tory ( Oreeri v. Sevin, 13 Ch. D. 589) . Exceptions. — The judge, however, has a discretion to admit further evidence, either for his own satisfaction or where the interests of justice require it {Doe v. Bower, 16 Q.B^ 805 ; Budd v. Davison, 29 W.R. 192) ; and confirmatory evidence in rebuttal will generally be allowed when the party tendering it has been misled {Barker v. Furlong, sup.; Rogers v. Manley, 42 L.T. 584), or taken by surprise {Bigsby v. Dick- enson, 4 Ch. D. 24; Budd v. Davison, sup.; Wright v. Willcox, 9 C.B. 650). A similar rule obtains in Criminal cases. Whenever the accused, in defence, gives evidence of fresh matter which the prosecution could not foresee, whether _ it be an alibi {R. v. Froggatt, 4: Cr. App. R. 115), lawful excuse, good char- acter {post, chap, xiii.), insanity {R. v. Smith, i'^ L. Jo. 689), or merely some collateral fact impeaching an opposing witness, the prosecution is entitled to contradict it, provided such evidence be not merely confirmatory of the original case, for then it should have been tendered at first (Archb. Cr. PI. 21st ed. 199-200; Eos. ;Cr. Ev. 13th ed. 123). Thus, on a charge of theft, the defence being that the prisoner had bought the property from A., A., called as a witness, was allowed to deny the prisoner's statement, for this was strictly rebutting, but not to add that he had " seen the prisoner steal it," for this was merely confirmatory of the original charge [R. v. Stimpson, 2 C. & P. 418, cited, post, 143 ; cp. R. v. Priestly, 5 Cr. App. E. 155, where a prisoner's defence "being that the property had been given him to sell by his fellow pri- soner, who was a stranger to him, the prosecution were allowed to call a wit- ness to prove that he had seen them together on two occasions prior to the date of the theft]. So, on a defence of alibi, witnesses for the prosecu- tion, after disproving the alleged whereabouts of the prisoner, were not allowed to add that they saw the prisoner in or near the vicinity of the crime, since this was confirmatory and should have been produced at first {R. V. Hilditch, 5 C. & P. 299 ; contra, however, Briggs v. Aynsworth, 2 M. & Rob. 168; R. v. Briggs, id. 199; Russ. Cr. 7th ed. 2327-9; post, 137). Where, however. A., who was B.'s mistress, was charged with the murder of C, B.'s wife, and testified that B. gave her a revolver before C.'s death, but that it had remained in A.'s own drawer till after C.'s death, the prosecution was refused leave to rebut (E. v. Wheatley, 50 L. Jo. 332). The prisoner is less often entitled to give rebutting evidence, since, knowing the depositions. Digitized by Microsoft® CHAP. IV.] COUESE OP EVIDENCE. 41 he can give it in defence. As in civil cases, however, the judge may when the interests of justice require it, admit such evidence although it was available in chief {R. V. Grippen, 1911, 1 K.B. 149; R. v. Smith, 11 Cr. App. E. 230) [Cp. Ee-Examination, post, 483] . Where a rebuttal of relevant evidence has been improperly refused, a new trial may be granted (Maclaren v. Davis, 6 T.L.E. 372). But the rebuttal of irrelevant evidence will not be allowed {R. v. Cargill, 1913, 2 K.B. 271). Anticipating^ and Interposing Evidence. In certain cases evidence is allowed to be given in anticipation of some obvious defence, e.g. similar facts to rebut accident {po^, 172), or prior transactions between the parties, to construe a term in a contract, in rebuttal of a possible customary meaning (Bourne v. Gatliff, post, chap, xlvi.) ; or to be interposed out of the regular course — e.g. to show that a contract, as to which an opponent's witness is questioned, is in writing {Cox v. Oouveless, cited ante, 12). or to disprove pos- session of a document as to which secondary evidence is about to be tendered {Harvey v. Mitchell, 2 M. & Eob. 366; post, 568-9). So, a document omitted per iweuriam was allowed to be put in by the prosecution during the reply {R. v. White, 2 Cox 192). But where the plaintiff tendered an examin- ation of the defendant taken in bankruptcy, which was prima facie admis- sible, the latter was not permitted to call witnesses to show that it was incom- plete and, therefore, inadmissible, the Court holding that such evidence, if not obtained by cross-examination, must be postponed and given as part of defendant's case {Jones v. Fort, M. & M. 196). Becalling Witnesses. Examination by Judge. Eeerimination. The judge has the power at any stage of the trial of recalling a party's witnesses, and putting to them such questions as justice seems to require {post, 483-4) ; or of calling witnesses himself, independently of the parties, and examining them with the same view {id.). Moreover, e'Vidence not admissible in the usual course is sometimes allowed by way of recrimination — e.g. where wit- nesses have been called to impeach the veracity of an opponent's witness, wit- nesses to impeach the former may also be called {id.; post, 483). Putting in Documents. As to putting in, and cross-examination upon, docu- ments, see post, 43, 44, and 473, 476-7. Previous Convictions Not Provable Until After Verdict: Exceptions. As to opening these to the jury, see ante, 38-9. Generally, previous convictions are not admissible against the accused until after a verdict of guilty, and to affect punishment (Previous Conviction Act, 1836 ; Larceny Act, 1861, s. 116 ; Prevention of Crimes Act, 1871, s. 9). They should not be disclosed after acquittal {R. v. Smith, 87 L.J.K.B. 676) ; and if wrongfully disclosed before verdict and substantial miscarriage of justice results, the conviction so ob- tained will be quashed {R. v. Curtis, 29 T.L.T. 512; R. v. Lee, 1 Cr. App. E. 5;R.Y. Warner, id. 227; R. v. Stewart, 74 J.P..Eep. 246; R. v. Culliford, 75 id. 232), even though the judge may have cautioned the jury to disregard them {R. V. Hemingway, 29 T.L.E. 13). But, if the Court think that no miscar- riage has resulted, either because the disclosure was sufficiently obviated by the caution {R. v. Hargreaves, 6 Cr. App. E. 97; R. v. Stratton, 3 id. 255), or, if none were given, that non-disclosure would not have altered the verdict {R. V. Culliford, sup.j R. v. Warner, sup.; R. v. Metcalfe, 29 T.L.E. 512; R. V. Christie, 30 id. 41; R. v. Williams, 36 T.L.E. 251), the conviction will be allowed to stand. Digitized by Microsoft® 42 THE LAW OF EVIDENCE. [book i. Moreover, the rule that previous convictions are only provable after verdict does not apply when they are tendered — (1) as an essential ingredient of the offence {R. v. Penfold, 1902, 2 K.B. 54; ante, 38; post, 189); or (2) to show scienter in receiving cases, or intent under the Vagrancy Act, 1824 (post, 174-5, 189) ; or (3) to rebut good character, or imputations on the pro- secutor or his witnesses {post, 188-90; 454-5) ; or (4) to contradict the denial by a witness of his previous conviction (post, 482); or (5) to prove public rights {post, 298, 428) ; or (6) to prove a plea of res judicata (post, 412, 424-5); or, it seems (7) when tendered before justices on the hearing of summary offences {R. v. Capping, 50 Sol. Jo. 458). As to the various modes of proving previous convictions, see post, 557-9. Eeopening Case to Sifpplement or Correct Evidence. Where material evi- dence has inadvertently been omitted, the judge should allow the case to be reopened or adjourned to supply it {Hargreaves v. Hilliam, 58 J.P. 655; Duffin V. Markham, 88 L.J.K.B. 581 ; R. v. Warren, 14 Cr. App. C. 4) . So, where a witness had, by inadvertence, not been sworn, a re-hearing on oath by the magistrate before any conviction was drawn up, was upheld, the defendant never having been in peril on the fi'rst hearing {R. v. Marsham, 1912, 2 K.B. 362; post, chap, xxxvi.). And the High Court will not interfere by mandamus with justices' discretion as to re-opening {R. v. Knight, 41 Sol. Jo. 276). As to the admission of fresh evidence on appeal, see post, 501, 513. Fresh Judge, or Jury: Reswearing Witnesses. When a judge or juror becomes incapacitated, or a fresh jury is empanelled, the judge's notes of the evidence may be read over to the substitutes, the witnesses being re-sworn and liable to further questioning {R. v. Jeffreys, 22 L.T. 786 ; Veronica Case, 67 J.P. 267; Exp. Bottomley, 1909, 2 K.B. 14; R. v. Laurence, 25 T.L.E. 374; contra, A.-O. v. Bertrand, L.R. 1 P.C. 520, where the course was considered irregular, even with the prisoner's consent, though it was not held illegal). In general, however, one justice cannot act on evidence taken before another (R. V. Guerim, 58 L.J.M.C. 42). Arguments as to Evidence in Absence of the Jury. To avoid prejudice to the accused the Court has a discretion to hear arguments as to the admis- sibility of evidence in the absence of the jury {R. v. Ball, 1911, A.C. 47, 50; R. V. Thompson, 33 T.L.E. 506, CCA.) In the last-mentioned case it was stated that such arguments should be heard in open Court so as to appear on the shorthand notes, but that the jury should retire. In the older cases they were usually heard in the judge's private room, and in one case were put into writing, and the decision given privately (see R. v. Horsford, post, 83; R. v. Winslow, &c., post, 180). SPEECHES. STJMMING-UP EVIDENCE. REPLY. Civil Cases. When the party who began has closed his case, it is incumbent on his opponent, provided there is any case to meet, to announce whether he will adduce evi- dence or not, which decision he cannot afterwards alter (0. 36, r. 36; Darby V. Ouseley, 1 H. & N. 1, 8; Eos. N.P., 18th ed., 277, 287-8). {a) Where Opponnet adduces Evidence. If the defendant decides to call witnesses, he must, in his turn, open his case, call them, and sum up (0. 36, r. 36, replacing C.L.P. Act, 1854, s. 18), which process need not be confined to the defendant's own evidence, but may include a complete commentary on the whole case {R. v. Wamwright, 13 Cax 171; contra, Gilford v. Davis, 2 F. Digitized by Microsoft® CHAP. IV.] SPEECHES. REPLY. 43 & F. 23, and B. v. riumb, 28 Sol. Jo. 62). The plaintiff then, both in the High Court and County Court {Clack v. C, 1906, W.N. 40), has a right to reply generally, even though tlie jury are prepared at once to find against him; unless he has reserved his rebutting case until the defendant's evidence is called, when the latter has a special reply on the plaintiff's rebutting evi- dence, though the plaintiff has the general reply upon the whole case. Altiiough the defendant calls no witnesses, yet if he put in any docu- ment during the case, or, even without putting it in, cross-examine the plain- tiff's witnesses upon it, this will generally give a reply {O'Keefe v. Walsh, 114 li-T. Jo. 78, pm- Palles, C.B.; 49 Sol. Jo. 197; so, in criminal cases, R. v. Jones, Times, Jan. 18, 1905) ; but evidence addressed merely to the judge, e.g. to show that the defendant was not in possession of a document he had been notified to produce {Harvey v. Mitchell. 2 M. & R. 366), or, formally, putting in the record of a previous conviction against the plaintiff's witness to show the latter V incompetency {Dover v. Maestaer, 5 Esp. 92, 95), or com- menting upon a document used only to refresh the memory of an adversary's witness, though reference be made to parts not looked at by such witness {Pullen V. White. 3 C. & P. 434; B. v. Quin, 3 F. & F. 818),— will not entitle the opposite party to reply. Formerly, if the defendant's counsel opened new facts without proving Wiem,the plaintiff also had a reply; but as defendant's counsel must now announce that he will not call evidence, he will not after- wards be allowed to change his mind or read books or documents in proof of fresh facts {Darby v. Ouseley, 1 H. & F., pp. 8, 12-13 ; and see as to criminal cases, inf.). (6) Where Opponent does not adduce Evidence. Wlaen his opponent decides not to call witnesses, and has not adduced other evidence as above, the party beginning is entitled to address the Court a second time, for the pur- pose of summing up his evidence, but his opponent has the reply (Ann. Pr., Notes to 0. 36, r. 36). (c) Joint Defendants. Where there are joint defendants, he who calls no witnesses has the right to reply, even though the witnesses called by the others have been favourable to him {Byland v. Jackson 18 T.L.R. 574; Hornsey v. Plater, 87 L.T. Jo. 170; Jeffree v. J., 54 Sol. Jo. 655; contra in Ireland, Moore v. Ulster Co., 42 Ir. L.T.R. 173). If, however, co-defendants rely on the same defence, even though they appear by separate solicitors, they are only entitled to be heard by one counsel ; while, if they rely on separate defences, they are entitled to separate addresses, even though they appear by the same solicitor {Bagshaw v. Pimm, 80 L.T. 360 ; I^edley y. London Tramways, 26 T.L.R. 315; Archb. Pr. 634-635). Criminal Cases. In Summary Cases, no reply is allowed on either side (11 & 12 Vict. c. 43, s. 14; 62 J.P. 683). In Jury Cases, after the witnesses for the prosecution have been called, counsel for the defendant must announce whetiier he will adduce evidence or not [Criminal Procedure (Denman's) Act, 1865, s. 2], which decision he may not alter {ante, 43). (a) Where Defendant calls Witnesses other than himself. Whether he testifies himself or not, the defendant, or his counsel, has the right to open his case to the jury (J?, v. Hill, 7 Cr. App. R. 1), call his witnesses (the de- fendant, if called, testifying either before, between, or after the others, as he pleases, R. v. Olsen, 62 J.P. 777; 42 Sol. Jo. 848, though in R. v. Morrison, 6 Cr. App. R. 159, the Court considered the prisoner should be called before Digitized by Microsoft® U THE LAW OP EVIDENCE. [book i. his other witnesses), and sum up (Cr. Proc. Act, 1865; s. 2; see sup.) ; the prosecution then rejies unless the jury has stopped the case (R. v. Perfitt, 38 L. Jo. 479), or the defendant's witnesses are only to character [B. v. Shrimpton (1851), 2 Den. .C.C. 319, 323, where Campbell, C.J., remarked, " The Crown has no right of reply on evidence to character," citing Kesolu- tion of the Judges on The Trials for Felony Act, 1836; B. v. Dowse (1865), 4 F. & F. 492; contra, R. v. Stannard (1837), 7 C. & P. 673; B. v. Whitmg, id. 771]. The judge, but not the prosecution, may comment on the failure of defendants, or their consorts, to give evidence {B. v. Bhodes, 1899, 1 Q.B. 77; Cr. Ev. Act, 1898, s. 1) ; though breach, of this rule will not necessarily invalidate a conviction (Boss v. Boyd, 10 Sc. L. T. Eep. 75 ; B. v. Dickman, 26 T.L.E. 640;pos*, 453). Even if- no witnesses are called for the defendant, yet if his counsel has at any timfe during the trial put in any document, or even without formally putting it in, cross-examined upon and read parts of it to the jury, the pro- secution has the reply {B. v. Jones, ante, 43; cp. post, 473; Eos. Cr. Bv. 13th ed. 186; Archb. Cr. PI. 190). As to evidence addressed merely to the judge, however, or documents used to refresh memory, see sup. Formerly, as in civil cases, if the defendant's counsel opened new facts without proof, the prosecu- tion was allowed a reply ; but now, after electing not to call evidence, he will not be allowed to open fresh facts, whether as the prisoner's explanation or otherwise (Eesolution of Judges, Nov. 26, 1881, cited Eos. Cr. Ev. 13th ed. 186 ; B. V. Everett, 97 C.C.C. Sess. Pap. 335). (&) Where Defendant calls no Witnesses, or only himself. If the accused elects not to call witnesses- and not to testify, and is defended by counsel, but not otherwise, it is the right, (28 & 29 Vict. e. 18, s. 2) but not the duty {B. T. Holchester, 10 Cox 226; Archb., 23rd ed., 208-9) of the prosecution to sum up before, but not after, the defence of any of the defendants has been entered upon (B. v. Madden, 12 Cox 239) ; and in doing so any sworn or un- sworn statement made by the defendant before the magistrates may be put in and commented on (B. v. Bird, 19 Cox 180; B. v. Gardner, 1899, 1 Q.B. 150; B. V. BoyU, 20 T.L.E. 193). If, however, he elect to testify, such sum- ming up is postponed till after he has done so, and it may then include a comment on his testimony (B. v. Gardner, sup.). The defendant, or his counsel, then replies, except in the two cases mentioned below, when the pro- secution has the right, instead of summing up before defendant's address, to reply generally after it. {iy In Crown Cases in which the Attorney-General or Solicitor-General is personally engaged, ' but in no 'others, the Counsel for the Crown have the right to a general reply, although the defendant calls no witnesses (Eesolu- tion of the Judges, Dec. 19, 1884, cited 5 St. Tr. N.S. 3 (c) ; Archb. Cr. PI., 23rd ed., 213; B. v. Osiorn, Times, Nov. 8, 1904). In Ireland, all prosecut- ing counsel in public prosecutions represent the A.-G., and, unless otherwise provided' by statute, have the same privilege (Eesolution of Irish Judges, Feb. 11, 1907; see 75 J.P. Jo. 54, and Times, Jan. 28, 1911). (ii) Where the prisoner makes an unsworn statement to the jury, which he is entitled to do, whether defended or not, provided he calls no witnesses (B. V. Millhouse, 15 Cox 622 ; and in B. v. Mayhrick, Liverpool Assizes, Aug., 1889, this was allowed even where witnesses were called), the prosecution used to have the right to reply (B. v. Shimmin, 15 Cox 132; B. v. Doherty, 16 id. Digitized by Microsoft® CHAP. IV.] THE BEST EVIBENCE EULE. STEICT PROOF. 45 306). There was a conflict of practice, however, as to whether the statement should be made before {B. v. Doherty, sup.; R. v. Masters, 50 J.P. 104; Eos. Cr. Ev. 186) or after (B.'v. Shimmin, sup.; R. v. Millhouse, sup.) his coun- sel's speech ; while in some cases the prisoner was allowed to make a statement of facts, but not a speech, in lieu of his counsel (B". v. Jones, 114 C.C.C. Sess. Pap. 888; R. V. Everett, 97 id. 335, per Hawkins, J.). The right of the accused to make an unsworn statement or sum up, either without or in addition to testifying himself, is expressly reserved by the Or. Ev. Act, 1898, s. 1 (h) ; but a reply thereon by the prosecution will probably not now be allowed, since under the Act, the accused must make his statement before the prosecuting counsel sums up, so that the latter has a sufficient opportunity of dealing with any new matter at that stage {R. v. Pope, 18 T.L.E. 717 ; R. v. Sheriff, 20 Cox 334; Archb. Cr. PL, 23rd ed., 211; Eos. Cr. Ev., 13th ed., 186). (c) Joint Defendants. Where several prisoners are jointly indicted, some calling witnesses -and others not, the general practice is as follows: (1) If the offence is joint, and the evidence called by the former affects the defendants generally, the prosecution has a general reply; (2) if, however, the offences are distinct {e.g. stealing and receiving), or the defences separate {e.g. alibi), the prosecution replies specially, but must confine its remarks to those who call evidence, while the others address the jury last {R. v. Trevelli, 15 Cox 289; R. Y. Eain, id. 388; R. v. Seme, 107 CCjC. Sess. Pap. 147; Tay., s. 387 (c) ; Eos. Cr. Ev. 187). In R. v. Bums, 16 Cox 195, however. Day and Wills, JJ., though they declined to lay down any rule, refused a general reply to the^prosecution, tiiough the offence was joint (murder in a scuttling affray), and it did not appear that the evidence did not affect all the defendants. On cross-indictments, Gurney, B., refused a reply to either side {R. v. Wanhlyn, 8 C. & P. 290). [Tay., ss. 387-390; Eos. N.P., 18th ed., 287-289; Eos. Cr. Ev., 13th ed., 186-7; Archb. Pr., 4th ed., 64^-645.] THE BEST EVIDENCE RTJIE. STBICT PROOF. The maxim that " The best evidence must be given of which the nature of the case permits," has often been regarded as expressing the great fundamental principle upon which the law of evidence depends. Although, however, it played a con- spicuous part in the early history of the subject, the maxim at the present day affords but little practical guidance. [Tay.; ss. 391-427; Best, ss. 87-92; Euss. Cr., 7th ed., 2056-7; Eos. Cr. Ev. 1-7; Thayer, Pr. Tr. Ev. 484-507; Cas. Ev., 2nd ed., 778-86 ; Salmond, 6 Law Quart. Eev. 75 ; Gulson on Proof, ss. 513-22.]" History of the Rule. The first mention of the phrase in the present con- nection, is believed to have occurred in -the case of Ford v. Hopkins, 1 Salk. 283, decided in 1700; after this date, however, it became increasingly com- mon, being used almost indiscriminately in three. slightly different senses, the best evidence, i.e. that the nature of the fad admitted, or that the circum- stances would allow, or that the party could produce, though, in whichever sense used, it appears never to have been true that absence of, or inability to obtain, better evidence, justified a resort . to such inferior forms as hearsay, interested witnesses or copies of copies of documents. Great prominence was given to the doctrine by the publication of Chief Baron' Gilbert's work on Evidence in 1756, the following statement and com- Digitized by Microsoft® 46 THE LAW OF EVIDENCE. [book i. ment from which have been adopted, almost without question, by text-writers down to the present day : " The first and most signal rule in relation to evi- dence is this, that a man must have the, utmost evidence that the nature of the fact is capable of. . . . The true meaning of which is that no such evidence shall be brought which ex natura rei supposes still a greater evidence behind in the party's own possession or power" (1st ed.j'^). 4). By evidence which supposed a greater behind, Gilbert apparently referred to the three great classes of " substitutioi^ary evidence," i.e., hearsay, secondary evidence, and proof of attested documents otherwise than by the attesting witnesses. It is to be observed, however, (1) that the'' best evidence' principle is not the true exclusionary ground of any of these rules, which have no common origin and are developments of no single principle; their beginnings, indeed, dating back to periods long anterior to the rule under discussion, or, in fact, to any formal rules of evidence at all (Thayer, Pr. Tr. Bv. 498; post, 48; chaps, xvii., xlii.) ; and (2) that the best evidence rule, during its currency, appears to have been by no means limited, as Gilbert's language would imply, to " sub- stitutional " matter, but to have been of practically general application, excluding not only hearsay, secondary evidence, and proof of documents by non-attesting witnesses, but~ also circumstantial evidence if direct could be obtained (Williams y. E. I. Co., 1803, 3 Bast, 193), real evidence if not physically produced {Ohenie v. Watson, 1797, Peake Add. Cas. 133), proof of handwriting by opinion evidence if the writer himself could attend (B. v. , Smith, 1768, 1 East, P.O. 1000), proof of consent otherwise than by calling the consenting party if alive (R. v. Rogers, 1811, 3 Camp.. 654), and proof of attested documents, where the witness resided abroad, otherwise than ty the issue, of a commission to take his oral testimony (Barnes v. Trompowshy, 1797, 7T.E. 365). About the beginning of the nineteenth century, however, a notable reaction set in ; and from that date forward, notwithstanding that the text-writers con- tinued to stereotype the language of Gilbert, the actual decisions of the Courts show that by far the most conspicuous feature of the modern law of evidence has been its persistent recession from the * best evidence ' principle. In almost every instance, indeed, the former rulings began to be either set aside, or neutralised by exceptions. Thus, in Barnes v. Trompowshy, sup., Ld. Kenyon, in allowing proof of the handwriting of an attesting witness resident abroad, instead of sending out a commipsion to examine him, remarked that this was a relxation of the old rule, admitted only of late years; In other cases, what were once objections to admissibility now went merely to sufficiency or weight; or what was insufficient before sufficed now (see proof of posting, post, 133; and of age, B. v. Oox, 1898, 1 Q.B. 179). (Statutory alterations, e.g. as to the Competency of Witnesses and Proof of Documents, also operated in the same direction (post, chaps, xxxix., xliii.). Moreover, the presumptions of false- hood and concealment supposed to arise when the best evidence was withheld and which, if these suppositions were correct, would certainly arise with ten- fold force to-day when it is so often in practice withheld, were no longer invoked; it began to be recognised that a prudent relaxation of strict rules tended not to encourage fraud or concealment, but to effect economy, con- venience and despatch, while the risk of losing their cases was found to supply the parties with an ample inducement still to procure the best evidence avail- able. Digitized by Microsoft® CHAP. TV.] THE BEST EVIDENCE EULE. STEICT PEOOP. 47 Its Present Scope; Strict Proof Not Generally Necessary. In the present day, then, it is not true that the best evidence must, or even may, always be given, though its non-production may be matter for comment or affect the weight of that which is produced. All admissible evidence is in general equally receivable. Thus, circumstantial evidence is no longer excluded by direct; and even in criminal cases the corpus delicti may generally be estab- lished by either species, or indeed, by the defendant's mere admissions out of Court {R. V. Sullivan, 16 Cox, 347; post, ^33, 264). So, the production of " real " evidence — e.g*, on questions of the genuineness of a ring, the soundness of a horse, the equality of bulk with sample {R. v. Francis, L.E. 2 C.C. 128), or the infringement of an engraving or trade mark {Lucas v. Williams, 1893, 2 Q.B. 113; as to cinema films or wordless plays, see Qlynn v. Western, &c., Co., 1916, 1 Ch. 261), though often satisfactory, is not now compulsory {ante, 8) ; although where the real evidence is of a documentary character, e.g. an inscription on a ring, the ordinary rule as to primary evidence applies (post, chap, xliii.). Again, in proof of handwriting, it is not necessary, as formerly, to call either the writer or some one who saw the documient written, the opinion of a witness who but once, and many years before, has seen the party sign is equally receivable, though its weight may be nil {post, 399, 402). Even on a charge of forgery, the prosecutor is not now an essential witness to disprove either the handwriting or his authority to sign {R. v. Hurley, 2 Moo. & Eob. 473) ; nor, to prove or disprove consent, need the person alleged to have consented be called [id; R. v. Hazy, 2 C. & P. 458; B. V. Allen, 1 Moo. C.C. 154; Gleeson v. Hurley, 1916, 2 Ir. E. 180; R. v. Nohle, 60 J.P. 169; R. v. Turner, 1910, 1 K.B. 346; as to proof of the consent of the Public Prosecutor, &c., to judicial proceedings, see post, 189-90]. In the same way payment to a deceased person may be proved either by the " best evidence " — i.e.' the oral testimony of the payer, or the hearsay receipt of the deceased {Middleton v. Melton, 10 B. & C. 317) ; and the estimated expense of paving as determined by a vestry surveyor, eitiier by calling the surveyor or producing the estimate acted on {Hobman v. Green- wich Board, 58 J.P. 351, 703, C.A.). So, acting in a public though not gen- erally in a private, capacity, is evidence of title ttiereto, without production of the document authorizing the appointment {post, 110). Exceptions. On the other hand, there are certain cases in which the old rule still enjoys a precarious survival. Thus, strict proof of marriage is required in cases of bigamy, divorce, or petitions for damages for adultery, though not usually in other cases ; of age on pleas of infancy {Haines v. Guth- rie, 13 Q.B J). 818), or on charges of carnal knowledge of girls under 16 {R. V. Rogers, 111 L.T. 1115), though not on charges of cruelty to children under 16, preferred under the Children Act, 1908, s. 123 {cp.' R. v. Cox, 1898, 1 Q.B. 170; and 80 J.P. Jo. 181-2), nor on charges involving the age or fitness of children under the Factory and "Workshop Act, 1901 (see s. 147 ; Tay., s. 1645), nor on charges against defendants over 16, of being habitual criminals (Prevention of Crimes Act, 1908, s. 10; R. v. Turner, 1910, 1 K.B. 346), nor for the purpose of detention under the Borstal System {R. v. McCarnn, 6 Cr. App. E. 115, the head note contra is incorrect). Under the last named Act, the three main previous convictions of the accused must be strictly proved, while any others alleged may be established less formally {R. V. FrarJclin, 3 Cr. App. E. 48; R. v. Summers, 10 id. 11; pod, 189; Digitized by Microsoft® 48 THE LAW OF EVIDENCE. [book i. as to proof of previous convictions generally, see ante^ 41-2). So, to prove loss of custom in libel actions, the customers themselves must, it seems, be called {post, 75). And, to prove that premises are licensed, or persons rated or insured, it has been held that the license, ratebook, or policy must be produced; and parol testimony to the same effect has been rejected {post, 672-3). In a recent case also, the Keturn-book, produced from the custody of the Clerk of the Crown in Chancery, was rejected to prove the return of a member of Parliament, as not being the best evidence of that fact, although received by the House itself for that purpose {Forbes v, Samuel, 1913, 3 K.B. 706, 720; sed. qu., and see post, 335-6). But the chief illustration of the ' Best-evidence ' maxim has always been found in the rule which demands that the contents of a document must, in the absence of legal excuse, be proved by primary, and not by secondary or substitutional evidence {post, 534-5). This rule, however, which is merely a survival of the ancient doctrine of profert, requiring the physical production of the instrument pleaded, existed long before the best-evidence principle was formulated; though it has, in fact, gone through a reaction not very dissimilar to that experienced by the best evidence idea. Thus, originally, at common law no secondary evidence was allowed {Anon., 1741, 2 Atk. p. 61, per Ld. Hardwicke ; Sugden v. St. Leonards, 1 P.D. 154, 238 ; Thayer, Cas. Ev., 2nd ed., 778) ; if the deed was lost, or in the possession of the adversary, the plaintiff failed. Afterwards, in cases of loss, equity relieved; then excep- tions were allowed by the common law also {Leyfield's Case, 1611, 10 Co. 88, 92), marshalled, however, at first, strictly by degree, i.e. a counterpart, then a copy, then an abstract or recital, then parol evidence, the next best being let in only if the class above it were unavailable {Villiers v. Villiers, 1740, 2 Atk. 71; Omychund v. Barker, 1744, 1 id. 21, 49; Bullen v. Michel, 1816, 4 Dow. 297, 325; Stark. Bv., 2nd ed;, 1834, p. 341; Doe v. WainwrigM, 1836, 1 N". & P. 8, 13, when the point had become doubtful) ; until, finally, the present rule of " no degrees in secondary evidence " became established {Brown v, Woodman, 1834, 6 C. & P. 206, per Parke, B. ; Doe y. Boss, 1840, 7 M. & W. 102; post, 542-3). As to the supposed application of the best- evidence principle to proof of attested documents, see post, 519, and to the two branches of the parol-evidence rule, post, 568, 574. Digitized by Microsoft® ( 49) BOOK II. ADMISSIBILITY OF EVIDENCE. PART I. FACTS. OHAPTEE V. PACTS IN ISSUE. RELEVANCY. ADMISSIBILITY. Subject to the various qualifications contained in Part I., the facts which may be proved in a judicial inquiry are facts in issue; facts relevant to the issue; in exceptional cases hearsay, opinions, and judgments as to such facts ; and any facts, whether relevant to the issue or not, which affect the legal reception or weight of the evidence tendered. [Steph. Introd. to Ind. Ev. Act ; id. Digest, arts, 1 > & 3 and App. Note 1 ; The Theory of Relevancy, by G. C. Whitworth, Bombay, 1881 ; An Eng- lish Evidence Code, 20 Sol. Jo. 880; Pollock, Fortnightly Rev., Sept. 1877, pp. 385-90 J Qulson on Proof, ss. 256, 499-508; Markby, Ind. Ev. Act, 17-20; Ameer Ali & Woodroffe's Law of Evidence in British India, 4th ed., Introd. pp. 17-39, 79-96; Text, pp. 25-27; Whart. Civ Ev. ss. 20-56; id. Cr. Ev. ss. 23-68; Thayer Pr. Tr. Ev. 264-6, 515-18; Wigmore, Ev. ss. 9-16, 24-43; id. Gi-eenleaf, Ev., 16th ed. 35-91]. FACTS IN ISSUE, which are sometimes call 'principal' facts, are those necessary by law to establish the claim, liability, or defence, forming the sub- ject-matter of the proceedings; and wbicli, either by the pleadings or by im- plication, are in dispute between the parties (0. 19, rr. 4. 16; Steph, art. 1; I Benth. Jud. Ev. 40-44; Gulson, s. 266). — Facts in issue are, therefore, determinable primarily by the substantive law, and secondly by the pleadings (Steph. Introd, to Ind. Ev. Act, 10-13; Gulson, s. 257; Odgers, Pleading, 8th pd. 78). FACTS RE(LEVANT TO THE ISSUE, which are sometimes called ' eviden- tiary ' facts, are facts which render probable the existence or non-existence of a fact in issue or some relevant fact. RELEVANCY AND ADMISSIBIUTY. The legal admissibility of facts is for the most part determined by their logical revelancy to the issue, or that L.E. — 4 . Digitized by Microsoft® 50 THE LAW OF EVIDENCE. [book ii. connection between the two which, in the ordinary course of events, renders the latter probable from the existence of the former. But relevancy being founded on logic and human experience, and admissibility on law, which may change in different jurisdictions and periods, the two theories do not wholly coincide. Thus, many facts which in ordinary life are relied on as render- ing other facts probable, the law on grounds of policy or precedent, rejects, e.g. as being too remotely connected, or slight in probative force, to form the basis of judicial decisions; or as tending tp confuse the jury by a multiplicity of issues; or as creating unfair surprise and prejudice to the parties; or as infringing some safeguard of public policy or personal privilege. This ex- clusion of matter otiierwise relevant has been called the distinguishing fea- ture of the English law of evidence. On the other hand numerous facts are legally admissible, although they may have no logical bearing on the issue, e.g. the fact that a witness has or has not been sworn in a particular manner, or that a hearsay declarant is deceased at the date of the trial, or that proper search has or has not, been made for a lost document, which are conditions founded, not on logic, but on arbitrary juridical policy that may change from time to time (post, 231-2). The result is that relevant facts are often rejected and irrelevant facts often Teceived. " Judicial evidence," Mr. Best remarks, " is for the most part nothing more than natural evidence restrained or modi- fied by rules of positive law. Some of these rules are of an exclusionary nature, and reject as legal evidence facts in themselves entitled to consideration. Others again may be called investitive^ i.e., investing natural evidence with an artificial weight; and even, in some instances, attributing the property of evidence to that which, abstractedly speaking, has no probative iforce at all " (s. 34), [Steph. Dig. Introd. p. xiii.; Best, ss. 32-43]. Relevancy: Tests and Scope. (1) Stephen's Rules. In the two first edi- tions of Sir. J. Stephen's Digest, relevancy was treated as " the connection of events as cause and effect" (Note vi.), the facts provable in judicial proceed- ings were stated to be " facts in issue, facts relevant to facts in issue, and no others " (art. 3), and the following specific rules or tests were, by art. 9, laid down: — "Facts whether in issue or not are relevant to each other when one is, or probably may be, or probably may have been — (1) the cause of the other; the effect of the other; an effect of the same cause; a cause of the same effect; (3) or when one shows that the other must or cannot have occur- red, or probably does or did exist, or not; or that any fact does or did exist or not, which in the common course of events would either have caused or been caused by the other; provided that such facts do not fall within " certain exclusive rules " (as to similar facts, hearsay, opinions and character), "or that they do fall within the exceptions to such rules." These rules or tests, however, did not m^et with general acceptance, the chief objections thereto being (1) that they did n6t sufficiently distinguish between the logical and the legal theory of proof; (2) that it is practically as difficult to determine what is a ' cause,' as what is ' relevant,' since not only do the popular, logical, and legal meanings of ' cause ' conflict inter se (Simpson v. Sinclair, 86 L.J.P.C. 102, 106), but the very object of many trials is to decide whether given facts are, or are not, the result of others; and (3) that they were expressed with such almost necessary vagueness, as Digitized by Microsoft® CHAP, v.] EELEVANCY AND ADMISSIBILITY. 51 to be of little practical help, the second group, in effect, relegating us to that unconscious logic of common sense which it was precisely flie object of the definition to \mravel, — In later editions of the Digest the theory of causation as a test of relevancy is, ia terms at least, abandoned ; and by art. 1 the word relevant is defined as meaning that " any two facts to which it is applied "are so related to each other that, according to the common course of events one, either taken by itself or in conjunction with other facts, proves or renders probable the past, present, or future existence, or non-existence of the other," while by art, 3, it is said that : " Evidence may be given in any proceeding of any fact relevant to any fact ia issue, imless it is hereinafter declared to be deemed to be irrelevant, and of any fact hereinafter declared to be deemed to be relevant to the issue, whether it is, or is not, relevant thereto. Provided that the judge may exclude evidence of facts which, though relevant or deemed to be relevant to the issue, appear to him too remote to be material under all the circumstances of the case." This is an obvious improvement on the earlier editions. The phrases / deemed to be relevant,' and * deemed to be irrelevant ' are, however, -apt to mislead, since they appear to imply that legal logic is something different from lay logic, and that the Court may regard facts as logically relevant or irrelevant when they are not really so, whereas, aU that the author means is that in certain cases Courts admit or r^'ect facts ' irrespective of their logical relevancy. In practice, therefore, it is prefer- able to use the terms 'relevant' and 'admissible' simply, meaning by the former that which is logically probative, and by the latter that which is legally receivable, whether logically probative or not. As to the two-fold stand- ard of Mevancy adopted in the Digest, i.e. relevancy to the issue (Art. 2.), and relevancy to the truth of the matter, stated (Art. 14), see further post, 231-3. Sir James Stephen, it should be noticed, .distiuguishes sharply between Relevancy (facts) and Proof (evidence, oral and documentary), or as he phrases it, between " what facts may be proved and how a fact must be proved assuming that proof of it may be given," and he remarks that " the neglect of this distinction, which is concealed by the ambiguity of the word Evidence (a word that sometimes means testimony and at other times relevancy), has thrown the whole subject into confusion and made what is really plain appear almost incomprehensible " (Dig. Introd, p. xi.)., Unfortunately, however, in working out the distinction he so intermixes the two topics that confusion is merely increased. Thus, while in Part II, Proof is treated as synony- mous with 'evidence' and so is contrasted with Relevancy, in Part I. it is included in, and made a sub-division of, the latter, a relevant fact being de- fined as one that 'proves, or renders probable,' some other fact, and ' conclus- ive proof ' being applied not only to ' evidence,' but to ' facts ' as well (art. 1.) . Moreover, ' Proof ' is employed in a double sense : in Part II. it signifies " the means used of making the Court aware of the existence of facts" (Preface to 3rd ed. p. xxxi), while, in Part I., 'proves' means 'renders certain' (art. 1, sup.). Again, although the term evidence (i.e. Proof) is strictly confined to testimony and documents (art. 1), and so excludes facts, yet, as we have seen, by art. 64 primary 'evidence' of documents may be given by admissions, which are declared to be relevant ' facts ' (art. 15) ; while, to the question : "What is evidence ?" it is said, " the only possible answer is that one fact is, or is not, relevant to the other," which would admit facts, but exclude testi- Digitized by Microsoft® 52 THE LAW OP EVIDENCE. [book ii. mony and documents. It seems, therefore, that the distinction between Eelev- ancy and Proof and the narrow meanings here assigned to ' proof ' and ' evi- dence' respectively, cannot be maintained, but that proof may be effected equally, by facts, testimony and documents, and that all three may properly be, as in practice they invariably are, classed as 'evidence ' (ante, 1-2). (3) Views of Thayer, Wigmore and Chamberlayne'. Prof. Thayer rejects what he calls " the common but uninstructive distinction between logical and legal relevancy," which he remarks, " was not made by Stephen " (this is true only of the first two editions of the Digest, in later issues the distinc- tion, in effect, though not in terms, is very clearly made). He holds that the law furnishes no test of relevancy, but for this refers ta6itly to logic (Pr. Tr. Ev. 365-9, 516-8). By 'legal' relevancy, however, he refers only to those rules which by excluding remoteness, multiplicity of issues, &c., ensure a more cogent form of logical relevancy {id. 366, 5I67I'?'; see Chamberlayne's Best, 1883, s. 391 n; Law of Ev., s. 63 n) ; he does not contemplate, nor appear to have considered, the extension later formulated by Stephen, under Which facts logically irrelevant are yet legally received. According to him, therefore, judicial decisions on relevancy involve no question of law, but where they .admit facts, one merely of logic (id. 265-6. 369), and where they exclude relevant facts one chiefly of sound discretion {id. 516-18). Both proposi- tions seem questionable. As to the first, many facts, as we have seen, are admissible, which have no logical bearing on the issue; indeed some American writers emphasize this by confining the term relevant to facts which are logic- ally applicable to the issue and using 'competent' to denote those which though admissible are not logically connected (27 Am. L. Rev. 65; 94 L.T. Jo. 4.47). As to the second, it has been correctly said that judicial decisions on relevancy are just as binding as those on any other topic, so that logic,- in being applied by the Courts, in effect becomes law (Wigmore, Ev., s. 13; Green- leaf, 16th ed., 36 ; 14 Harv. L. Eev. 39, 139) . Finally, the author lays down two cardinal principles: (1) That without any exception nothing which is not logically relevant is admissible; and (2) that whatever is logically relevant is admissible, subject to many exceptions which are based on rules other tlian those of logic (Pr. Tr. Ev. 363-9). Thus, Thayer gives a much wider scope to the topic of Eelevancy than Stephen, the latter excluding therefrom tes- timony and documents, the former including therein these and all other classes of admissible evidence, except, only, such as are not logically relevant. Prof. Wigmore remarks that Admissibility is a quality standing lx>tween Relevancy (probative value) and Proof (weight of evidence), (a) It signifies that a fact is relevant and something more, viz., that it has satisfied all pre- liminary tests and privileges; (6) it does not signify that it has proved the issue, but only that it is entitled with other evidence to be. weighed in the scale. He adds that proposition (a) has been questioned by two high au- thorities, although in opposite directions, i.e. by Stephen, who regards the relevancy of^ facts as identical with their legal admissibility, and by Thayer, who maintains that there are no legal rules of relevancy at nil. lie regards both views as erroneous; but on the other hand accepts Prof. Thayer's two principles quoted above as the cardinal axioms of admissibility (Wigmore, Ev. ss. 9-15). In effect, therefore, he adopts Thayer's view that 'relevancy' in- cludes all kinds of evidence, facts, testimony and documents, but, v/ith regard Digitized by Microsoft® oiur. v.] EELEVANCY AND ADMISSIBILITY. 53 to testimony, remarks that, altliough testimonial qualifications do involve a question of relevancy and may be expressed in terms thereof, this is not usual, nor necessary (s. 475; as to the latter point, see more fully post, 322). Like Thayer also, he ignores that considerable class of cases in which facts logically irrelevant are yet legally receivable. ^^ Mr. Chamberlayne's conception of relevancy is the widest of all, embrac- ing substantive law, logic, and weight of evidence. He divides the subject as follows: — (1) Constituent, or legal, relevancy, i.e. facts necessary by sub- stantive law to estahlish the right or liability in dispute, facts relevant, that is, in the Scotch sense, but which are called by Stephen and in English law, facts in issue [Law of Ev., ss. -15-9, 54, 61-3 1713; his * legal ' relevancy, therefore, differs from both Stephen's and Thayer's, the latter of which he had pre- viously adopted, see his ed. of Best, s. 291 n, cited sup.] ; (2) Probative, or logical, relevancy, sub-divided into direct and indirect (ss. 54, 1711-12), and objective and subjective, the latter including testimony and admissible liear- say (ss. 54-9, 1714, 2695-6, 2725-6) ; and (3) Deliberative relevancy, or faets affecting the weight or credibility of evidence (ss. 60, 1714.") Nothing, how- ever, seems to be gained by this multiplication of terms 9,nd distinctions ; and in including substantive law among the sub-divisions of relevancy, Mr. Cham- berlayne appears to stand alone, though he assumes that Stephen also in- tends to treat facts in issue as ' relevant ' to * rights and lia'bilities,' for he criti- cises him for ' embracing in the single term relevancy, and without warning or distinction, both facts in issue and relevant facts' (ss. 62, i714-18t). But this is a mistalie; Stephen never uses the word in that sense. Mr. Cham- berlayne appears to have been misled by the loose phrase ' legal inference ' in the following passage " Facts . . . may constitute such a state of thing's that the existence of the disputed right or liability would be a legal inference from tliem: such facts are called facts in issue ' (Introd. to Ind. Ev. Act, 12; for a criticism of the phrase ' legal inference ' by Prof. Thayer, see ante, 7). In tlie Digest, however, Stephen makes it clear that the * legal ' relevancy contem- plated by him is one, not of substantive law subsisting between facts in issue and rights and liabilities, but of adjective law subsisting between ' facts deemed to be relevant' and facts in issue. Miscellaneous. The term ' material ' is often used as a synonym for' relevant.' It is, however, sometimes confined to facts which are in issue, or plead- able (0. 19, E. 4) ; sometimes extended, as in perjury cases, to all admis- sible facts, whetlier in issue, relevant to the issue, or relevant merely to credit or punishment (R. v. Baker, 1895, 1 Q.B. 797, R. v. Wheel&r. 1917, 1 K.B. 383); and sometimes used to indicate merely the weight or importance of the evidence (Steph., art. 2.) [See an article on Materiality in the Law of Perjury, by Prof. Chase, 3 Cr. Law Mag. (Am.), 459-83]. It is not necessary that the relevancy of a fact should appear at the time it is proved; tlie judge will always admit evidence on the undertaking of coun- sel to show its bearing or admissibility at a later stage, failing which it will be struck out {Haig v. Belcher,.'/ C. & P. 389). If, however, irrelevant evi- dence has in fact been left to tiie jury, the party affected will not be allowed to rebut it (R. v. Gargill, 1913, 2 K.B. 272). Evidence may, however, be admissible for some purposes and not for others e.g. complaints are rooeivable to corroborate the testimony of the prosecutrix, Digitized by Microsoft® 54 THE LAW OP EVIDENCE. [book ii. but not to prove the facts asserted {post, 113) ; so, a confession, though it may implicate fellow prisoners, is, in general, only evidence against the maker {post; 269). In such cases the judge should caution, the jury as to the limits of the evidence, and where he has failed to do so, and substantial mis- carriage results, the convictions may be quashed. The admissibility of facts in issue and of the chief classes of relevant facts commonly tendered in evidence, will form the subject of the remaining chapters of Part I. Digitized by Microsoft® ( 55 ) CHAPTEE VI. THE FACT OR TEANSACTION IN ISSUE. BE8 6E8TA. Acts, declarations, and incidents which constitute, or accom- pany and explain, the fact or transaction in issue, are admissible, for or against either party, as forming parts of the res gesta. [Steph, art. 3 & 8 ; Tay, ss. 583-9 ; Best, s. 495 ; Eos. N.P. 51-3 ; Gulson on Proof, ss. 133-7, 359-61, 532-7; Thayer, 14 Am. Law Rev. 817, and 15 id. 1, 71 ; Cases on Ev., 3nd ed., 641-72; Wigmore, Ev., ss. 1745-84; Chamberlayne, Ev., ss. 2581-2623, 2644-67, 2984-3032; Wharton, CivilEv., ss. 528-67; Cr. Ev. ss. 62-70; and for a detailed examination of this topic, see an article by the present writer, 19 Law Quart. Eev. 435]. Sir J. Stephen treats the above incidents as relevant facts (Digest, art. 3; Ind. Ev. Act, s. 7). Mr. Gulson, however, points out that the components of a principal fact are not properly speaking circumstantial evidence, which term is only applicable to those extrinsic facts from which the principal fact, with all or some of its details or components, are inferred or deduced (s. 200; see also Chamberlayne, Ev., s. 46). The English and leading American concep- tions of the res gesta rule appear substantially to coincide; but in some U.S. jurisdictions the Latin phrase is used in a loose sense as equivalent to rele- vancy or admissibility (Chamberlayne, Ev., ss. 2581-4, 2984-2991; Introd. to Vol. iv., pp. xiii,-xiv. ; and for this writer's own definition and user, see ss. 47-9). History and Principle, The rule that declarations accompanying an act are receivable in explanation thereof, first appeared in 1693 (Thompson v. Trevan- ion. Skin. 402, cited post, 78). In 1736, declarations were again held to be admissible if * concomitant with facts ' {Ambrose v. Clendon,, Cas. temp. Hardw. 267). The Latin phrase though used stiU earlier as a mere untechni- cal equivalent for "facts," or "events" {e.g.. The Ship Money Case, 1637, 3 How. St. Tr. 988), is not, however, traceable in the present connection before 1794 {R. V. Home-Tooke, 25 How. St. Tr. 440). At first the singular forms alone, res gesta, pars rei gestce, were employed {id.; The Juffrouw Elbrecht, 1799, 1 Chr. Bob. Adm. Eep. 127-8; ffoare v. .Allen, 1801, 3 Esp. 276; Rolson V. Kemp, 1802, 4 Esp. 233; 2 Evans' Poth. 217), and much of the ambiguity which has since attadied to the phrase might have been avoided had this early and correct usage been adhered to. It is the idea thereby conveyed, viz. that of a whole (some single act or transaction) in relation to its constituent, or quasi-constituent parts, that represents the true evidential notion : " The prin- ciple of admission is that the declarations are pars rei gestae" {Rouch v. G. W. By., 1 Q.B. 51, 60, per Ld. Denman, C.J. ; Thayer, Pr. Tr. Ev. 523). The use of the plural fonn, first met with in the present relation in 1805 {Aveson Digitized by Microsoft® 56 THE LAW OF EVIDENCE. • [book ii. V. Kinnaird, 6 Bast. 188, cited post, 83), led to confusion and gave rise to at least four conflicting conceptions, e.g , {i) one which applies the term res gestcE to the main fact in relation to its constituent details; (ii) one which applies it to the details of such fact merely; {Hi) one which applies it to the " surrounding circumstances " of some central fact, called, in contradistinction, the " principal fact "; and {iv) one which applies it to the total whole composed of both principal fact and surrounding circumstances. Not infrequently, indeed, two or more of these meanings are confounded in the same definition. Thus, Starkie, after referring to " all the surrounding facts of a transaction, or as they are usually termed the res gestce," speaks later of "the res gestce or transaction," confusing conceptions {Hi) and (t),_(4th ed. pp. 78, 89); so Mr. Taylor, in laying down that the " circumstances and declarations must be so connected with the main fact as to illustrate its character, further its object, or form, in conjunction with it, one continuous, transaction," appears to confound (Hi) and (iv) (8th ed., s. 588) ; while the editors of the 9th and 10th editions of Taylor, after defining res gestce as " the transa,ction looked at in its entirety and as a whole," refer, later, to the phrase as " including every- thing which can fairly be considered an incident in the event under considera- tion," apparently confusing (i) and (ii), (s. 583) [19 Law. Quart. Eev. 435- 8.]. The term- res gesta, though generally applied to the fact or transaction in issue may, as will be seen, be used in the present sense of any relevant act, i.e. to indicate the admissibility of its own accompanying declarations. This does not, of course, mean that such subordinate acts and declarations are to be regarded as forming any part of the main act or res gesta {post, 58). As to ,the relation of this topic to the hearsay rule, see post, 60, 318. CONSTITUliri FACTS. The Fact in issue per se. (a). Pacts whether in issue or relevant, are not always admissible in evidence in the sense of being' the subject of direct assertion or denial, for they may involve inferences of law or fact which it is for the Court or jury and not for the witness to draw. When such facts are of a simple nature, or can only be expressed by a direct statement, they will necessarily be receivable. But wherever the inference is remote or doubtful, the proper course is for the witness to state the inci- dents relied on as constituting or amounting to the main fact, and not the latter per se [Wharton, Civil Bv., ss. 15, 26, 509-513; Gulspn, ss. 123-7; Chamberlayne's Best, s. 11 n.; post, 65, 401]. Constituent Incidents (6). These constituent incidents may vary, accord- ing to the nature of the case, from a single occurrence, lasting but a few mo- ments, to a variety of acts, declarations, and circumstances, occupying a length of time, and occurring on distinct occasions; they may comprise things done, or omitted, either by the principal, or his agents (post, chap, vii), or partly by one and partly by the other (R. v. Mean, 69 J. P. Rep. 27; post, 69) ; and they may have occurred partly within and partly without the jurisdiction (R. v. Ellis, 1899, 1 Q.B. 230; R. v. OUphant, 1905, 3 K.B. 67; R. V. Mackenzie, 6 Cr. App. E. 64; post, 99-100) . Cumulative and Continuous Transactions (c) Sometimes the main transac- tion can only be established by proving a series of Similar facts, which may happen either (1) because the nature of the case itself demands cumulative instances— e.gf. Barratry; Common Cheating; Custom; Trading, under the Digitized by Microsoft® CHAP. vi.J THE .TEANSACTION IN ISSUE. RES GESTA. 57 Bankruptcy Acts {Re Griffin, Times, Dec. 13, 1890, C.A.; but cp. Cornelius 7. Phillips, 1918, A.C. 199, where a single instance of carrying on business as a money-lender otherwise than at his registered address, sufficed to avoid a contract) ; Pollution, under the Eivers Pollution Act, 1876, s. 2 ; practising without certificate, under the Apothecaries Act, 1815 {Apothecaries Co, v. Jones, 17 Cox 588) ; frequenting public places with intent {Clarh v. E., 14 Q.B.D. 92; Whickham v. Ashe, Times, Jan. 16, 1897); permitting a house to be used as a brothel {Exp. Bumhy, 1901, 2 K.B. 458), or for betting {Jayes V. Harris, 72 J.P.R. 364; R. v. Davies, 1897, 2 K.B. 199, where a single in- stance was held insufficient; McGonnell r. Brennan, 1908, 2 I.E. 411, where it was said a single instance might suffice ; and cp. R. v. Mortimer, 74 J.P. Jo. 520, post, 69) ; or (2) because the similar facts have occurred in such close connection in point of time, place, or other conditions, as virtually to form but one entire or continuous transaction {R. v. Ellis,- 6 B. & C. 145; R. v. Salislury, 5 C. & P. 155 ; R. v. Mem, 69 J.P. Eep. 27 ; post, 69) . In criminal cases charges for several ofEences, whether felonies or misdemeanours, inay now be joined in the same indictment, if either founded on the same facts, or forming part of a series of offences of the sam'fe or a similar character (Indict- ments Act, 1915, sch. I.E. 3) ; though, where the accused is prejudiced by such, joinder, or for other sufficient reason, separate trials may be ordered {id. s. 5 (3) ). Documentary Transactions {d). When a contract, will, or other formal transaction has been reduced into writing, the rules excluding extrinsic evi- dence in substitution or contradiction thereof apply {post, chaps, xliv.-v.), and the res gesta must consequently be established by production and proof of the instrument itself, or by secondary evidence, as provided in chap, xliii. In cases not of a formal character, however, proof may generally be given of all facts constituting the transaction, whetiier oral, documentary, or otherwise {Carmarthen Ry. v. Manchester Ry., post, 66) . ACCOMPAirriNG FACTS. There are many incidents, however, which, though not strictly constituting a fact in issue, may yet be regarded as form- ing a part of it, in the sense that they accompany, and tend to explain, the main fact. Not only may the probability of an occurrence be tested by consid- ering its attendant circumstances {Dysart Peerage, post, 77-8), but these undesigned incidents are often essential to elucidate its true character, to reveal the motives of the parties, or to establish their connection with the fact. In testifying to the matters in issue, therefore, witnesses are required to state them, not in their barest possible form, but with a reasonable fulness of detail and circimistance (Thayer, 15 Am. L. Eev. 92; R. v. Stephenson, 68 J.P. Eep. 534; Steph. art. 3). It is not, of course, all the incidents of a tran- saction that may be proved, for the narrative might be run down into purely irrelevant and unnecessary detail. Names, dates, places, and the description and circumstances of the parties, though not in issue, are, however, always admissible. So, often, the physical conditions under which the main fact happened; or any other matter so intimately connected therewith as to be necessary in order to present the case intelligibly to the jury {R. v. Bond, 1906, 2 K.B. 389, 400.) The particulars receivable, however, will necessarily vary with each individual case: The main conditions of admissibility are, that the matters tendered should form the natural incidents of the apt ; ihat Digitized by Microsoft® 68 THE LAW OP EVIDENCE. [book ii. « they should be substantially contemporaneous with it; and should qualify, explain, or complete it in some material respect (Greenleaf, s- 108; Whart., Civ. Ev., ss. 268-369) . Even similar facts not strictly * constituting ' the main fact in the sense above stated, but yet closely connected with, and explanatory of it, may be received under the present head {post, 70) ; while, where the main fact is of a continuous nature, or forms part of a prolonged and con- nected course of conduct, a still wider field of enquiry may become permis- sible {Dysart Peerage, sup.; Aylesford Peerage, post, 77; B. v. Wiseman, post, 76). Incidents other than Declarations (e). Questions of evidence in this con- nection usually arise with regard to declarations, since with other incidents there is less danger of the jury being misled, and the present principle conse- quently is less often invoked. Declarations accompanying Acts (/). On this subject considerable diver- sity of judicial opinion exists, but the following points may be taken to be established: (1) The Act must be in issue or relevant; and the declarations must relate thereto. The declarations are not admissible simply because they accompany an act; the act itself must be in issue, or relevant (Wright v. Tatham, 5 C. & P. 670, 689, cited po^, 84; R. v. Bliss, post, 72; Hyde v. Palmer. 75; Gresham Hotel v. Manning, 75; B. v. Christie, 81) ; andj for the present pur- pose, i.e. of letting in their accompanying declarations, " acts by whomsoever done are res gesioe if relevant to the issue" {Wright v. Tatham, 7 A. & B. p. 355, per Parke, B. ; as to this dictum see further 19 Law Quart. Eev. p. 442). Moreover, the declarations can only be used to explain the fact they accom- pany, and not previous or subsequent facts {Hyde v. Palmer, sup.; Agassiz v. London Tram Co., post, 71), unless, indeed, the transaction be of a continu- ous nature. Statements of opinion may, it seems, be tendered under this head, provided the act which they accompany is itself relevant {Wright v. Tat- ham, and Gresham Hotel v. Manning, sup.; Manchester Brewery v. Coombs post, 75). It is not, however, every declaration that accompanies and purports to explain a fact that will be received — e.g. a declaration that is equivocal {B. v. Bliss, sup.; and see R. v. Wainwright, post, lid) ; or is obviously concocted to serve a purpose {Thompson v. Trevardon, post, 78; R. v. Abraham, 81; Whart. s. 259). So, in America, "it is not the law that any and all con- versation that happens to be going on at the time of an act can be proved if the act can be," {Com. v. Chance, 174 Mass, 245, per Holmes, J., cited post, 80), e.gr., where the act itself is free from ambiguity {Nutting v. Page, post, 73), or needs no explanation, dr is not explained in any material sense by the words {Com. v. Chance, sup.), or the declaration is inconsistent with the act {State v. Shelley, 8 Clarke (Iowa), 477). (3) Must be contemporaneous. The declarations must be substantially contemporaneous with the fact — i.e. made either during, or immediately be- fore or after, its occurrence — but not at such an interval from it as to allow of fabrication, or to reduce them to the mere narrative of a past event {Thornpson v. Trevanion, sup.; R. v. Christie, 1914, A.C. 545, 556, 566; and cases infra.) The question of contemporaneousness has given rise to much discussion. In R. v.. Bedingfield, post, 80, it has been thought that Ccckburn, C.J., applied Digitized by Microsoft® CHAP. VI.] THE TRANSACTION IN ISSUE. BUS 6ESTA. 59 the rule too strictly; that case, however, was approved in B. v. Cliristie, sup. On the other hand, the dictum of Ld. Denman, C.J., in Bouph v. Q. W. B., 1 Q.B. p. 60, adopted by Mr. Taylor, s. 588, that " concurrence of time, though material, is not esential," seems, to err in the opposite direction, substantial, though not literal, concurrence being indispensable {Peacock v. Harris, post, 85, per the same judge; Thompson v. Trevanion, sup.; B. v. Gordon, post, 79; Lees v. Marton, 76; Agassiz v. London Tram Co., 71; Smith v. Blakey, 74; B. V. Qoddard, 80; B. v. Gilson, id.; B. v. Osborne, 1905, 1 KB. 551, 560-1; Wolsey v. PethicJc, 1 Butterworth's W.C.C. 441 (C.A.) cited, post, 83; B. V. Christie, sup.; B. v. Thompson, 1912. 3 K. B. 19). iJoMc^i v. G. W. B. it is to be noted, was a bankruptcy decision, and in some of the older cases of this class notoriously loose dicta occur, which, if correct, would certainly, ren- der the bankruptcy cases exceptional; their laxity, however, was not approved by Parke, B. and others and the whole of the bankruptcy decisions, with the exception of Smith v. Cramer and Bidley v. Oyde, post, 76-7, favour the rule requiring the declarations to be substantially contemporaneous with the act (see fully post, 75-7). Where, indeed, the act itself is continuous, or forms part of a connected course of conduct, the rule as to contemporaneousness is necessarily relaxed, and declarations made at any time during the currency of either may become admissible {ante, 58, post, 77). (3) By whom made. It is sometimes said that the declaration and act must be by the same person {Howe y. Malkin, post 72). But though such declarations are often -flie only ones material, the rule is by no means so strictly confined. It is an everyday practice in criminal eases to receive the declarations of the victim, as well as those of the assailant. So, in cases of conspiracy, riot, and the like, the declarations of all concerned in the com- mon object, altivough not defendants, are admissible {B. v. Gordon, B. v. Hunt, and B. v. O'Connell, cited post, 79). It has, indeed, been held that imless some such common object be proved, the declarations of participants, if neither parties nor agents, should be rejected {B. v. Petcherini, post, 79) ; but this limitation cannot be taken as invariable, for the exclamations of mere bystanders may sometimes be both relevant and admissible. {B. v. Fowkes, post, 80; MUne v. Leisler, 71; and see generally Bennison v. Cart- wright, post, 73 ; Stanley v. White, 72 ; The SchwaTbe, 71 ; Whart, Grim. Ev. s. 259; in Steph., art. 8, statements accompanying an act are limited to those made "by, or to, the party doing the act," but this article should probably be read with art. 3, in which B. v. Fowkes, sup., is cited in illustration). As to declarations by deceased persons, see infra, 61. (4) Documentary declarations. It is immaterial whether declarations accompanying and explaining an act are oral or written (the dictum, to the con- trary, in Tustin v. Arnold, 84 L.J.K.B., 2214, that a written statement can never form part of the res gestae, is not maintainable) ; though this principle will apply less often to declarations explanatory of formal documents, since here tiie intention must generally be gathered from the instrument itself {post, chap, xlvi), and moreover declarations, even though part of the res gesta, cannot be received to contradict or vary the document {Kirk v. Ed- dowes, 3 Hare, 509, 522). Still there are cases in which the res gesta princi- ple may be invoked without infringing these rules, as where declarations at or about the time of executing or destroying a deed are received to show the intention of the act {Young v. Schuler, post, 75; Perrott v. P., 14 East, 421), Digitized by Microsoft® 60 THE LAW OF EVIDENCE. [book ii. or the identity of the subject-matter (Parrott v. Watts, post 72), though sub- sequent declarations for those purposes have been rejected {Peacock v. Har- ris, post, 85) ; so, with declarations accompanying the execution or destruction of wills (see post, chap, xxviii.). Moreover, the rule demanding primary evi- dence of documents is not always enforced in this connection (Carmarthen Ry. V. Manchester Ry., post, 66; R. v. Hunt, 79; Bruce v. Nicolopulo, 11 Ex. 19). (5) The Declarations are Original evidence, not Hearsay, and are no proof of the facts stated. The declarations are no proof of the fact they accom- pany; the existence of the latter must be established independently (Tay., s. 586). Nor, although admissible to explain or corrolorate, are they, in general, any evidence of the truth of the matters stated (Perkins v. Vaughan, post, 74 ; Milne v. Leisler, 74; Dysart Peerage, 78; Aylesford Peerage^ 117 ; Parnell Commission, 67, 75; Lloyd v. Powell, &c., Co. 1914, A. C 733; R. V. Christie, id. 545, 553; Carmarthen Ry. v. Manchester Ry. 66; R. v. Plumer, 82; Chase V. Lowell, 72; Tay. s. 586; Steph. arts. 3, 8; Eos. N.P. 51, 53). Dr. Wharton, also, though treating them as exceptions to the hearsay rule when defined in its wide sense, is careful to show that they are not so in the narrow and usual one which excludes statements made out of Court as evidence of the truth of the facts asserted (post, chap, xvii), " Their admission," he remarks, " does not imply an acceptance of any facts they assert. The act of which they form a part may have taken place and yet the statement be in the main false. Thus, a party assailed may at the moment of an assault exclaim ' this was in revenge.' The exclamation is evidence as part of the transaction, but is no proof of an old grudge " (Cr. Bv., s. 266). On the other hand, Prof. Thayer considers that such declarations " may legitimately be used to prove what they import and to supply new and unproved or insufficiently proved elements of the res gesta" (15 Am. L. Eev. 96). He cites none of the above cases, however, and of the four American decisions given only one, 7ns. Co. v. Moseley, 8 Wall, 397, goes to this length. Another writer, after asserting that any relevant state- ment is admissible if merely used .circumstantially, argues therefrom " that the res gesta limitations would be meaningless unless the evidence were intended to be used testimonially" (17 Harv. L. Eev. 144-5; see also Chamberlayne, Yol. IV., p. ix). The first proposition, however, is not maintainable (see 'relevant statements,' post, 103), and the last would ignore all the cases contra, cited above. Prof. Wigmore, who examines the matter more criti- cally, concedes that in the. great majority of instances the statements are properly original evidence and not to be used testimonially, e.g. a bankrupt's declaration when leaving home, a testator's when destroying his will or an occupier's that "this land is mine, I bought it of A," which, though admis- sible to show adverse possession, is no proof that it is his, or that he did buy it of A. ; but he claims that there is a special class of cases in which the words may be used testimonially, and which, therefore, forms a true exception to the hearsay rule in its narrow sense, viz. " Statements or exclamations by injured persons uttered immediately after the injury, or by those present at an affray or other exciting occasion, as to the circumstances thereof as observed by them " (ss. 1745-92).* There are American cases both for and against this * In his valuable work on Evidence, Prof. Wigmore pushes this view to extreme and apparently untenable lengths, cutting these " injury " declarations altogether adrift from the res gesta class as supposedly governed by a different principle and subject to different Digitized by Microsoft® CHAP. VI.] THE TEANSACTION IN ISSUE. RES GESTA. 61 view; but in England the only decision which in terms supports it is B. v. Foster, cited post, 81. The law on this difficult subject is, perhaps, best sum- marised by Holmes, J. : "As a rule such declarations are not evidence of the past facts which th^ may recite. The cases in which they have been admitted to prove the cause of a wound or injury, if not exceptions to the rule, at least mark the limit of admissibility" (Elmer v. Fessenden, 151 Mass. 359). (6) Miscellaneoiis. There is no distinction with regard to the admissibil- ily of the declarations between civil and criminal proceedings. In both they may be used as evidence either for or (even when made in his absence) against a party (Tay., s. 585; Fellowes v. Williamson, post, 75; Milne v. Leisler, 74; for criminal cases, see post, 79-82) ; whether he be called as a witness or not {Dysart Peerage, 6 App. Cas. p. 516) ; or even though he would be incompe- tent if so. called (Bateman v. Bailey, 5 T.E. 512 ; Aveson y.~ Kinnaird, 6 Bast, 188; Aylesford Peerage, 11 Ap. Cas. 1; Tay., s. 580 n). Nor is it material whether the declarant be alive or dead at the date of the trial {Dysart Peer- age, sup.). Mr. Taylor, indeed, suggests (s. 684) that statements explaining the possession of land are only admissible under the conditions stated post, chap. xxiLi, i.e. when made by deceased persons in disparagement of their own title ; but see Parrott v. Watts and Johnson v. Thompson, post, 73 ; and cp. Wigmore, Ev., s. 1780. It may be added that Complaints in cases of rape {post, 115), and also Admissions iy Agents {post, 246) are sometimes, although erroneously, referred to the res gesta principle. Mental and Physical Condition. Direct Testimony, (e) Witnesses may speak directly as to what were their own feelings, motives, intentions, opin- ions, knowledge, and the like, at any given time, their testimony being based, not on inference, but consciousness, though little reliance can be placed on evi- dence of this class (post, chap xxxv. ; Whart., s. 508). They may not, in gen- eral, however, testify to the state of mind of others as to which they can have no direct knowledge {Be Beale, 6-T.L.E. 308; Goldwell v. Holme, 23 L.J.Ch. 595 ; TownsewtZ v. Moore, 1905, P. 66, 80; iJ. v Wright, Times, Jan. 16, 1905), but should detail the facts from which the given condition may be inferred. Declarations out of Court. (/) Whenever the bodily or mental feelings of a person are material to be proved, the usual expression of such feelings made at the time may be given in evidence. If they were the natural language of the afieetion, whetiher of body or mind, they furnish original and satisfac- tory evidence of its existence, and the question whether they were real or limitations. Thus he maintains (1) that such utterances are admissible, not because they are part of an act, but because they are spontaneous, i.e., caused by " some startling occurrence likely to produce nervous excitement and spontaneous utterance " ; though he adds, such startling occurrence " need not itself be relevant to the issue " (s. 1753). The latter proposition, itself somewhat startling, seems, however, to be qualified by other passages which, by requiring the utterances "to relate to the occurrence," impliedly enforce the latter's relevancy to the issue also (ss. 1750-54), otherwise, both the occurrence and the utterance might be wholly irrelevant to the case, which is obviously not the author's meaning. (2) That, unlike the res gesta cases, the " injury " utter- ances need not be literally contemporaneous, nor made by the actor himself (ss. 1750-66) . The answ«r to this contention seems to be that neither of these conditions is really re- quired by the res gesta principle as formulated either in the English or leading American decisions (ante 58-9). Mr. Chamberlayne's view is somewhat similar, for he appar- ently holds (1) that, any extra-judicial statement, if spontaneous, is evidence of the truth of the matter asserted; and (2) that while the mere fact that a statement is part of tie res gesta does not, of itself, have that probative effect, yet if the element of spon- taneity be added that effect will follow (ss. ^84-91). Neither doctrine is recognized in ihiglish law. Digitized by Microsoft® 62 THE LA)V OF EVIDENCE. [book ii. feigned is for the jury to determine. [Tay., ss. 580-586, 606 ; Steph., art. 11 ; Eos. N. P. 52; id. Cr. Ev. 26-27; Whart., Civ. Ev., ss. 268-9, Cr. Ev. 271-4; Wigmore, Ev. ss. 1714-40 ; Ohamberlayne Ev. ss. 2624-2687.] Such declarations are sometimes considered to fall within the res gesta principle {Doe v. Ridgway, 4 B. & Aid. 53, 55 ; Gardner Peerage, Le March, p. 174; Lloyd v. Powell &c., Co. 1914, A.C. 733, 748, 752; Tay., s. 584), and sometimes to form a special category of their own {post, 63). In either view, however, they are admissible merely as conduct manifesting the existence of the given condition, i.e. as original, circumstantial, or presumptive evidence, and not (except against the declarant himself) as assertions establishing the truth of the facts asserted, i.e. as exceptions to the hearsay rule: " They (declarations by a deceased putative father of his intention to marry the mother and support the child) are acts, matters of conduct, and strong pieces of evi- dence on the issue of paternity, inasmuph as they show the character in which the parties regarded the child and desired to treat it. . . . To treat them as statements against interest and therefore, though hearsay, proof of the facts stated, is ■wholly to mistake their true character and significance. This significance consists in the impro- bability that any man would make these statements, true or false, unless he believed him- self to be the father . . . The testimony of the witnesses is to the act, i.e., the speaking of the words, it is that which possesses evidential value. The evidence is, therefore, not in any respect open to the objection that it is secondary or hearsay " (Lloyd v. Powell, do., Co., su-p. at 740-1, 752). "The declarations (of the testator) are to be received as mental acts or conduct, their truth or falsity is qf no consequence ; as narratives they are not receivable as evidence of the facts stated (Shailer v. Bum- stead, 99 Mass. 112, 120). "Though such declarations (threats of suicide by the deceased), when conscious and voluntary, have in them some of the elements of hear- say, yet they closely resemble evidence of the natural expression of feeling which has always been regarded in the law not as hearsay, but as original evidence. . . . They are acts from which the state of mind or intention may be inferred in the same manner as from the appearance of the person, or his behaviour, or his actions generally " ( Com. V. Trefetham, 157 id. 180, 188) . See also Tay. s. 580 ; Steph. art. 11, where sucb declara- tions are treated as relevant facts, and not as hearsay admitted by exception ; and Ohamberlayne Ev., ss. 2630-1, 2638, 2641, 2647, 2654, 2657. The contrary view that they are admissible to prove the truth of the facts stated, i.e. as exceptions to the hearsay rule, is, however, maintained by some American authorities [Wigmore, Ev. ss. 1714-40; Mutual Ins. Co. v. Hillmon, cited post, 79 ; Throchmorton v. Holt, 180 U.S. 552 ; 26 Harv. L. Eev. 146. See ,post, 218-9, 325] . (1) As to Health or Feelings. The statements of patients to medical men and others are presumptive evidence of their state of health, provided they are confined to contemporaneous symptoms, and are not in the nature of a narrative as to how, or by whom, such symptoms were caused ( Gardner Peer- age, Le March, 169-179; B. v. Gloster, 16 Cox 471; Gilbey v. G. W. By., 102 l!t. 202 ; C.A. ; Amys v. Barton, 1912, 1 K.B. 40, C. A. ; post, 83) . And if the condition of the patient before or after the time in issue be material, his declarations at such times as to his then present condition are equally receivable {Aveson v. Einnaird, 6 East 188 ; R. v. Johnson, 2 C. & K. 354). It is usually said that such declarations are receivable though they form the only proof of the given condition (Tay., s. 580) ; but this has been doubted, and it has been suggested that the manifested condition, and not the sickness itself, is the true res gesta to be explained (Thayer, 15 Am. L. Rev. 98-104). So, when the terms upon which two parties have lived are material, their letters to each other {Trelawney v. Coleman, IB. & Aid. 90), or to third persons {Willis V. Berna/rd, 8 Bing, 376), are admissible evidence of that fact, though Digitized by Microsoft® CHAP. VI.] THE TRANSACTION IN ISSUE. RES GESTA. 63 not of the truth of all the matters stated. When there is reason to suspect col- lusion, however, proof, irrespective of their dates, must be given that they were written at a tiijie when such suspicion could not attach {Wilton v. Web- ster, 7 C. & P. l^^;Houliston v. Smytl, 3 C. & P. -p. 24). (2) As to Intention and Motive. When the question of intention arises in relation to an act done, it may, as has been shown, be proved either by declarations made at the time of the act or when the latter is of a continuous nature — e.g. longer user of property, the protracted absence of a debtor, or set- tled residence in cases of domicil, by declarations made at any time during its currency {post, 73, 75-7). How far" hare declarations of intention, made on occasions prior or subsequent to, but unconnected with, an act, are admis- sible either (a) to prove the intention, or (6) to explain the act, seems doubt- ful. Although the two questions are not often discriminated, the general rule has hitherto been to exclude such declarations for both purposes, except when tendered against a party as admissions : " What the accused said may be evidence against himself, but cannot be evidence for him, unless connected with the time spoken to by the prosecution. There cannot be a doubt of it, his motive cannot be proved by his own private declaration " (R. t. aordon, 1781, 21 How. St. Tr. 542-3; R. v. O'Brien, 1848, 7 St. Tr. N.S. 262-3). " Nothing IS so clear as that all declarations which, apply to facts, or even to the particular case that is charged, though the intent should form a part of that charge, are evidence against a prisoner and not for him, because the presumption is that no man would declare anything against himself unless it were true, but that every man if he were in a difficulty, or in view of one, would make declarations for himself " (R.- v. Sardy, 1794, 24 How. St. Tr. 1093-4„per Eyre, C.J.; cited post 85-6). "I have always understood the general rule to be that a verbal statement is not receivable unless made at or about the time of an act done and in order to 'explain that act" (Thomas V. ConneU, 1838, 4 M. & W. 267, 269, per Parke, B.). "A contemporaneous declara- tion may be admissible as part of a transaction, but an act done cannot be varied or qualified by an insulated declaration made at a later time " (Peacoch v. Harris, 1836, 5 A. & E. 449, 454, per Ld. Denman, C.J.). Declarations accompanying acts are admissible to show the intention at the time, but not declarations on former uncon- nected occasions — otherwise it would be easy for a man to lay grounds for escaping the consequences of his wrongful acts by making such declarations " (E. v. Petcherini, 1856, 7 C!ox, 82-3, per Crampton, J., and Greene, B.). This exclusion, however, has not been uniform, and the modern tendency is apparently towards greater latitude ^n both respects. Thus, with regard to (b), in Sugden v. St. Leonards, 1 P.D. 154, 351, Mellish, L.J., enunciated what is sometimes considered the true principle, viz., "that wherever it is material to prove the state of a person's mind, or what was passing in it and what were his intentions, there you may prove what he sai^ because that is (often) the only means by which you can find out what his intentions were." So, in Lloyd r. Powell Co., 1914, A.C. pp. 751-2, Ld. Moulton remarked: "It is well established in BngUsh- jurisprudence in accordance with the dictates of common sense that the words and acts of a person are admissible as evidence of his state of mind. It was urged that, although the acts of the deceased might be put in evidence, his words might not. I fail to understand the distinction. Speaking is as much an act as doing. . . . The testimony of the witnesses is to the act, i.e. to the deceased speaking these words, and it is the speaking of the words which is put in evidence, and which possesses eviden- tial value." And in Re Fletcher, 1917, 1 Ch. 339, 342, Ld. Cozens-Hardy stated that, " Intention might be established by means of an expressed inten- tion at the time. The declaration of intention might be verbal." This principle which renders the support of an act unnecessary to the admissibility Digitized by Microsoft® 64 THE LAW OF EVIDENCE. [book ii. of the declarations, and admits the latter irrespective of the res gesta rule, has occasionally been' followed in America where, however, a similar divergency of view exists. Thus, in a leading case, there, the Court remarked : " When the intention to be proved is important only as qualifying an act, its connection with that must be shown in order to warrant the admission of declarations of the intention; but whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by the contemporaneous oral or written declarations of the party " (Mutiial Life Ins. Co. v. Hillmon, 145 U.S. 285, followed in Com v. Trefethan, 157 Mass. 180; post, 79-80). In a later case in the same Court, however, declarations of intention, when not part of the res gesta, were held inadmissible, . except to show mere mental capacity {Throckmorton v. Holt, 180 U.S. 552, 573; and see Sielert v. People, 143 111, 571; Chicago By. v. Chancellor, 165 id. 438; and 36 Harv. L. Eev. 157-160). — With regard to (6) notwithstanding the exclusionary rule above stated, declarations of intent are sometimes received to explain an act, although made prior or subsequent thereto and on occasions unconnected there- with, apparently on the presumption of the continuance of mental states {post, 104, 148, 163) e.g. to show intent in cases of merger {Re Fletcher, 1917, 1 Ch. 839, C.A.), or the person intended to be benefited under an insur- ance policy {Newman v. Belsten, and Shilling v. Accidental Death Co., post, 85, 153, or on questions involving the factum of a will, or to rebut presump- tions, though not generally to aid interpretation (see post, chaps, xxviii., xlvi,-vii. In Re Fletcher, sup., indeed two of the L.L.J.'s, in dicta which were not necessary for the decision, purported to lay down the rule that in all eases, civil and criminal, declarations, prior or subsequent to an act, are admissible to explain its intent. This proposition, however, is not sustainable ; it is founded on a passage from Tay., s. 1209, which referred exclusively to ' equivocations,' i.e., to the single exceptional case in which such declarations are admissible in aid of the interpretation of documents ; and it ignores all the cases contra, and also the fact that in criminal trials the declarations of the accused are in general tendered against him as admissions or confessions, and not in his favour under the present head. (c) There is a third purpose for which such evidence is sometimes tendered, viz., to prove the occurrence of the act intended. Here the existence of the intent, evidenced by the deelarations, is relied on as rendering it more probable than not, that the intent was fulfilled and the act done. In England, however the weight of authority is against such a user, at all events in criminal cases [R. v. Wainivright, 13 Cox 171; B. V. Pooh, id. 172 n (both cited with approval in B. v. Christie, 1914, A.C., 545, 567) ; R V. Thompson, 1912, 3 K.B. 19, CCA. ; contra, R. v. Cowper, 13 How. St. Tr. 1166-9; B. v. Buclcley, 13 Cox 293; B. v. Jessop, 16 Cox 204; and cp. Mutual Life Ins. Co. v. Hillmon, sup.]. In civil cases, they have been received to corroborate direct testimony as to an act, though not as evidence of the act itself {Sugden v. 8t Leonards, 1 P.D. pp. 184, 226 24?, 251; Sax- lehner v. Apollinaris Co., 1897, 1 Ch. 893, 900-1; post, 148, 331). As to the exclusion of oral by documentary declarations of intent, see post, chap, xxviii. and chaps. xlv,-xlvi. ; and generally, as to prior and subsequent facts to show the intention of an act, post, 148-9, 153-4. (3) As to Opinion. Where a person's opinions at a given time are material, per se and irrespective of any act, expressions thereof, made at such time, are receivable {R. v. Hax-dy, post, 85; A.-O. v. Bradlaugh, post, 121; and Digitized by Microsoft® CHAP. VI.] THE TRANSACTION IN ISSUE. BBS OESTA. 65 cp. Cook V. Ward, and Du Bast v. Beresford, post, 384, where, to prove that a caricature resembled a party, expressions of recognition by the spectators were admitted.) In America, however, the fact of inspecting an object has been considered as an act which such declarations could accompany and explain, so that in such cases the res gesta principle could be appropri- ately applied (Chase v. Lowell, post, 73). As to expressions of opinion explanatory of acts see ante, 58 ; Manchester Brewery v. Comhs and Oresham Hotel v. Mamnmg, post, 75; anJ Wright v. Tatham, &c., vost, 84, 116-7, 134-5. (4) .4s to Knowledge. A person's bare assertion, out of Court, that he knew a fact, has been-rejected to prove that he knew it (R. v. Ounnell, post, 86) ; but when the existence of the fact is proved aliunde, his knowledge thereof may, in general, be shown either by his own declarations manifesting such knowledge, or by tiiose of others conveying notice or information to him (Vachcr v. Cocks, and Thomas v. Connell, post, 87). Such statements need not, of course, be made contemporaneously with the happening of the fact; nor even at the precise time when the existence of the Imowledge is in issue, since previous knowledge may be evidence of subsequent Imowledge, though not vice ver^a (R. v. Ounnell, sup.; R. v. Eay, post, 87) ; and mere admissions by a party as to his knowledge would only be evidence against himself (id.) As to extrinsic facts to show knowledge, see generally post, 146-8, 151-3. EXAMPLES. CONSTITUENT FACTS. Admissible. InadmisftihJc. (o) The foot in issue per se. A, sues B. for slander. A ■witness who heard the words complained of, raay testify that A. used tliem, and B. may testify tliat he did not use them, although tlie utterance of tlie words is a fact in issue (Clarh v. Main. Times, Mar. 24, 1904; Biggins v. Malyon. id. Nov. 23, 1905). Bnt they would not be allowed to testify that B. had, or had not, slandered A., for this is for the tribunal (post, chap. xxxv.). A. is charged with the murder of B. A witness who was present at the crinle may testify, directly and positively, to A.'s identity, although that is a fact in issue ; and his mere opinion as to such identity would also be admissible. So, though he mig'ht, if tlie facts were so, state that A. ' shot B.' jet he would not be allowed to testify that A. had ' murdered B.,' nor even prooably, that A. had ' killed B.', for these are inferences which must be drawn hv the tribunal, [Wharton Civil Ev. ss. 15, 2'6, 509 ; id. Or. Law 7th ed. s. 733 : Steph. (A Reply to Dr. Wharton) 3 Southern Law Rev. (Am.) p. 571; Gulson, s. 125; ante 56; po**, 401]. t.E. — 5 (a) The f-aot in issue per se. The ques- tion being whether the defendant's traclo- name so nearly rescmblpd the plaintiff's as to be calculated to deceive ; — witnesses may not he osked this question, as it is for the Court alone. [North Cheshire Go. v. Mamhester Co., 1899, A. C. 83, 85; Pan- ton V. Snelling, 1901, A.C. 308, 311; Bourne V. Swan,, 1903. 1 Ch. 211, 224; Bennessy v. Keating, 1908, 25 R.P.a 361 (H.L.) ; Oraphio Arts Co v. Bvntei-s, 27 id. 677 ; Royal Warrant Solder's Assn. v. Deane, 1912, 1 Ch. 10, 14-15; Crossfield V. Techno Chemical Lais. (1913). 29 T. L. R. 378 ; pos* chap. xxxv. In Bourne v. Swan, sup., Farwell. J., added the fur- ther reason, that though witnesses might say that they themselves would be deceived, they misht not testify as experts in hu- man nature, i.e., that others would or would not be.]. A. sues B. for infringement of patent : — an expert, though he may give his opinion on the points of science involved, may not testify that there has, or has not, been an infringement (Seed v. Biggins, 8 H.L. Cas. pp. 565-6; see fully as to experts, post 393) . The question being whether A. sold goods to B. solely, or to B. and C. jointly ; — A. may not be asked " with wiom he dealt?" though he may state what was Digitized by Microsoft® 66 THE LAW OP EVIDENCE. [book II. Admissible. (6) Constituent Incidents. A. sues B. for money paid by A. to C. at B.'s request, the defence being that the money had not been paid at the date of the issue of the writ, i.e. Feb. 26 The facts (testified to by A.) that he po'Sted a cheque for the amount to O. on the 25th, and received from C. a receipt on the 26th ; and the facts (testified to by C.) that he received the cheque from A. as payment on the morning of the 26th, and forwarded the receipt;- — Held admissible as part of the res gestae and constituting payment, though the cheque was not cashed till after the 261th, nor was it produced ; and the re- ceipt, though produced, would, as the mere admission of a stranger, have been inadmissible per se as hearsay. [Car- marth&n By. v. Manchester By., L.R. 8 C. P. 685 ; B. V. Mohr, 2 Cr. App. R. 39 ; as to the date on which cheques become pay- ment, see Mears v. Western Co., 1905, 2 Ch. 353]. So, to prove not only the fact, but the purpose of a payment, declarations made at the time are admissible (Walters V. Lewis, 7 C. & P. 344; post, 73). In an action against the owners of a sunken wreck for causing a collision by neglecting to safeguard the spot ; — 'the facts, deposed to by the master of a pas- sing tug, that the mate of the wreck had instructed him to report the matter to the nearest harbour authorities, and that on Inadmissible. said or done at the time (Bonfield v. Smith, 12 M. & W. 405). So, in a breach of promise action, the plaintiff may not testify that " the defen- dant promised to marry her," but should state what the defendant said or wrote (Law V. C apron, Nov. 6, 1889, per Den- man, J., ex ret ). To prove that a railway platform was dangerous : — witnesses may not testify directly that it was or was not dangerous, but should state wherein the danger con- sisted e.g. that it was slippery, &c. (Bigg v. Manchester By., 14 W.R. 834; Botherham v. M.O.W. By., 37 Ir. !• T.R. 23). So, where the question was whether a certain company was a " gold-mining com- pany " experts were not allowed to be asked this question as it depended on the construction of the prospectus, and other matters which were for the Court. (Orove V. Buluwayo Co., Times Mar. 30, 1898, C.A.). On a charge of riot ; — a question to a police-constable, called by the prosecution, " whether in his opinion it would have been safe to allow the meeting called by the defendants?" was disallowed as being for the jury ; though, in cross examination " whether in his judgment calling out the military, was necessary?" was permitted (B. V. Ch-aham, 107 C.C C, Sess. Pap. pp. 389, 408-9, per Charles, J. See, also, B. v. Sullivan, infra, p. 67). (6) Constituent Incidents. A. (a pa- tient) sues B. (a hospit.il surgeon) for performing douhle ovariotomy without A.'s consent. Evidence (1) tlhat A. told a nurse before the operation (but not in B.'s presence or shown to have been communicated to him) that she would only consent to single ovariotomy ; and (2) that, on returning to consciousness after the operation, she made a complaint to a priest x>t what B. had done ; — held not admissible to prove such restricted con- sent [Beatty v. Cullingxoorth, 60 J. P. 740, per Hawkins, J., aff' d Times, Jan. 14, 1897, C.A. Semlile, that evidence of com- plaints is only admissible in cases of rape, &c. ; see post, 114]. Digitized by Microsoft® CHAP. vi.J THE TEAISrSACTION IN ISSUE. RES GESTA. 67 Admissible. Ms return he told the mate he had done 80, and that they had promised to send the proper wrecklights immediataely, are ad- missible as constituting measures of dili- gence taken by the mate to safeguard the navigation (The Douglas, 7 P.D. 151) The question being whether a certain district was disturbed; — ^local landowners were allowed to testify (1) that their tenants had given up farms alleging fear of outrage as their reason ; (2) tiiat their herds had, in the course of ^ duty, made reports to them of injury done to cattle in their charge; and (3) that the land- owners had made claims to the Sessions in respect of such injuries ; — 'these reasons, reports and claims being admissible as part of the res gestm, though not as evi- dence of the truti of the statements made {PameU Commission. Times, Nov. 10, 14, 1888 ; post, 75) . Qu. whether the mere opinion of a constable that "the district was disturbed would be admissible." (R. v. Sullivan, 24 L.E.I. 191, 201, per PaUes, C.B. ; see R. v. &raham, ante, p. 66) . (c) Cumulative and Continuous Trans- actioTis; Similar Facts. To prove that the defendants were common cheats ; — ^the facts that they falsely represented them- selves to be persons of property on several occasions and to different persons are ad- missible (i2. V. Roierts, 1 Camp. 399). To prove a custom of a manor; par- ticular instances in which the custom was acted on are admissible, although they do not appear on any of the manorial re- cords (Johnstone v. Spencer, 30 Ch. D. 581 ; post, 106-7) . To prove the delivery of goods by A. to D. ; — ^intermediate deliveries from A. to B., B. to C, and C. to D. are admissible (Indian Evidence Act, 1872, illus. to s. 6) . A. is charged with stealing (marked) money from B.'s till. Evidence of the his- tory of the till from the time the money was put in until it was found in A.'s pos- session, though embracing several abstrac- tions, was admitted as forming one entire transaction and showing the character of the various takings (R. v. Ellis, 6 B. & C. 145). So, on a charge of receiving stolen tin, the fact that the police, on searching A.'s premises, found stolen iron and brass, was held admissible as part of the trans- action, though the iron and tin were the subjects of other charges (R. v. Mans- field, Car. d M., 140, following R. v. Mllis, sup.). A. is charged with rape on a child. Evi- dence of repeated similar acts 2 and 4 days later, and prior to the child's com- plaint to its mother, it appearing that A. threatened to beat the child if she told ; — Held admissible as one continuous offence (R. V. Rearden, 4 F. & F. 76, per Willes, J.). Inadmissiile. (o) Cumulative and Continuous Trans- actiotis; SimUar Facts. A is charged with stealing a (marked) shilling from B. A constable on arresting A. and finding the shUling upon him, asked if he had any mort of B.'s property upon him, where- upon A. gave up some more money and made a statement as to it. Held that this statement was inadmissible as refer- ring to a distinct felony (R. v. Butler, 2 C. &K. 221). A. is charged with stealing four articles from B. Evidence that A. entered B.'s shop and took away one of the articles, but returned with it two minutes later, and then took it away again together with two more of the articles, having been ad- mitted as proving one continuous taking, — evidence that A. returned again, half an hour later, and took away the fourth arti- cle — held inadmissible as relating to a dis- tinct offence (R. v. Birdseye, 4 C. & P. 386). A. is charged with rape upon B. in a boat. Evidence having been given of sev- eral rapes committed on B. in the same boat, other rapes committed in another boat to which B. was carried from the first boat were not offered in evidence, be- ing the subject of a separate charge (R. v. Lea, 3 Rus. Cr., 6th ed., 407 ; cp. R. v. Lloyd, dec, post, 185). Digitized by Microsoft® 68 THE LAW OP EVIDENCE. [book II. Admissible. To prove the stealing of gas from the prosecutor's main on a pwrtioular date, by means of a pipe inserted in the main ; — Evidence of the abstraction of gas inter- mittently for several years by the same method is admissible, as forming one con- tinuous taking [R. v. Firth, 38 L.J.M.C. 54 ; Lush, J., remarked that the means and the intent were continuous] . So, to prove the stealing of coal by A., a mine owner, from B., an adjoining owner ; — evidence that A. had stolen coal intermittently for four years from B. and thirty other ad- joining owners, held admissible to show A.'s intent, as one continuous transaction, all the coal being raised at one shaft (R. V. Bleasdale, 2 0. & K. 765). A, a post-office servant, is charged with stealing a letter of B.'s, containing bank- notes. Evidence that, about the same time, a letter of C.'s was opened, B.'s notes put therein, and O.'s notes to the same amount (afterwards found upon A.) ab- stracted; — ^Held admissible as part of the transaction, though there was a separate indictment as to C.'s notes {R. v. SaUs- bury, 5 0. & P. 155 : op. R. v. Plumer, post, 82). A. is charged with obtaining a subscrip- tion from B. by false representations as to the funds of a club. The false statement was made in July When B. declined to join : but in August A. repeated his repre- sentations, but omitted the false state- ment, and B. th^n paid her subscription : Held that both statements were admissible, since they were capable of being connected as one continuing representation, and wihether they were so connected was for the jury (R. v. Welman, 22 L.J.M.O. 118). A., B., and C. are charged with bur- glary at railway station X. Evidence that on the same night burglaries were commit- ted at stations Y. and Z., articles from the two latter stations, but not from X., being found on A. ; and articles from X. found upon B. and C. ; and that jemmies corres- ponding with marks at one or other of the stations were found upon all the prisoners ; — Held adraissible (1) the three events be- ing so intermixed that it was impossible to separatei them; and,(a) to explain, why none of the X. articles were found on A., i.e., that his share of the booty might have been derived wholly from the Y. and Z. arti- cles. [R. V. Gohden, 3 P. & P. 833; R. v. Stonyer, 2 Bus. Cr. 7th ed. 2064, 2103]. So, where A. had committed three burglar- ies in one night, stealing a shirt at one place and leaidng it at another, the Court admitted evidence of all (See R. v. WhMey, 2 Lea. 983, 985, and cp. R. v. Vohe, do., post, 70). To prove that A. had forged a mort- gage deed of certain property ; — evidence that he had forged other deeds, being leases at enhanced rentals which increased Inadmssible. A. is charged under the Children's Act, 1894, with cruelty to children, " between Nov. 9, 1900, and April 9, 1901." Evi- dence of cruelty to them on prior dates, held not admissiWe either (1) under s. 18 (4) of the Act, by which it is not necessary to specify the dates of the acts constituting a continuous offence; or (2) to rebut the theory of accident. [R. v. Miller, 65 J.P. 313, per Phillimore J. No reasons are stated : but it was said to be otherwise, perhaps, if dates had not been given ; and the evidence was in fact admitted on A.'s cross-esamination, see post, 185; cp. R. v. Hill, and R. v. Mean, infra, 69]. Digitized by Microsoft® OHAP. VI.]. THE TEANSACTION IN ISSUE. RES GESTA. Admissihle. the mortgage security, and also an auth- ority by the owner of the property to his solicitor to act in the matter; Held ad- missible [Boupell V. Haws, 3 F. & F. 784 ; Richardson v. Nea/vea, id, 815 ; the fact that A. was in financial straits at the time was also admitted ; op. post, 118, 120], To prove that A., on a particular day, lived on the earnings of B., a prostitute ; — the relations of A. with B. on prior and subsequent days are admissible [R. v. Hill, 10 Ct, Ajpp. R. 56 ; cp. supra, 68, and post, 185. A. is charged with using B.'s public- house for betting on Nov. 13, slips relating to the persons, horses and sums involved being found both on A. and in B.'s parlour. Evidence that slips with corresponding de- tails had on prior dates been received by B. from customers and sent by him to A. ; — Held admissible (1) as part of, and completing, the transaction ; and (2) as showing that B. acted as A.'s agent [R. v. Mean, 69 J. P. Rep. 27 ; in R. v. Mortimer, 74 J.P.Jo. 520, only one act of betting was proved. As to agency, see post, 160, 166]. (d) Documentary Trmisactions. A., a contractor, sues B., one of a committee superintending the construction of a rail- way, for work done thereon. Resolutions passed by the committee, at which neither A. nor B. were present, are admissible, for or against either, to show the fact and terms of the employment (Rennie v. Clarke, 5 Ex. 292 ; cp. WrigU v. Day, 1895, 2 I.R. 337 ; R. v. Stacy, nic, post, 128 ; and Re-Pyle Works, post, 592). So, in an action against a householder, to recover a proportion of the ' estimated ex- pense of paving a new street as deter- mined by the vestry surveyor, pursuant to statute ' ; — the signed estimate of the surveyor, acted on by the Board in pas- sing resolutions as to such paving, is some, though not the best, evidence for them of the amount claimed, without calling the sur- veyor to prove the making of the estimate or his determination (Hoimain v. Oreen- wich Board, 58 J.P. 351, 703, C.A. ; aUter if not so acted on). For facts partly written and partly oral, constituting a contract of insurance, see post, 153 ; and as to the admissibility of a marriage certificate as part of the res gestce, see Stookiridge v. Quiche, post, 290-1. Inadmissille. (d) Oocumenftwry Trans'Ootions. A. sues a Corporation on an agreement by letters, to take his house for £400. A. had written offering to accept this sum if £150 were apportioned for the lease (which he had mortgaged) and £250 for his own trade damage. The Corporation, acting on their surveyor's report, passed a resolution accepting these terms and their solicitor so replied. Afterwards, A. being unable to obtain the lease, the Cor- poration repudiated. At the trial A. ten- dered the report as evidence that the Corporation knew of the imperfect state of his title and based their resolution and apportionment thereon. Held, though the letters and resolution were admissible, the report was not: (1) per Lindley, L.J., as being a privileged communication ; (2') per Fry, L.J., as being neither evidence itself (because if admissible for A., it would also be so against him, and it would be hard that he should be bound by the statements he had never seen), nor as an admission (there being no statements of tiie facts said to be admitted) ; (3) pet- Cotton L.J., as an attempt to construe the Corporation's letter by showing the in- structions therefor [Cooper v. Met. B. Works, 25 Ch. L. 472, 475-6, C.A. ; cp. re- ports by agents, post, 24©-7]. Digitized by Microsoft® :o THE LAW OF EVIDENCE. ACCOMPANYING FACTS (e) Incidents Other Than Declarations, Admiaaihle. Inadmissihle. [book II. Collision Cases. The question being which of two vessels was to blame for a collision, the following incidents are ad- missible as parts of the transaction; — The hour of the day or night; the state of the wind, weather and tide; the course and speed of the two vessels at the time ; the . lights carried by each ; and the parts of the two vessels which came into contact [O. 19 R. 28. For deolarationa in collision cases see The Sohwalbe and Agassin v. London Tram Co., infra, 71-2]. - Murder c6c. A. is charged with the murder of B. by the explosion of grenades ; — the fact that other persons were killed or wounded at the same time and place is admissible to show the character of the explosive. (B. v. Bernard, 1 F. & F. 240 ; see R. V. MoGrath, 14 Cox, 598, as to an explosion by dynamite.) A. is charged with stabbing B. Evi- dence that about the same time and place 0. was also stabbed by A., is admissible to identify the instrument used (R. v. Pursey, 6 0. & P. 81 ; R. v. Crickmer, 16 Cox, 701). A. is charged with maliciously shooting B. B. had arrested A., who fired at him and escaped, but 15 minutes later, being re-arrested, shot at B. again. Evidence of the second shot, though a distinct fel- ony, was admitted as part of one continu- ous transaction and to rebut the defence that the first shot was accidental. (R. v. Yoke, R. & R. 531; cp. post, chap. xii.). So, where A. was charged with murder by shooting B., his wife ; — evidence that shortly afterwards, in another room, he shot his two daughters whom he had asked to see their mother, was admitted as part of the res gestce and to negative the defences of accident and ignorance that the revolver was loaded (R. v. Greenley, 10 Cr. App. R. 273). F. P. A. is charged with setting fire to B.'s rick. Evi- dence that the prisoner, immediately after- wards, set fire to the ricjks of C. and D. was received (R. v. Long, 6 C. & P. 179 ; op. post, 183-4), Larceny, do. A. and B. are charged with stealing C.'s purse at a horse sale. Evidence that, just before, they co-oper- ated in hustling and attempting to pick the pockets of others at the same sale, is admissible to rebut accident (R. v. Evans, 12 Cr. App. R. 297). A. and B. are charged with stealing goods from a warehouse. The fact that A., a week before the theft, had proposed to C, a fellow employee at the warehouse, to steal similar goods from the same ware- house, though by different means ; — Held (1) admissible as an essential part of the Digitized by Microsoft® CHAP. VI.] THE TEANSACTION IN ISSUE. RES GESTA. .71 Admissiile. res gestcB; and (2) if proved to be a part of a system, also admissible to negative innocent mistake (post, 182). [R. v. Hill, 1 Cr. App. R. 158. Sed. qu. as to the first ground], A. is charged with obtaining B.'s money by means of palmistry. Evidence that, at the same interview, A. also pretended to foretell B.'s future by crystal gazing and clairvoyance, held admissible as a material incident of the transaction (JB. V. Stephenson, 68 J.P. 524). A. is charged with obtaining £2 from B. by a card trick in a train. Evidence that, on the train arriving at the terminus, where A. was arrested, a stranger handed B. £2 ; — ^Held admissible as a part of the res gestas (B. v. Moore, 10 Cr. App. K. 54). A. is charged with robbing B. of money and a coat, by threatening to accuse him of crime. On B. giving up the property A. said he would pawn the coat and re- turn the ticket. Evidence that, the fol- lowing day, A. attempted to obtain fur- ther money from B. by the same threat and also brought with him the ticket, which, on B. having him arrested, he pro- duced; — ^Held admissible (1) as confirma- tory of B.'s evidence as to the former act ; and (2) as showing the nature of the transaction {R. v. Egerton, R. & R. 375 ; post, chap. xl. 'Corroboration'). Sedition. The question being whether a certain meeting was seditious : — evidence that bodies of men, organized in the same manner, had drilled at different places several days before the meeting and after- wards came from different quarters to attend the meeting, on their way acting riotously and using threatening language : — ^Held admissible as part of the trans- action. (R. V. Hunt, 3 B. & Aid. 566, 573-4; post, 79]. Inadmissible. Sedition. The question being whether a certain meeting was seditious ; — evi- dence, tendered by the defendants, that the military used violence in dispersing the meeting. — Held irrelevant, the objects of the meeting being distinct from, and existing prior to, its dispersion. {R. v. Hunt, opposite). ACCOMPANYING FACTS (f) Beclarations Accompanying Acts (Civil Gases). Admissible. Inadmissible. Declarations as to Accidents, do. The question being which of the two vessels was to blame for a collision : an exclama- tion made by the pilot of one of them, after she was cut away and while she was backing, of "The d — - — d helm is still a- starboard ' ! — Held admissible as part of the res gestte. [The Sohioiilbe Swab. 521; The Mellona, 10 Jur. 992; although it would not be evidence against the own- ers as an admission by their agent, post, chap. ziz.). So, an exclamation by a by- s^nder in a running down case, of " Shame ! " if made at the time, would be receivable {Milne v. Leisler, 7 H. & N. 786, per Pollock, C.B., cited post, 74)]. Declarations as to Accidents, per Hawkins, J.,). Digitized by Microsoft® 80 THE LAW OF EVIDENCK [book II. Admissihle. and had tlireatened to take her owu life ; — Held admissible {R. V. Coivper, 13 How. St. Tr. 1166-9; post, 143). So, where A. was charged with the murder of B., both being found poisoned, but A. sur- viving; — Evidence (1) that, some months before his death, B.- had expressed his in- tention to commit suicide; and (2) that A., on being found, stated that he and B. had agreed to die together ; Held admis- sible [R. V. Jessop, 16 Cox, 204, per Field, J., cp. R. V. Harvard, ante, 79. A further statement made by B., when purchasing, some of the poison, was admitted against A. as being the words and acts of a co- conspirator ; cp. post, 102. In America, the cases are divided ; in Com. v. Trefe- than, 157 Mass. 180, on a defence of sui- cide, similar eyidence was received, not as part of the rest gestae, but to show intent; and see Wigmore Ev. s 1726. Oontra, Siebert v. People, 143 111. 571, where the Court, on being advised of the former case, still adhered to its owu decision ; see Thayer, Cas. on Ev. 2nd ed. 641m]. A. is charged with the murder of B. (his wife) ; — the fact that a week before the murder B. went to the house of a neighbour, and handing the latter an axe and a knife, said, "Please put these up, and when I want them I will fetch them, for my hus- band always threatens me with them, and when they are out of the way I feel safer " : — Held admissible [R. v. Edwards, 12 Cox, 230, per Quain, J. No reasons are given; and the declarations could hardly have been received as accompanying and explaining the crime of a week later. The act of deposit, which they did accompany and explain, would seem to have been irrelevant ; while, if tendered to prove pre- vious threats, the declarations infringed the rule that they must explain the facts they accompany, and not prior or subse- quent ones (Syde v. Palmer, ante, 75. Agassiz v. Lond. Trd/m. Co., ante, 71 ; Gom. V. Chance, opposite; ante, 58 cp. Mayslep v. Gymer, ante, 73, wliere, thougrh a past fact was stated, the possession thereby explained was continuous). R. v. Edwwrds, sup., is doubted in Tay. s. 584?i, and was cited, but not followed, in R. v.- Thomson, opposite. As to threats by the deceased, to show apprehension by the prisoner, see post, 190-1]. On a trial for murder ; — evidence by a witness that he was in a room with the deceased just before the latter was shot, and that, seeing a man with a gun in his hand pass the window, he (witness) ex- claimed, "There's butcher" (a name by which the prisoner was known) ; — Held admissible [R. v. Fcwhes, per Ld. Gamp- bell, C.J. , Steph. Dig, art. 3, Ulus. a; Times, Mar. 8, 1856. No reasons are given]. Inadmissible, A. is charged with performing an illegal operation on B., deceased, on March 21st. Defence that B., and not A., had performed the operation. Evidence that B., (1) a month before her miscarriage, had expres- sed an intention of operating on herself ; and (2) eight days after the miscarriage, stated that she had so operated, was ten- dered as part of the res gestas, on the auth- ority of R. V. Edwards, opposite, and of a remark by Collins, M.R., in his report upon the Beck case, that defendants in cri- minal trials are not confined to strictly legal' evidence (see post, 144) ; Held not admissible [R. v. Thomson, 1912, 3 K.B. 19, cited, on another point, pos*, 185]. A. is charged with the murder of B. ; defence, suicide. An exclamation made to another woman by B., while rushing, with her throat cut, out of a house which A. had been seen to enter a minute or two before (he being subsequently found with his own throat partially cut, lying in one of the rooms), of "Oh, dear aunt, see what A. has done to me ! " held inadmis- sible, the transaction being considered over [R. v. Bedmgfield, 14 Cox, 341, per Cock- burn, L.C.J., after consulting Manisty and Field, JJ.; (fuller) Times, Nov. 14, 1879. This ease was defended in a pamphlet by the L.C.J, (from which B.'s full state- ment, as above, is quoted), and impeached in a reply hy Mr. Pitt Taylor. It was also the occasion of a valuable series of arti- cles by Prof. Thayer, cited ante, 55. In R. V. Eorsford, post, 83. Hawkins, J., considered JR. v. Bedingfield wrongly de- cided, stating it had been disapproved in a subsequent case, which he did not name ; though in R. v. Ooddard, 15 Cox, 7, he re- jected a somewhat similar statement made ten minutes after the injury. R. v. Bed- ingfield was, however, approved in R. v. Christie, 1914, A.C. 545, 556, 566]. A. is charged with the murder of B. Evidence that, after the murder and dur- ing a quarrel between C. and C.'s wife ("deceased), the latter taking two bullets out of a cupboard, said to C, " The third one killed B."— being tendered to show grounds for suspecting C. rather than A. ; — held inadmissible, the presence of the bullets in the cupboard, or their beiflg taken out by C.'s wife, being irrelevant, and, even if remotely relevant, needing no explanation and not being in fact ex- plained in any material sense by her statement (Com. v. Chance, 174 Mass. 245). A. is oliargod with wounding B. with a stone; — testimony by B. that, immediately after he was struck, a lady going past, pointing to the prisoner's door, said, though not in the prisoner's hearing, " the person who threw the stone went in there," held inadmissible as hearsay [R. v. Gibson, 18 Digitized by Microsoft® CHAP. vi.J THE TRANSACTION IN ISSUE. RES GESTA. 81 Admissible. A. is charged with the manslaughter of B. by driving a cabriolet over him. A wit- ness saw the vehicle drive by, but did not see the accident, and immediately after- wards, hearing B. groan, went up to him, when B. stated that he had been knocked down by the cabriolet. Held, that the statement was admissible to prove this' fact [R. V. Foster, 6 C. & P. 325, per Gurney, B., and Park and Patteson, JJ. This case is doubted in Eos. Cr. Bv., 13th ed. p. 25, and by Cockburn, L.C.J., in his pamphlet on the Bedingfield Case, but is supported by Mr. Taylor in his reply thereto, and is cited without apparent dis- approval in R. T. Chnstie opposite, and it was followed in Gilbert v. R., 38 Canada Sup. Ct. Rep. 284 (1907), where a state- ment made by the injured party as to the injury and its cause, in the absence of the accused and as the latter was going away, was admitted]. A. is charged with the murder of B. A witness who lived near, hearing a shout, went to the spot, when B. made a state- ment as to having been robbed by A. ; — Held admissible [R. v. Lunny, 6 Cox7 477, per Monaghan, C.J. This ease is doubted in 3 Russ. Cr., 6th ed., 387, and by Cock- burn, C.J., as above, but is supported by Mr. Taylor and is, like R. v. Foster, sup., cited without apparent disapproval in R. V. Christie, opposite. In another Irish case, jB. v. Healthy, 32 Ir. L.T.Jo. 38 (1898), O'Brien, J., ruled that the whole of a statement made to the police by an injnred man, immediately after the injury, is admissible ; but see contra, R. v. Meath, opposite; and op. Oiney v. O^.W-Ry., £c., post, 83. [As to declarations explanatory of mental amd physical cotiditions in criminal cases, see post, 83-7]. Explanatory Statements by the Accused, and others. The question being whetiier A. stole certain property from B., which was found in A.'s possession ; — a state- ment by A. before search was instituted or suspicion had attached to him, that he had "found the property," is admis- sible in A.'s favour [R. v. Abraham, 2 C. & K. 550, per Alderson, B. ; followed in State V. Daley, 53 Vt. Supreme Court, 442 ; cp, Mayslep v. Oymer, . WUlies V. Farley, PowM v. Harper, ante, 73; and Wigmore Ev. 1781; contra, Russ. Cr. 7th ed. 2204n]. The question being whether A. had robbed B. with violence, and bloodstains being found on A.'s coat, which, it was suggested, had flowed from B.'s wounds; a witness for A. was allowed to state L.E. — 6 Inadmissible. Q.B.D. 537. The specific ground of res geatw was not in terms argued in this case, but it could not have been considered ten- able or the decision would have been the other way]. A. iS charged with assaulting B. Dur- ing the struggle A., hearing a constable come up, made off and B., in A.'s absence, then complained to the constable (who had not witnessed the struggle), that A. had kicked him; — Held, inadmissible [R. V. Meath, JJ., 43 Ir. L.T.Jo. 186, per Pallas, L.C.B. and Andrews and Johnson, JJ. So, a statement in the morning as to injuries received over night has been re- jected as part of the res gestw, Wolsey v. Pethick, post, 83]. A. is (barged with indecently assaulting B,. a boy. About five minutes after the assault B., having fetched his mother, re- turned and said, touching A., " That is the man," whereupon a constable asked —"What did he do ? " and B. then in A.'s presence detailed what had happened. Held, that B.'s statements were not ad- missible as part of the main res gestce (i.e. the assault) : also (by a majority of the H.L.) that though B.'s first state- ment was admissible as part of the act of identification, his second statement was not IR. v. Christie, 1914, A.C. 545. For other points decided in this case, see Statements in Presence, post, 259 ; and Corroboration, post, 494]. A. is charged with indecently assaulting B., a child, at A.'s shop-. After the assault B., on running to meet her companions, who had promised to return to A.'s shop for B., SJid being asked why she had not waited for them, said, " Because I don't like A., and won't go near him again as he has assaulted me." Held, not admis- sible as part of the res gestw, though aliter as a complaint (B. v. Osborne, 1905, 1 K. B. 551, 557, 560; 7J. v. Lillyman, 1896, 2 Q.B. 167, 175; R. v. Osborne, C. &. M. 622; posi, 113-6). Explanatory Statements by the Accused, and others. The question being whether A. stole certain property from B., which was found in A.'s possession ; — ^A. was not allowed to give in evidence a copy of a letter which it was alleged he had sent to B., but which B. denied having received, informing B. of his proposal to remove the goods, although the posting and non-return of the letter were proved (R. v. Longman, 29 L. Jo. 32. Aliter if B. had received the letter). A., a letter-carrier, was indicted for secreting a letter containing a bill of ex- change, both of which were found in his possession. The letter, which stated, that the bill was enclosed, was allowed to be read to the jury as being found in his possession; bat held to be no proof that Digitized by Microsoft® 82 THE LAW OP EVIDENCE. [book II. Admissible. that the day before the alleged robbery he met A. and saw bloodstains on bis coat, which A. told him had come from a dead hare that he had been carrying over his shoulder {R. v. White, 2 Cox, 192), So, where A. was charged with receiving stolen tin, a statement by him to the police, who were searching his prem- 'ises for stolen iron, both as to the tin and the iron ; — ^Held admissible, since other- wise the statement about the tin, which was clearly evidence, would be garbled and might be misunderstood by the jury (E. v. Mansfield, Car. & M. 140). On a charge of burglary, it appearing that a witness for the prosecution, who was in the house at the time, had concealed the fact of the burglary for several days ; evidence of a direction given by him to his wife " not to tell it, as he was out late at night with the horses, and would not be safe," was admitted for the prosecution in explanation of conduct which, though not in issue, was relevant thereto [R. v. Gandfield, 2 Cox. 43 ; the fact and par- ticulars of the direction were alone ad- mitted, but not what ihe went on to tell his wife he had seen on the night in question, which was rejected as the mere narrative of a past event. In Sharp V. Ne,wsholm, 5 Bing. N.C. 713, direc- tions given by a debtor as to the disposal of goods were tendered as part of an act done by a third person, but received as showing the debtor's apparent ownership of the goods by dealing therewith]. Inadmissible, the bill was enclosed [R. v. Plumer, R. & R. 264; op. R. v. Cooper, post, 181, and Bruce v. Hurley, ante, 74]. A. was charged with stealing a (marked) shilling from B. On the constable who arrested A. finding the coin and asking if he had any more of B.'s money about' him, A. produced some half-crowns and made a statement about them. Held, the state- ment was inadmissible as relating to a distinct felony [R. v. Butler, 2 C. & K. 221. This case was approved by Kennedy, J., in R. V. Bond, 1906, 2 K.B. 389, 399, where, however, the prisoner's statements as to both the crime in question and prior similar ones, were admitted on other grounds; see posi, 185]. Declarations as to Mental and Physical Conditions and Their Cause. (e) Direct Testimony, The question beins as to A.'s motive in instituting criminal proceedings " against B. ; — A., as a witness, may state that " his motive was solely to further the ends of justice " (Hardwiclc v. Coleman, 1 F. & F. 531). The question being as to A.'s domicil, A. may testify what his intention was in residing in a particular place {Wilson v. 17., L.R. 2 P. & D. 435, 444; Bispliam v. B., Times, June 18, 1903 ; as to declara- tions out of Court, see ante, 77). A. sues B. for commission on the sale of B.'s house to C. C. may testify that " he thought he should not have bought the house but for A.'s card to view " {Mnnscll V. Clements, L.R. 9 C.P. 139). A. sues B. for slander and consequent loss of f'.'s custom. 0. may state iu cross- examination what third persons had said to him abo\it A., and that it was in con- sequence of this, and not of B.'s words, that he ceased to deal with A. (Kmg v. TToMs, 8 C. & P. 614). A. is charged with obtaining money from B. by a false pretence coptained in a letter. To show that B. parted with his money in reliance upon the letter, B. (e) Direct Testimony. The question being as to the sanity of A. ; — A.'s friends, neighbours or servants may not, as wit- nesses, state directly that " A. was, or was not, insane" (post chap, xxxv.) ; al- though medical witnesses, provided they have personally examined A., may do so (id. As to declarations out of Court and letters by, or to. A., see Wright v. Tatham, post, 84). The question being what was a witness's reason for being absent from Court at a certain time ; — another witness cannot tes- tify what the former's reason was (B. v. Attenbury, 148 C.C.C. Sess. Pap. 206). Digitized by Microsoft® CHAP, vi.j THE TEAXSACTIOX IN ISSUE. RES GESTA. 83 Admissible. may testify both to tlie opinion formed by him at the time as to its contents, antl to his belief in their truth (R. v. King. 1897, 1 Q3. 214; Ilardwick v. Colemau. 1 F. & F. p. 532»i; R. v. Dale. 7 C. & P. 332; R. V. Heiogill, Dears. C.C. 600; see Opinions of Non-experts, post, 400, 403) . The question being as to what was A.'s intention in signing a certain document ; — A. may, or may not. testify as to what his intention was, according to the rules stated, post, chaps, xlv.-vi. (/) Declarations as to Health and Feel- ings. A. is charged with poisoning B. ; — evidence that shortly before the alleged ad- ministration of poison B. appealed to be, and expressed himself as being, .in good health ; and suhsequentiy to such adminis- tration exhibited symptoms, and. made statements expressive of present suffering, is admissible {R. v. Johnson, 2 G. & K. 354 ; R. V. Lamson, Browne & Stewart's Poison. Trials). A. sues an insurance company upon a policy upon B.'s (his wife's) lite, the de- fence being misrepresentatiou of B.'s health. Dedarations by B. to a doctor, during examination by him, as to her being in good health, having been proved by A., — declarations by B. to a friend a few days later (made while B. was in bed, looking ill and speaking faintly), , that she was then very poorly, and had been so when she went to a doctor and was not fit to go and was afraid she couldn't live till the policy was . made out ; — ^held admis- sible (1) as evidence of B.'s health; and (2) as contradictory of her previous state- ments lAveson v. Kinnaird, 1806, 6 East, 188. As to (1) references to a past con- dition are generally inadmissible ; but the Court appears to have treated the illness as a continuing one. As to (2) the evi- dence was received on the analogy of state- ments by deceased attesting witnesses contradicting their own attestations. This aground, however, is now untenable {Sto- bart y. Dryden, and Stapylton v. Clough, post, 276-7; Thayer 15 Am. L. Rev. 102- 3). As to declarations showing for whose benefit the policy was intended to be, see post S4-5, 153]. In an action of crim. coh., the question being as to the state of the wife's feelings towards her husband ; — a letter written by her to her brother-in-law, some time be- fore her alleged misconduct, begging him to aid her in raising money on her property so as to pay her husband's debts and "thus procure me the greatest pleasure the money could ever afford me," is admissible as evi- dence of such feelings, though not of the facts stated ( Willis v. Bernard. 8 Bing. 376; cp. Wright Y. Tatham, 7 A. & E. 328-9) ; so, as to complaints of his treat- ment made by her to third persons (Win- ter V. Wroot, 1 Moo. & Rob. 404 ; cp. 113- 6). Inadmissible. '(f) Declarations as to Sealth and Feel- ings. A. is charged with poisoning B. ; — a statement made by B. to her doctor in ex- planation of her sufferings, that " I have taken poison. A. sent it to me " ; — Held admissible as to the first portion, but inad- missible as to last either, (1) to explain B.'s symptoms, or (2) as part of A.'s act in administering the poison, since the poi- son had been sent some time before ; though aiiter, it was said, to rebut a defence of suicide [JB. Y. Eorsford, Times, June 2, 6, 1898,, per Hawkins, J. ; cited ante, 79, and explained in R. v. Rowland, 62 J. P. 439 : 33 Ij.Jo. 355. In the first-mentioned case part of the arguments were heard in pri- vate ; see ante, 42] . A.'s widow sues A.'s employers for damages for an accident causing A.'s death. Declarations by A. to his wife, on returning home after the~ accident, are not admissible to show that his symptoms were caused by the accident [Oilbey v. G. W. Ry., 102 Ii.T. 202, C.A. ; Amys v. Barton, 1912, 1 K.B. 40 C.A. ; WoUey v. Pethick, 1 B.W. C.C. 41, CA. ; Beare v. Garrod, 85 L.J.K.B. 717 C.A. So, in Ireland: see Shea V. WUson, 50 Ir. L.T. Itep. 73. C.A. and Donaghy v. Ulster Co., 46- Id. 33, C. A. (not following Wright v. Kerrigan, 1911, 2 I.R. 301, C.A., and Fitzgerald v. Murphy, 45 Ir.L.T. Rep. 200. C.A., contra, on this point). As to their admissibility as admissions, or as declarations against interest or in course of duty, see Tucker V. OMhurg, U.D.C. 1912, 2 K.B. 317 C.A., cited post, 240, 282, 289. In an action of crim. con., the question being asked as to the state of the wife's feelings towards her husband ; — letters written by the wife to her husband about the date of her alleged misconduct with the defendant are not admissible to show what was the state of her feelings towards her husband at that time, as they might have been written to serve her own ends (Wil- ton V. Webster, 7 C. & 7. 198) . In Witt V. Witt, 3 Swab. & Trist. 143, Sir C. Cresswell, while admitting oral statements, wholly rejected letters by a patient to a doctor describing his symp- toms ; this case is doubted by Tay. s. 580n- A. sues her employer for damages for an accident which she alleges occurred on his premises. At the hearing she is cross- examined as to statements made by her to Digitized by Microsoft® 84 THE LAW OF EVIDENCE. [book II. Admissihle. A. petitions for a divorce from B., his wife, to whom he had been married less than two years, upon the ground of her adultery with C. It was admitted that B. had lived with C. prior to her marriage. Both B. and C. deny the adultery on oath. Held, that a letter from C. to B., written after the alleged adultery, but before any accusation thereof was made, in which C. wrote: "Just think, it is 2 years since 1 held you in my arms,' — was admissible in corroboration of their sworn denial [O'Oor- man v. O'ff., 56 Sol. Jo. 634, post, 491.] The head-note to this ease, which was re- ported by Mr. Tregarthen, author of ' The Law pf Hearsay Evidence' (1915) stated that the letter was received to prove the truth of its assertion. This is not so ;. state- ments contradicting or corroborating wit- nesses are original evidence and not hear- say, and are no proof of their truth. (See Milne v. Leisler, ante, 74, and cp. post, 218, and 4S0, 488), nor did the Court decide that they were. Apart from this, the letter would appear to have been ad- missible per se, as part of the conduct of the parties and so as presumptive evidence of the innocent character of their relation- ship (amte, 77-8). On a charge of conspiracy to procure crowds to assemble in order to excite ter- ror in H.M.'s subjects; — evidence by the police of complaints of alarms and re- quests for military assistance made _ by several of the inha)bitants, held admissible to show the state of public feeling, with- out calling the declarants (E. v. Vincent, 9 C. & P. 275) . So, on a charge of neglecting to supply a child with food, its complaipts of hunger are evidence of its condition (E. v. Conde,. 10 Cox, 547; R. v. Nioholls, 128 O.C.C. Sess. Pap. 489). Deolarations as to Mental capacity. The question being as to the sanity of a de- ceased testator; — his conduct in indorsing, answering, and acting upon letters re- ceived by him from third persons, is rele- vant; and, such conduct having been proved, the contents of the letters, showing that the writers by their treatment ■ con- sidered him sane, — are receivable as state- ments accompanying and explaining it. [Wright v. Tatham, 5 C. & F. 670. As to declarations showing sanity, &c., in criminal cases, see R. v. Wells, post, 86, 161, 167, 181. Deolarations as to Intent, BeKef and Opinion. A. having insured his life, but neither the proposal nor agent's receipt for premium stating for whose benefit it was to be, and the policy being only com- Inadmissible. third persons that the accident had occur- red at her own home, and A. having denied these, they were proved by , the persons named. A. was not allowed in rebuttal, to call B., a friend and C, her doctor, to prove that two days after the aecident she had complained to them of her injuries and where they had occurred, this not be- ing a case of rape (post, 113-6) , nor falling within the rule allowing similar state- ments to rebut a charge of recent fabri- cation (Jones V. S. B. Ry., 87 L.J.K.B. 775 C.A.; post, 491). A. is charged with causing B.'s death by an illegal operation ; — statements made by B. to her doctor during her illness that A. had operated upon her, and that her illness was caused thereby (R. v. Oloster, 16 Cox, 471, approved in R. v. Thomson, 1912, 3 K.B. 19, cited ante, 80) ; or as to what her symptoms had been some days prior to such statements (id.; Gardner Peerage, inf.), are inadmissible. So, though a statement by B., that " he had received a wound " would be admissible, a state- ment that " he had met A., who had a sword and ran him through the body with it," would not be (R. v. Nicholas, 2 C. & K. 246, 248, semUe per Pollock, C.B.). In a case of adulterine bastardy, a mid- wife having testified as an expert that she had known cases where the period of -child- birth exceeded ten months, testified further that in one case where the patient said she had gone beyond her usual time, the witness asked the patient's reason for this belief, and the patient replied from the fact of menstruation having taken place on a given day. Held these answers were in- admissible as going beyond the witness' opinion and stating facts, not within her own observation, which could only .be proved at first hand (Gardner Peerage, 1824, Le March. 167-76; the contents of books upon which an expert's opinion is formed are also inadmissible, id. 175 ; post, 392-3. Declarations as to Mental capacity. The question being as to the sanity of a deceased testator; — ^letters from third per- sons found in his possession with their seals broken, but wjthont any evidence of their having been acted on by him, are inadmis- sible, the mere act of sending the letters to the testator being per se irrelevant [Wright v. Tatham, 5 C. & F. 670. In cases other than sanity this would gener- ally be BuflBcient evidence of knowledge to admit the letters : id. p. 748 ; Tay. s. 573 ; post, 145 ; and as to what will amount to admissions of the truth of their contents, see post, 257-8]. Declarations as to Intent, Belief and Opinion. The question being whether A., an insolvent, in executing a trust deed for his creditors on Jan. 1, did so with intent to petition ; — statements in a schedule of his Digitized by Microsoft® CHAP. VI.] THE TRANSACTION IN ISSUE. RES GESTA. 85 Admissible. . pleted after A. died ; — declarations made by him to the agent, that it was for his wife's benefit, held admissible, the contract being partly written and partly oral. Similar declarations by A. to his wife and friends both before the proposal that he intended to insure for her, and after it, that he had done so, were . also received, apparently in corroboration INemman v. Belsten, 76 L.T.Jo. 228 ; aff'd. 28 Sol. Jo. 301, O.A.; post, 153]. In an action against au insurance office, on a policy on the life of A. (deceased), brought by his representatives, to which the defence was that A. had insured, not for his own benefit, but for that of his son, B. ; — (1) Evidence tendered by plain- tiffs of conversations some time before the insurance between A. and a witness for the plaintiffs, showing that A. intended to insure for his own benefit; and (2) Evi- dence tendered by defendants of conver- sations between B. (deceased) and a wit- ness for the defendants, that B. intended to insure A.'s life as a provision for him- self in case of A.'s death ; — ^Held admis- sible as conduct relevant to the issue [ShiUing v. Accident Death Co., 1 F. & Fi 116. In a short report of this case in 4_Jur. N.S. 244, it is stated that, on a witness being asked whether the intestate had consulted him about insuring his life, and the question being objected to as hear- say, Erie, C.J., remarked that there were cases where a man's words are his acts, and that this question came within the category and was not inadmissible as bear- say ^ ep. post, chap, xvii.. Conduct as Hearsay]. For testamentary cases in which intent at one time (proved by the testator's own declarations) has been re- ceived to show intent at another, see post, chaps, xxviii., zlvi. A. and B. in January, 1914, purchased certain - freehold land, subject to a lease of part thereof. In Dec, 1914, they pur- chased this lease. In Oct. 1915, they mortgaged the freehold and lease as separ- ate properties to C. — ^Held, that the mort- gage deed was admissible as evidence that in Dec. 1914, they intended there should be no merger of the two estates and be- lieved that there was none (Be Fletcher, 1917, 1 Ch. 339, C.A., cited more fuDy, post, 153-4). A. is charged with treasonable conspi- racy ; — evidence having been adduced that, under the cloak of parliamentary reform, he meditated the establishment of a treas- onable convention ; — public speeches made, and books published, by him many years before the alleged conspiracy, and entirely disconnected therewith, hdd ad- missible for the defence [R. v. Hardy, 24 How. St. Tr. at 1066-1096, Eyre, C.J., though remarking that the general rule Inadmissible. affairs delivered in connection with a peti- tion filed in May, held inadmissible to show such intent [Peacock v. Harris, 5 A. & E. 449. Denman, C.J., remarked : " Here the evidence is of something done under the statute alio intuitu. And even if it were not so, an act cannot be quaMed by insu- lated declarations made at a later time"]. A. lodges certain securities at a bank in the joint names of himself and B., his daughter. After A.'s death, a memoran- dum, dated fifteen mouths subse'quently to the deposit, is found in which he directs the securities to be applied to other pur- poses. Held, the memorandum was not admissible to rebut the presumj)tion that the money was a gift to B. [O'Brien v. Shiel, I.R.7 Eq. 255; WiOiams v. W., 32 Beav. 370; post, chap, xlvii. AUter if the memorandum had been contemporane- ous with the deposit, since the question was what was the intention at the time of the tranasaction and not what it was subsequentlyl. The question being whether A. (de- ceased), in transferring certain shares to his son B. intended merely to qualify him for a directorship, or to give them to him out and out; an endorsement by A. on an envelope containing the certificates for the shares to the following effect, " 1050 shares in the B.T.Co. standing in the name of B. but belonging to me," — held not admissible to show A.'s intention at the time [Re Oooch, 62 Ii.T. 384, 387, per Kay, J.; though aliter as corroborative evidence of the nature of the transaction. Gp. O'Brien V. Sheil, and WiUliams v. W., post, chap, xlvii.; Examples of Advancement, &c.]. On a charge of treasonable conspiracy ; — declarations made out of Court by the prisoner that " when he planned a certain convention, he had not intended it to de- stroy the king and government " held inad- missible [72. V. Hardy, 24 How. S.T. 1093- 4, per Eyre, C.J. ; cp. R. v. Petcherini, and R. V. Cantiioell, ante, 66. As the above statement related to the declarant's post intention, it would seem also to be objec- tionable as hearsay. Digitized by Microsoft® 86 THE LAW OF EVIDENCE. [book II. Admissible. was that a prisoner's declarations were evidence against but not for him, even where intent was involved, added, " but if the question be what was the political speculative opinion which he entertained touching the reform of parliament, we all think that that opinion may be learned by the conversations he has held at any time and any place." So, in R. v. Borne Tooke, 25 id. 344-61, where the prisoner was al- lowed to read extracts from works he had published at a former period of his life, the same judge remarked " that though to the conspiracy charged the evidence had no reference, yet to the proof offered it had, and that it seemed proper to rebut that proof by evidence of the principles, opinions, and fixed sentiments of the man ; and that reform of parliament was the sincere object of his pursuits." Though the principle of theSe decisions was disap- proved 'by Lord EUenborough in R. v. Lambert, 31 id. at 355, and only reluc- tantly adopted in R. v. Cobhett, 2 St. Tr. N.S. 877-9, 'by Lord Tenterden, who had at first rejected similar evidence, they were followed in R. v. O'Oonnell, 5 id. at 538-42; R. v. Martin, 6 id. at 1033; R. V, O'Brien, 7 id. at 206 (but see as to this case, opposite) and R. v. Duffy, 7 id. at 927, in which case Lefroy, B., remarked : " These decisions are a sort of anomaly ; but there they are, and I bow to their authority, although I am not satis- fied with the reasons of them." In 3 Russ, Or., 6th ed., p. 420, it is stated that the propriety of allowing such evidence has been questioned by Very high authority (see R. V. Lambert, sup.), and the better opinion is that to admit the accused's prior declarations, they must in some way be connected with the acts proved against him. For further cases pro. and con. see post, 154]. A. is charged with the murder of her child, B., — her defence being sudden mania. Evidence of a voluntary confession made by her as to how she had killed O., another child, held admissible to rebut this defence and to show her state of mind [iS. v. Wells, 120 Sess. Pap. O.O.C., 1203, per Collins, J.; cited, post, 161, 167, 181]. Declarations as to Knowledge. A. sues the assignees of B., a bankrupt, for moneys paid by B. to 0., as an alleged fraudulent preference. It having heen proved that B. stopped payment a few days after the payments and so must then have been insolvent. — (1) Declarations by B. about the time of the payment, but not accompanying or connected with it, held admissible to show his knowledge of his insolvency; and (2) letters from D. to B. refusing B.'s request for pecuniary help, — -Held admissible for the same purpose, and also as showing (i.e. constituting) D.'s refusal, though not as proving the InadmissiMe. In R. V. Lambert, 31 St. Tr. 354-355, Ld." EUenborough disallowed documents an(l evidence tendered by the defendant as to his former life in proof of his inten- tion in puhlishing the libel for which he i was charged and also an article published by another person in reply to the libel. So, statements as to his intent, made by the accused to a private friend prior to setting out to a public meeting, held inad- missible, if objected to by the Crown (R. V. O'Brien, 7 St. Tr. N.S. 262L4 ; contra, as to his public opinions on constitutional matters, see opposite). Declarations as to Knowledge. A. is indicted for fraud as a trustee, his defence being that he had " first disclosed " the of- fence on his compulsory examination in bankruptcy. To rebut this, and show that his guilt was known before that date to B., his solicitor, a witness testified that B., on the day of the examination, had stated to him (the witness) that A. had committed the offence in question. Held that B.'s statement was not admissible to prove B.'s previous knowledge of A.'s guilt [R. v. Ounnell, 16 Cox, 154 ; per Stephep, J. " The simple assertion of any man that he ' knew A. had committed a murder,' is Digitized by Microsoft® CHAP. vi.J THE TRANSACTION IN ISSUE. RES GESTA. Admissible. truth of any facts stated in the letters [Vaohei- v. Cocks, M. & M. 353; Thomas V. Connelly 4 Itt. & W. 267 ; op. post, chap. X. In the above cases the bankrupt's statements could not have been received as admissions (Coole v. Braham, 3 Ex. 183) ]. Inadmissible. not evidence that he did know A. had done so."] The question being whether a ccrtiiin article, patented by A. in 1849, had been known to B. (deceased) before that date: — a statement by B. in 1850 that he liad not previously known of it, held inadmis- sible (Hyde v. Palmer, 32 L.J.Q.B. 126, 128, cited, ante, 75). A. is charged with bigamy, the question being whether B., his first wife, knew at the time of her marriage that she had been falsely described by A. in the banns. The fact that B. admitted to her mother, after marriage, that she was a'ware, before it, of the false description in the banns, held not admissible to prove such knowledge [R. V. Kay, 16 Cox, 292. Held, also, that the fact that B. signed the register after the marriage in the same false name as that in the banns, was no proof of her knowledge before the solemnisation ; fol- lowing R. V. Wroxton, 4 B. & Ad. 640] . Digitized by Microsoft® ( 88 ) CHAPTER VII. AGENCY, PARTNERSHIP, COMPANY, CONSPIRACY, CO-TRES- PASS, &c. Whenever a party is, by substantive law, rendered liable, civilly or criminally, for the acts, contracts, or representations of third persons, and such facts are material, they may be given in evi- dence for or against him as if they were his own. The particular relationship rendering such evidence receivable must be proved, prima facie at least, to the satisfaction of the judge (ante, 11-12), and cannot, except as against themselves, be established by the declarations of such third persons. Contracts and representations by agents, &c., which are ori- ginal evidence, must be distinguished from their mere hearsay admissions, which are only receivable against, but, not in faVour of, the. principal (post, chap, xviii.). Principle. This rule, which is properly one of substantive law and not of CA'idence, is based on the identity of interest subsisting between the parties. In other words, to hold that an act or representation is not receivable against a party under this heading, is simply to hold that it cannot be used against him on the particular ground of his being, by law, civilly or criminally responsible for it, i.e. the act is reduced to the act of a stranger. The question of evi- dence, however, still remains, whether or not, as such, it is admissible. So, to hold that such acts and representations are receivable, is simply to hold that they are to be dealt with as if they were the party's own; but the question of evidence still remains whether as such they are admissible, and if so for what purpose and with what effect (Thayer, 15 Am. L. Rev. 80). The following are the principal relationships of this kind : AGENCY. Civil Cases, (a) In civil cases, the acts, contracts, and repre- sentations of the agent bind the principal when they have been expressly or impliedly authorized, or subsequently ratified, by him. And there is implied authority to conduct the principal's business in the' usual way, what is necessary for that purpose being determined by the nature of the business and the practice of those engaged therein ; evidence on both points is therefore admissible (Re Cunningham, 36 Ch. D. 532). More- over, if the act be within the scope of the agent's authority, it will bind the principal though done against his express instructions (Watteau v. Fenwich, 1893, 1 Q.B. 346), or fraudulently and for the agent's sole benefit (Lloyd v. Grace, 1912, A.C. 716, overruling dicta in British Mutual Banking Co. v. Charmvood Ry., 18 Q.B.D. n4, 718, and Ruben v. Great Fingall Co., 1906, A.C. 439. 465), or negligently (Penny v. Wimbledon, U.C., 1899, 2 Q. B. 72; Fitzsimons v. Duncam,, 1908, 2 I.R. 438, 613, C.A.), or maliciously (Citizens Digitized by Microsoft® CHAP. VII.] AGENCY, PAETNEESHIP, COMPANY, CONSPIEACY. 89 Co. V. Brown, 1904, A.C. 433; post, 77). And the question whether the agent's act is within the scope of his authority is for the jury, unless it is beyond all doubt outside {Hatch v. L. & N. W. By., 15 T.L.E. 246). So, Knowledge acquired in the course of the agency is imputable to the prin- cipal, but not generally that acquired otherwise {Taylor v. Yorkshire Ins. Co., 1913, 3 I.E. 1; Wells v. Smith, 1914, 3 K.B. 732, 735; post, 77, 81). And Notice received by a mercantile agent in the course of business, binds the prin- cipal, unless, it seems, there is a strong probability of its non-communication, e.g. where it involves the agenfs own misconduct (Cave v. C, 15 Ch. D. 639; Re Fitzroy Co., 50 L.T. 144), or he has declared his intention of concealing it {Sharpe v. Foy, 17 W.E. 65) ; though a mere interest to conceal will not rebut the presumption {Thompson v. Cartwright, 33 Beav. 178; Bradley v. Riches. 9 Ch. D. 189; Rolland v. Hart, L.E. 6 Ch. 678). And notice to a solicitor, or his managing clerk acting for the former with the client's con- sent, is notice to the client in a legal {Re Ashton, 64 L.T. 28 ; Conveyancing Act, 1882, s. 3), but not in a mercantile {Tate v. Hyslop, 15 Q.B.D. 368) transaction; nor will his signature to a contract bind the client {Bowen v. D'Orleans, 16 T. L. E. 336). Criminal Cases. A party, however, is not in general criminally responsible for the acts or declarations of others, unless they have been expressly directed, or assented to, by him; nemo reus est nisi mens sit rea {Bank of N. S. Wales V. Piper. 1893, A.C. 383; Coppen v. Moore, 1898, 3 Q.B. 306; Mousell v. L. & N. W. Ry., 1917, 3 K.B. 837). There are, however, certain exceptions to this rule, in which an innocent principal may be liable for quasi-criminal acts committed in the conduct of various trades by his agents or servants {id. ; 68 J.P. 159), or even sometimes by strangers {Parker v. Alder, post, 81), and be punishable either under the Common Law or more often under some regu- lative statute or by-law; it being obvious that imless such liability. were im- posed the law itself might become a dead letter. Moreover, in the absence of restrictive words, the fact that the master is liable does not exempt the servant {Hotchin v. Hindmarsh, 1891, 2 Q.B. 181; Brown v. Foot, 17 Cox 509). The possession of an agent, wife or servant may also affect the principal provided the latter's knowledge and consent are shown {B. v. Reason, 1 Cr. App. E. 79 ; R. V. Pritchard, 109 L.T. 911 ; R. v. Charles, 17 Cox 499 ; R. v. Pearson, 72 J.P. Eep. 449, 451; iJ. v. Mansfield, Car. & M. 140; R. v. Greau, post, 139-40. And, to show a prisoner's knowledge, communications to his wife, brother and brother-in-law, have been admitted {R. v. Chappie, post, 101 ; R. v. Thompson, post, 272). Proof of Agent's Authority. (6) As against the principal, the authority proved may be express, and, when so, must in some cases be in writing, and in some by deed (see post, 110-11, 137-8), or, inferred from the principal's con- duct either in treating the party as agent inter se (Tay, ss. 173, 893), holding him out as such to third persons (Eos. N.P. 549), or adopting prior similar acts by him {Blake v. AWion Soc, 4 C.P.D. 94; post, 97, 99, and chap. xi.). No multiplication of acts by a special agent will, however, turn him into a general agent {Barrett v. Irvine, post, 96; Rutherford v. Ounan, 1913, 1 I.E. 365) ; and the circumstances may be such thfit an agent, though purporting to act for one party to a contract, may be held the agent of the other {post, 99.) In cases of public agency, acting in that capacity is sufficient proof of author- Digitized by Microsoft® 90 THE LAW OF EVIDENCE. [book ii. ity {post, 109-10) ; but where the agency is a private one the mere acts or representations of the agent, without showing the principal's adoption, are generally no proof against the latter (post, 110, 127-8) ; although the princi- pal's own declarations will of course be evidence against himself. (As to the agent's admissions after proof of agency, see post, chap. xix.). The authority of the agent may, however, be limited by law, e.g. that of a Eate-CoUector {O'Neill V. Drohan, 1914, 2 I.E. 41), or by custom, even unknown to those dealing with him {Baines v. Ewing, L.E. 1 Ex. 320; post', 106). Where the agent has contracted with third persons in writing, the agency, if not disclosed therein, may be proved by parol {post, chap. xlv.). So, an unauthorized act may be subsequently ratified, either by the principal (provided the agent purported to act for him at thie time, Keighley v. JDurant, 1901, A.C. 2.40), or by his agent {Morison v. L. & C. W. Banle, 1914, 3 K.B. 356, C.A.). As to a solicitor's privilege in proving his client's authority, see post, 205; and as to proof of agency against the agent or third persons, see post, 127-9. PARTNEES. TRUSTEES. EXECUTORS.. Partners, (c) A similar rule holds. in cases of partnership, each partner being constituted the agent of the others for all purposes within the scope of the joint concern. Hence, after proof of association, the acts, contracts, and representations of each partner which have been expressly authorised, or are impliedly so {i.e. necessary for carrying on the business in the usual way), or which have laeen subsequently ratified, bind the firm and the other partifers (Partnership Act, 1890, ss. 5-8) ; so, as to torts committed in the ordinary course of business, or with the authority of the co-partners {id. ss. 10-12; Hamlyn y. Houston, 1903, 1 K.B. 81; Re Briggs, 1906, 2 K.B. 209; though as to breaches of trust, see s. 13, and Blyth v. Fladgate, 1891, 1 Ch. 337) ; and a partner by '' holding out " is only liable in contract and not in tort in respect thereof {Smith v. Bailey, 1891, 3 Q.B. 403). Notice to any partner who habitually acts in the part- nership affairs also operates as to notice to the firm, except in the case of a fraud on the firm committed by, or with the consent of, that partner (s. 16). [Lindley, Partnership, 7th ed., 145-296]. Proof of Partnership. This may be shown by its previous existence {post, 121) ; or by express agreement between the parties {post, 572) ; or, subject to s. 2 of the Act, by their conduct between themselves or towards third persons (Lindley, 94-104) ; but not by proof of partnership in other transactions {Kennedy v. Dodson, 1895, 1 Ch. 334, C.A. cited post, 166), nor except as against himself, by the admissions of an alleged partner (Lindley, 94; Tay., s. 753). As to limited partners, see 7 Ed. VII. c. 24. As to admissions by part- ners after proof of partnership, see post, 242 ; as to Partnership books, post, 258; acknowledgments under Statutes of Limitation, post, 244; and Judg- ments affecting partners, post, 413-5. [Tay., ss. 598-601, 753; Lindley, sup.; Pollock, Partnership Act; Eos. N. P., 18th ed., 71, 555-558]. Trustees and Executors. In the case of Co-Trustees all must, generally speaking, join in the execution of the trust, and the act of one does not bind the rest (Lewin, Trusts, 11th ed., 284-302) ; but in the case of Co-Executors each has entire control over the property, and his acts do, in many cases, bind the .others (Williams, Exors., 10th ed., 715-27). Now, however, both are, notwithstanding receipts signed for conformity, only liable for property Digitized by Microsoft® CHAP. VII.] AGENCY. rARTNBESITIP, COilPANY, CONS IM RACY. !)l actually received by tlienl, and for their own neglects and defaults and Mot for those of Oo-trustees, bankers, brokers, or agents; nor for any loss that has not occurred through their own wilful default (Trus- tee Act, 1893, s. 34). On the otlier hand, Notice to one of several trustees operates as notice to all, provided the trustee who received the notice is still a member of the trust (Ward v. Duncomle, 1893, A.C., 369; Re Wi/atJ.. 1892, X Oh. 188; Low v. Bouverie, 1891, 3 Ch. 82; Re Phillips, 1903, l' t'h. 183), and is not himself a beneficiary {Lloyd's Bank v. Pearson, 1901, 1 Ch. 865). And, in the absence of rebutting circumstances, notice to one c.recufar will, perhaps, be presumed to have been communicated by him to his co-executors, unless he renounced before acting (Williams, Exors., 1468 ; Re Dallas, 1904, 2 Ch. 385). [As to Admissions by co-contractors, trustees, executors, &c., see post, 243-6; and as to joint contractors, general! v, see GriHiii on Joint Rights]. CORPORATIONS. COMPANIES, (d) A corporation or company is liable for the acts and representations of its directors, or other lawful agents, which are within the scope of their real or apparent authority (Lindley, Company Law, -5th ed., 155-158), even though such acts may be fraudulent {Pearson v. Dublin Corp.. 1907, A.C., 351; Kettlewell v. Refuge Co., 53 Sol. Jo. 339. H. L.), malicious (Citizens Co. v. Brown, 1904, A.C. 423), or quasi-criminal, as in offences tmder the Sale of Food and Drugs Act, 1899 {Chuter v. Freeth, 105 L.T. 238). And, under tlie validating clauses in tlie Companies CI. Cons. Act, 1845', s. 99, the Companies Act, 1908, s. 74, or those ordinarily inserted in Company Articles, this applies, although tlie directors were irregularly appointed, temporarily disqualified, insufficient in number, or act- ing otherwise than at a board meeting; and not only against tlie company in actions by outsiders who have no notice of the irregularity, e.g. that the company's seal was in validly affixed (County of Olos. Bank v. Rudry Co., 1895, 1 Ch. 629; Biggerstaff v. Rowatt, 1896, 2 Ch. 93; Re Bank of Syria. 1901, 1 Ch. 115; Re Fireproof Doors, 1916, 3 Ch. 142: post, r.l6, 518), but for the .company in actions against its members (Dawson v. African Co., 1898, 1 Ch. 6; Briton Association v. Jones, 61 L.T. 384; Montreal Co. v. Robert, 1906, A. C, 196). As to what contracts by a Corporation must be by deed, and what may be by parol, see Tay., ss. 976-84 ; but corporations may be liable on a quantum meruit, though the contract was. not under seal (Hodge v. Matlock, U.D.C., 75 J.P.R. 65, C.A.). The authority of a corporation to institute prose- cutions, and the appointment of solicitors to represent them thereat, should in general, be by resolution, a sealed copy being served on tlie defendants, save in the case of town clerks acting under by-laws (47 L. Jo. 34). Knowledge and Notice. Notice must usually be given to the company itself at its registered office [Comp. (Cons.) Act, 1908, ss. 62, 116] ; but although it is tixe collective and not the individual directors who are the com- pany's agents, yet where one such has authority to act for tlie company, his knowledge of matters witliin its ordinary scope will also affect the company (Lindley, 204-5; Jaeger's Co. v. ^Yalker, 77 L.T. 180). This, however, does not apply to information obtained by him when acting as director of otlier companies, and which it was not his duty to receive or disclose (Re Payne, 1904, 2 Ch. 608), or which he obtained fraudulently (Re European Bk., 5 Ch. Ap. 358), or not as agent in the particular transaction (Peruvian Ry. v. Thames Digitized by Microsoft® 92 THE LAW OF EVIDENCE. [book ii. Co., L.E. 3 Ch. 617); and notice to the director of a "one-man" company, may {Re Hirth, 1898, 1 Q.B. 612, 625), or may not {Bank of Ireland v. Cogry Co., 1900, 1 I.E. 219), bind the latter. So, formal, but not casual, notice to the secretary {Societe Generale v. Tramways Unions 14 Q.B.D. 424, afEd. 11 App. Cas. 20), or even to his clerk left in charge of the office {Be Brewery Assets Co., 1894, 3 Ch. 272), will bind the. company. But knowledge obtained by him when acting for other companies {Ee Fenwick, 1902, 1 Ch. 507), or in other capacities {Building Assoc, v. Smee, 34 L. Jo. 346), will not bind the company, unless it was his duty to communicate it. A railway company has been affected with knowledge of facts proved in the presence of their agent and traffic-manager at a reference to which it was a party {0. W. Ry. V. Sutton, L.R. 4, H.L. 226). Aqts not Binding. On the other hand, (1) a company is not, like an ordin- ary partnership, liable for the acts of its members; indeed the shareholders, merely as such, are not its agents for any purpose whatsoever {Burnes v. Pennell, 2 H.L.C. 497). Nor (2) is it, in general, liable for contracts made before its formation by its promoters or trustees, and such contracts cannot be afterwards ratified by the company, though fresh ones to the same effect may be entered into {Natal Co. v. Pauline Syndicate, 1904, A.C. 120) ; as to fraud by promoters, &c., see, however, Hilo Co. v. Williamson, 28 T.L.R. 164, C.A., and Components Tube Co. v. Naylor, 1900, 2 Ir. 1, 74. Nor (3) is it liable for acts done, contracts made, or knowledge obtained in transactions which are ultra vires. Personal Liability of Directors, &c. The above-named are not individually liable, merely on account of their common object, for the acts or defaults of their colleagues, whether done before, or after, the company's incorporation; nor does the knowledge of the company necessarily bind a director {post, 145-6). But they may, of course, render themselves so liable, either expressly or constructively (Eos. N. P. 558-560) ; and as to untrue statements in the prospectus, &c., by directors, promoters and others, see Comp. (Cons.) Act, 1908, s. 84. As to Admissions by the officers of a company, see post, 247-8 ; as to Corporation and Company Books, post, 145-6, 258, 372-7 ; and as to signature by Directors, chap. xlv. (Exception iv.). CONSPIRACY. CO-TRESPASS, (e) On charges of conspiracy, the acts and declarations of each conspirator in furtherance of the common object are admissible against the rest; and it is immaterial whether the existence of the conspiracy, or the participation of the defendants be proved first, though either element is nugatory without the other (Wright on Conspiracy, 72; R. V. Frost, 9 C. & P. 129, 150; R. v. Whitaker, 10 Gr. App, E. 245), The same rule applies where the charge is not directly for the conspiracy, but for an act resulting therefrom {R. v. Jessop, 16 Cox 204; R. v. Wark, 33 L. Jo. 615). [Tay., ss. 590-597; Russ Cr., 7th ed., 191-201, 2097-8; Best, s. 508; Eos., Cr. Ev., 13th ed., 79, 348-63; Archb. Cr. 1219-1220; Steph. art. 3; Wright on Conspiracy, 68-72] . The above rule holds, although the acts and declarations proceeded from conspirators not charged {B. v. Duguid, 94 L.T. 887) ; or were done in the absence of the party against whom they are offered ; or without his knowledge ; Digitized by Microsoft® CHAP. VII.] AGENCY, PAETNEESHIP, COMPANY, CONSPIRACY. 93 or even before he joined the combination {R. v. Brandreth, 32 How St. Tr. 857; B. V. Murphy, 8 C. & P. 297, 311; R. v. Dwyer, 24 Ir. L.T.R. Ill; R. V. Newton, 147 C.C.C. Sess, Pap. 946-7; Eos. Cr. Ev. 355-6); and the pos- session of one conspirator is that of all {R. v. Charles, 17 Cox 499; ante, 89). Moreover, after overt acts within the jurisdiction have been proved, others done beyond it are receivable (Buss. Cr. 7th ed., 835-7; R. v. Quinn, 33 Ir. L.T.E. 154).- But the acts and declarations of other conspirators, before any particular defendant joined the association, are only receivable against him to prove the origin, character, and object of the conspiracy and not his own participation therein, or liability therefor {R. v. Dwyer, sup.; O'Keefe v. Walsh, 1903, 2 I.E. 681, 702) ; and if they were not in furtherance of the common purpose {e.g. were mere narratives, descriptions, or admissions of past events) ; or were done or made after his connection with the conspiracy had ceased, they will not be admissible against him (Tay., ss. 594-595). So, acts and declarations after the event conspired for has happened, are not generally receivable since these cannot b^ in furtherance of the common purpose {R. V. Wark, 33 L. Jo. 615 ; R. v. Newton, sup.). Still, acts of accomplices after the arrest of a conspirator may be received, if done in pursuance of prior insitructions from^ him (R. v. M'Cafferty, I.E. 1 C.L. 363) ; as, also, writings found after his arrest, but which have existed previously [-B. v. Watson, 32 How. St. Tr. 337-350 ; this applies even to unpublished writings on abstract subjects, if proof be given of an intention to have used them in furtherance of the common design (id.) ; or, possibly, if they were closely connected with its nature and object; though not where the abstract subject is merely of a kindred nature without having any direct relation to the charge, Tay., s. 596] ; and in R. v. O'Brien, 7 St. Tr. N.S. 1, documents found in a locked portmanteau which had been out of the prisoner's possession for several days after his arrest, were received against him. So, the acts of a prisoner after his arrest may be admissible against those who have joined in a conspiracy to release him (R. v. Desmond, 11 Cox 146). If a defendant is tried alone for conspiracy, he may be convicted although his eo-eonspirators do not appear, provided the jury are satisfied that the latter were also guilty (Beechey v. R., 85 L.J.P.C. 32) ; but if tried jointly, one defendant cannot be convicted if the other, or all of the others, are acquitted (R. V. Plummer, 1902, 2 K.B. 339; R. v. Manning, 12 Q.B.D. 241). Where several defendants are charged with a criminal act, but only one unidentified defendant commits it, the jury must, in the absence of proof of a common design, ascertain who was the actual perpetrator, or failing this must acquit all {R. v. Price, 8 Cox 96 ; R. v. White, E. & R. 99 ; R. v. Manning & wife. Wills Circ. Ev., 6th ed., 314-5; R. v. Bird, 5 Cox 11). So, where A. and B. were convicted of felonious damage, the evidence against A. alone being clear, but against B. alone very slight, B.'s conviction was quashed since though there was also evidence of their acting in concert, the jury were not directed as they should have been, that they could convict B. if they were satisfied he was acting in concert with A. {R. v. Ashdown, 12 Cr. App. E. 34). On the other hand, where several defendants commit a single act in concert, each ibay be convicted either of the same, or of different, offences arising thereout (R. v. Connor, 8 id. 153). With this may be compared the rule that in divorce cases the respondent may be found guilty of adultery and the co-respondent not. or vice versa {Long v. Long, 15 P.D. 218; Wright v. Wright, 49 Sol. Jo. 134). Digitized by Microsoft® 94 THE LAW OF EVIDENCE. [book ii. At Common Law, husband and wife, being regarded as one person, cannot be charged with, or convicted of, conspiracy {Director of P. P. v. Blady, 1912, 2 K.B. 89, 92; pos^, 451). Proof of Agreement. To prove the conspiracy, there need not be evidence of direct concert, nor even of any meeting together of the defendants; the agreement may be inferred from collateral acts raising a presumption of the common design {R. v. Murphy, sup.; R. v. Pridmore, 29 T.L.E. 330; R. v. Whitaher, 10 Cr. App. E. 245 ; Wright on Conspiracy, 68-72 ; post, 100-1 ) . And similar acts done by each defendant may be {R. v. Murphy, R. v. Tibbitts, post, 100-1), but are not necessarily {R. v. Warren, post, 100), evidence of concert. Co-trespass. &o. Although in criminal cases it is the agreement which is the essential element, and in civil- ones the resultant damage {Quinn v. Leathern, 1901, A.C. 495, 542; O'Keefe v. Walsh, 1903, 2 I.E. 677, 689, 700), j'et the acts and declarations of co-trespassers in civil actions (R. v. Hardwick, 11 East, 578, 585; PoweZZ v. Hodjetts, 2 C. & P. 432; North v. Miles, 1 Camp. 389; Tay., s. 597)^ and indeed of all. persons combined for a common object whether civil or criminal {Pilot v. Craze, 52 J. P. 311), are governed by the ■ same rules. The extension of this- principle, Wright v. Court, 2 C. & P. 332, where expressions of malice used by one of the defendants some weeks after the transaction were admitted against the others, is doubted in Tay., s. 597, and would probably not now be supported; cp. R7 y. Wark, sup. The acts and declarations of joint-tortfeasors are not, however, reciprocally admis- sible unless combination for a common object be proved {Daniels v. Potter, M. & M. 501, distinguishing R. v. Hardwich, sup.). As to admissions and Confes- sions by co-defendants, see post, chaps, xix, xxi. ; and a^ to the admissibility of statements in rebuttal of charges of conspiracy and collusion in divorce cases, see Parulli v. F., post, 156. EXAMPLES, (o) Agency. Admissible. Inadmissible. A., a horse-dealer, instructs B., his ser- A., a private owner, instructs B., his vant, to sell a horse without a warranty. servant, to sell a horse without a warranty B. sells the horse with a warranty. to a private purchaser ; B. sells the horse The sale and the warranty bind A., as be- with a warranty. The sale, but not the ing within the usual course of a horse- warranty, binds A., as B. had no express dealer's business (Haward v. Sheward; L. or implied authority to give the latter R. 2 CP. 148). {Brady v. Todd, 9 C.B.N.S. 592; aliter, perhaps, if the horse were sold at a public fair or mart). A., as solicitor for B., obtains judgnaent A., as solicitor for B., a judgment cred- against C, and, without instructions from itor of C, issues execution against C, B., issues execution against G.'s goods. — giving the sheriff special directions as to B. is bound by A.'s act, as being wi.thin particular goods. — ^B. is not bound by such the ordinary course of a solicitor's busi- directions {Smith v. Keal, opposite) ; ness {Smith v. Keal, 9 Q.B.D.. 340 ; Mor- neither is he where, on the instruction ris V. Salberg, 22 Q.B.D. 614). merely of B.'s bookkeepei-, A. wrongfully A. entrusts property for sale to B., causes D.'s goods to be seized by mistake managing clerk to C, a solicitor,, and gives {Hewitt v. Spiers and Pond, 13 T.L.E. him the title deeds. B. fraudulently and 64). for his own benefit, sells the property. Held that C. was liable to A. for B.'s acts {Lloyd V. Orace, 1912, A.C. 716). A. sues B. for neglii,. VII.] AGENCY, rAETNERSHIP, COMPANY, COxYSITRACY. 101 Admlssihlc. took over with the biisiuc'ss iu August, wei-e not paid for {R. v. Chai>p}e, 17 Cox. 453 ; c;>. ante, SO). A. and B., employees at the Custom House, are charged with conspiring to pass goods through the Custom House witliout paying full duty. — False entries made in the books, for tlie purpose of carry- ing out the fraud by A. are admissible against B. [jB. v. Stake. 6 Q.B. 126. As to what acts. &c., are admissible as parts of the transaction in a seditious conspi- racy, see /?. V. Hunt, ante, 71], A. (au army otticer) is cliarged with B. & C. agents for D., a contractor, with conspiring to take bribes to obtain con- tracts for D. Evidence having been given that A. had, at dates corresponding with the contracts, received -cheques drawn ou B.'s bank, the funds for which were sup- plied by D. ; — a letter written by B. to C. as follows : " A. writes me to send him his six-months cheque privately as before. This I have . done, £150. He adds—' I suppose the contract will require renewal. Let me hear. I have not yet met C, but hope soon to do so' " : — Held admissible against A. (7?. v. Whitakcr. 10 Cr. App. E, 245, 247. 2.-)l). A. and B. are charged with conspiracy to defraud 0. by a deed which falsely rep- resented that A. owned certain property. B.'s defence is that he honestly believed the representation, but was duped by A. Letters between A. and B. (not eoramuni- ciited to C.) prior to the execution of the deed, in which A, made similar i-epreseu- tations to B., held admissible, under the peculiar circumstances, for B., and as part of the correspondence had been put in against him (If. v. Whitehead, 1 Dowl. & Ry. 367-8, cited, post, chap, x.. Examples). . A. and others are charged with conspir- ing to defraud by means of a mock-auction. Detetfce that they were merely acting as the servants of B., the proprietress. The fact that B. was living with A. as his mistress, is relevant to rebut A.'s defence [R. V. Kiirasch, 1915, 2 K.B. 749; this fact was held admissible on A.'s cross- examination, notwithstanding the Cr. Ev. Art. 1898. s. 1 (/) ; post, 454]. A. and B. are charged with conspiring to annoy C, a broker, who had distrained for church rates ; — evidence that A., in the presence of B.. excited several persons at a public meeting to go riotously to C.'s house, and tluit such persons did so go, is " admissible against A. and B., though neither of them went to C.'s house {R. v. Miirphu, 8 C. & P. 297. 311). Inadmissible. and (2) the stiitemonts not being made by, or to, iiny of the defendants (Dennhij Collieries v. Yorkshire Miners' Assocn., Times, Jany. oO, 1904. Sed qu. as to both points ; and with regard to the first, oni' of the issues was whetlior those who signed on were willing, or intended, to return to work when signing) . A., and B., employees iit the Custom House, are charged with conspiring to pass goods through the Custom House without ' paying full duty. — An entry made by A. on the counterfoil of his own cheque-book showing how he had shared the proceeds of tlie transaction with B. is not admissible against the latter, not being in furtherance of the common plot (R. v. Blake, oppo- site) . So, where A. B. & C. were charged witli conspiring to defraud tlie Ministry of Miinitions and bribe its oiBcials, A.'s books showing payments by him to B. & C. were held inadmissible against them {R. v. Pol- laek. 4th Oct. 1920, per Swift, J., ex rel. See Daily Telegraph, Oct. 5th, 1920). A. and B. are charged with conspiracy to defraud C. by falsely pretend'ing that A. owned certain property. B.'s defence is that he honestly believed the represen- tation, but was duped by A. Letters be- tween A. and B. written subsequently to tlie transaction and regarding it, held in- admissible for B. (R. V. Whitehead, op- posite). In R. v. Murphy (opposite), evidence of what one of the persons who was at the meeting said, when he. himself was being distrained on for church rates, is not ad- missible against A. or B. Digitized by Microsoft® 103 THE LAW OF EVIDENCE. [book II. Admissible. A. and B. are indicted for conspiracy. A letter written by A. to B., but never re- ceived by B., in which A. described the proceedings which had already been taken as an encouragement to B. to proceed in the concern, is admissible against B. as an act done in furtherance of the common plot {R. V. Hardy, 24 How. St. Tr. 473- 477). A. and B. are charged with conspiracy to murder an infant of which B. was then pregnant ; — A. writes an incriminating letter at 4 p.m. the day before the birth, which letter is intercepted and never reaches B. The child was 'born at 1 a.m. the next day, before the letter would in the ordinary course reach B. Held, in the absence of finything to counteract the letter, the jury might find that A.'s act continued until the letter was delivered at B.'s house ; and (1) that if it had reached B., A. might have been convicted of incit- ing B. to commit murder ; but that (2) as it did not reach B., either A. or B. might be convicted of the attempt (R. t. Banks, 12 Cox, 393). So, where A. wrote letters to B. inciting him to murder C, which letters were in- tercepted and never reached B. ; — A. was held guilty of the attempt, though not of the incitement (R. v. Krause, 18 T.L.R. 238 ; R. v.. Fox, 19 W.B. 109 ; R. v. Rons- ford, 13 Cox, 9; and op.. R. v. Cooper, 1 Q.B.D. 19, cited, post, 181). A. is charged with the murder of B., re- sulting from an abortion which A. and B. conspired to procure on July 22; — evi- dence bj a doctor that B. called on him in June and asked for a remedy for her condition, is adtnissible against A. as an act in furtherance of the common purpose (R. v.Wark, 33 L.Jo. 615). A. is charged with the murder of B. in pursuance of a conspiracy for both to take poison. A confession by A. that they so conspired is admissible to prove the agree- ment; and acts and declarations by B. when buying the poison to carry out the plan are also admissible against A. (R. v. Jessop, 16 Cox, 204; ante. 80). Inadmissible. A. and B. are indicted for conspiracy. A letter written by A. to C. (not a mem- ber of the conspiracy), describing the pro- ceedings already taken, and enclosing songs composed by A. and sung thereat, is not admissible against B., not being a trans- action in support of the conspiracy (R. v. Hardy, 24 How. St. Tr. 451-453).— A con- versation held by D. and E., two other members of the conspiracy, on their return from a meeting of the conspirators, and about an hour after the meeting, held also inadmissible against A. and B. (i2. v. O'Connell, 1 Cox, 403). So, a conversa- tion held by A. with a witness who was not a conspirator, in which A. expressed himself as opposed to co-operating in the conspiracy, is not admissible in A.'s favour (R. v. O'Donnell, 7 St. Tr. N.S. 650-652 ; aliter as to a similar conversation held with a fellow conspirator, id. ; and see R. V. Whitehead, sup.). In R. V. Work (opposite) the doctor was not allowed to state any narrative related to him by B., except such as was strictly necessary tQ explain the request. So, a diary kept by B., incriminating A., and a letter intended for, but not sent to, him, both written after the abortion, were rejected as not in furtherance of the com- mon purpose (cp. R. V. Gloster, 'do., ante, 84). Digitized by Microsoft® ( 103) CHAPTEK VIII. PACTS EELEVANT TO PEOVE THE MAIN FACT. FACTS LOGICALLY RELEVANT, (a) Pacts which, as a matter of ordinary logic of experience, tend to render the existence of the main fact probable or improbable, e.g. those which are only or chiefly consistent with its existence, and in rebuttal those which are inconsistent, or show it to have been impossible, — are relevant and in general admissible. Such facts may themselves be proved either by direct testimony or by circumstantial evidence {i'.e. by other relevant facts) . On the other hand, facts which, though not wholly irrelevant, tend merely to create prejudice, confusion of issues, or waste of time, may, and generally will, be rejected [ante, 49-50. As to facts which are irrelevant in the sense of beiag. excluded by the pleadings, or substantive law, see ante, 27]. Belevant Statements. Statements tendered imder the last two, the pres- ent, and the next two chapters are, it is to be observed, receivable purely as original evidence, and not to prove the truth of any of the facts they assert {ante, 5-6; post, 218). And even as original evidence they are not neces- sarily and in all cases admissible. It is, indeed, sometimes said that statements which are used circumstantially and not testimonially are just as admissible as other, relevant facts {ante, 60-1; Chamberlayne Ev. Vol. IV., Introd. p. ix; so, in WiUs, Ev. 2nd ed., 92, " as soon as, a statement is shown to be a relevant fact it is at once admissible as such.") This, however, is by no means the case. The fear of misuse by the Jury has always caused the admission of statements of every kind to be jealously guarded, so that even where logically, relevant they are often excluded, quite irrespective of the hearsay rule. Thus declarations not complying with the rules as to (1) Bes gesta \(mte, 58-9), (2) Ancient possession {post, 112-3), (3) Complaints {post, 113-5), (4) Cor- roboration of witnesses {post, 485-94), or (5) Eefreshment of memory (469), respectively, will be rejected, though logically relevant, and though not offered- to prove the truth of their contents. So, also, with declarations (6) contradicting entries made in the course of duty {Stapylton v. Clough, post, 288, 293), or (7) impeaching an attesting witness's signature {Stobart v. Dry den, post, 277); and for miscellaneous cases, illustrating the same point, see B. v. Shippey, post, 139; Shrewsbury v. Blount, and B. v. White- head, post, 155. Even where a statement is used Inerely as original evidence, therefore, it is generally -subject to some further test than that of mere logical relevancy, before it will become admissible. The following are some of the specific classes of facts which may be tendered as relevant to prove or disprove the main fact : — PEEVIOTIS AND SUBSEftUENT EXISTENCE OF FACTS. Continuance. (&) States of mind, persons, or things; at a given time may in some cases be Digitized by Microsoft® 104 THE LAW OF EVIDENCE. [tjook ii. proved b}' showing their previous or subsequent existence in the same state, there being a probability that certain conditions and relationships continue. The presiuiiplioii of continuance, which is one of fact and not of laWj will however weaken with remoteness of time, and only prevails till the contrary is f^hown, or a different presumption arises from the nature of the case. Moreover, tlie continuance of unlawful conditions will not generally be presumed. (I'rice V. Worwood, 4 H. & N. 513, 514). [Tay., ss. 196-205; Best, ss. 405-410; Euss. Cr., 7th ed., 2061-2 ; Whart., Civ. Ev. ss. 1284-1296.] Previous Existence, The presumption from previous existence has been held to apply to human life \^R. v. Harborne, 2 A. & B. 540; Lapsley v. Grierson, 1 H.L.C. 498 ; Re Phene's Trusts, 5 Ch. App. 139 ; Re Perton, 53 L.T. 707, 710; R. v. Lumley, L.R. 1 C.C. 196; in which cases it was held that, though there was no presumption of law as to the continuance of life, an inference' of fact might legitimately be drawn that a. person alive and in health at a certain time was alive a short time after; while in R. v. Willshire, 6 Q.B.D. 366, and R. v. Jones, 15 Cox 284, this doctrine was further extended, proof that A. was alive in a certain year being held evidence that A. was alive respectively eleven and seventeen years later. In Re Perton, sup., Chitty, J., remarked that the presumption of the continuance of life in ordinary cases does not apply in criminal ones, where the question is' one for the jury on the facts {ante, 26). As to the counter presumption of death from not being heard of for seven years, see post, chap, xlviii.] ; marriage {R. v. Jones, and R. V. Willshire, sup.; but cp. R. v. Gurqeniven, 10 Cox 152) ; sanity {Dyer Sombre v. Troup, Deane Ecc. R. 38; 8utio7i v. Sadler, 26 L.J.C.P. 284); insanity {Smith v. Tehhitt, L.E. 1 P. & D. 398; Banks v. Goodfellew, L.E. 5 Q.B. 549, 570) ; religious opinions {Att.-Gen. v. Bradlaugh, 1 C. & E. at 467-469) ; partnership {Brown v. Wren, 1895, 1 Q.B. 390) ; agency (see Smout V. Ilhery, 10 M. & W. 1)'; seisin (Best, s. 405) ; tenancy (see Pichett V. PacJcman, 4 Ch. App. 190) ; possession of land {Magdalen Hosp. v. Knotts, per Fry, J., cited yost, 120) ; domicil (see Dicey on Domicil) ; the holding of a public office {R. v. Budd, 5 Esp. 230; Steward v. Dunn, 12 M. & W. 655; aliter if the office .be an annual one) ; the settlement of a pauper- {R. v. Tanner, 1 Esp. 304) ; the existence of a debt {Jackson v. Irvin, 2 Camp. 50 ; cp. post, 118), or of a custom {Scales v. Key, 11 A. & B. 819) ; the stamping of docu- ments {post, 532) ; or the driving of motor-cars {Beresford v. St. Albans, 22 T.L.E. 1, cited post, 121). So it may apply to the existence of a party's knowledge or intention where his previous knowledge or intention is shovra {rmte, 65, post, 148). As to the continuance of parental influence, see Lond. & W. Loan Co..y. BiUon,'27 T.L.E. 184; and of an adulterous connection, Turton v. T., post, 121. Subsequent Existence. The above probability may also operate retrospect- ively. Thus, the fact that an adult person was alive at a given date would be conclusive that he was alive at a prior date. So, proof of official character at a certain time is evidence of official character within a reasonable time before {Doe v. Young, 8 Q.B. 63; cp. R. v. Cork, J J., 1914, 2 I.E. 249, 256-7). The fact that a ship has, shortly after sailing, and without visible caiise, be- come unseaworthy, is evidence that she was unseaworthy at the time of sailing {Pickup V. Thames Ins. Go., 3 Q.B.D. 594 ; Ajnm v. Union Ins Co. [1901] A. C. 362). And where a title to certain payments accrued in 1833, proof that tliey had been made from 1866 to 1877 was held evidence that they had Digitized by Microsoft® ciiAi>. viii.] FAl'TS RELEVANT TO PEOVE MAIN FACT. 105 also been made from 1833 to 1866 {Sanders v. S., 19 Ch. D. 3?;!; cp post, 117; and see Brisiow v. Cormicaii, 3 App. C'as. 641, 669-70, where acts of ownership from 1837 to 1872 were held evidence of similar acts from 1661 to 1837). So, a letter received unsealed was inferred to have been so posted (/?. V. Burdett, -i B. & Aid. 95, IS-l) ; and insufficient distress on premises at a certain date has been held some Evidence of such insufficiency at a prior date {Doe V. Fiichau, 15 East., 286). As to subsequent knowledge and intention being evidence of prior knowledge and intention, see ante, 65. and post, 148. COURSE OF BUSINESS, (c) To prove tliat an act has been done, it is admissible to' prove any general course of business or office, whetlier public or private, according to which it would ordinarily have been done; there being a probability tliat tlie general course will be followed in the particular case. [Tay., ss. 179-183; Best, s. 403; Eos. N.P. 43; Steph., art. 13; as to course of business to interpret documents, see post, chap, xlvi.] Public Offices. Post Office. This probability is especially strong in the case of public offices, c.(j. the Post Office, and has in several instances received statutory recognition. Thus: Where an Act passed after the commeuceincut of this Act authorizes or requires any document to be served by post whether the expression ' serve ' or the expression ' give ' or ' send,' or any other expression be used, fiien, unless the contrar.v intention ajypesrs, the service shall be deemed to be effected by properly addressing, prepaying and posting a letter containing the documents, and. unless the eonti-ary is proved, to have been effected at the time at which the letter would have been delivered in the ordinary course of post [Interpretation Act, 1889, s. 20; R.S.C. ISSS. O. 07. B. 3; cp. }\atts v. VicVers. 86 IJ.J.K.B. 177 C.A. : as to proof of posting and delivery, see post, 122], Under tl»e Valuation (Metr.) Act, lSt>0. ss. 9, 65, the due postage of notices is conclusive evi- dence of their receipt, tliough nut in fact received (R. 'v. Westminster dr. Cominittcc. .1917, 1 K.B. 832). Moreover, when it is within the contemplation of the parties that the post may be iised, but not otherwise, a contract is complete when tlie acceptance is posted {Diinlop v, Higins. 1 H.L.C. 381 : Henthoni v. FrasPr. 1892, 2 Ch. 27, C.A.: Bruner v. Moore, 1904, 1 Ch. 305 -, Will-ins v. McGinity, 1907, 2 I.E. 660), and the same rule has been applied to a letter constituting a breach of conti"act {Holland v. Bennett. 1902, K.B, S67), or an assignment of property {Alexander v. Steinhardt, 1903, 2 K.B. 208 ; but see 20 Law^Q. Eev. 8), tliough not to one countermanding payment of a cheque {Curtice v. London, d-c., Banl-, 1908, 1 K.B. 293). As to how far records kept at tlie Post Office, (Src, are admissible as public documents, see post, 348. Private Offices. Evidence of the general practice in private offices or employments {Lucas v. Xovosiliesl-i, 1 Esp. 296; Eran^ v. Birch, 3 Camp. 10; post, 122), as distinguished from the personal habit of individuals {post, 158), may also be given for the same purpose. CUSTOM AND USAGE, (rf) Usage is admissible to nnne.r une.rpressed incidents (provided they are not inconsistent with those which are expressed) to oral or written contracts, grants, or wills ; it being presumed that the parties have not intended to express the whole of their meaning in words, but tacitly to adopt the usaijes of the jiartieular market or place {Hvtton v. T1'(7)-;th. 1 M. & W. 466; Vashu'ood v. Maqniared, either from memory or from a photographic copy, with the latter {Arbon V. Fussell, 3 P. & F. 152; McCullough v. Munn, 1908, 2 I.E. 194 C.A. cited, post, 125; cp. Liicas v. Williams, ante, 47) and the latter must also be duly proved therein {Wilson v. Thornbury, 17 Eq. 517; Hughes y. Dinorbin, 32 L.T.O.S. 271). The comparison may include the general character of- the writing; the forms, or relative number of diversified forms, of the letters; the use of capitals, abbreviations, stops and paragraphs; the mode of affectirig erasures, interlinesilions, and corrections; the orthography of words, gram- matical construction of sentences, and style of composition; the use of peculiar expressions, and the fact of one or more of the documents being written in a feigned hand (Tay., s. 1872). The documents used for comparison need not be relevant nor admissible for any other purpose {Birch v. Ridgway, 1 F. & F. 270; Gresswell v. Jachson, 2 F. & F. 24 ; Brookes v. Tichhome, 5 Ex. 929, where to pro^e the authorship of an anonymous letter, ■ documents not connected with the case were produced to show that the same peculiarities of spelling existed as in the disputed writing) ; nor have been written ante litem motam. And the comparison may be made either by witnesses acquainted with the writing, or by experts, or, without the help of either, by the jury (Tay,, s. 1870; Cohbett v. Kihniiisfer, 4 F. & F.' 490; R. V. Smith, 3 Cr. App. E. 87 ; though in E. v. Hnrrri/. cited ante. 8, Blackburn, J., in the absence of expert testimony to assist the jury, rejected the evidence ; and see R. v. Richard, 13 Cr. App.E. 140). It has been doubted wh^her fictitious specimens may, on cross-examination, be submitted to a witness in order to impeach his testimony; but I\lr. Taylor's opinion sanctions 'this Digitized by Microsoft® CHAP. Till.] FACTS RELEVANT TO PROVE :\IAIN FACT. 109 course (8th ed.; s. 18T3), and it has been frequently employed in practice (see, e.g. Reminiscences of Lord Brampton, vol ii., pp. 16-17). The party whose writing is in dispute may also be required to write, for the purpose of comparison, in the judge's presence, and such writing will then itself be admissible {Dae v. Wilson, 10 Moo. P.C. 503, 530; Cobbett v. Kilminster, sup.) ; as also will specimens voluntarily written by the accused before trial, when detained by the police for enquiries, although not cautioned (R. v. Voisin, 13 Cr. App. R. 89), or written since the trial and tendered on appeal (R. V. Smith. BCT.App.B.. 87). Ancient Documents. Though the genuineness of documents more than thirty years old is usually presumed (post, chap, xlii.), yet where the hand- writing must be proved in order to establish identity, this may be done by comparison with other ancient writings shown to have come from proper custody and to have been uniformly treated as genuine (Ros. N. P. 148; Tay., 8.1874). Food and Drugs. The Pharmacopoeia is admissible as a standard for the • composition of drugs (post, -380) ; but it is not conclusive and does not exclude evidence of a commercial, but inferior, standard {Boots v. Cowling, 30 Cox 420). As to commercial standards in cases of food, e.g. lardine, see Rudd v. Skelton Soc, 75 J.P. Rep. 326 ; 75 J.P. Jo. 362. Market Value. As to standards of value in the case of property, see post, 163. ACTING IN A CAPACITY, OR UNDER DOCUMENTS. (/) Acting in a public or official, but not generally, in a private, capacity or relationship is prima facie evidence of title thereto, even in favour of the party so acting, or even between strangers. [Tay., ss. 171-175; Best, ss. 353-365; Ros. N. P. 43-44; Whart, Civ. Ev., ss. 1297-1309.] Principle. The admission of such evidence rests partly on the principle that, the law presumes in favour of the regularity of acts and against misconduct and bad faith {post, chap, xlvii.) ; and partly on the consideration that the invalidity of an act or appointment is more liable to detection when of a public, than when of a private, nature (Best, ss. 353, 358). So, as applied to property, acts of ownership are receivable not as admissions, but as showing possession, and thus proving title {Jones v. Williams, 2 il. & W. 326, 327, per Parke, B.). Public Capacity. Thus, the incorporation of a public company may be proved in its own favour by trading as such {R. v. Langton, 2 Q.B.D. 296 ; cp. R. V. Boaler, 67 L.T. 354), or issuing invoices and receipts in the company's name {R v. Webb, 37 Sol. Jo. 215, per Cave, J.) ; and the appointment of directors and managers by their acting as such {R. v. Lawson, 1905, 1 K.B. 541). So, user is evidence, even ajs;ainst strangers, of a license lo use a public building, e.g. a church {R. v. Cresswell, 1 Q.B.D. 466 ; rp. 7 & 8 Vict, c 45 s. 2), or theatre {Rodwell v. Redge,\ C. «& P. 320) ; though where notice of a license is required to be exhibited, the absence of such notice is evidence of the absence of a license {Gregory v. Tuffs, 6 C. & P. 271) ; and tinder the Lunacy Act, 1890, s. 329, non-production of the license of a building raises a presumption of its non-license. Similarly, where local authorities have made a rate under an Act, compliance with the statutory formalities will be presumed {R. v. Reynolds, 5 R. 423). Digitized by Microsoft® 110 THE LAW OF EVIDENCE. [book ii. Acting in a public office is evidence for or against the party, or between third persons, of due appointment thereto, although the appointment is required to be by deed {Doe v Brawn, 5 B. & Aid. 243), or is directly in issue (Dexter v. Hayes, 11 Ir. C.L.R. 106), or the acting took place but once and the proceedings are criminal (B. v. Boberts, 14 Oox 101; cp. B. v. Lawson, sup.). The following official appointments have been held so provable: — Lords of the Treasury {B. v. Jones, 2 Camp. 131) ; Masters in Chancery (Marshall v. Lamb, 5 Q.B. 115) ; Deputy County Court Judges (B. v. Boberts, sup.); Commissioners for Oaths (B. v. Newton, 1 C. & K. 469, 480; B. v. Howard, 1 Moo. & Bob. 187) ; Surrogates (B. v. Verelst, 3 Camp, 432) ; Sheriffs (Bunbury v. Matthews, 1 C. & K. 380) ; Under-sheriffs (Doe v. Brawn, sup.; Bobinson v. ColUngwood, 1.7 C.B.N.S. 777) ; Justices, Constables, and WatchHien (Berryman v. Wise, 4 T.E. 366; even where the latter are appointed under local Acts, Butler v. Ford, 1 C. & M. 662) ; Eeplevin clerks (Faulkner v. Johnson, 11 M. &. W. 581) ; Post Office officials (B. v. Bees, . 6 C. & P. 606) ; Churchwardens and Overseers (Doe v. Barnes, 8 Q.B. 1037) ; Vestry-clerks (M'Gahey v. Alston, 2 M. & W. 306) ; Trustees under a Turnpike Act (Pritchard v. Walker, 3 C. & P. 212), or under a local Act to raise rates for building a church (B. v. Murphy, 8 C. & P. 310) ; bank-directors (B. V. Boaler, 67 L.T. 354) ; weigh-masters of market-towns (McMahgn v. Lennard, 6 H.L.C. 970; Dexter v. Hayes, sup) ; and attested soldiers in the recruiting service (Wolton v. Gavin, 16 Q.B. 48). The same rule also applies to the due qualification of a solicitor (Berryman v. Wise, sup. ; Pearce V. Whale, 5 B. & B. 38,' though not to the relationship of solicitor andclient, inf.); surgeon (Gremaire v. Le Clerk, 2 Camp. 144; Cope v. Rowlands, 2 M. & W. 160, though in an action for fees, registration must be proved, 21 & 22 Vict. c. 90, s. 32) ; or incumbent (Bevan v. Williams, 3 T.R. 635 n; Bemyman v. Wise, sup.; Pearce v. Whale, sup., though mere acting as such has been held not sufficient to admit declarations in the course of duty by a deceased rector, Miller v. Wheatley, 27 L.R.I. 144; post, 290-91); and the rule has also been extended by statute to officers of excise (53 & 54 Vict, c. 21, s. 24), and customs (39 & 40 Vict. c. 36, s. 261). Where a witness stated ,that he was an Inspector under the Pood and Drugs Act, 1875, this was held sufficient proof without production of the sealed appointment (Boss V. ffeZm, 1913, 3 K.B. 462). Private Capacity. Generally, however, private relationships cannot, except as against the parties acting, be so established, e.g. those of executor or administrator (Best, s. 357; Ros. N.P. 119); solicitor and client (Bright v. Legerton, 2 De G. P. & J. 606) ; tithe-own,er and tithe-collector (Short v. Lee, 2 Jac. & W. 464, 468) ; or bankrupt and assignee (Pasmore v. Bousfield, 1 Stark, 296) ; though it is otherwise in the case of master and apprentice, landlord and tenant, and co-partners (B. v. Fordingbridge, post, ]28) ; and cohabitation is some evidence of a valid marriage, its weight vary- ing with circumstances (Doe v. Fleming, 4 Bing. 266 ; Hamblin v. Shelton, 3 F. & F. 133 ; B. V. Wilson, 3 F. & F. i22 ; and see presumptions, post, chap, xlviii.) As against the parties themselves, however, acting in a capacity is, in civil cases, generally, and even in criminal cases sometimes (B. v. BeacaU, 1 C. & P. pp. 313, 457; B. v. Simons, 117 C.C.C. Sess. Pap. pp. 563-3; contra, B. v. Taylor, 10 Cox 544) sufficient proof ; though, where the appoint- ment is by written contract (B. v. Clapton. 3 Cox 126; B. v. Dodson, 63 Digitized by Microsoft® CHAP.viii.J FACTS EEIjEVANT TO PEOVE MAIN FACT. Ill J.P. 729), and not mere resolution- {R. v. Stacy, 96 L.T. Jo. 314), and its terms are material, parol evidence will be inadmissible if the document itself can be produced {cp. ante, 89-90, post, 128, 570). Acting under Documents. The existence, execution, and (as secondary evidence) contents of lost documents may sometimes be proved by the parties to them having acted thereunder. Thus, long possession of land is evidence of the existence of a lost grant (4los. N. P. 39-41). And the same principle has tieen applied to a lost indenture of apprenticeship {R. v. Fordingbridge, post, 128), and assignment of a patent {Dennison v. Ashdown, id.). But where the acts, or course of dealing, of the parties are equally consistent with an affirinative or negative view, they will be inadmissible {Smith v. S., post, 128). So, the course of dealing between the parties may be proved to supplement a written contract, if incomplete, though not if complete [Pontifex v. Hartley, 62 L.J.Q-.B. 196; post, 590], as also to affect the construction of documents {post, chap! xlvi.. Rule v.) ; though not generally ~^to vary or contradict the written terms [Ford v. Yates, 2 M. & G. 549 ; see as to this case, jpost, 591]. ACTS AND DOCITMENTS SHOWING OWNERSHIP, {g) Title to real and personal property may be inferred from acts of ownership done by the party for or against whom they are tendered, e.g. possession, receipt of rents and pro|Lts, or the discharge of the burdens {e.g. Taxes, Eirhy v. Cowderoy, 1912, A.C: 599) and repairs of the property. Planting or felling timber is also, evidence of a right to the soil {Doe v. Arhwright, 5 C. & P. 575 ; St. Leonards V. Ashhurner, 21 L.T. 595). And a perambulation by the lord is evidence of the limits of the manor, eyen §,gainst persons ignorant of it; declarations at the time of the perambulation being also admissible as parts of the res gesta {Woohoay v. Bowe, 1 A. & E. 114; ante, 71; post, 296). Similarly, user of an easement is evidence of title thereto, the character of the user deterniin iug the extent of the easement {Cowling v. Eigginson, 4 M. & W. 248; Gingell v. Stepney Council, 1906, K.B. 468) ; though as to undefined user, see Robinson V. Cowpen Board, etc. p»st, 115. So, the existence of a right is generally prima, fade evidence of its concomitant rights and liabilities, e.g. a right to a several fishery is evidence of ownership of the bed of the river, and vice versa {A.-G. V. Emerson, 1891, A.C. 649; Beaufort v. Aird, 20 T.L.E. 602; Carlisle v. Graham, L.R. 4 Ex. 361, 368). Acts of ownership are also receivable to determine the extent of an ambiguous 'grant {A.-G. v. Vandeleur, post, chap, xlvi., rule v.). For specific acts and documents admissible to show ownership of Land, Common^, Ways, Fences, Fisheries, Tolls, Minerals, Bridges, Highways, Manors, and Advowsons, see Examples, post, 129-33. As to Assessments to land-tax as evidence of seisin, see post, 361; as to acts of ownership done to places other than the locus in quo, but connected therewith, post, 167-8; and cp. Declarations by deceased persons as to public rights, post, chap, xxv., and against proprietary interest, post, chap, xxiii.; and as to evidence to rebut presumptions of ownership, see post, chap, xlviii. [Tay., ss. 123-142; Best, ss. 366-399; Eos. N. P., 18th ed., 34, 38-41, 748, 914, 1024; Steph. art. 5 ; Williams and Yeats on Ejectment, 227-52.] Principle. Acts of ownership are ^receivable not as admissions, but as original evidence, for or against either party {sup. 109). And in rebuttal, proof is admissible of their non-existence ;^ or that they were disputed, or done in Digitized by Microsoft® 112 THE LAW OF EVIDENCE. [500K 11. the absence of persons interested in disputing them ; or, in some cases, of acts of ownership done by strangers not claiming through the alleged owner. Scope of Rule. Actual possession, or receipt of rent from one who has such, is prima facie evidence, even against strangers, of the highest title to the property in question, i.e. of seisin in fee of lands {Jayne v. Price, 5 Taunt. 326 ; Daintry v. Brocklehurst, 3 Ex. 207), or the absolute ownership of chattels; and undisturbed possession as tenants is presumptive evidence of due payment of rent {R. v. Exeter, L.E. 4 Q.B. 341, 345). But it must be remembered that when possession or dispossession has to be inferred from equivocal acts, the intention is all-important, and where they are equally consistent with some different object, the animus possidendi will not be inferred {Litthdale v. Liverpool Coll. 16 T.L.E. 44; Leigh v. Jack, 5 Ex. D. 364; Philpot v. Bath, 1905, Times, June 30). When possession is proved, however, the presumption of title therefrom increases with length of time and absence of interruption, and in many cases becomes absolute after fixed periods, e.g. under the Prescription Act, 1832, and the Real Property Limitation Act, 1874. ANCIENT DOCUMENTS AS EVIDENCE OF ANCIENT POSSESSION, {h) Ancient documents {i.e. over 30 years old, see post, 523-4) produced from proper custody and by which any right of property purports to have been exercised, are admissible, even in favour of the grantor or his successors, in proof of ancient possession [Tay., ss. 658 — 67; Eos. N.P., 18th ed. 53-4; ^teph., art. 5]. Principle. Such documents are sometimes thought to be admissible by exception to the hearsay rule (Tay., s. 658) ; but this is incorrect. They are received not as proving the truth of the facts stated, but merely as presumptive evidence of possession. Thus, a demise by copy of ancient Court Roll is an assertion of a right of ownership, and enjoyment under it is evidence of ownership (A.-G. v. Emerson, 1891, A.C. p. 658, per Ld. Herschell). The grounds of admission for this purpose are two-fold — necessity, ancient possession being incapable of direct proof by witnesses; and the fact that such documents are themselves acts of ownership, real transactions between man and man, only intelligible upon the footing of title, or at least of a iond fide belief in title, since in the ordinary course of things men do not execute such documents without acting upon them {Malcolmson v. O'Dea, 10 H.L.C. 593; Bristow v. Gormican, 3 Ajpp. Cas. 641^668; Blandy- Jenkins v. Dunraven, 1899, 2 Ch. 121; Johnson v. O'NeW; 1911, A.C. 552, 569). Qualifications. (1) The documents should purport to constitute the tran- sactions which they effect; mere prior directions to do the acts, or subsequent narratives of them, being inadmissible (id). Thus, though expired leases, licenses, and grants may be te"ndered, even against strangers, to show ancient possession of the property demised, or reserved from the demise, recitals therein of other documents or facts will be rejected, except as admissions (Bristow V. Gormican sup., at p.' 662). Counterparts of leases are similarly admissible, although executed only by lessees not shown to have held under them, and though no excuse be given for the non-production of the original leases executed by the ancestor {id,; Doe v. Pulman, 3 Q.B. 662; Magdalen Hasp. V. Knotts, 8 Ch. D. 709; Tay., s. 427). So, accepted, though not unaccepted, proposals for leases {Powell v. Heffernan, 8 L.E.I. 130, 143), and' claims and assertions of right made and submitted to, with the documents Digitized by Microsoft® OHAP.yiii.] FACTS EELEVANT TO PEOVE MAIN PACT. 113 establishing these, are receivable under the present head {Malcolmson v. O'Dea, 10 H.L.C. 593, 611-13; Miller v. WheatUy, 28 L.E.I. 144, 163-4; Blandy- Jenkma v. Dunraven, sup.; post, 399). Judgments, convictions and awards inter alios have also been admitted, even on questions of prvodte right, as acts of ownership, to explain ancient grants {Brew v. Haren, I.E. 9 C.L. 29; 11 C.L. 198 ; postj chap, xlvi) ; such documents, however, are usually tendered as being in the nature of reputation and so as admissible only on questions of public interest {post, 298, 306; Neill v. Devonshire, 8 App. Cas. 135), though in the latter case, Ld. Selborne considered them as coming " within the category of res gestae, and of declarations accompanying acts, as, least as much as leases between private parties." (2) Deeds of this nature must, to ensure genu- ineness, be, like other ancient documents, produced from proper custody ^post 524-5) ; and should^ to be of any weight, be corroborated by proof,- within living memory, of payments made, or. enjoyment had, in pursuance of them. The absence of evidence of modern enjoyment, however, goes merely to weight and not to admissibility ; indeed in one case the paper title of the owner though only slightly corroborated, was held to prevail over open, adverse or long continued user by the public {Johnson v. O'Neill, 1911, A.C. 552). (3) Ancient documents, admissible as acts of ownership, may be tendered on questions either of public or private right; and must be distinguished from ancient documents receivable as evidence of reputation, which latter may con- sist of bare assertions, or recitals, of the right, but are confined to questions of public and general interest {sup.; Malcolmson v. O'Dea, 10 H.L.C. 593, 624; post, 299). ' Modern Possessions, being susceptible of proof by witnesses, cannot be established by modern grants and leases, &c., though supported by evidence of payments thereunder {Bristow v. Cormican, 3 App. Cas. p. 568 ; Clarhson v. Woodho'use, 3 Doug. 189). After proof aliunde of possession, however, such documents beconie evidence of the interests conferred therieby {Doe v. Penfold, 8 C. & P. 536 ; Doe v. Olvoer, 1 C. & K. 543 ; Taylor v. Parry, 1 M. & Gr. 604). GOOD OE BAD FAITH OF PARTY'S CLAIM OR DEFENCE, (t) Evidence of the bond fides of a party's claim or defence is sometimes admissible in support of his own case {Gerish v. Ohartier, R. v. Labouchere, and Walker v. W., post, 118-119), and evidence of its mala fides is admissible against him to impeach it {Melhuish v. Collier, 15 Q.B. 878 ; Moriarty v. L.C. & D. By., L.E. 5 Q.B. 314; post, 119), although such good or bad faith is not directly in issue. For facts relevant to prove good or bad faith, when these are in issue, or relevant, see further, post, 149, 154; and cp. Admissions by Con- duct, and Treatment, post, 116-7, 175, 181-2. COMPLAINTS. In cases of 'rape, indecent assault, and similar offences upon females, the fact that the prosecutrix made a complaint shortly after the outrage, of th§ matters charged against the prisoner, together with the particulars of the complaint, are admissible as evidence in chief for the prosecution, not to prove the truth of the matters stated, but (1) to confirm her testimony and, (2) where consent is in issue, to disprove consent {B. V. Osborne, 1905, 1 K.B. 551; R. v. Lillyman, 1896, 2 Q.B. 167). It is the L.E. — 8 Digitized by Microsoft® 114 THE LAW OF EVIDENCE. [book ii. duty of the judge to explain to the jury the limited purposes for which such evidence is receivable (id.) ; though if this has otherwise been made clear to tliem, the absence of such a caution will not invalidate a conviction {R. v. Lee, 7Cr. App. E. 31). History. The rule as to complaints is a survival of the ancient requirement that the woman should raise "hue, and cry" as a preliminary to an appeal of rape, the appellee being allowed, in defence, to deny that it had been raised. Afterwards, on appeals becoming obsolete, rape was dealt with on indictment, the woman being an admissible witness, and her testimony being corroborated or not according as she made, or failed to make, fresh complaint and pursuit of the offender. This, in effect, was the hue and cry over again. At this period, when rules of evidence were in their infancy, it was generally allowable to corroborate all witnesses by proof of their prior similar statements {Lutterell v. Reynell, 1670,1 Mod., 283, 283) ; but later on the rule was reversed {B. v. Parker, 1783, 3 Dong, 242), and complaints then survived as an exception to the changed rule {post, 488). [R. v. Osborne, sup.; Com. V. Gleary, 172 Mass,. 175; 12 Harv. L. Eev. 453; Thayer, 14 Am. L. Eev. 830-38.] Proof of the complaint, however, was allowed, not as a privilege, but as practically essential to the case for the prosecution in so far as it rested on the woman's testimony, on account of the ease with which such charges could be fabricated and the difficulty with which they could be met. Its admission was thus peculiar to cases of rape and kindred offences against women, as to which' there were also other peculiarities, e.g. that of allowing proof of the unchaste character of the prosecutrix, as well as of her immoral relations both with the prisoner and other men (Thayer, 14 Am. L. Eev. 830-38). Scope of Bule. It has been held that such evidence is admissible only in cases of rape and kindred offences against females (B. v. Osborne, 1905, 1 K. B. 551, 558-91; Beatty v. CulKngworth, Times, Jan, 14, 1897, C.A., cited ante^ 66; Jones v. 8. E. By.; 87 L.J.K.B. 775, C.A., cited ante, 84, per Swinfen-Eady, L.J. (the dictum of Bankes, L.J., that they are also admissible on all charges of violence, civil or criminal, is not sustainable; Thayer, sup.; Haynes v. Com., 28 Gratt, 942; Whart. Or. Ev. s. 273), and not, e.g. in sexual charges against males (R. v. Hoodless, 64 J.P. 282, contra Chesney v. Newsholme, 1908 P. 301, followed in R. v. McNamara, 1917, N.Z. L.E. 382, C. A. ; in R. v. Christie, 1 914, A.C. 545, 550, this point was raised, but not argnied ) ; nor in civil cases, though consent Ido in issue, as in an action for performing a surgical operation without the consent of a female patient {Beatty v. CulKngworth, sup ) . These cases overrule R. v. Wink ^nd R. v. Ridsdale, cited Eos. Cr. Ev., 13th ed., 24, which allowed complaints in cases of robbery and shooting ; also the opinion of Mr. Taylor, who considered th^m admissible in all crimes of violence (pamphlet on the Bedingfield Case, p. 16) ; also R. V. FoUey, 60- J.P. 569, and Steph., art. 8, which extend them to all criminal cases without exception; and also, it is presumed, divorce cases like Berry v. B., 78 L.T. 688, where the fact (though not the particulars) of a wife's complaint of her husband's cruelty was admitted; cp. O'E. v. O'H., 33 T.L.E. 51, where Shearman, J., in a Nullity suit, stated that there was no rule of the Common law which would admit such questions, but allowed the bare enquiry : "Did you speak to Dr. , with regard to your wife's objections to inter- course?" In the Ecclesiastical Courts the wife's, complaint, if made recenU Digitized by Microsoft® CHAP.vra.] FACTS RELEVANT TO PEOVE MAIN FACT. 115 factOj used to be received as direct evidence of the husband's ill-usage, as otherwise, the parties. being incompetent as witnesses, secret cruelty could not have been proved; if not so made, the complaint was received merely as confirmatory of the other evidence (Lochwood v. L., 2 Curt. 281 ; cp. Chesney Y. NiwsJwlmej sup.) . Complaints are admissible although the girl is so young that disproof of her consent is unnecessary [B. v. Osborne, sup. (where the girl was under 13) ; B. V. Merry, 19 Cox 443 (where she was under 9) ; B. v. Kiddle, id., p. 77 (where she was under 6 and her testimony was unsworn) ; contra, B. t. Kingham, 66 J.P. 393, and B. v. Bowland, 62 J.P.459, are not now law] . And they are receivable although made in the absence of the prisoner and at such an interval as not to form part of the res gesta (B. v. Osborne, sup.; B. v. LiUy- man, sup.). They must, however, have been made on the first opportunity which reasonably afforded (B. v. Osborne, sup, at p. 561; B. v. Lillyman, sup, at p. 171) ; thus complaints made by letter three days later {B. v. Ingrey, 64 J.P. 106), or on the following day (B. v. Bush, 60 id. 777), or even several hours afterwards by letter, (44 Sol. Jo. 603, per Wright, J.; contra, B. V. Merry, and B. v. Kiddle, sup.), have been rejected; though it is obvious that no precise rule can be laid down, the matter depending on the circum- stances of each particular case. Where the girl had complained forthwith to the prisoner's mother (who was not called), and an hour and a half after- wards repeated the complaiat to another woman (who was called), and the girl stated on cross-examination that both complaints were to ^the- same effect, they were admitted {B. v. Lee, 7 Cr. App. R. 31). On the other hand a complaint made tlie same afternoon to a companion as to similar acts done by the prisoner to her 3 weeks before, was rejected {B v. Pataney, 71 J.P. Rep. 101). In B. v. Hedges, 3 Cr. App. R. 263, a complaiat made 8 'days after ttie act was admitted, though there was earlier opportunity; sed qu. Moreover, -the complaint must be voluntary and spontaneous, and not elicited by leading, inducing or intimidating questions. Thus, if the circumstances indicate that, but for the questioning, there probably would have been no voluntary complaint, the answers are inadmissible; while if Oie questions merely anticipate a. statement which the complainant was about to make, the fact that the questioner spoke first is immaterial. " Did A. assault you? Did he say this and that to you?" would be improper; but " What is the matter ? Why are you crying ? " would not be {B. v. Osborne, pp. 556, 561, explaining B. v. Merry, sup.). But where the girl was crying and at first refused to speak, but on being pressed, did so, the complaiat was received (B. v. Norcott, 1917, 1 K.B. 347, explaining B. v. Osborne, sup.) ; so where it was invited by complainant's sister and repeated to their mother {B. V. Wilboume, 13 Cr. App. R. 279). A complaint, however, too deliberately made will be rejected (44 Sol. Jo. 603, per Wright, J.) ; as also what was said in answer to a complaint {B. v. Lillyman, sup, at p. 176). Complaints, with their particulars, may of course, be admissible independently of the present rule ; e.g. if so nearly contemporaneous as to be part, of the res gestae (see Manchester Brewery v. Coombs and Oresham Hotel v. Manning, ante, 75) ; or as evidence of present mental or physical feelings, though not of their cause (ante, .83-4) ; or to show knowledge of the matters complained of~- (Gladman v. Johnson, &c., ante, 95) ; or as admissions, e.g., if made in the presence of the aocused and not denied by him {post, chap. xx.). Digitized by Microsoft® 116 THE LAW OF EVIDENCE. [book ii. How Proved. The complaint should be proved by calling both the prosecutrix herself tod the person to whom it was made (1 Hale P.O. 633; R. Y. 8troner, 1 0. & K. 650). Indeed, where the prosecutrix was alive but not called, Parke, B., rejected both the fact and the particulars of the complaint {B. v. Gutteridge, 9 C. & P. 471). So, where the girl, being imbecile, was not called, her mother's testimony to her complaint was rejected {B. V. Burke, 47 Ir. L.T. Eep. 111). In two other cases, however, where the woman was dead, the Court allowed the fact, though not the particulars, to be proved {R. v. Nicholas, 2 C. & K. 346 ; R. v. Megson, 9 C. & P. 420, where Rolfe, B., remarked that there was a wide difEerence between receiving them merely as confirmatory of her testimony in the box, and receiving them as independent evidence to show who had committed the offence ; adding that all that could safely be admitted was her complaint that an outrage had been perpetrated upon her). Where the prosecutrix could not be found, but the prisoner testified to her consent, the jury, disbelieving him, convicted {B. V. Nobte, 60 J.P. 169; see further as to consent, cmte, 46). ADMISSIONS BY CONDUCT. (;') A party's admission by conduct as to any material fact, e.g. showing his disbelief in the truth of his own case, may generally be proved against him {Moriarty v. L. C. & D. By., L.E. 5 Q.B. 314; B. V. Watt, 20 Cox 812) ; and evidence to explain or rebut such admissions is receivable in his favour {Melhuish v. Collier, 15 Q.B. 878)'. Principle. Admissions by conduct are sometimes considered to be exceptions to the hearsay rule, i.e. equivdent to oral statements, and so inadmissible except as against a party (see Wright v, Tatham, infra). This ground, however, is unsatisfacte-ry, since assertions or admissions by conduct are by no means convertible, as regards admissibility, with those ma^e orally {post, chap. xvii). Admissions by conduct are properly original evidence receivable either as constituting, wholly or in part, a fact in issue, as where A. makes an offer to B. and B. assents to it by his conduct; or as relevant facts from which a fact in issue may be inferred, e.g. guilt from the fabrication or sup- pression of evidence by the accused. Generally, indeed, it is. this logical connection which is chiefly important, the personal privity merely supply- ing an additional, though not always an essential, reason for reception (Wigmore, JBv. ss. 265, 267, 459). The admissions by conduct of deceased persons, against their interest, have been held receivable even, against strangers {Oery v. Bedman, 1 Q.B.D. 161, cited post, 134). As to the admissions by conduct of third persons not deceased, see Watts v. Lyons, post, 134. [Tay., ss. 804-16 ; Eos. N.P., 18th ed., 64-7. As to admissions by conduct to shoV com- mission of crime, see post, chap, ix; or made with respect "to statements in a party's presence, post, chap, xx.] TREATMENT. Qc) It is sometimes said that acts of treatment by either parties or strangers, expressive merely of their opinion or belief as to the existence or non-existence of facts, are not receivable against a party except when operating as admissions by conduct [Wright v. Tatham, 7 A. & E. 313; Baclehouse v. Jones, 6 Bing. N.C. 65 ; post, 135, 382.] , Principle. In the first of the above cases, at pp. 388-9, Parke, B, remarked, " A fact which is relevant only as implying a statement or opinion of a third person on the matter in issue, is inadmissible in all cases whbre such statement Digitized by Microsoft® CHAP. Tin.] FACTS RELEVANT TO PEOVE MAIN PACT. 117 or opinion, not on oath, would of itself be inadmissible"; Vaughan, J., in the same case, also considered treatment to be merely opinion expressed in conduct instead of words, and so, even though against interest, inadmissible against third parties as suffering from the general insufficiency and infirmity of hearsay (5 C. & F. pp. 738-9). This ground of exclusion, viz., that conduct and treatment are inadmissible as hearsay, is unsatisfactory and has not generally been followed (see 'Conduct as hearsay,' post, 219-20). The reception of such evidence, which is per se logically relevant, appears to be rather a question of degree and intrinsic cogency. Assuming, however, that there may be said to be a general rule against it, such rule is at all events subject to numerous exceptions. Exceptions. Thus, facts of the above class are sometimes admissible not only against, but even in a party's own favour, e.g. to show title {arvte, 110), or good faith (Geiish v. Chartier, post, 133) ; and sometimes also in actions between strangers. Thus, on questions of Pedigree, family condilct is admissible to prove relationship {post, 312) ; and, even in non-genealogical enquiries, falling outside the Pedigree exception to the hearsay rule, the treatment of friends and neighbours may be received as presumptive proof of Marriage, post, 384. So, treatment by strangers is in some cases receivable : e.g. recognition by the Sovereign, to prove the Ugitimacy of a peer (Hubb. 698) ; conveyance of property by strangers to a person only entitled to it if legitimate {Slaney v. Wade, 7 Sim, 595) ; or conduct and declarations by parents, though non-parties, on issues of paternity or dependency {ante, 77-8). Treatment is also evidence of Age {B. v. Cox, 18^8, 1 Q.B. .179), or of the Identity of persons or property {post, 611, 620, 641). And, where title, even to a private office or relationship, is in question, proof that the party was treated by others as entitled thereto may be given, even in actions between strangers {R. V. Fordvnghridge, 27 L.J.M.C. 290, cited, post, 128) ; so, in some cases, as to title to land {ante. 111). And to prove the genuineness of Ancient Docu- ments, the fact that they have always been preserved and treated as genuine by the parties interested is admissible {post, 523-5). Moreover, where the opinions of witnesses are receivable, instances in which they have acted upon their opinions may always be proved in confirmation of their testimony {post, 397). EXAMPLES. (a) Foots logically Relevant: General Instan<:es. AdnUsaible. _ Inadmissihle. To Prove Payment. To prove that A. To prove Payment. The question being had paid a bill of exchange accepted by whether A. had paid a debt due by him to him and subsequently negotiated ; — the B. ; — the fact that A. was in possession of fact that A. was in possession of the ibill a cleared cheque for the amount of the after maturity is relevant (Bremridge v. debt made out in B.'s favour, but not in- Oshorne. 1 Stark. 374 ; aliter if no proof dorsed by B., is no evidence of such pay- of its circulat'on after acceptance be given, ment [Egg v. Barnett, 3 Esp. 196; aliter Pfiel V. Vaniatenierg, 2 Camp. 439). So, if so imlorsed]. A,, an indorsee, sues B., a receipt for later rent (or other periodic the acceptor, of a bill of exchange; — the payment) i.s evidence of payment of earlier facts that, an unknown person had after its rent, &c. [Oilb. Ev.,lat and 2r\A eds. 100; dishonour by B., paid the amount to a Sanders v. 8., ante 108. Under the Con- holder and taken it away, and that when veyancing Act, 1881, s. 3, it is also evi- produced by A. it bore a receipt for such dence of due performance of covenants, payment, — held, no evidence of payment by Re Highett, 1903, 1 Ch. 237 ; Re Taunton, B. [Phillips v. Warren, 14 M. & W. 379. Digitized by Microsoft® 118 THE LAW OF EVIDENCE. [book II. Admusihle. 1912, 2 Oh. 381]. As to payment of earlier rent, see B. v. Emeter, 'post 120. And pay- ment of a debt may Ibe inferred from a sub- sequent settlement of account between the parties, though the debt is ^ot mentioned therein (Oolsell v. Buid, 1 Camp. 27). [See generally as to the presumption of payment, Ros. N.P., 18th ed., 36-38; Tay. 8. 178; Best, s. 406]. To Prove Loans, Means do. The ques- tion 'being whether A. lent money to B. ; — evidence of the poverty of A. about the time of the alleged loan is admissible, as tending to disprove it (Bowling v. Bowl- ing, 10 Ir. C.'L. 236). So, the poverty of the indorsee is relevant to disprove the in- dorsement of a bill to him for value (Jacobs V. TarUton, ante, 31; cp. B. v. Oramt, post, 140, and Lenoh v. L., 10 Ves. 508). And to prove the forgery of a mortgage deed by which money was raised, the poverty of the borrower at the time is relevant (Roupell v. Saws, ante, 69). S.o, on a charge of obtaining goods by false pretences, the accused having given a bill for the goods ; — evidence of his banking account for the previous year showing a number of dishonoured cheques, is admis- sible both to rebut means, and show his knowledge of his position (R. v. Fryer, 7 Or. App. R.-ISS). On the other hand, prior means are relevant to prove the pos- session of subsequent means within a rea- sonable time (B. v. Jones, 19 Cox. 678, cited post, 121. To Prove the Utiliiy of Patents. The question being as to the utility of a patent; ^-extensive . public purchases are evidence of its value (Cole v. Saqui, 5 R.P.C. 489, 495) ; and non-user and abandonment evi- dence of its want of utility (Sinks V. Safety Co., 4 Oh. D. 607, 616). To Prove Sv/rvi^orship. — ^The question being whether A. survived B. in a ship- wreck ; — it is relevant to show that, pre- viously to the disaster, A. was stronger, in better health, and a more expert swim- mer than B. [Sillich v. Booth, 11 L.J. Oh. 41 ; see fully as to the Presumption of Survivorship, post, chap, xlviii.]. To Prove Paternity, and Age. The question being whether A. is the child of B. ; — evidence of the resemhlanoe, or want of resemblance of A. to B. is admissible [Bagot V. Bagot, 1 L.R. Ir. 308; Burn- aby V. Baillie, 42 Oh. D. 282, 290. Hubb. Ev. of Succ. 384 ; and see 102 L.T.Jo. 188 ; and the Tichborne Oase. In A.-O. v. SUngsly 33 T.L.R. 120, H.L., it was held that though the judge's own opinion might undoubtedly carry weight, it was irregular to call a sculptor, as an expert, on the point, even though the parties assented; post, 386], Inadmissible. Aliter if the receipt were in the handwrit- ing of B. or some one entitled to demand payment thereof, Pfiel v. Vanbaienberg, opposite']. To Prove the Surrender of a Lease. The question being whether a lessee had surrendered a lease in writing to a lessor ; the mere possession of the lease by the latter with its seals cut off, held no evi- dence of such surrender (Doe v. Thomas, 9 B. & 0. 288; though see as to surrender by operation of law, Tay. s. 138). To Prove Loans, Means, £c. A. is charged with obtaining board and lodging by false pretences. To prove that A. was without means at the time, the fact that there was found in his possession a cheque for £50 on which A\ had forged his " mother's name, but which he had not at- tempted to utter, is irrelevant (B. v. Mor- gan, 5 Or. App. R. 157). To Prove the Anticipation of Patents. The question being whether an article patented by A. in 1849 bad been sold by B. before that date ;• — public sales of the article by B. after 1849, and private sales by him before it, are irrelevant (Syde v. Palmes; 32 L.J.Q.B. 126; ante, 75, 87). To Prove Passing Off. The question be- ing whether B. had passed off his own goods as those of A. ; — ^the facts that A. had committed a fraud by advertising such goods as being patented, when in fact they were not so (Lever v. Goodwin, 1887, W. N. 107 O.A.) ; and that the manager and secretary of A. (in this case a company) were bankrupts' (National Folding Co. v. National, &c. Co., 13 R. 60), are irrele- vant. To Prove Treatment at Schools. The question being whether the pupils at a cer- tain school were badly fed and lodged; — Oie fact that they were badly educated is irrelevant (Boldron v. Widdows, 1 O. & P. 65; post, 125). Digitized by Microsoft® CHAP. VIII.] FACTS RELEVANT TO PROVE MAIN PACT. 119 Admissible. So, appearance is evidence of age (ante, 8). And, in an Indian case, the joinder of the outer and inner cartileges to the shafts of the bones, as revealed by X-Ray plates, was received as evidence thdt the patient was over 17 years of age [' Pio- neer,' Sept. 1915]. To Prove Ownership of a Dog. To prove that A. is the owner of a dog, the facts that it answers to A.'s call and exhibits affection for him, are admissible •^(Powell v. Grdwe, 23 li.Jo. 33. In another case, the fact that the dog performed cer- tain tricks at the instigation of A., was held to decide its ownership.) To Prove a Promise to Pay Money. The question being whether A. promised money to B. to abstain from voting; — the fact that he paid money to B. is admissible as an act in furtherance of the alleged pro- mise (Magee v. Mark, 11 Ir. O.Ii.R. 449. It is also admissible In corroloration of testimony as 'to the promise, cp. post, 487- 488). To Prove Adultery, Consummation, Rape. In divorce eases, to prove adultery evidence of opportunities therefor, and prior and subsequent familiarities, is ad- missible (as to prior and subsequent adul- tery, see post, 166) ; so, also, associ- ation with prosrtitutes (Ciocci v. C, 29 L.J.P. & M. 60) ; or the contraction of venereal disease [&leen v. €f., 17 T.L.R. 62, where this fact was shown by a military register; but in Anthony v. A. 35 T.L.R. 559, the medical sheets were held privi- leged. As to the onrfs and sufficiency of proof in such cases, see Broicning v. B., 1911, P. 161, and Oliksten v. G., 33 T.K R. 203] ; and adultery, once proved, may be presumed to continue within reasonable limits -(rurioB v. T., cited post, 121; see post, chap. xi). So, to disprove adultery, medical evidence that the wife or other female (Bippingnall v. B., 1876, Times, May 4; Jolly v. J.. 63 Sol. Jo. 777; Tomls V. T., 1902, Times, . July 12), is virgo intacta is receivable, but not conclu- sive. So, non-consummation of marriage, after a reasonable length of cohabitation, is evidence of incapacity to consummate on the part of a husband or wife, even thongh medical inspection reveals no struc- tural impediment (B. v. B., 1900, W.N. 130; F. v. P., 75 L.T. 192 ; S. v. B., 21 T. L.R. 219 ; W. v. 8. 1905, P. 231 ; 8. v. S., 24 T.LJI. 253). And to disprove access by a husband, tiie fact that he was para- lysed at the time is relevant (Legge v. Edmonds, 25 L.J.Ch. 125) ; as also to dis- prove a rape, evidence that the prisoner had been afflicted with a rupture for many years which rendered secnal intercourse impossible (Hale P.O. 635-6; in this case the rupture was inspected by the jury in an adjoining room, cp. ante; 7-10). Inadmissible. To Prove a Promise of Marriage. The question being whether A. promised to marry B. ; — ^letters by A. to B. expressing affection and admiration for her, but con- taining no reference to marriage, are no proof thereof, since a man may write such consistently with having no intention to marry (Kempshall v. Bolland, 1895, Times, Nov. 14, O.A. ; jilay v. Kelly, 31 Ir. L.T.Jo. 67. Nor are they any evi- dence in corroboration of the promise, post, 489). To Prove that a Road was Puhlh or Private. The question being whether a certain road was public or private, — a statement made by a deceased occupier of adjoining land, whilst planting a tree, tnat he did it " to show where the boundary had been when he was a boy ,"»— held inadmis- sible since the question being not as to the boundary, but the character of the road, the mere act of planting the tree was irre- levant [R. V. Bliss, 7 A. & B. 550; ante 58. As to facts relevant to prove incite- ment to public or private crimes respec- tively, see R. V. Boulton, ante, 100]. Digitized by Microsoft® 120 THE LAW OF EVIDENCE-. [book II. Inadmisaible. To Prove that a Transaction Mas Gfenu- ine or the Reverse. A. is ^charged with obtaining money from B., in specific cases by falsely pretending he could negotiate marriages (there being no charge of pre? tending to carry on a gvjnuine business) ; — Evidence (1) that the general nature of A.'s business was genuine (see Character post, 1S6), and (2) that in oither speoifio cases he had negotiated marriages (see Similar Facts, post, 158: Held, inadmis- sible [B. V. Mortimer, 31 L. Jo. 180 ; Times, March 5, 1896; per Sir CUi. Hall, Recorder, who remarked that even if A. were negotiating marriages between vari- ous persons, that would be no defence if he obtained money from B. by false pre- tences. Any general evidence of the na- ture of their business was irrelevant]. As to the admissibility of general conduct as a standard by which to test specific con- duct, see post, 125. To Prove that a meeting 'was Seditious. The question being whether a certain meet- was seditious;- — the fact that the military used violence in dispersing the meeting is irrelevant as the intention and objects of the meeting must have existed' previously to its dispersion (R. v. Hunt, 3 B. & Aid. 566). Admissible. To Prove that a Business was genuine or the reverse. A. is charged with obtain- ing money by falsely pretending he was carrying on a genuine business. ' The fact that A. had none of the goods he professed to sell in his possession or control at the time; is relevant for the prosecution (B. v. Jakeman, 10 Cr. App. R. 38) ; and the pro- duction of receipts from customers to whom A. testified he had sold goods, and of his Bank-iook showing payments to per- sons whom he testified were trade creditors is relevant for the defence [R. v. Bagar 1914, 3 K.B. 1112 ; op. R. v. Leach. 2 Cr. App. R. 72; and R. v. Smith, post, 182. As to particular instarjCes to prove a gen- eral usage, see ante, 106-7 ; or to prove general character, post, 186]. To Prove that a Deed was forged. To prove • that a certain deed was forged ; — it is admissible to prove that the titles recit«d in the deed as those of the then reigning Sovereign were not in fact then used by that Sovereign. llvy's Case, cited Steph. art., 9, illus. (d) ; but see Tay. s. 1785, n. 2, as to the reports of this case. As to the poverty of the party bene- fiting by the deed, and his forgery of other documents connected with the transaction, seie Roupell v. Saws, ante 69]. Anachro- nisms in wrifjng and spelling are also relevant ; as well as proof that the water- mark was subsequent to the date of the document, and in rebuttal the fact that manufacturers often ante-date or post-date their paper [Wills, Circ. Ev. 6th ed., 241 ; stamps, it seems, are never issued post- dated, Howe V. Burchardt, id. p. 242). So, to prove that a will (which was ill-written and ill-spelt) was forged; — evidence that the testator was well educated and spelt well is relevant (Battyll v. Lyles, 4 Jur. N.'S. 718). And, to prove that an Indian will was forged ; — evidence that the testa- tor had made certain provisions during his lifetime for the worship of a family idol, which provisions were absent from the will, was received (Dowlat Koer v. Ramphal Das, 1897, Times, Dec. 11, P.O. ; op. Smith v. S., post, 128). (6) Previous and Subsequent Existence of Facts. Continuance. To Prove Ownership. To prove that A. owned land in 1783, evidence that it was conveyed to him in 1763 is admissible, the presumption being that it continued to be his property (Magdalen Hospital v. Enotts, 8 Ch. D. 709). To prove that A. paid rent as tenant of land to B. in 1830, the fact that he paid rent to B. in 1826, and nad remained in undisturbed possession since, is admis- sible (R. V. Exeter, L.R. 4 Q.B. 341, 345. As to payment of later rent, see Sanders V. .S'., oMte, 105, 118). So, a farm which had been leased in 1598 for 1000 years (with a covenant to Digitized by Microsoft® cijAP.yiii.J FACTS EELBVANT TO PEOVB MAIN" FACT. 131 Admissihlc. convey the fee to the lessee within five years if required), and assigned as lease- hold in 1777, was presumed to remain leasehold in 1869, although it had thyee times been devised as freehold and was so described on the Court Rolls (Pickett v. Packham, 4 Ch. App. 190). To Prove Atheism. The question being whether A. believed in a Supreme Beiug when taking the oath on his election to Parliament; — evidence may be given that A. had no such belief four years before his election (A.-O-. v. Bradilaugh, 1 Cab. & Ell. at 467-;469 ; 14 Q.B.D. pp. 699, 711. Here the evidence was received against the defendant, but it would probably have been equally admissible in his own favour, ante, 64). To Prove Acting without Qualification. A. is charged with unlawfully acting on a county council on June 27, 1913, when not of British nationality. Evidence that he was granted a certificate of re-admission to British nationality on Sept. 10, 1913, " as from that date, but not as to any previous transaction," is Relevant to show that he was an alien on June 27th, though he might possibly have became an alien after^ June 2T, but before Sept. 10 [B. v. Cork, JJ., 1914, 2 I.R. 249, 256-7. A. had originally been a British subject, but there was some evidence, though no formal proof, that he had afterwards become an American citizen]. To Prove Adultery. A. and B. are proved to have committed adultery. The fact that they afterwards continued to live under the same roof is evidence of the continuance of the adultery (Turton v. T., 3 Hagg. Ecc. 338 ; see ante, 119). To Prove Means. A. is charged with the manslaughter, by neglect, of B.'s child, in October, 1901 ; defence, want of means. Evidence that prior to October, 1900, B. paid her 4s. a week for the child's support, and on that date gave her a lump sum of £15 to keep the child for good and all, is admissible to show that she had means in Octobeis 1901, since . at the rate of 4s. a week the £15 would not have Ibeen ex- hausted until twenty-three weeks later (R. v. Jones, 19 Cox. 678; ante, 118). To Prove Partnership. To prove the existence of a partnership in 1838, evi- dence is admissible that it existed in 1816 (Clark V. Alexander, 8 Scott N.R. p. 161; and see BrcHum v. Wren, 1895, 1 Q.B. 390, cited post, 236). ' To Prove Acting as Driver. A. is charged with driving a motor-car at an excessive speed. The car was stopped four miles out of town, when A. was found driving it, having a diauffeur with him. Held, this was some evidence that A. had been driving the whole distance (Beresford v. St. Al- lans, 22 T.L.R. 1). Inadmissiile. To Prove Atheism. The question being whether A. believed in a Supreme Being when taking the oath on his election to Parliament; — evidence that A. had, or had not, such a belief twenty or thirty years before, is inadmissible. (A.-G. v. Brad- laugh, 14 Q.B.D. pp. 699, 711.) To Prove Acting without Qualification. The question being whether A., on Jan. 20, unlawfully acted in a particular capacity ' without having taken the necessary oath ; evidence that he had not taken such oath on Jan. 1 is inadmissible, the continuance of an unlawful condition not being pre- sumed (Price v. Worwood, 4 H. & N. 512, 514, per Polldck, C.B.). Digitized by Microsoft® 122 THE LAW OF EVIDENCE. [book II. (o) Course of Business. Pullic Offices (Posting, &c.). Private Offices. Admissible. Public Offices. To prove that a certain indorsement had been made on a (lost) license entered at the Custom House : — it is relevant to shoW that the course of the ofiBce was not to permit the entry ■with- out such indorsements (Butler v. AlVnuit, 1 Stark. 222 ; Van Omeron v. Doviich, 2 Camp. 42; Waddington v. Roherts, L.R. 3 Q.B. 579). Posting and Delivery of Loiters. To prove the posting of a letter; — it is rele- vant to show that it was delivered to a clerk* who, though he had no recollection of the particular letter, habitually took all letters delivered to him to the post (Hetli- ciington v. Kemp, 4 Camp. 193; Trotter V. Maclean, 13 Ch. D, 574) ; or, that the letter was put in a given place, where all letters were regularly put for posting, whence they were always carried to the post by a servant iHetherington v. Kemp, supra J Skilbeck v. Oarbett, 7 Q.B. 840; Percy Supper Club v. Whyte, 106 L.T.Jo. 308. In the first-mentioned case it was held that the servant must be called, but in the others this was decided not to be necessary. In the last-mentioned case, Channell, J., remarked that fifty years ago such proof — i.e., without calling the ser- vant, would have been wholly insufficient.] To prove the delivery of a letter on a given date ; it is relevant to show that the letter was properly addressed, posted in due time, and not afterward returned (Warren v. Warren, 1 Cr. M. & R. 250; British and Am. Teleg. Go. v. Golson, L. R. 6 Ex. 108 ; Dunlop v. Higgins.. 1 H.L. C. 381 ; Household Fire Go. v. Grant, 4 Ex. D. 216 ; Watts v. VicJeers, 86 L. J. Ch, 177, C.A. ; Best, s. 403; Tay. s. 179). The postmarks are also evidence of the dates and places mentioned (R. v. Johnson, 7 East, 65; R. v. Plumer, R. & R. 264). And possession by A. of a letter with the address torn off is prima facie evidence that it was addressed to him (Curtis v. Rickards, 1 M. & G, 47 ; . Private Offices. The question being whether A. paid B. his wages ; — A. may show that his practice was to pay all his workmen regularly every Saturday night, that B. was seen with the rest waiting to be paid and had not afterwards been heard to complain [Lucas v. NovosiKeski, 1 Esp. 296; and see Sellen v. Norman, 4 C. & P. 80; Mvans v. Birch, 3 Camp. 10]. Inadmissible. Public Offices. Where a statute pro- vided that both a bill of sale and its ac- companying affidavit should be filed ; — a certificate stamped on the former that " a copy thereof was duly registered " ; — Held no evidence that the affidavit also had been filed, since the Act did not provide that one covJd not be filed without the other [Mason v. Wood, 1 C.P.D. 63, distinguish- ing Waddington v. Roberts, opposite, where under the Bankruptcy Act, 1861, which required that both a composition deed and its accompanying affidavit should be filed, a memo, on the former that it had been "duly registered pwsfaant to the pro- visions of the Act " was held evidence that the affidavit also had been filed]. Posting and Delivery of Letters. To prove the posting of a letter written by A. to B. ; — evidence by one of A.'s clerks that he habitually copied all letters written by A., then returned them to A. to seal, and that afterwards, when A. gave them back, the witness or another clerk posted them; — held in the absence of evidence to show that A. had returned that particular letter to the clerk, this vtas no proof of posting (Toosey -v.' Williams, Moo. & M. 129). So, where A.'s clerk proved that the letter had with several others been given by him to a deceased clerk to post, and that the letter had left for the post with them; — held that mere possession for posting was insufficient (Rowlands v. De Veochi, 1 C. & B. 10 ; it did not, however, appear that it was the practice for the deceased to post all letters given to him. See further as to this case, post, chap, xxiv.). So, handing the letter to a town postman, is no evidence of posting, as it is against his duty to receive it (Re Lon- don & N. Bank, Enp. Jones, 1900, 1 Oh. 220). And where notices must be served by prepaid letter, as under the -Public Health Act, 1875, s. 267, evidence of ad- dressing and posting, without proof of pre- payment, has been held insufficient (Wal- thamstow U.C. v. Hanwood, 1897, 1 Ch. 41). To prove that A. in London, had re- ceived a registered letter from B. in Paris : — Proof by B. that he gave the "letter to his clerk in Paris to register and post lo A.; that the clerk (not called) reported that he had registered and posted it and handed B. the post-office receipt (pro- duced) for its registration; — Held very doubtful if such receipt, in the absence of the clerk, were sufficient (Copin v. Adam- son. 31 L.T. 242, 255-6, per Kelly, G.B.). To prove the delivery of a letter posted to B. nt Bristol ; — the fact that it was ad- [Iressoil to him at "Bristol" is insufficient (Walter v. Baynes, Ry. & M. 149) ; aliteir if this was the only address given by B. (Burmestcr V. Barron, 17 Q.B. 828). Digitized by Microsoft® CHAP.viii.J FACTS EELEVANT TO PROVE MAIN FACT. 123 (d) Custom and Usage to Annew Terms to Contracts, Wills do. Admissible. Inadmissible. Oral Contracts. A., a veterinary, sues B. for medicine and attendance. Tlie claim for medicine, which had Been sup- plied under an oral contract, being admit- ted, evidence tendered by A. that there was a usage among veterinaries to charge for attendance as well as medicine; — ^held ad- missible (8e%C€ll v. Corp. 1 C. & P. 392). A. lets a farm to B. on an oral agree- ment ; — a general usage on the estate that the landlord has the right to sport is ad- missible to prove reservation of such right (Liversedge v. Whiteoak, 28 L.Jo. 761 ; 57 J.P. 6921; as to written agreements, see infra) . A. lets premises to B. by deed containing a covenant to repair and afterwards as- signs his reversion to C. — On the expiry of the lease B. having held over, but failed to repair, is sued by C. Held that, the tenancy being a new parol one, from year to year, C. could not sue on the original covenant, but that evidence of a custom to keep the premises wind and weather tight was admissible, and be mis;ht sue on that (Wedd V. Porter, 113 L.T. 819; see fur- ther, Blane v. Francis, 1917, 1 K.B. 252, C.A. ; and Cole v. Kelly, 140 L.T. Jo. 122, C.A.). Written Contracts, &o.-^The question being whether A., a broker, is personally liable on a written contract made by him for an undisclosed principal ; — evideme may be given of a usage that brokers who do not disclose the names of their princi- pals are personally liable (Pilce v. Ongley, 18 Q.B.D. 708, C.A.). A. employs B., a stockbroker, to sell cer- tain securities on the Stock Exchange. B. does so, and by a rule of the Exchange becomes' personally responsible for the genuineness of the documents. One of the documents, unknown to either, is forged, and B. has to make good the loss. A. is liable to indemnify B., as the rule, though unknown to A., is a rea- sonable one (Smith v. Reynolds, 66 L.T. 808 ; Barker v. Edu-ards, 57 LJ.Q.B. 147). A. insures a ship through B., a broker, with C, an underwriter at Lloyd's, ex- Oral Contracts. A., a veterinary, sues B. for medicine and attendance ; — evidence of a usage among veterinaries to charge for attendance " where not much medicine is required" held inadmissible as too vague (Sewell V. Corp. opposite). A., a horse-dealer, sells B. a horse by oral contract, the question being whether the horse, which had been certified sound by a veterinary, had also been warranted sound by A. ; — evidence of a practice, ngt amounting to a recognized custom of tlie trade, for horse-dealers not to warrant horses so certified, is inadmissible (How- ard V. Sheward, L.R. 2 O.P. 148). Written Contracts, do. The question being whether B., an undisclosed principal, is liable on a written contract made for him by A., a broker and contracting as such ; — evidence of a custom that where brokers do not disclose the names of their principals, the broker is solely liable and the principal is discharged, is inadmissible as contra- dicting the contract (semble, Pilce v. Ong- ley, opposite). A. employs B., a broker, to buy and sell certain securities for him ; — a usage, un- known to A., by which B. is authorised to sell as principal to A. (Robinson v. MoU lett, L.B. 7 H.L. 802) , or to buy from him as such (Hamilton v. Young. 7 L.R.I. 289 ; MoDevitt V. Conolly, 13 id. 207), is in- admissible. A. employs B., a country broker, to sell certain shares. B., without disclosing the name of his principal, sells them through his London jobber .who, according to a practice of brokers in cases of such non-discloure, sets off against the price a debt due to him from B. on previous trans- actions. A. is not bound by the practice, as (1) it is not a general usage; (2) it is unreasonable; (3) A. did not know«or assent to it (Blackburn v. Mason, 68 L.T. 510 ; Anderson v. Sutherland, 13 T.L.R. 163). So, with a general usage not to specify the numbers of bank shares in a contract for sale, which usage con- travenes Leeman's Act, 1867, s. 1 (Perry V. Bamett, 15 Q.B.D. 388). A., a ship-builder, employs B., an insur- ance hroker, to insure a ship at Lloyd's, Digitized by Microsoft® 134 THE LAW OF EVIDENCE. [book II. Admissible. pressly contracting in the policy (though not under seal) to pav O. the premiums. A custom of Lloyd's that B,, the broker, and not A., should be held responsible for the premiums held admissi'ble as being not inconsistent with the terms of the policy, but merely a customary mode of carrying out the promise to pay (Vni- verso Insurance Co. v. Merchants Go., 1897, 2 Q.B. 93, C.A.). A., a manufacturer, contracts to supply certain iron plates to B. ; — evidence is admissible of a custom that the plates are to be of his own make. [Johnson v. Rayl- fon, 7 Q.B.D. 438; cp. Sale of Goods Act, 1893, ss. 14 (3), 55]. A. sues B. to recover debentures bought in good faith by B. from C (A.'s clerk), who had stcylen them from A. ; — B. may prove a usage among mercantile men and on the Stock Exchange that the deben- tures though not so expressed, are nego- tiable instruments transferable by delivery [Bechucmaland Co. v. London Bank, 1898, 2 Q.B. 658 ; this fact should now be judi- cially noticed, Edelstein v. Sehuler, ante, 13). So also, as to scrip {Rumball v. Metro. Bank, 2 Q.B.D. 194) and share- warrants {Wehb V. Alexandria Co., 93 L.T. 339). A. lets a farm to B., the lease specify- ing the terms of hMding, but being silent as to those of quitting. A custom that on quitting B. should have the way-going crop is admissible, although inconsistent with the terms of the holding (Holding v. Pigott, 7 Bang. 465 ; cp. Muncey v. Dermis, 1 H. & N. 216). So, with a custom en- titling tenants to hold over part of the land after the expiration of the notice to quit stipulated in the lease (Re Paul, 24 Q.B.D. 247). And a reservation of "min- erals" in a lease is not inconsistent with and does not exclude a custom to take flints (Tucker v. Linger, 8 App. Cas. 508). A testator devises land to B., with a proviso that she shall keep the house, grounds, gates, and fences in repair, and gives her a power "to fell timber neces- sary for such repair" ; — B. ,may prove a modern local usage whereby such a power enables her to cut and sell timber for her own benefit as well (Dashwood v. Mag- nigc, 1891, 3 Ch. 306, C.A.). A bill of lading provided for the delivery of goods "from the ship's tackles at the port of London" ; — a custom of the port Inadmissible. and afterwards on- the ship being lost, to adjust and receive the policy-moneys from the underwriters. Underwriters, Iby a usage of Lloyd's, of which A. is ignorant, deduct from the amount a debt due to them from B. on previous insurances. A. is not bound by the usage (1) Lloyd's not being a market whose usages bind those who are ignorant of them; (2) the usage bein^ an unreasonable' one (Sweeting v. Pearce, 9 C.B.N.S. 534). A., an undisclosed principal, sella goods to C, through B., a broker, the contract providing that all disputes between buyer and seller shall be referred to B., whose de- cision shall b« final. The goods turning out inferior, C. sues B. and tenders evi- dence of custom that non-disclosure of the principal renders the broker liable. Held, that, as the custom purported to make B. a principal, it was repugnant to the clause which made him an arbitrator and there- fore inadmissiWe (Barrow v. Dyster, 13 Q.B.D. 635). A., a glove,manufacturer, agrees with B., a traveller, to pay a commission on all business introduced by B. and accepted by A. A. afterwards terminates the agree- ment withoiit notice. Evidence of a cus- tom in the glove trade for travellers to re- ceive six months' notice to terminate their agencies, held inadmissible as inconsistent with agreement (Joynson v. Hwit, 93 L. T^ 470, C.A.), A. leases a farm to B., one of the terms being that the outgoing tenant's interest shall be valued according to the custom of the country ;• — evidence of a usage on the particular estate of which the farm forms, part, cutting down the compensation al- lowed by the general custom, is inadmis- sible unless B.'was aware of such restric- ted usage (Womersley v. Dally, 26 L.J. Ex. 219). So, a custom that the outgoing tenant should look only to the incoming tenant and not to the landlord, for pay- ment for seeds, tillages, &c., is unreason- able, uncertain, and invalid (Bradburn v. Foley, 3 O.P.D. 129). And a custom to cut and burn undergrowth for the pur- pose of preserving and improving the pasture of the waste, has been rejected as too indefinite (Devonshire v. CHioynne, 1905 Times, July 22, C.A.). So, where by a lease rent was payable on the "cus- tomary rent days" i.e. Nov. 23 and May 13, and the tenancy was terminable by "six calendar months' notice" — a custom was rejected to validate a notice on Nov. 22 to quit on May 13 (Travers v. Mason, 45 W.R. 77). For a custom inadmissible as being inconsistent with a covenant to repair, see Westacott v. Hahn, 1918, 1 K.B. 495, C.A. A., by a charter-party between himself and B., undertakes that a ship shall deliver ■ her cargo "at the port of H. or as near Digitized by Microsoft® CHAP.viii.J FACTS RELEVANT TO PROVE MAIN PACT. 135 Admissible. to discharge the goods on the quay and . thence into lighters and not immediately into the latter, held admissible and not inconsistent with the document {Morxetti V. Smith, 49 L.T. 508). So, where a bill of lading states that the goods are to be delivered to a person ajppointed by the ship's agents, the delivery to be according to the custom of the port, a custom is ad- missible that they may be landed on the quay unless demanded within twenty-four hours of the ship's arrival (Aste v. Stitmore, 13 Q.B.D. 326). And, where » bill of lading specifies a certain sum as payable for freight, evidence of a custom- ary deduction is receivable (BrolMJn. v. Byrne, 3 E. & B. 703; aliter if an inten- tion could be implied that the freight should be paid free from all ^ deduction, id.: and cp. Phillips v. Briard, 1 H. & N. 21). Inadmissiile. thereto as she can safely get." The ship is not able to get nearer than S., some miles from H. A custom of the port that consignees are not bound to take deliver- ies of cargoes elsewhei-e than at H. held inconsistent with the charter-party and inadmissible as evidence for B. {Hayton v. Irmn, 5 G.P.D. 130). So, where A. contracted with B. to "convey goods by sea from the port of loading to that of dis- charge" : — evidence that war having occur- red, the course of business was to convey them partly by sea and partly by rail, held inadmissible as contradicting the clear words of the document (Sutro v. Heilbut, 1917, 2 K.B. 348 C.A.). And, where a charter-party provides that cargo is to be "talten from alongside the ship at mer- chant's risk and expense," and "discharged according to the custom of the port," a custom of the port throwing on the ship- owner the expense of taking it from the ship's rail and landing it on the quay is inadmissible, being repugnant to the first clause, and not within the second, which only refers to the time and mode, and not to the expense of the discharge (The Nifa, 1892, P. 411; Lishman v. Christie, 19 Q.B.D. 333). (e) Standards of Comparison. .Usage as Test of Cruelty, 'Negligence, Reasonableness, dc. Treatment at Schools. The question be- ing whether the pupils at a certain school were properly treated ; — evidence is ad- missible of the general treatment of boys at schools of the same class as affording a criterion of what the treatment should have been at the school in question {Bol- dron v. Widdows, 1 C. & P. 65). So, in an apprentice's action against his master for faUing to give proper instruction, proof is receivable of what is the usual course of instruction in such apprenticeships, otherwise no evidence can be given of de- parture from such course (Cridlan v. MarUr, 9 T.L.R. 529). Handwriting. To prove that a certain letter wiis in the handwriting of A.:— -it is admissible to compare therewith cheques purporting to be signed ^y A. and pro- duced by the manager of a bank, although he had never seen A. write, had no signa- ture book, and the course of business was merely for A.'s wife to pay in money to A.'s account against which the manager wrote out cheques which he sent hank to A. for signature, such cheques being after- wards honoured and preserved by the bank as being signed by A. (R v. Tranter, Times, Jan. 23, 1893, C.C.E.). Treatment at Schools. The question being whether the pupils at -a certain school were properly treated J — evidence of the comparative treatment of boys at any other particular school, held inadmis- sible (Boldron v. Widdaws, opposite). Handwriting. A. sues B. on a (lost) contract which B. denies having signed. A. cannot prove its execution by compai'ing from memory the signature of the unpro- duced contract with a produced letter ad- mittedly signed by B. {Arbon v. Fustell, 3 F. & F. 152). A. sues B. for libel contained in a ( lost) letter, and tenders a photographed copy of the letter taken before its loss. Held, though this copy is admissible as second- ary evidence of the contents of the letter (including peculiarities in spelling, punc- tuation, and use of capitals, it was not a disputed document under the Act, and could not be used for comparison with genuine specimens (McCullough v. Munn, 1908, 2 F.R. 194, C.A.). To prove the handwriting of A. (deceased) to a leltter: — a comparison cannot be maid© Digitized by Microsoft® 126 THE LAW OF EVIDENCE. [book u. Admissible. Cruelty to Animals. The question be- ing whether A. cruelly ill-treated an ani- mal by performing a certain operation upon it — evidence is admissible that such an operation was customary in that part of the country, and that A. ibelieved, and that there was a general belief; that it pro- duced beneficial results to the animal. [Lewis V. Fermor, 18 Q.B.D. 532 (spay- ing cows ) , in which case the defence pre- vailed. So, also, in Bowyer y. Morgan, 95 L.T. 27, where branding cattle was proved to be custbmary and reasonably necessary. On the other hand, evidence of custom, where the act resulted in no benefit save to the owner, was admitted, but held no defence, in Ford v. Wiley, 23 Q.B.D. 203 (dishorning cattle), Murphy v. Manning, 2 Ex. D. 307 (cutting cock's combs), and Waters v. Braithwaite, 30 T.L.R. 107 (cows overstocked with milk). As to the Irish rule, see Gallaghan v. Society, &c., 16 L..R.I. 325; R. v. M'Donagh, 28 id. 204; and as to the Scotch rule, Todrick v. Wil- son, 26 L.Jo. 191]. Negligence. The question being whether a railway company was negligent in not employing more than one man to manage a coal engine ; — the fact that for twenty years it had been usual only to employ one man, and that no accident had happened, is admissible as tending to rebut neglir gence (Hart v. Lanes. & York. Ry., 21 L.T. 261, and post, 134; cp.- Troke \. Felton, 13 T.L.R. 252). So, in an action against a Railway Co. for injury to goods by de- fective packing; — evidence of the custom- ary mode of packing is admissible (Lewis V. G.W.Ry., 3 Q.B.D. 195,_p.A. ; Toliii v. L. & N.W. Ry., 1895, 2 Lit 22). A., a railway servant, sues the com- pany for injury sustained when uncoupling cars. The tact that A. knowingly disobeyed a By-law of the company in so doing, is admissible and sufficient to disentitle A. to recover {Ganadian Pacific Ry. v. Fre- chette, 1915, A.C. 871). A. sues a Tram Co', for injury caused by negligently re-starting a tram before he had alighted ; defence, contributory negligence in A. alighting by the front in- stead of the back steps in contravention of a Notice posted in the ear. Evidence by A. that it was the practice of passen- gers, in spite of the notice, to alight indif- ferently at either end of the cars. — ^Held, admissible to rebut this defence. [Freel v. Bury Tram Co., 1901, Times, Jan. 26, C.A. Evidence that A. did not see or know of the notice was held immaterial in view of Inadmiaaiile. between the letter anda deed fifty years old purporting, but not proved,- to be signed by A. (Miner v. Wheatley, 28 L.R.I. 144, 160. O'Brien, J., remarked that " proof to the satisfaction- of the judge " implied a personal judgment by him, and not the mere presumption of genuineness arising from the age of the deed). Genuineness of Fortune-Telling, &o. The question being whether A. intended to de- ceive B. by pretending to tell his fortune by the stars ; — evidence that A. ^nd others bona fide believed in his ability to tell for- tunes thereby held inadmissible (Penny v. Hanson, 18 Q.B.D. 478; Denman, J., re- marked, " We do not live in times when sane men can believe in such powers"). So, on a similar charge as to palmistry, evidence that palmistrjr is a well-recog- nized science whose professors enjoy a pro- fessional status was r&jected (B. v. Steph- enson, post, 155. Contra, Dams \. Curry, cited post, 155. ' Negligence. A. is charged with man- slaughter in causing B.'s death by a kick at football : — the rules of the game, and the fact that A. was, or was not, acting in accordance therewith at the time, held irrelevant ( R. v. Bradshaw, 14 Cox, 83; R. V. Moore, 14 T. LR. 229: 42 Sol. J. 264 ; the rejection of the rules is noticed in the last-named report). As to sitbseguent precautions by the de- fendant as evidence of negligence, see Hart v. L. lc£ Y. Ry., &o., cited post, 134. A., a barge-owner, sues B., a brig-owner, for damages sustained through a collision. The damage was caused by the anchor of the brig being carried in a position con- trary to a Thames By-law. Evidence by B. that it was the custom, locally, to ne- glect the By-law, held inadmissible (Sills v. Brown, 9 C. & P. 601, 603-4 ; Marriott V. Stanley, id. 604.). Digitized by Microsoft® CHAP. VIII.] FACTS EBLEVANT TO PEOVE MAIN FACT. 127 Admiasible. Inadmissiile: the general practice to ignore it. Cp., how- ever, Byrne v. Londonderry Tram Co., ante, 99] Knowledge .that boys habitually trespass, and are reckless {ante 25), im- poses, a special duty to take precautions. [MoDowall V. a. W. By., 1902, 1 K.B. 618 ; Rohinson 7. Smith, 17 T.L.R. 235, 423 ; cp. Sulivan v. Greed, 1904, 2 I.R. 817. See, however, Wheeler v. Moms, 113 L.T. 644, C.A.]. The question being whether tlie captain of a ferry-boat was negligent in starting in a fog: — the praotioe of other captains to cross the ferry in fogs is admissible, al- though the jury might find that the fog was so dense that it was improper, on that occasion, to start (Ball v. Wallasey Board, 1894, Times, Jan. 31, C.A.). So, where a horse was injured by barbed wire fencing, a general practice to use such was admit- ted (Turner v. Stallihras, 1897. Times. Aug. 13; Milton v. Pronh, 1902, Times, Dec. 12). And where a race-course had been roped instead of fenced, evi- dence that this was Babitually done at other race-courses without accident was ad- mitted (Handley v. Wolverhampton Co., '1003, Times, Jan. 16). Reasondbl^ess. The question being what was a reasonable time for the com- pletion of a sale of shares by A. to B. in Liverpool : — a cusitom on the Liverpool Stock ESebange as to such time is admis- sible, though neither A. nor B. was a mem- ber of the Exchange (Stewart v. .Cauiu, 8 M. & W. 160). The question being whether an agree- ment between A., a horse-dealer, and B. (deceased) as to the sale of the latter's horse was reasonable; a similar course of dealing between (1) A. and B. on former occasions; and (2) between other horse- dealers and their customers, is admissible (Re Leigh, 6 Ch. D. 256, C.A.). As to the admissibility of usage as a test of intention in rebuttal of crime, see R: V. Spencer, po^t, 155, and R. v. O'Gon- nell, post, 184. (/) Acting in a Public or Private Capacity, or under Documents. Reasonableness. A., a quarry owner, agrees to supply, and B., a smelter, agrees to take from A., all the limestone required for the production of hematite pig-iron at B.'s smelting^works. In an action by A., for breach of contract, to which B.'s de- fence is that the limestone supplied by A.- was not of a quality reasonably fit for this purpose, evidence (1) of the standard of purity of limestone. found or adopted else- where ; and (2) that with limestone of a particular purity better results could be obtained than from A.'s limestone, — held irrelevant (Strongitharm v. North Lons- dale Co., Times, Aug. 9, 1904). As Receiver. To prove that A. (de- ceased) was receiver of port dues for a Corporation ; — evidence tendered by the latter that A. used to furnish accounts of such dues to the Corporation, which ac- counts were produced from the Corpora- tion records ; — ^held sufficient, the office being a public one (Exeter Corp. v. War- ren, 5 Q.B. 801). feo, to prove that A., deceased, was manor steward to B.'s an- cestors, seventy years before the trial, evi- dence tendered by B. that A. furnished estate accounts to the then lord, who adopted such by signing them, held suffi- cient, though the office was a private one [Doe V. Michael, 17 Q.B. 276 ; the accounts were not signed by A., but by "A., junr.. As Receiver. — ^To prove that A. (de- ceased) was tithe-collector to B.'s ances- tors, seventy years before the trial; — evi- dence tendered by B. that A. acted as such by furnishing tithe accounts to them, held no evidence, the office being a private one, although the accounts were ancient and produced from proper custody (Short V. Lee, 2 Jac. & W. 464; aliter where it was the duty of a Corporation under its charter to appoint a tithe-collector). As Traveller and Collector. A. is charged with embezzling the moneys of B., his employer. Evidence by C, B.'s cashier, that A. acted as traveller and collector for B. and was regularly paid his commission by C. who produced the books showing Digitized by Microsoft® 128 THE LAW OF EVIDENCE. [book II. Admissible on A.'s behalf," there being no other proof of who "A. junior" was, or of his author- ity to sign for A.]. A. is charged with embezzling J:he moneys of a -company. A. had been appointed ])f a resolution, entered In the minute-book, but not signed by A. Held, parol evidence of the appointment might be given, as this was not a contract, but only a record of the transaction. AUter if A. had signed the minute IB. v. Staoey, 96 L/T.Jo. 214, CCR. ; cp. Rennie v. Clarke, Ac, ante, 69, post, 570; and Ootterill v. Hoiiy, post, 571]. As Director. A. is criminally charged with libelling the directors of a bank ; — evidence by &e prosecution that they acted as such is sufficient proof against A- ^^^^ they were directors (R. v. Boaler, 67 L.T. 354). As Judge. So, where A. was charged with perjury before a , deputy county court judge ; — evidence that the latter acted as judge is sufficient proof of his appointment (R. v. Ro-lerts, 14 Cox, 101, C.C.R. The minute of proceedings before him would also be evidence thereof). As Apprentice : see R. v.' Fordinglridge, infra. ' As Hushand and Wife : Cohabitation. A., as heir-at-law of B;, sues O. to recover land. To prove that A. was legitimate, evidence that his parents lived together as husband and wife, held admissible and sufficient, although his parents were alive and strict proof was obtainable, (Doe v. Fleming, 4 Bing. 266) . A. is charged with intermarrying with C. in 1858, while her former husband, B., whom she married in 1848, was alive. De- fence that B., in 1848, had a lawful wife D., alive. Evidence (1) that in 1843, B. had cohabited with D., in Canada, where D. was introduced, treated, and received as his wife, and where she afterwards gave birth to a child while so living with B. ; and (2) that in 1851, J), was still alive;— Held admissible and sufficient [R. v. Wil- son, 3 P. & F. 119, and see p. 122»i. cp Hamblin v. Slielton, id. 133 ; such evidence would not, however, have been sufficient to prove A.'s marriage either with B. in 1848, or with C. in 1858 ; cp. R. v. Naguib, 1917, 1 K.B. 359; post, chap xxxv,*Eepu- tation]. Acting under Documents. To show that A., a pauper, had acquired a settlement by being apprenticed by indenture to- B. (they being dead, and the deed not forth- coming) ; — the facts that A. had served B. as apprentice, and been treated by B. as such and not merely as a journeyman or shopboy, held presumptive proof not only of the apprenticeship, but of the existence of an indenture regulating it, that being the usual method (R v. Fordmgbridge, 27 L.J.M.C. 290; R. v. St. Marylebone, 4 Dow. & Ry. 475). Inadmissible. this, but that O. was not present when the engagement was made and only heard its terms afterwards ; — held insufficient with- out calling B. (R. v. Taylor, 10 Cox, 544, per Russell Gurney, Q.C. ; cp. contra, R. V. Beacall, 1 C. & P. pp. 296, 312, 457; and R: v. Joyce, 119 C.C.C. Sess. Pap. 562, per the Com.^Sergt.). Where A.'s engage- ment was admittedly contained in letters, and A. contended these entitled him to re- tain the moneys, t>ut the letters were not produced by B., parol evidence of their contents was rejected, and the jury direct- ed to acquit (R. v. Dodson, 62 J.P. 729; R. V. Clapton, 3 Cox, 126; post, 570: but see ante, 109^11). Acting under Documents. The ques- tion being_ whether a certain limitation was contained in a lost deed, and a mem- orial of the deed being produced in which such limitation did not appear ; — the sub- sequent conduct of the parties to the deed was held not admissible, as it was equally consistent -with that and several other limitations [Smith v. Smith, 1 L.R.I. 206. But usual limitations may be pre- sumed. Re Ward, 43 Ir. L.T.R. 113; post 541]. Digitized by Microsoft® CHAP.viii.J FACTS RELEVANT TO PEOVE MAIN FACT. 129 Admissible. Inadmissible. To prove an assignment (lost) by A. to B. of a patent, evidence of a long course of dealing between them, chiefly consistent with the existence of such assignment, is admissible {Dennison v. Ashdoton, 13 T.Ii.R. 226) . A. sues B for tithes. A. having put in the Statute Book (37 Hen. 8, c. 12), a copy of the decree printed therewith, and proved search among Chancery Records, but no enrolment found, tenders evidence by incumbents and tithe owners in other parishes to show that the Statute and De- cree had always been acted on by them. Held that though a custom as to payment of tithes in one parish was pet- se no evi- dence of the right in another, yet the facts of the decree being acted on by the par- ishes affected by it was the best second- ary evidence of its enrolment IMcuidougal V. Young, Ry. & Moo. 392; so, as to a copy of a lost recovery], (g) (A) Acts and Documents showing Ownership, or Ancient Possession. Of Land. A. sues B. for trespass to land alleged by A. to be his private free- hold, but over which B. claims a right of common. Evidence is admissible for A. (1) that his ancestors had granted leases of the land, though only counterparts signed by the lessees are produced [Doe v. Pulman, 3 Q.B. 622, 623-6; Magdalen Hosp. v. Knotts, post, 130; in Baigh v. West, 1893, 2 Q.B. 19, 30, C.A., entries in old parish books that "The following pro- perty belonging to the parish was this day let." &c., were admitted to prove the let- tings specified] ; also, (2) ihaX they had erected stones, marked with their initials, to show the boundaries of the lands ; evi- dence being admissible for B. that B.'s ancestors had destroyed the stones and protested in the Court Leet against their erection [Blandy-Jenliins v. Dunraven, 66 J. P. 661, per Byrne. J.; in Philpot r. Bath, 1905, Times, June 30, B. proved that the stones had been erected, not animo possidentis, but as precautions against the sea]. So, (3) A. having ten- dered a document dated 1659, found in his muniment room and signed by D. (tenant of a predecessor in title of B.), witness- ing that C. (a predecessor in title of A.) had been persuaded to stay an action for trespass against D., upon D. binding himself by the document to pay C. 16s. costs and to refrain from further trespass ; — held admissible, per Lindley, L.J., not strictly as an act of ownership, but as a vindication of possession which was in- ferential evidence of one : per Jeune, P. and Romer, L.J., as a dedaration by a deceased person against pecuniary inter- est testifying to an act of ownership by C. (Blandy-tTenkins >. Dtinrai-en, 1899, 2 Ch. 121, CA.). I..E. — 9 In Blandy-Jenkins v. Dunraven, oppo- site, D.'s acknowledgment per se would not have been receivable against B. either as an admission by a predecessor in title" (post, chap, xiz.), or as a statement by a deceased person against proprietary inter- est [post chap, sxv.), since a tenant caQ- not prejudice the title of his landlord. Digitized by Microsoft® 130 THE LAW OF EVIDENCE. [booe n. Admissible. A. sues B. for trespass to lands held under an ancient Royal Patent. To show that the Zooms of the trespass was parcel of the lands granted, A. tenders convic- tions and awards obtained by his ancestors against strangers in title to B. for trespass upon the lands. Held admissible, not as adjudications of right, or evidence of repu- tation, but as acts of ownership explana- tory of an ancient document which was ambiguous {Brew v. Haren, I.R. 9 O.L. 29 ; 11 id. 198 ; post, chap. xlvi. The awards would not have been admissible as reputa- tion, post, chap. XXV ). A. sues B. for trespass upon land be- tween A.'s farm and the high road, which B. claims as part of the highway. Evi- dence is admissible (1) for A. that he and his tenants had habitually cut grass and willows on the land, grazed their cattle thereon, protecting them by hurdles placed round the swampy parts, and turned off the cattle of strangers ; and (2) for B., that strangers had sometimes cut grass and grazed cattle there (although this was not shown to have come to the knowledge of A. or his tenants), and that B.'s servants had frequently deposited road-scrapings and stones for the repair of the highway on the land {Belmore v. Kent Council, 1901, 1 Ch. 873 ; Hwrvey v. Trwro Council, 1903, 2 Ch. 638. In the latter case B.'s surveyor had paid A. a nominal rent for the user, but this had been disallowed by B. in thp surveyor's accounts). A. (a Corporation) sues C. to recover land held by him under a lease granted by A. to B. in 1783, but now alleged by A. to be void. A. puts in the counterpart of the lease signed by B. but without show- ing that A. was in possession of the land in 1783, or that B. entered under the lease, or that C. claimed through B. : — held, that • granting the lease was an act of owner- ship showing A.'s title to the fee in 1783 ; and that C, being in possession of the land included in the lease, the presumption was, that he claimed through B. until the con- trary was proved (Magdalen Hasp. v. Knotts, 8 Oh. ,D. 709; cp. Metiers v. Brown, 32 L.J.Ex. 138. The land had been conveyed to A. in 1763, and Fry, J., held that a presumption therefore arose that it continued in A.'s possession till 1783). 0/ Right of Way. Dedication. A. sues n. for trespass, B.'s defence being a pub- lic right of way. Evidence is admissible (1) for B. of long user of the way by the public, and also that many years before repairs were done to the road by the town- ship surveyor ; and (2) for A. that A.'s tenants and predecessors in title had from time to time obstructed the road and turned back persons using it (Steph. art. 5 n) ; also, in explanation of the repairs, that an Inadmissible. A. (a parish) sues B. to recover certain lands. To show that B. was in possession thereof as tenant, it is proved that he and his ancestors paid A. for the lands £6 a year, which the parish books described as "rent." In rebuttal, B. proves that his ancestors, when selling adjoining lands, covenanted in the various convey- ances to indemnify the purchasers against £6 payable by them to the parish as "rent-charge" .in respect of the lands in question. Held, B.'s title-deeds were no evidence against A. of the truth of the facts asserted, viz., that the £6 was rent- charge and not rent, though they were evidence of the intention with which the covenantors paid it to A. (A.O. v. Stephens, 6 De G. M. & G. Ill, 139-140; so, if B. had written to his banker telling him of the rent-charge and directing him to pay the £6 yearly to A.). Of Right of Way. Dedication. A. sues B. for trespass, B.'s defence being a pub- lic right of way. Evidence of a promiscu- ous user by the public, of the locus in quo, not confined to any definite path, will not support B.'s claim [Robinson v. Cowpen Board, 63 L.J.Q.B. 235, C.A. ; (Hmts Causdway Co. v. A.O., 1905, 5 New Irish Jurist, 301; Carson's Real. Property Statutes, "Dedication" ; contra, A.-Q. v. Esher, 66 J.P. 71, aed gu.]. Digitized by Microsoft® CHAP.viii.J FACTS EELEVANT TO PEOVE MAIN PACT. 131 Admissible. agreement was made at the time by the steward of A.'s ancestor, or even by stran- gers, with the surveyor, providing that the expense of the repairs was not to be borne by the township (Feirand v. MiUigan, 7 Q.B. 730). A.'s title-deeds (showing tliat during, and prior to, the period covered by the alleged user, the land was held by tenants for life in strict settlement, so that there was no one who could either de- dicate the road to the public or acquiesce in its user), are also admissible [Bolei-ts V. Jantss, 89 L.T. 282 ; op. Weil v. Bald- mn, 75 J.P. Rep. 564, where the law on this topic is stated by Parker, J. Though, however, dedication cannot be made by a termor, or for a term, but only in perpetu- ity (CorselUs v. L.C.O. 96 L.T. 614), yet dedication anterior to the lease may some- times be presumed from user during it (WinierloUom v. Derhy, L.K. 2 Ex. 316; Pai-is V. Lymington Gomwil, 75 J.P. Jo. 88 ; Webb v. Baldwin, sup. : Shearburn v. Clicrtsey Gounoil, 78 J.P. Kep. 289, where the property had been in tenancy since 1823, but was mortgaged and in strict settlement, evidence of stopping from time to time by the tenant was held admissible, but insufficient to rebut the inference of dedication prior to 1822. So, the land be- ing in settlement is no bar, if the conduct of the remainderman (or of the tenant for lite and remainderman together. Farquhar V. Newbury Council, 1909, 1 Ch. 12 G.A.) , presumes dedication (IFcbi v. Baldwin, sup.; Coats v. Hcrvfordshirc Council, opposite) ]. Of Fences and Ditches. A. sues B. for trespass in cutting down trees in a boun- dary fence between their two properties. Evidence that A.'s gamekeepers had for several years collected eggs in the fence ; that the estate maps placed the fence on A.'s land; and that the ditch vfas on B.'s side of the fence (raising a presumption that both ditch and fence belonged to A., see 144 E.T.Jo. 2, 108), are admissible for .\.; and ovideuce thnt B. or his tenants to the knowledffo of A.'s tenants (though not shown to have been to that of A. or his agent), had for many years cut and laid the fence and cut and sold trees growing therein, one of which lay for two years on A.'s land,— is admissible for B. [Craven v. Pridmore, 18 T.L.R. 282. C.A.; Henniker V. Boward, 90 L.T. 157 ; in these cases the estate maps, and in particular the presump- tion against A. form the ditch being upon his side of the fence (as to which see 144 li.T.Jo. 2. 108) . were held not re-butted by A.'s -acts of ownership]. In Stanley v. White, ante. 72, the fact that A. had not claimed tlie fallen trees and that his tenants bad stated in explanation that they belonged to B., was received, al- though the tenants' admission per .w was not evidence against A. Inadmissible The question being whether certain laud had been dedicated to the public, evidence that other land, though part of a con- tinuous strip and of a similar description, had been fenced off from the highway with the consent of the highway authority, held not admissible [Coats v. Herefordshire Council, 1909, 2 Ch. 579, C.A. ; op. A.-O. V. Lindsay-Hogg, 76 J.P. Rep. 450. In the former case. Eve, J., in the Court below, remarked: "In considering evidence ad- duced to rebut dedication, it is necessary to distinguisli acts whidi are referable to the oionersMp of the soil, from those which show an intention to emolude the public. The conduct of the owners in as- serting ownership of the soil, may but emphasise their acquiescence in the user of the surface by tiie public. When one finds an owner alive to the necessity of evidencing his continued possession, active to prevent encroachments upon his soil, and at the same time per- mitting, without protest, the unrestricted passage of the public over the surface of the very soil of whioh he is asserting his ownership there are cogent reasons for presuming dedication to the public."]. Digitized by Microsoft® 133 THE LAW OF EVIDENCE. [book II. Admissible. Of Fishery. A. sues B. for trespass to a fishery appurtenant to A.'s manor. Entries in the, Court Eolls of ancient li- censes to fish granted by A.'s ancestors, without proof that the rents received had been paid ; and modern leases, with such proof; — are admissible for A. (Rogers v. Ailen, 1 Camp. 309 ; Musgrave v. Inol. Corns., Ii.R. 9 Q.B. 162, 178 ; Maloolmson V. O'Dea, 10 H.L.C. 593). So, old Bills and Answers in a Chancery suit brought by A.'s ancestors are receivable, not as evidence of the facts stated, but as show- ing a pending suit and as assertions of ownership submitted to, though by stran- gers in title to B. (Malcolmson v. O'Dea, sup.). So, also, decrees in old possessory suits brought by them against trespassers (Neill v. Devonshire, 8 App. Cas. 135; in these two cases the right involved was a public one, viz., to a several fishery). Of Tolls. The question being whether a Corporation is entitled to claim tolls ; — an ancient table of such tolls produced from their muniments and which had been kept by the town clerk of the Corporation, by whom it was delivered to the lessees and by the latter to the collector, by which the tolls had always been collected, — is ad- missible in favour of the' Corporation {Brett V. Beales, M. & M. 419 ; B. v. Car- penter, 2 Show. 48) . So, also, old accounts, kept by the town treasurer, showing col- lection of the tolls, and signed by the auditors as "allowed" (Lancum v. Lovell, 6 C. c& P. 437, 443). Of Minerals. A. su^s B. for taking min- erals under certain land, not in a mining district; — the fact that A. is in possession of the surface of the land is prima facie evidence that he owns the minerals; and in rebuttal evidence is admissible that strangers not claiming under A. have from time to time taken the minerals (see Rowe V. Orenfel, Ry. & M. 396; Rowe v. Brenton, 8 B. & C. 737). Of Highways, Bridges, &c. On an in- dictment against a township for non-repnir of a highway, the record of an indictment against an adjoiining township for non- repair of a different part of the same road. Inadmissible. Of Fishery. To prove that A. was en- titled to a fishery; — (1) a proposal made by a stranger to one of A.'s ancestors to rent the fishery, which proposal was not shown to have been accepted or acted on (Po)well V. neffernan, 8 L.R.I. 130, 143) ; (2) an ancient license to fish granted by one of A.'s ancestors, but not shown on its face or proved by extrinsic evidence, to apply to the locus in quo (id.) ; (3) ancient entries in Corporation books purporting not to constitute licenses to fish, but mere- ly directions to prepare such licenses, or narratives of them (Malcolmson v. O'Dea, opposite) ; and (4) to prove the boundar- ies and extent of A.'s fishery — an un- aubhenticated report, made 140 years earlier, of an action for trespass to the fishery, then tried, together with the judge's charge therein (Bridges v. Highton, 11 L.T. 653) — are respectively- inadmis- sible. Of Tolls. The question being whether a Corporation as entitled to claim tolls: — ancient entries in the books of the Cor- poration, ordering powers of attorney to be made out_ to its bailiffs authorizing them to receive the tolls ; and copies of ancient tables of tolls in the hands of lessees thereof, but not shown to have been delivered to them by the Corporation ; — are not admissible for the Corporation (Brett V. Beales, opposite). Nor are old entries, signed by a former bailiff, stating that certain ships had been seized for non- payment of the tolls and that their cap- tains had afterwards admitted the offence and paid 4s. as a fine, for these are merely of a private and not public character, and therefore being self-serving, are inadmis- sible (Marriage v. Laiwrence, 3 B. & Aid. 142; see post, 372-3) ; nor old accounts of the tolls collected, kept by the town treas- urer and signed by the anditors as " ex- amined " but not as " allowed " (Lancum v. Lovell, opposite). An information quo warranto by the A.-G. of Elizabeth against the Corpora- tion in resipect of the tolls claimed by them, but which was not shown to have been prosecuted, held not admissible against the Corporation (Lancum v. Lovell, at pp. 439-40). Of Minerals. A. sues B. for taking min- erals under certain land, situated in a min- ing district: — the fact that A. owns the surface of the land is no evidence that he owns the minerals, as in such d'stricts these are commonly several inheritances (Rowe V. Orenfel, opposite; Rich v. John- son, Str. 1142 ; Hodgkinson v. Fletcher, 3 Doug. 31), Of Highways, Bridges, dc. On an in- dictment against a parish for non-repair of a highway, to which "not guilty" only has been pleaded, but uo defence that the adjoining owners are liable to repair Digitized by Microsoft® CHAP. VIII.] FACTS RELEVANT TO PEOVE MAIN FACT. 13o AdmUsihle. which indictment had been submitted to, is admissible (R. v. Btyhtside Bierloic, 13 Q.B. 933). On an indictment against a parish for non-repair of a bridge, the ques- tion being whether the bridge is a public or a. private one ; — evidence of repairs by adjoining owners of a character adapted either for the public benefit, or their pri- vate convenience, is admissible in support of the above contentions respectively {R. V. Northampton, 2 M. & S. 262). Of Manors. The question being whether A. owned a certain manor — the facts that perambulations thereof were made by A., together with declarations explanatory of them {ante. 111) ; and that Courts were held therein {Doe v. Heakin, 6 A. & E. 495) ; with copies of Court Rolls purport- ing to be surrenders of land by persons proved to be then in possession, with ad- mittances aceordinglv (Standen v. Christ- mas, 10 Q.B. 135) ; — are evidence of the existence of the manor and of such lands being within it. So, entrdes in the books of the Clerk of the Peace of deputations, granted by A.'s ancestors, to game-keepers to shoot over the manor, are evidence both of the existence of the manor, and that such .rights were publicly exercised^ so that others purporting to grant similar li- censes must have known their want of title {Hunt v. Andrews, 3 B. & Aid. 341 ; Weber v. Stanley, 16 C.B. N.S: 698, 717) . Of Advotcsons. The question being whether A. owned an advowson. An ori- ginal collation to the living by the bishop, in favour of one of A.'s ancestors, is evi- dence of A.'s title {Irish Soc. v. Berry, 12 C. & F. 641). Inadmissible. ratione tenures ; — evidence of repairs by the latter is inadmissible, as such repairs might have been done merely for thedr own convenience (R. v. Lordesmere, 16 Cox, 65. C.C.R.). A. sues B. ratione tenurw, for non-repair of a stile in a public footpath through B.'s field. A. proves that B. had done slight repairs to the stile, but gives no proof that B. had been called upon to repair it by the highway authorities. Held, no evi- dence of the liability alleged {Rundle v. Searle, 1898, 2 Q.B. 83). Of Manors. The question being whether A. owned a certain manor : — the mere pro- duction of deputations to gamekeepers, granted by A.'s ancestors, held inadmis- sible without proof that such deputations were duly registered or enrolled pursuant to the statutes in force at the time {Rush- worth V. Craven, McClel. & T. 417, 422). The question being whether manor A. was formerly part of manor B. The fact that the lord of the former had for long paid rent to the lord of the latter is no evidence of this fact {Anglesey v. Hather- ton. 10 M. & W. 218). Of Tithes. On a claim for tithes ; an old resolution in the books of a Corpora- tion, who were lay improprietors, that the tithes should, on defeiult of the accustomed payment in lieu of tithe, be taken in kind, is not admissible for the Corporation against a claim of modus, without proof that tithe in kind had in fact been &ken pursuant to such resolution {A.-G. v. Cleeve, cited Ros. N.P., ISth ed., 54). («) Good or Bad Faith of Party's Claim or Defence. The question being whether A. (the owner) or B. (the contractor) is liable for work done to a house by C., on B.'s order ; evidence that A. paid B. for the work_ done is admissible in A.'s -favour as showing the bona fides of his defence, and that it was not a mere attempt to avoid payment (Gerish v. Ghartier, 1 C.B. 13: and see Milne v. Leisler, ante 74; and Barden v. Kyverberg, post, 155) . _A. indicts B. for libel in describing him as a swindler ; — a report to the same effect made by the French police, Uipou which B. founded his statement, held ad- mis^ble to show the botia fides of B.'s de- fence, though not to justify the libel or prove its truth [R. v. Labouchere, 14 Cox, 419 ; cp. post, 262, Examples. Gener- ally, "however, such evidence is inadmis- sible in libel cases, even in mitigation of damages ; Odgers on Ubel. 359 ; Tucker V. Lawson, 2 T.Ii.E. 593; Scott v. Samp- son, 8 Q.B.D. 491 ; and see R. v. Netoman, post, 134, 262]. The exors. of A. (a deceased stock- broker) sue B. for money lent her by A. Defence, that the advance was a gift, not a loan. Entries in A.'s books, treating it as a loan and debiting B. with interest thereon : Held inadmissible to show that A. had bona fide treated it as such. [Schwabacher v. Heimer No. 29. 1907, C.A., per lid. Alverstone C.J., and Buck- ley and Kennedy, L.JJ., reversing Ridley, J., Em rel. G. F. Emery, counsel for plain- tiffs. The entries, being in his own inter- est, were also rejected as statements by a deceased person, post, 283], As to evidence of bona fide belief in Palmistry, Astrology, &c., to rebut an in- tent to deceive thereby, see ante, 126, post 155. Digitized by Microsoft® 134 THE LAW OF EVIDENCE. [book II. Admissible. A. petitions for divorce from B., his wife, on the ground of her adultery with C. Reports made by detectives to the husband were received in the latter's favour, not to prove the facts stated, but as evidence of liis bona fides in afterwards making the same charges against his wife [ Walker v. W., 77 L.T. 715 ; and see Far- tm V. F., post, 156) . Inadmissible. U) Admissions by Conduct. A. (a parishioner) pays a sum of money as tithes to B. (a rector). This is an ad- mission by conduct against A. that B. is entitled to the tithes (James v. Biou, 2 Sim. & St. 606; Chapman v. Bewrd, 3 Anstr. 942). A. sues B. for injuries cailsed by B. ; — the fact that A. had ascribed her injuries to a fall and not to B. is relevant as im- peaching her case ; and evidence that she bad bad no such fall is admissible for A. in rebuttal (Melhuish v. Collier, 15 Q.B. 878). So, the fact that A.'s husband and her solicitor's clerk had conspired to sub' orri false witnesses at the trial is rele- vant as an admission by conduct that A.'s claim is bad. [Moriarty v. L.G. id D. Ry., L. R. 5 Q. B. 314; B. v. Watt, 20 Cox, 852; cp. Queen's Case, ante, 98]. A. sues B. to recover a strip of waste adjoining a highway. B. pleads adverse possession and shows that his ancestors enclosed the strip in 1818, when it be- longed to G. deceased (A.'s ancestor) in fee, by virtue of the presumption that such waste belongs to the adjoining owners. To rd)ut this presumption A. ehows that C. accepted an allotment of the strip in ques- tion under an Inclosure Act dated 1836, on the footing of his having commonable rights only and not the fee of the waste. Held, an admissiooa against C.'s interest which was evidence for A., against all per- sons, that B.'s adverse possession dated from 1836 and not 1818 [&ery v. Redman, 1 Q.B.D. 161; cited post, 285. The facts that the Inclosure Comrs., after in- quiry, treated the waste as part of the manor, and that various adjoining own- ers treated it as their own by enclosing it, were also admitted ; see inf. Treatment] . A. (a parishioner) pays a sum of money as tithes to B. (a rector). This is not an admission by conduct against B. that A. owes him the tithes (James v. Biou, opposite). A. sues a railway company for injury by an accident. The fact that the com- pany adopted additional precautions after the accident is not an admission by co;i- duct of their previous negligence [Hart V. L. d Y. Ry., 21 L. T. 261, where Bram- well, B., remarked: "People do not furnish evidence against themselves simply by adopting a new plan to prevent the recur- rence of an accident. . . Because the world gets wiser as it gets older, it was not therefore foolish before" ; Beever v. Jlun- son, 25 'L.Jo. Notes of Cases, 182 ; Beven, Negligence; 3rd ed. 97(i-7. In Canada, ques- tions on this point have been held im- material and irrelevant (Cole v. Ry. Co., 19 Ont. Pr. Reps. 104) ; but in another case it was said that such facts, though no evidence of negligence per se, could not be excluded, since they might afford a foundation for other relevant matter (Toll V. C. P. Ry., 1 Alberta L.R. 318) . The English rule obtains generally in America. Columbia Ry. v. Bawihorne, 144 U.S. 202 ; Wigmore Ev. s. 283]. A., a contributor, sues B., the registered proprietor of a newspaper, for the price of certain articles therein. Defence that C, another person connected with the paper, and not B., is liable. Evidence for B. that C. had verbally admitted that he, C. was the proprietor, is inadmissible [Waits V. Lyons, 7 Scott, N.R. 1000. Aliter, perhaps, if acts of ownership had been done by C. with reference to the paper] . A. is charged with libelling B. The fact that B. had abstained from taking procedings against C. for a similar libel Is not an admission by conduct by B. that the statements 'in C.'s libel were true ; nor is C.'s libel admissible against B. on this ground [R. v. Newman 1 E. & B. 268, cited post, 262. Op., how- ever, Irving v. Bodie, 1909, Timee, Nov. 5]. (h) Treatment. To prove Sanity. The question being whether A., a testatrix, was sane at the time of making her will, the will having To prove Sanity. The question being whether A., a testator, was sane at the time of making his wiU; — IJetters from Digitized by Microsoft® CHAP, viii.] FACTS EELEVANT TO PEOVE MAIN FACT. 135 Admissille. been made in an asylum during an alleged lucid interval ; — a medical inspector, who had attested the will, was allowed to state whether he saw A. under any restraint, though not whether she was treated as sane (Afortin v. Johnston, 1 F. & F. 122, 123), The question being whether A. was in- sane at the time of her marriage in Octo- ber, 1882 ; — evidence that prior to this date she was always received and treated as sane by her friends and acquaintances, that she formed close intimacies and friendships with several distinguished and intelligent people, and that in August she became engaged to her future husband after ample opportunity on his part for observing her demeanour and state of mind, — was received. IDvrham v. D., 10 PJD 80 ; as to the opinions of non-medical witnesses on inssinity, ^ee post, 400, 401]. Maniage. The question being whether A. and B. were lawfully married; — the fact that they were always visited and received as man and wife by the respect- able families in the neighbourhood, is ad- missible (Tay s 578. See Reputation, post, 384). Ownership of Land. As to treatment by third persons to show Ownership of Land, see Gery v. Redman, sup. Quality of Goods. To prove that B. (a brewer) supplied A. (a publican) with bad beer; — the fact that a.'s customers after tasting the beer threw it away com- plaining of its quality, held admissible (Manchester Brtwery v. Coombs, ante, 75). Inadmissible. his friends addressed to A. and found opened and in his possession after his de- cease, in which letters A. was treated as intelligent and sane, but which were not connected in evidence by any act done by A. in relation thereto; — Held inadmissible although the writers were deceased and they had vouched for the genuineness of their opinions by sending the letters to A. [Wright v. Tatham (1838), 5 C. & F. 670. Id cases other than Sanity, the mere open- ing and possession of the letters would have sufficed to render their contents ad- missible ; id. pp. 7S6-7 ; cp. ante, 84 ; and post, 262]. So, the fact that boys in the street jeered at him as insane {Martin V. Johnston, opposite) . And, the ■nill of A.'s father having been tendered to show that the latter, by leaving A. property, had intimated his opinion of A.'s capacity to manage bis affairs, was also held in- admissible (Sutton V. Sadlei; 3 C.B. N.S. 99-100, per Cockburn, C.J.). Condition of Ship. The question being as to the sea-worthiness of a ship ;-;— the facts that the captain after a thorough ex- amination of the ship, embarked in her with his family, and that the underwrit- ers, after her loss, paid the policy-moneys on the footing of her seaworthiness, are inadmissible (Wright v. Tatham, 7 A. & E. pp. 3S5-8 ; semble pe»' Parke, B.). Condition of Premises. A. sues B. for obstructing the light to A.'s hotel. The fact that A.'s customers refused to take the rooms alleging their darkness as the reason of the refusal ; — held inadmissible (Cfres- ham Botel v. Manning, cited more fully ante, 75). Validity of Transfer. A., tlie assignee of B.. a bankrupt, under a fiat in March, 1837, sues C, one of B.'s creditors, to re- cover goods delivered by B. to C. iu ,Tanu- ary, 1837, after certain alleged acts of bankruptcy had been committed by B. To prove such acts and also th.it the delivery to C. was itself an act of bankruptcj", or an invalid preference, A. tenders evi- dence that before January other goods had been delivered to otlier creditors who, after the March fiat, had returned them to A- Held, that the only way the conduct of these other creditors bore on the case was to show their conviction that under the circumstances they were not entitled to retain them ; and as their opinions, after the fiat, were inadmissible, so also were their acts, adduced in order to raise an in- ference as to the previous intentions either of themselves or of the bankrupt [Back- house V. Jones, 6 Bing N.C. 65. The evi- dence was also tendered as part of the res gestos, i.e. of the delivery to C. ; see ante, p. 76, and post, 165]. Digitized by Microsoft® ( 186 ) CHAPTBE IX. FACTS RELEVANT TO SHOW IDENTITY, OE CONNECT THE PAETIES WITH THE TRANSACTION. PERSONAL CHARACTERISTICS, ETC. When a party's identity with an ascertained person is in issue, it may be proved or disproved not only by direct testimony {ante, 65), or opinion evidence {post, 398, 403), but pre- sumptively by similarity or dissimilarity of personal characteristics {e.g., age, height, size, hair, complexion, voice, handwriting, manner, dress, distinctive marks, faculties, or peculiarities), as well as of residence, occupation, family relationship, education, travel, religion, knowledge of particular people, places, or facts, and other details of personal history {R. v. Orton, passim). In this connection, too, identity of mental qualities, habits and disposition may become relevant, though it would, be excluded ill more specific inquiries {inf.). [Taylor, Med. Jurisp., 5th ed., 101-7; Hubback, Ev. of Success, 438-68; Wigmore, Ev., ss. 410-16.] Where, however, a party's identity is only material as showing that he did some particular act, the range of acts is much narrower. In civil cases a party's identity most frequently comes in question as having executed a particular document ; and here identity of name, handwriting, residence and occupation, or even of name and handwriting alone, will generally suffice {post, 523). As to the identity of attesting witnesses, see id.; of persons or property referred to in wills, contracts, libels, &c., post, chap. xlvi. ; of persons named in public registers, certificates, or licenses, post, 343-4, and Simpson V. Dismore, 9 M. & W. 47; of motor cars and drivers, Marshall v. Ford, 72 J.P. Rep. 480, Martin v. White, 74 id. 106, and see 74 J.P. Jo. 158, and 127 L. T. Jo. 12, 107 ; of persons as having taken prior legal proceedings, Russell v. Smyth, 9 M. & W. 810, or acted in a particular official capacity, Smith v. Hen- derson, id. 798, and Collier v. Nohes, 2 C. & K. 1012; of deceased victims in murder trials {post, 139) ; of deceased declarants, post, 276, 281, 288, 295; of disputed documents, post, 523; of stolen property, see R. v. Pearson, 72 J.P. Rep. 449, R. v. Hill, 7 Cr. App, R. 250, R. v. Price, 9 id. 15, R. v. Smith, 11 id. 19, R. V. Baker, id. 191 ; of weapons with which a crime was committed, ante, 70; of trade-marks, engravings, and musical compositions, ante, 9, 47, and post, 573; of the issues on a plea of res judicata, post, 415-6, 419-22; and as to conversations admitted to identify a date, see post, 218. As to Confrontation for purposes of identification, see post, 465-6. PREVIOTTS AND STTBSEftUENT CONDUCT. When an act has been proved, and the question is whether it was done by a given party, the undermentioned facts, which have chiefly to be invoked in criminal cases, are relevant, although not forming parts of the same transaction. In most cases, indeed, evidence of the corpus delicti is separable from that identifying the criminal; but in Digitized by Microsoft® CHAP. IX.] FACTS RELEVANT TO SHOW IDENTITY. 137. some, it is equally applicable to both (Wills, Circ. Ev., 6tli ed., 323-5, 373-411; Wigmore, Ev., s. 3072; 18 Grim. Law Mag., (Am.) 289). [For presumptions in criminal cases, which deal mainly with the present topic, see Best, ss. 91-2, 452-67; Euss. Or., 7th ed., 2057-62; Eos. Cr. Ev., 13th ed., 14-22; Steph., art. 7; Whart., Cr. Ev., ss. 306, 756-7; Wills' Circ. Ev. 6th ed. passim]. Previous Conduct and Capacity, Attempts, Threats, Enmity. The presence or absence of motive {B. v. Ball, 1911, A.C. 47, 68; R. v. Ellwood, 1 Cr. App. E. 181; R. v. Abramovitch, 7 id. 145, 147; Wills, 6th ed., 57- 68, 260-4; Best, s. 453; as to adequacy of motive, see post, 140), of means, opportunity, preparation or previous attempts (as to the difEerence between preparation and attempt, see R. v. Robinson, 1915, 2 K.B. 342), on the part of the accused to do the act; his knowledge of circumstances enabling it to be done; his declarations of intention {ante, 63-4, post, 140), or threats to do it; or his enmity towards the injured party {R. v. Ball, sup., at pp. 68-9 ; such evidence, like motive, is relevant not only to show the mens rea, but also the commission of the act by the accused), are admissible to prove identity. So, where the doing of the act reveals any special knowledge, skill, or capacity, his possession or non-possession thereof is also relevant {post, 142, 143). Motive, preparation, opportunity, &c., like most mental or composite facts, are usually provable not by direct testimony, but by detailing the specific incidents relied on as constituting or amounting thereto {ante, 56, 65), as well as, of course, by thfe party's own admissions. Moreover, as in the case of facts forming part of the main transaction {id.), or showing guilty knowledge, &c. {post, diap. xii), evidence relevant under the present head cannot, in general, be excluded because it involves the proof of other crimes, since otherwise tlie greater the criminal the greater might often be his immunity {R. v. Clewes, 4 C. & P. 221 ; R v. Briggs, 2 M. & E. 199 ; cp. Roupell v. Haws, ante, 69). So, on a trial for murder, to show the prisoner's possession of the weapon used, the fact that he stole such a weapon some time previously may be proved {R. v. Ball, 6 Cr. App. R.H.L. 31, 33-4) ; as, also, to show opportunity for robbing premises, the fact that he obtained access by burglary to others from which they could be watched; and generally all preMmiaary acts, whether criminal or not, rendering the crime more easy, safe, certain and effective, are receivable as in the nature of preparations [Com. v. Robinson, 146 Mass, 571 ; Walker's Case, 1 Leigh, 576 ; People v. Zucker, 20 App. Div. 363, affd. 153 N.Y. 770; Wigmore, Ev., s. 216; Chamberlayne, Ev. ss. 3256- 60; post, 158]. On the other hand, Similar facts merely showing habits or disposition {post, 158, 167), and Character {post, chap, xiii.) are generally inadmissible to identify the doer of an act. Alibi. Finger-prints. Foot-marks. The fact that the accused was in the neighbourhood or elsewhere about tlie time of the act (Wills, Circ. Ev., 6th ed., 279-286), or that finger-prints or foot-marks corresponding to his own {id. 161-6, 191-205; the Court may act on the former without corroboration, R. v. Castleton, 3 Cr. App. E. 74), or articles belonging to him, were found near the spot, are relevant; and to rebut alibi, proof that he was engaged in other crimes, whether similar or not, about the same time and place, has been admitted {R. v. Briggs, ante, 40). An alibi will not generally be entertained on appeal, however, unless supported by the defendant's oath {R. v. Kirkham, 73 J.p. Eep. 406 ; though for an exceptional case, see R. v. Malvisi, 73 J.P. Jo. 312). Digitized by Microsoft® 138 THE LAW OF EVIDENCE. [bookii. Subsequent Conduct. The presence or absence of facts showing his consciousness of having done the act may also be proved — e.g. (in criminal cases) precautions taken to avert suspicion; change of demeanour or mode of life; flight; the fabrication or suppression of evidence; or the giving of false names, addresses, and explanations. Possession of Property or Documents. So, the possession of property connected with the transaction is often a highly incriminatory fact. Thus, recent possession of stolen property, if not reasonably explained, raises a presumption of fact, though not of law, that the possessor is either the thief or the receiver, according to circumstances [ante, 35; as to possession by agents, see ante, 89, 93]. What amounts to such possession depends on whether the property is of a nature readily to pass from hand to hand — e.g. possession, two months after the theft, of property not likely so to pass was held to throw on the prisoner the burden of accounting tiierefor {R. v. Partridge, 7 C. & P. 551) ; while, had it been readily transferable, the inference would have been very slight {id.), and in one case, three months was held to raise no such presumption at all- {B. v. Adams, 3 C. & P. 600). So, the exclusive- ness of the possession or access is material — e.g. where there are other inmates of the prisoner's house, the mere finding of the property there is not, of itself, sufficient to prove possession by him; there must be control, exclusive or joint, as well {R. v. Berger, 84 L.J.K.B. 541; R. v. Watson, W.N., 1916, p. 339). The inference of complicity from possession of articles connected with a crime, applies also to other criminal charges — e.g. indecent photographs in certain sexual charges, house-breaking implements in burglary, drugs, and instruments in cases of abortion, &c. {R. v. Thompson, 1918, A.C. 231 ; R. v. Twiss, 1918, 2 K.B. 853), [Tay., 8th ed., ss. 140-142; 10th ed., 127a- 127o; Best, ss. 210-214; Eos. Cr. Ev., 13th ed., 18-20; Euss. Cr., 7th ed., 2099- 2101; Archb. Cr. PL, 23rd ed., 340-341; Wills, Cir. Ev., 82-97.] As to the seizure and production of articles by the police, see ante, 9; and documents and property found at his abode even after his arrest, are evidence against a prisoner, if their previous existence may be inferred from the circumstances (2 Eus. Cr., 7th ed., 2099-2101; ante, 93). So, letters written by him, or invited by and addressed to him, but which have been intercepted at the post office, are receivable, the postmaster being the agent of the recipient {R. V. Oooper, 1 Q.B.D. 19 ; ante, 9, 102) . Conversely, the fact that documents or property belonging to the prisoner have been found at the scene of the -crime is also evidence against him; and in rebuttal he may disprove their identity, or show that they had been stolen from him, and so probably placed there by others (R. v. Frantz, 2 F. & P. 580). Though, however, the contents of letters in his possession may be used to show the accused's know- ledge, identity, or interest, those portions which merely show his general bad character will be rejected {R. v. Hull, 1902, Queensl. St. E. 1). Conduct and Declarations by Other Persons. In criminal cases the previous conduct and declarations of the injured or other parties, and their relations with the accused, are often material in fixing the latter's identity {R. v. Ball, 1911, A.C. 47, 68; R. v. Clnvex, post, 140; R. v. Buckley, 143; R. V. WainwrigU, ante, 79; Joy v. Phillips. 1916, 1 K.B. 849, 854 (cited post, 169), in which case Phillimore, L.J., remarked, "Wherever an enquiry has to be made into the cause of death of a person and, there being no direct evi- dence, recourse must be had to circumstantial evidence, any evidence as to Digitized by Microsoft® CHAP. IX.] FACTS EELEVANT TO SHOW IDENTITY. 139 the habits and ordinary doings of the deceased which may . . . throw light upon tlie probable cause of deatli, is admissible even in the case of a prosecu- tion for murder " ; and where the identity of the injured person is also in dispute, all facts which tend to establish it are also relevant (id.; R. v. Crippen, 1910, Times, Oct. 19-20; R. v. Pateman, post, 141; Wills, Circ. Ev., 6th ed., 339-52). On the other hand, it is competent for the accused to show that the act was more likely to have been done by the injured party himself (R. v. Cowper, post, 143), or by others (R. v. Dytche, 17 Cox, 39; R. v. Brownhill; R. v. Treloar and jB. v. Beck, post, 144; Wigmore, Ev., ss. 139-44) ; and although the prosecution may rebut such evidence (R. v. Dytche, sup.; R. v. Winslow, post, 180; R. V. Rowlcmd, 1910, 1 K. B. 458, where a prisoner, called for his co-defendant, was cross-examined not only to discredit his testimony, but to criminate himself) yet the accused, it has been said, is allowed the greater latitude, since to exculpate himself he may implicate others by evidence of acts which the Crown could not tender against them (R v. Beck, and R. v. Stevens, post, 144; cp. however, R. v. Thomson, ante, 80). So, in afiBliation proceedings, evidence may be given by the defendant that other men had intercourse with the complainant, provided it was at a time which could afEect the paternity (Oarbutt v. Simpson, 33 L.J.M.C. 186), otherwise the question is only admissible in cross-examination, and her denials cannot be contradicted (id.; R. v. Gibbons, 31 L.J.M.C. 98; as to rape, post, 190). For cases where several defendants are charged with a crime, but only one commits it, see ante 93. Neither the convictions, nor acquittals {post, 425, 428), nor confessions {post, 269) of third persons are, however, evidence for or against the accused for the present purpose. Miscellaneous. As to identification by the Opinion of witnesses, see post, 398 ; by Handwriting, post, 533 ; and by Photographs, post, 398-9, 540-1. EXAMPLES Admissiile. Motirc. A. is charged with tlie murder ot B., a police constable ; — the fact that B., shortly before the murder, had given evidence against A. on a charge of theft, together -with the depositions taken under 11 & 12 Vict. c. 43, and containing B.'s evidence, are admissible against A. as con- stituting a motive for the murder (R. v. Biiolley, 13 Cox, 293). Proceedings in Chancery have been received for the same purpose. (R. v. Greati, 8 Cox, 509, 510). So, wliere A. was charged with the theft of ■ mess-moneyS, a conversation between A. and his superior officer, in which A. asked him for a loan, as he was out in his squadron accounts, was received to show motive (R. v. Westacott. 25 T.L.R. 192). A. is charged with the murder of B., an infant and the illegitimate child of A.'s wife by another man ; — evidence that a fortnight before B.'s death, A. had said, " The child is no good : it is eating the other children's food," held admissible to Inadmissible. Motive. A. is charged with the murder of B.,_ a police constable; — depositions containing the testimony given by B. against A. thirty years before the murder, on a charge of assault, held not admissible to show A.'s motive, the depositions being taken prior to 11 & 12 Vict. c. 43. [R. v. Shippey, 12 Cox, 161. This ground is not very clear, since such depositions appear to have been admissible under the old law also ; the evidence, however, was not pressed.] So, where the alleged motive was hostility resulting from a notice to quit served on A. by his landlord — and the process-server having sworn that he left such notice with the servant at A.'s house — ^held that a copy of the notice was not admissible as it did not appear the notice had ever come to A.'s hand [B. v. Greau, opposite. In this case O'Brien, J., re- marked : " In a civil proceeding the original notice need not be called for to let in a copy ; but it was not clear that the same principle applied in a criminal case. How- Digitized by Microsoft® 140 THE LAW OF EVIDENCE. [book II. Admissible. show motive, although it was not proved that A., when making the statement, had shown any intention of carrying it out, or used any violence towards B. [R. v. Hagan, 12 Cox, 257. In B. v. Palmer, 1856, Shorthand Rep. 308, Ld. Campbell remarked that " if there be any motive that can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know from experi- ence that atrocious crimes have been com- mitted from very slight motives." Bare instances, however, hardly justify general propositions, and it seems obvious that a strong motive is more likely to induce action than a weak one ; op. R. v. Oodhino, 7 Cr. App. R. 12, 13-14. Motive may also be considered in awarding sentence {R. v. Bright, 1916, 2 K.B. 441), and its absence may even afford evidence of insanity (JB. V. Airamovitch, 7 Or. App. R. 145, 147]. A. is charged in 1830 with the murder of B., a carpenter, in 1806. Evidence (1) that in 1806, great hostility existed be- tween C, the rector of their parish, and the parishioners ; that A. had expressed enmnty against C. and said he would give £50 to have him shot ; and that C. was shot by B., who was detected in the fact ; — held admissible as showing that A. had a motive, in the fear of discovery, for mur- dering B. ; and (2) that in 1829 bones were found in a barn which had in 1806 been occupied by A., which bones, from their size, might have been those of B. ; and that a carpenter's rule, a pair of boots similar to B.'s, and a skull with teeth marked like his, were found in the same spot, held also relevant as showing the identity of B. (R. v. Gtewes, 4 C. & P. 221). The question being whether A. forged a deed whereby he obtained a large sum of money ; — evidence that he was in very em- barrassed circumstances and owed large sums to his creditors before and at the time of the alleged forgery, is admissible to show A.'s motive (Roupell v. Haws. 3 F. & F. 784 ; cp. DowUng v. Bowling, ante, 118 ; and R. v. Heesom, post, 180) ; and, in rebuttal, the fact that he was in easy circumstancesr at the time (R. v. Grant, 4 F. & F. 322) . Preparation, previous attempts, threats, Ac. A. is charged with the murder of B. The following facts are relevant to show that A. committed the crime— (1) that a few days before the murder A. had bought a knife which might have caused the fatal wound. (2) That A. knew of habits of B. which would enable him readily and secretly to commit the mur- der (Steph. art. 9, illus. o). (3) That A. had been heard to declare he would be revenged on B. (B. v. BaXl, 1911, A.C. 47, 68, per \A. Atkinson : previous acts and words of the accused showing motive and enmity towards the deceased, are evidence Inadmissible. ever, the ground' on which I reject the document is thait it was tendered to supply a motive, and yet it never appeared that the notice came into the hands of the prisoner. In ejectment in a civil court, service on the servants would unquestionably be valid, but here the Court oughit not to speQulaite ut>on the probability of it having reached the prisoner's hand, in order that the jury might presume a hostile motive in the pri- soner's mind." See, also, R. v. Pearce, Peake, N.P. 75; cp. post, 543i-4]. The question being whether A. murdered B., his wife ; — evidence of violence done by A. to B. ten days before the murder, but not accompanied by declarations connect- ing it with the subsequent murder, was considered inadmissible to show A.'s mo- tive, intention, or malice at the time there- of [R. Y. Mohbs, 6 Cox, 223. Sei qu.; and connective circumstances, even with- out express declarations, have been re- ceived. Thus where A. was charged with shooting B. and admitted^ he had broken up her furniture some time before, the fact that he had then purchased the pistol with which the crime was afterwards com- mitted, was received. iR. v. Chomaten Yabu (1903), West Australian L.R. 35; and in Russ. Cr., 7th ed., 2114, it is stated that in murder cases evidence of previous violence is frequently given without objec- tion to prove ill-will; cp. R. v. Ball, infra; R. y. ildwards, ante, 80; and see post, 1.51]. Previous attempts. A. is charged with bribing B., a city official. The fact that A. had previously attempted to bribe O. an- other official; — Held, inadmissible to show A.'s motive, or identity (People V. Sharp, 107 N.T. 42rr, 457-61 ; see post, chaps, xi.- xii.). Physiognomy. Character. Avarice. Sus- picion, £c. A. is charged with the mur- der of B. The following facts are irre- levant: — the fact (1) that A. was of sin- ister appearance ; (2) that he bore a bad character {post, chap xiii) ; (3) that on a former occasion he narrowly escaped be- ing convicted for the murder of another Digitized by Microsoft® CHAP. IX.] FACTS RELEVANT TO SHOW IDENTITY. 141 Admissiile. not only of malice aforethought, but also that the accused killed the deceased). (4) That A. had made previous attempts on B.'s life. [R. V. Donnall, 2 C. & K. a08-9n, where a prior attempt was admitted to show that A. " did in fact administer the arsenic " to B., per Abbott, J. In R. v. Towell, 2 C. & K. 309»i, approved by Willes, J., in R. v. Harris, 4 P. & S!\ 342, the fact that the deceased had been taken iU several months before, after taking porter with the prisoner, was admitted by Parke, B., not as direct proof of an attempt to poison, but as "tending to show anti- pathy against the deceased " ; see R. v. NeilV Cream, post, 180. In R. v. Eger- ton, R. & R. 3T5, and 6 B. & C. p. 148, a subsequent attempt was also _ admitted to confirm the prosecutor's testimony as to the robbery charged ^see Corrobora- tion, post, 492). Mr. Best remarks that " previous attempts are closely allied to preparations and only differ in being carried one step nearer the criminal act" (ss. 455- 6) ; but such evidence is more lusually ten- dered to relbut accident, &c., post, chap, xli.]. (5) That a few nights before the murder and while B. was absent, shots were fired at B.'s house which w re represented by A. to have been fired at himself, but were more probably fired by him to in- duce a suspicion that assassins were about (R. V. Patch, Best, s. 455; Wills, Circ. Ev., 6ih ed. 443, 446; cp. People V. Ziwker, 20 App. Div. 363, affd. .154 N.Y. 770) ; (6) that both before and after the crime A. was obsened near the spot (in explanation A. may prove that he had an indeipendent reason for being there, R. V. Barnard, 19 St. Tr. 815, 833-4; Prin- dle V. Glover, 4 Conn. 266) ; (7) that footprints corresponding with the impres- sion made by A.'s boots were tracenble near the body of B. (R. v. Beards, Wills, Circ. Bv., 6th ed. 218 ; R. v. Richardson, id. 385) ; (2) that bloodstains were fomid on A.'s clothing which were those of a human being who suffered from ansmia, and that B. had been attended for anaemia (R. V. Pateman, 75 J.P.Jo. 317) ; in B. v. White, 2 Cox, 192, a witness for A. was allowed to prove tiat the day before the crime he met A. and saw bloodstains on his coat, which A. told him had been caused by a dead hare he carried over his shonlder, though this statement was Inconsistent vtith A.'s explanation before the magistrate; (9) that after the crime A. absented hunself from home ; and (10) that he gave incon- sistent accounts of his whereabouts on the day of ithe murder [see Best, s. 92]. A., a soldier, is charged with the mur- der of B., his officer. The fact that just before the murder A. had applied for an unusually long leave, stating that he was about to be married and being a Roman Catholic a special license would take some time to obtain : — Held, relevant, as it would Inadmissible. person ; (4) that B. was found to have been robbed, and that A. was well known to be avaricious; and (5) that A. had been beard in his sleep to use language implying that be was the murderer. [See Best, ss. 91-2 ; and as to acts and declara- tions by third persons, infra, 143-4]. A. is charged with the murder of B. The fact that boots belonging to A. corre- sponded with footprints traced near B.'s body, such boots having been put into the footprints after but not before the com- parison was made, is inadmissible [R. v. Shaw, 1 Lew. C.C. 116, per Parke, B. ; R. V. Seaton, id. per Alderson, B. — ^The boots, indeed, should not be put into the marks at all, but impressions thereof made by the side. Wills. Circ. Bv., 6th ed., 220]. Digitized by Microsoft® 142 THE LAW OF EVIDENCE. [book II. Admissible allow him time to get well away before any enquiry about him would be made. The fact that, in his attestation paper, he had described himself as a Wesleyan, is also relevant, as showing that his reason for wanting long leave was untrue [R. v. O'Donnell, 12 Cr. App. R. 219. The lat- ter fact, which was elicited from A. on cross-examination, was held admissible un- der the Cr. Ev. Act. 1898, s. 1, because it did not merely affect A.'s credit (op. posi, 478), but was relevant to the issue as well]. ■Special skill, capacity or hnowledge, A. is charged with the murder of B. under circumstances which show that the crime must have been committed by a left-handed man, a skilful mechanic or a person with surgical knowledge ;— -evidence that B. possessed similar attributes is admissible (R. V. Patch. Wills. Circ. Ev., 6th ed. 190, 442-6; R. v. Oiblons, id. 352; R. v. Richardson, id. 190, 436-42 ; R! v. Crippen, 1910, Times, Oct. 19-20 ; so as to physical incapacity, to disprove a rape, ante, 119). A. is charged with the mjirder of B. by poison. Evidence that A. possessed a treatise on poisons, the only pages cut be- ing those relating to the poison in ques- tion, is admissible {R. v. Donnellan, Stephen, General View of the Criminal Law, 222, 253 ; R. v. Ball, 5 N.Z.Ii.R. 93, 95, C.A.). Possesion of Property and Documents. The question being whether A. was guilty of treason : — documents of an incriminating nature found in a locked portmanteau, though this had been out of A.'s posses- sion for several days after his arrest; — Held inadmissible (R. v. O'Brien, 7 S't. Tr. N.S. 1). The question being whether A. murdered B. by the explosion of grenades; — the fact that the grenades were ordered by C, and the contents of a letter from C. (indicat- ing hostility to B.) found at A.'s lodgings after his arrest, and bearing a memoran- dum in A.'s handwriting, are admissible against A. (R. v. Bernard, 1 F. &. F. 240). A. is charged with committing acts of indecency with boys on March 16; defence, mistaken identity and alihi. The boys hav- ing testified to these acts, stated further that A. had made an appointment to re- peat them at the same place and hour on March 19, where and when A. was in fact arrested while talking to the boys. On him were found powder puffs ; and later, at his rooms, indecent photographs of naked boys. Held, that not only the puffs, but also the photographs were admissible against A. as evidence of identity: — (1) by the trial judge and the Ld. Ch. as show- ing abnormal propensities of the same kind as those exhibited by the man of the 16th, and so as corroborating the truth of the boys' testimony as to that date; (2) by the CCA. as implements of the crime found Inadmissible. Possession of Property and Documents. The question being whether A. and B. had stolen certain shawls ; — the fact that an inventory of the shawls, not in A.'s hand- writing, but contained in an envelope on which he had written "A. — -private," was found in a bag which A. said belonged to B., in a room in which they both lodged ; — Held inadmissible, on the ground that the indorsement on the envelope might have been written prior to the enclosure {R. v. Hare, 3 Cox, 247 ; sed. qu., and see note to this case, Russ. Cr. 7th ed. 2100n). A. is charged with receiving stolen pro- perty. The facts that the property was found in a house occupied by A. & B., in. a box belonging to B., which contained property of A. and B., and of which A. had the key : — Held no evidence of posses- sion aginst A. unless it were proved that A. knew the property was there (R. v. Higginbottom, 8 Or. App. R. 79). A. is charged with fraud in connection with the flotation of a company. A type- written document relating to the affairs of the company found in A.'s office, but, not signed by him, held inadmissible, as it might have been written by an employee or strangOT, without A.'s knowledge or authority (R. v. Sooley, 1904, Times, Dec. 7, and em rel.). The question being whether A. (residing in London) had fitted out a vessel to be employed in the slave trade sbroad ; — slave-trading papers found on board at one (not the first) of the foreign ports at Digitized by Microsoft® OHAP. IX.] PACTS EELEVANT TO SHOW IDENTITY. Admissible. Inadmissible. J4:3 in his possession, in the same way as jenuuies, coining discs, or surgical instrn- ments on charges of burglary, coining or abortion; (3) by Ld. Atkinson as show- ing the intent of the meeting on the 19th ' and so as evidence of identity; (4) by Lds. Sumner, Parker & Parmoor, because the acts of the X6th, plus the appointment to repeat them on the 19th, showed the same continaoos abnormal propensities in both men and thus were specific indicia of identity ; though aliter if there had been no appointment to repeat, since then the articles would only have shown a general evil disposition, and not a continuous ab- normal propensity [Thompson v. B., 1918, A.C., 221; 13 Cr. App. B. 61 (where the arguments are reported more fully) ; fol- lowed in R. V. Tiriss, 1918, 2 K.B. 853]. A., a letter-carrier, is charged with secreting a letter containing a bUl of exchange, The letter, which stated that the bill was enclosed, was allowed to be read to the jury as be- ing in A.'s possession ; but was held to be no proof that the bill was enclosed {R. v. Plumer, ante, 83 ; .op. Bruce v. Burley, ante, 74; and R. v. Cooper, post, 181). Flight. A. is charged with obtaining money from B. by fraud. In a previous civil action by B. against A. for damages for the same fraud, A. after the first day of the trial, had gone abroad and not ap- peared again thereat. This fact is admis- sible against A. on the criminal trial as conduct tending to show his guilt {R. v. EW^, 1910, 2 K.B. 746, 755-6). Acts and Declarations by the injured party and others. A. is charged with the murder of B. Evidence that, shortly be- fore her death, B. was In a very melancholy and depressed state of mind and had threatened to commit suicide held admis- sible for A. [See R. v. Gowper. R. v. Jes- sop, and R. v. Thomson, ante, 80]. A. is charged with the murder of B. (his wife), — the fact that a week before the murder B. went to the house of a neighbour, and handing the latter an axe and a knife, said, "Please pot these up, and when I want them I will fetch them, for my husband always threatens me with* them, and when they are out of the way I feel safer." — held admissible [iJ. v. Ed- wards. 12 Cox, 230. But see as to this case ante, 80]. A. is charged with the murder of B., a constable. A verbal report made by B., in the course of duty, to his inspector, that he (B.) was about to go to a certain place to watch A., held admissiole. [R. v. Buck- ley, ante, 79, where the grounds of ad- mission are discussed]. So, a statement in the presence of A., made by B., when dy- ing, to his doctor, who had asked whether B. suspected anyone, that "A, has men- tioned W.," and injurious charges then which the vessel touched, but which papers were not otherwise traced to A.'s know- ledge : — Held inadmissible to connect bim with the transaction, as the papers might have been introduced at some interme- diate post without A.'s knowledge (R. v. Zulueta, 1 C. & K. 215), A. is charged with stealing B.'s pro- perty, which is found in A.'s possession. A.'s daughter testifies that A. bought the property from C. for 3s. The prosecution may, in, rebuttal, call C. to deny the sale or the price, but not to state that he "saw A. steal the property and assisted him in so doing," for this, being merely confirmatory, should have been given in chief. {R. V. Stimpson, 2 C. & P. 415. In 2 Phill. Ev. 410, it is said, " This is carry- ing, the rule very far, as the fact of the prisoner's stealing the goods would be strong evidence that he did not buy them" ; see ante, 40). A. is charged with the murder of B. A letter (lost) which had been read While in B.'s possession, asking B. to return the letter and envelope to A., the sender;— Held, not admissible, no proof of A.'s handwriting being given (R. v. Neill Cream, 116 Sess. Pap. C.C.C. p. 1424). Flight. A. is charged with robbing B. on Oct. 15th, 1915. The fact that he evaded arrest when another similar charge was made against him on Oct. 26th, is not admissible (R. v. Hampson, 11 Cr. App. R. 75, 77). Acts and Declarations by the injured party and others. A. is charged with the murder of B. The following acts and declarations of third persons are inadmis- sible ; — (1) the fact that A. belonged to a people notoriously reckless of human life; (2) that much jealousy and ill-feel- ing existed between A.'s nation and B.'s nation ; (3) that on the same spot, a year before, one of the former murdered one of the latter in the same manner (post, chap, xi.) ; (4) that all A.'s neighbours believed him guilty (post, chap, xxxv) ; (5) that both Houses of Parliament had voted Ad- dresses to the Crown in which A. was as- snmsd to be guilty (post, chap, xxix) [Best, ss. 91-2] ; and (6) that C, on his death-bed had confessed that it was he, and not A., who had murdered B. (R. v Gi-ay, It. Cir. Rep. 79; Steph. art. 26; post, 275). A. is charged with obtaining money by false pretences, in' 1895. An expert hav- ing given his opinion that the handwrit- ing of the letters containing the false pre- tence was, though disguised, the same as that of a list written by A. and found ia his luggage when he was arrested ; — the de- fence proposed to ask in cross-examination whether the handwriting of the letters was Digitized by Microsoft® 144 THE LAW OF EVIDENCE. [book II. Admmible. made by A. against W., are receivable. In this case W. and others were called to prove the falsity of such charges, and also an alibi in respect of W. [B. v. Patch, Published Report, 117-120 ; cp. Statements in Presence, post, chap. xx. For state- ments by the injured person and others admissible as part of the res gesta, see ante, 79-81,] A. and B. are charged with fraud. To show that A. was the dupe of B., A. may ask witnesses for the prosecution whether B. had not committed certain other frauds before A. came upon the scene, although this evidence might not have been admis- sible against B. if tendered by the prosecu- tion [R. V. Stevens, 131 C.C.C. Sess. Pap. 183. per Darling, J., who commented upon the greater latitude allowed to the defence than to the prosecution ; see, however, R. V. Thomson, opposite]. A. is charged with wounding a con- stable ; — ^it is competent for A. to give in evidence facts showing that B., C. and D. were more likely to have committed the crime than he ; and B., C. and D. may testify on oath that they were absent at the time [B. v. Dytohe, 17 Oox, 39 ; in this case B., 0. and D. had been convicted and were suffering imprisonment for the crime ; cp. R. V. Brarmagan, Wills, Circ. Bv., 6th ed., 114]. A. is charged with publishing defama- tory libels in anonymous letters concern- ing B. Evidence that after A.'s arrest, further letters of the same kind and in a similar handwriting continued to be sent to B. is relevant as tending to show that persons other than A. were the authors of the original letters, and not A. (R. v. BrovmUU, 8 Cr. App. R. 258; R. v. Tre- loar, 9 id. 1.). Inadmissible. not the same as that of certain other docu- ments which the prosecution had previous- ly submitted to the witness for examina- tion, being exhibits in the trial of B. for a similar offence in 1877 ; the defence be- ing also prepared to show that while B. was undergoing his sentence for such offence A. was at large and in America. Held, inadmissible, as raising a collateral . issue likely to mislead the jury, viz., whether A. was or was not, the man con- victed in 1877 under the name of B. (K. V. Beck, 31 L.Jo. 197; 128 C.C.C. Sess. Pap. p. 485, per Forest Fulton, C.S. [Note. — This case led to a public inquiry and the complete exoneration of Mr. Beck. The names, handwriting and methods em- ployed in the two crimes being remarkably similar, A.'s defence was that they must have been committed by the same man. If therefore, A. proved that he could not have committed the 1877 crime, it went far to show that he had not, but that B. had, committed the 1895 crime. The rejected evidence was considered by Collins, M.R., Grantham, J., and Sir J. Edge, K.C., clear- ly relevant, and admissible /or A. (See Beck Report, pp. xii., 216) ; .although proof that A. or B. had committed the first crime would not have been admissible against either to show that he had committed the second (post, chap. xi). In R. v. Thomson 1912, 3 K.B. 19, however, the general statement of Collins, M.R., in the Beck report, that defendants in criminal cases are not confined to strictly legal evidence, was disapproved (see 47 L.Jo. 379; 133 L.T.Jo. 156). Mr. Blake Odgers remarks that the fallacy in the Beck case was that he did not try to prove an alibi, ie. that he was not the man in prison at the time alleged, — ^but desired to prove that he was not the man alleged, i.e. that he was neither the man previously convicted, nor the committer of the second oftence (Transactions of Medico-Legal Soc. Vol. 2. p. 83, 1905).] A. is charged with the murder of B. Evidence that, after the murder and dur- ing a quarrel between C. and C.'s wife (de- ceased), the latter taking two bullets out fit a cupboard, said to C, "The third one killed B." — being tendered to show grounds for suspect'ng C. rather than A. ; — Held inadmissible, the presence of the bullets in the cupboard, or their being taken out by C.'s wife, being irre- levant, and, even if remotely relevant, needing no explanation and not being in fact explained in any material sense by her statement [Com. v. Chance, 174 Mass. 24.5; ante, 80]. Digitized by Microsoft® ( 145 ) CHAPTEK X. PACTS EELEVANT TO PEOVE STATES OF MIND. "When the state of mind of a party with reference to a transaction is material, all acts and declarations from which it may be inferred, whether previous or subsequent to the transaction are, in general, prima facie evidence, either for or against him. Declarations tendered for this purpose are, however, original evidence and. not hearsay admitted by exception^ i.e. they are presumptive evidence of the existence of the alleged state of mind, but are not receivable to prove the truth of the matters asserted (awie, 103; post, 318). KNOWLEDGE AND NOTICE, (a). As to a party's own declarations in proof of his knowledge, see ante, 65, 86-7. Actual knowledge, however, may also be inferred circumstantially, from the fact that a party had reasonable means of knowledge {Bates v. Hewitt, 15 L.T. 366) — e.g. Possession of, or Access to, Docmnents containing the information, especially if he has answered, or otherwise acted iipon, them [cp. ^Yright v. Tatham, ante, 84: as to passengers' tickets, see infra; and as to admissions of the truth of the docu- ment from the possessor's conduct regarding it, post chap xx.] ; or sometimes, e.g. in the case of Notices, from the mere fact that such documents, properly addressed, have been delivered at, or posted to, his residence (as to documents found after the arrest of a prisoner, or intercepted in the post, see ante, 93, 138, 142). So, Execution of a will (Guardhouse r. Blackburn. L.E. 1 P. & D. 109; Beamish v. B., 1894, 1 I.E.7), or deed {Re Cooper, 20 Ch. D. 611; Paul V. O'Reilly, 49 Ir. L.T.E. 89), or contracting that the latter shall contain certain clauses {The Draupner, 1910, A.C. 450) will imply knowledge of its contents; though mere Attestation will not {Harding v. Crethorn, 1 Esp. p. 58) ; nor will notice of the existence and preparation of a draft deed be notice of the execution of the deed (Williams v. W., 17 Ch. D. 443). The previous Coarse of Dealing between a party and his opponent or "others is, also, admissible to show his knowledge {Lewis v. G. W. Ry., post, 152 ; G. 11". Ry. V. Sutton, L.E. 4 H.L. 226 ; Sweetman v. S., 2 Ir. L.T. Jo. 136). Access to documents may also, sometimes, raise a presumption of knowledge — e.g. m the case of the rules of a club; books kept between partners (though the inference here is not invariable, post, 258); master and servant; trader and shopman; banker and customer (Tay,., s. 812) ; or vestryman and vestry clerk {Cooper v. Law, 28 L.J.C.P. 283). This presumption, however, does not apply in the case of directors {Hallmark's Case, 9 Ch. D. 329 ; Be Denham, 25 Ch. D. 752; -Re Printing Co., Exp. Cammell, 1894, 1 Ch. D. 528; Dovey L.E. — 10 Digitized by Microsoft® 146 THE LAW OF EVIDENCE. [booku. V. Cory. 1901, A.C. 493-3), or shareholders (Lindley, Company Law, 312) as to tiie share register and other books of a company. But knowledge will be imputed where it is a party's Duty to know. {Hallmark's Case, sup.) though not from a mere right to inspect (Hill v, Manchester Co., 5 B. & Ad. 866; Waterford Corp. v. Price, 9 Ir. L.R. 310). Thus, underwriters are presumed to know matters of common notoriety or knowledge, and matters which an insurer in the ordinary course of his business ought to know (Marine Ins. Act, 1906, s. 18), e.g. the contents of Lloyd's Shipping List {Machirttdsh V. Marshall, 11 M. & W. 116) ; and directors what is done in the management of the company's affairs {Be Esparto Trading Co., 12 Ch. D. 191) ; while not only directors (Lane's Case, 1 De G.J. & S. 504, 506), but all persons dealing with the company (Mahony v. East Ealford Co., L.R. 7 H.L. 869, 893), will be deemed to know its registered regulations, i.e. deed of settlement, or Memor- andum and Articles of Association. So, the Notoriety of a fact may support an inference of knowledge (Bates v. Hewitt, post, 152), e.g., of a custom in a party's trade (ante, 107), or even in that of persons merely trading with him (Exp. Powell, Re Matthews, 1 Ch. D. 501; Re Peel, Exp. Crossley, 1894, 1 I.E. 235) ; though mere Rumour, or Reputation as to a fact is not admis- sible for this purpose (Greenslade v. Dare, 20 Beay. 284; R. v. Gunnell, 16 Cox 154). And Publication in a Gazette or newspaper is receivable to fix a party with notice; though (unless the case is governed by statute) it is always advisable, and sometimes necessary, to furnish evidence that the party to be affected has probably read the paper — e.g that he takes it in, or attends a reading-room where it is taken, or has shown knowledge of other matters contained in the same number, or that it is a publication with which it is his duty to be familiar; but the mere fact that the paper circulates in his neighbourhood is no proof (Tay. ss. 1665-1666 ; Whart., Civ. Bv. ss. 671-675; post, 338; in rebuttal, evidence might be given that the party was unable to read) . As to proof of knowledge by subsequent knowledge, see ante, 87 ; ly Similar Facts, post, 174-5 ; and by Recitals in Statutes, post, 336. In this connection, however, the distinction between admissibility and sufficiency must always be borne in mind. Thus, in cases of bigamy, the prisoner's actual knowledge that his former wife was alive must be proved, mere means of knowledge being insufficient (B v. Faulkes, 15 T.L.R. 250 ; R. V. Tolson, 23 Q.B.D. 168, 183; R.y. Curgenwen, L.R. I.C.C.R. 1). See also, as to an underwriter's knowledge of a ship's character. Bates v. Hewitt, post, 152; and as to scienter in the case of stolen goods, R. v. Davis, post, 174-5. As to knowledge of, and notice to. Agents, Partners, Co -Trustees, Co-Execu- tors, Directors, &c., in civil and criminal cases, see ante, 89-92. Constructive Notice has been defined as a presumption of knowledge which will not be allowed to be rebutted; and arises, in equity, where a party or his agent has had the means of knowledge, and might have obtained it, but for his gross negligence, or wilful abstention (Ashburner, Equity, 84-97; Kerr, Fraud, 3rd ed., 230-64). Thus, claiming under an instrument is constructive notice of its contents; and notice of a deed or a trust will be notice of its terms provided the noticee had a reasonable opportunity of inspecting the document (Patman v. Harland, 17 Ch. D. 353 ; Reeve v. Ber- ridge, 57 L.J.Q.B. 265 ; Re Nisbet, 1905, 1 Ch. 391 ; see Conveyancing Act, 1882, s. 3, sub-s.), and that the terras were not unusual ones (Molyneux v. Digitized by Microsoft® CHAP.x.] FACTS RELEVANT TO PKOVE STATES OF MIND. U7 Hawtrey. 1903, 2. K.B. 487). But notice to a purchaser of land that it is occupied by a tenant is not notice of the title or rights of the lessor of the tenant {Hunt v. Luch. 1902, 1 Oh. 438) ; though it is of the tenant's rights {id.; but see Cabdllero v. Eenty, 9 Ch. 447; aad Kerr, Fraud, 3rd ed., 239- 43) ; and the conduct of the party giving the notice may restrict its effect (English Co. v. Brunton, 1892, 2 Q.B. 700; Be Valletort Co., 1903, 2 Ch. 654). The above doctrine, however, is a purely equitable one, familiar enough in dealing with land and estates where title is everything, and can be deliber- ately investigated, but not extending to mercantile transactions, where possession is everything, and there is no time to investigate title (Manchester Trust V. Fumess', 1895, 2 Q.B. 539; The Draupner, 1909, P. 219). At com- mon law, accordingly, notice of a document is not necessarily notice of its contents. Thus, a bill of lading which states that goods are to be delivered on "payment of freight, and other conditions as per charter-party," only incorporates conditions of the latter referring to freight and delivery, and not all its contents, as in equity (Manchester Trust v. Fumess, sup.; Diedrichsen V. Farquharson, 77 L.T. 514; The Draupner, sup.; The Portsmouth, 1912, A. C. 1) ; nor will it incorporate terms inconsistent with the bill of lading (Turner v. Haji, 1904, A.C. 826, 836; Temperley v. Smyth, 21 T.L.E. 739), and where such inconsistency exists the bill of lading will prevail (Crossfield V. Kyle Shipping Co., 1916, 2 K.B. 855, G.A.; Hogarth Co. v. Blythe Co., 1917, 2 K.B. 534, C.A.) ; see further as to Incorporation of documents, post, 525-8, 612. Moreover, the doctrine does not apply to negotiable instruments or debentures (Manchester Trust v. Fumess, sup.; London Joint-Stoch Bank V. Simmons, 1892, A.C. 201; Thompson v. Clydesdale Bh., 1893, A.C. 282; cp. Be Vailetort Co., sup.) ; unless, indeed, the party knew facts or heard state- ments implying something adverse, and wilfully abstained from further inquiry, when, even at common law, knowledge will be inferred (English Co. V. Brunton, sup.; Jones v. Gordon, 2 App. Cas. 616 ; Eyre v. McFarlane, 1898, Times, July 18). In the case of Passengers' Tickets, if the issuer has done all that was reasonably necessary to give the ticket holder notice of the conditions thereon, the latter will be bound hj them, although it is not proved that he was in fact aware of them (Hood v. Anchor Line, 1918, A.C. 837). Thus, knowledge of their conditions wiU be imputed (1) if the party knows or believes that there are conditions on the tidset although he has not read them (Harris v. Q. W. By., 1 Q.B.D. 515; Parser v. S. E. By., 2 C.P.D. 416), or (2) if, being an inteUigent person, he knows, though witiiout reading it, that tiiere is writing or printing thereon, for in this case, he must be taken to know that such writing embodies conditions (Acton v. Castle Mail Co., 73 L.T. 158; Burke v. S. E. By., 5 C.P.D. 1). While (3), if he does not know- there is writing or printing thereon (Henderson j. Stevenson, L.E. 2 H.L. Sc. 470), or, though knowing it, does not know (e.g. from being an ignorant person, or from the conditions being minute or obscured) that it contains conditions, knowledge will not be imputed (Bichardson v. Bqwentree, 1894, A.C. 217; Stephen v. Intern. Co., 19 T.L.E. 621; Boherts v. Gen. Steam Co., 1906, Times, Jan. 24; Skrine v. Gould, 29 T.L.E. 19, C.A.; Boe v. Naylor, 1917, 1 K.B. 712 ; though see Hooper v. Fumess By., 23 T.L.E. 451 ; Marriott V. Yeoward, 1909, 2 K.B. 987; Cooke v. Wilson, 85 L.J.K.B. 888, C.A.; Grand Trunk By. v. Bohirison', 1915, A.C. 740). The inference of knowledge, how- Digitized by Microsoft® 148 THE LAW OF EVIDENCE. [bookji. ever, will vary with the nature of the document, e.g. the rules as to passengers' tickets do not apply to ordinary contracts {Roe v. Naylor, sup.) ; and though the acceptance of a toll-gate ticket might not imply knowledge of the conditions thereon, that of a bill of lading {Parker v. 8.^. By., sup.), or sold note {Roe V. Naylor, sup.), would. So, a party has been held boxmd, not only by an auctioneer's receipt, but by conditions elsewhere exhibited, to which the receipt referred and was subject {Watkins v. Rymill, 10 Q.B.D. 178). As to incorporation of documents by reference, generally, see post, 525-8. INTENTION, when in Issue, or Relevant. (6) Formerly it was supposed, perhaps in view of the then incompetency of parties as witnesses, that intention was a matter incapable of proof; but now it is recognised that the state of a man's mind is as much the subject of evidence as the state of his digestion. It may be harder to prove than more external facts, but whenever material, one may prove it if he can (Pollock, Law of Fraud, 61). Thus, it may be proved, even in a party's own favour, not only by his direct testimony, or declarations out of Court (either as part of the res gesta, or in some cases even unconnected with an act, ante, 63-4), but also circumstantially by acts and events previous or subsequent to the transaction {Re Grove, 40 Ch. D. 316, 342) ; as well as, against himself, by his own admissions. As to proof of intention by similar facts, see post, 175; by motive, R. v. Heesom, 180; by the acts, &c., of third persons, R. v. O'Connell, 184. Intention, though not in issue, may itself sometimes be relevant to prove other elements of a transaction, e.g. (1) that an act intended was iu fact done {ante, 64) ; or (2) after the act has been proved aliunde, to show the identity of the doer {ante, 137). How far (3) a party's- intent at one time, proved either by his own declarations or otherwise, is relevant, on the presumption of continuance, to show his intent at another, i.e. in doing some future or even past act, seems doubtful, though the tendency is perhaps to admit the evidence {ante, 64, 103-5). The question of subsequent intent, to prove prior intent, has caused special difficulty. Thus, in R. v. Cooper, post, 181, Bramwell, B., asked how what happened offer the act, could be evidence of the defendants' intent in doing it ; though this objection is not now tenable {R. T. Mason, 10 Cr. App. E. 169 ; R. v. Smith, 11 id. 229). While in O'Brien V. Sheil, and Williams v. W., post, 138, declarations of intent after an act were rejected, because the question was said to be "what was the intention at the time, and not what it was subsequently," the Court treating the admissibility of the subsequent intent not as a question of logical relevancy, but as one raising an independent issue; cp. Re Churchill, 86 L.J. Ch. 309, 313. Generally speaking, a man is presumed to intend the natural consequences of his acts; and where this presumption is conclusive, no evidence contra will be allowed, though it is otherwise where it is disputable (Tay., ss. 80-3). Thus, where A. is alleged to have passed off his goods as those of B., and a comparison of the goods, explained by surrounding circumstances, shows that A.'s goods are calculated to deceive, the presumption will be conclusive, and evidence of A.'s intention to deceive or the reverse will be inadmissible; while, if such comparison and explanation leave the matter doubtful his actual intent may be shown {Saxlehner v. Appollinaris Co., 1897, 1 Ch. 893, 900-1). In the case of a sober man, indeed, the presumption may, be rebutted in many ways; while in that of a drunken man, evidence may be given that he was in such a state Digitized by Microsoft® CHAP, s.] FACTS EELEVANT TO PROVE STATES OF MIND. Ii9 as to be incapable of forming the specific intent alleged {R. v. Beard, 1920, A.C. 479). As to this presumption in cases of defamation, see post, chap, xlvi., rule 1, and Odgers on Libel, 14. In the case of formal Documents, the intention must be gathered from the writing itself, explained by such surrounding circumstances as are receivable for that purpose, direct declarations of intent being in general excluded in aid of construction {post, chaps, xxviii., xlvi.). When Irrelevant. Where intention is by law immaterial, evidence thereof will be excluded on that ground {ante, 27). Thus, where a person has a right to do an act, the intention or motive with which it was done cannot in general be inquired into {Bradford Corp, v. PicMes, 1895, A.C. 587; Allen v. Flood, 1898, A.C. 1; Quinn v. Leathern, 1901, A.C. 493, 508-9; Best, s. 96). Nor can that of a negligent act (Beven, Negligence, 2nd ed., 17) ; nor of an infringement {Oxford v. Gill, .1899, Times, June 14) ; nor of an act prohibited irrespective of a mens rea, e.g. cruelty to animals {Duncan v. Pope, 80 L.T. 180), or obtaining credit without disclosure of bankruptcy {R. v. Dyson, 1894, 2 Q.B. 176). MOTIVE. As to the distinction between intetition and motive,, which has been called its subjective antecedent, see 24 Law Mag., 1899, 321; Wills, Circ. Ev., 6th ed., 54, 57-68 ; Austin, Lectures, 12, 18, 19 ; 18 Harv. Law Eev.'411; Wigmore, Ev., s. 119. And as to Motive to Show Identitv, ante, 137, 139. GOOD AND BAD FAITH, (c) A party's good faith in doing an act may generally be inferred from any facts which would justify its doing (Whart. Civ. Ev., s. 35). In such cases the state of his knowledge {London J.-8. Bank v, Simmons, 1892, A.C. 201, 221) ; or the advice, however erroneous, that he received {Eavenga v. MacHntosJi, 2 B. & C. 693; post, 157) ; or the information, whether true or false, on which he acted {Bhrewsbwy v. Blount, post, 155 ; Thomas v. Russell, 9 Ex. 764; Taylor v. ^Yillans, 2 B. & Aid. 845; Dovey v. Gory, 1901, A.C. 477; Tay., s. 576) may often be relevant. So, to show the lona fides of a party's belief as to any matter, it is admissible to show the state of his knowledge, and that he had reasonable grounds for such belief {Derry v. Peek, 14 App. Cas, 337) ; or that it was shared by the community, or even by individuals similarly situated to himself {Sheeny. Bumpstead 2 H. & C. 193; post, 155) ; while the absence of reasonable grounds of belief in the existence of a fact {e.g. means of knowing the opposite) is evidence of want of honest belief {Derry v. Peek, sup.; see, however, Watson v. Smith, post, 151). Fnder the Marine Ins. Act, 1906, s. 20, a representation as to a matter of expectation or belief is true if it be made in good faith. The relative positions and circumstances of the parties are often material in determining their good or bad faith in a transaction; a higher standard of probily being demanded from either when the other is, e.g. o? weak intellect, intoxicated, illiterate, or acting under duress or fear ; or occupies the position of child, ward, client, or patient to the other (Kerr on Fraud, 129-181- ante, 33). , \ > , As to when good or bad faith, although not in issue, is relevant to support or impeach a party's case, see ante, 113, 133. Digitized by Microsoft® 150 THE LAW OP EVIDENCE. [bookii. FRAUD, (c) When fraud is in issue, the particulars of it have generally to be pleaded, and the question of their sufficiency often becomes one of law. Fraud imports moral obliquity, a dishonest or wicked mind; but facts may, of course, be evidence of fraud without being in law sufficient to constitute or establish it {Derry v. Peek, sup., at p. 369; Le Lievre v. Gould, 1893, 1 Q.B. 461, 500; Kerr on Fraud, 1-16). Thus, on a charge of obtaining goods by false pretences, the fact that the accused obtained them by a false statement, though strong evidence of a fraudulent intent, is not conclusive, for he may show that he had well grounded hopes of paying {R. V. Hunt, 13 Cr. App. R. 155). So, the fact thdt an act was customary is admissible in rebuttal {B. v Spencer, 20 Cox 693 ; cp. B. v. O'Gonnell, post, 184). Concealment of Maierial Facts {e.g. those affecting title or risk) by either party to a contract is evidence of fraud. A vendor, however, is not bound to disclose every defect in the property sold; nor d fortiori is a purchaser bound to disclose facts which would increase its value; and where there is no obligation to divulge, the passive acquiescence of either in the other's mistake is not evidence of fraud (Smith v. Hughes, L.R. 6 Q.B. 597; cp. Ward v. Hoihs, 4 App. Cas. 13). Misrepresentation of Material Facts may itself be perfectly innocent; or, even though made without reasonable grounds of belief, merely negligent; but it becomes fraudulent if made (1) knowingly, or (2) without belief in its truth, or (3) recklessly without care whether it be true or false {perry v. Peek, sup.; and " without care " does not mean without taking care, but being wilfully indifferent to the truth of some statement which it is known will be acted on, Angv^ \. Clifford, 1891, 2 Ch. 499, per Bowen, L.J. ; Le Lievre v. Gould, sup.; Low v. Bouverie, 1891, 3 Ch. 82]. In this connection, however, actions for rescission of contract must be distinguished from those for damages for deceit; a misrepresentation of material facts, though honestly made, being sufficient to sustain the former, while fraud in one of the three forms, sup., must be proved in the latter (Derry t. Peek, sup.). More- over, a fraudulent statement is not neutralised by a proviso that the complain- ant is to make his own inquiries (Pearson v. Dublin Corp., 41 Ir. L.T.E. 221, H.L.), nor even by proof that the complainant knew of its untruth (Wells v. Smith, 1914, 3 K.B. 722). ' [Kerr, Fraud, 17-128, Eos. N. P., 18th ed., 656-8, 729-835.] As to misrepresentation in prospectuses of companies, see Company (Cons.) Act, 1908, s. 84; and the uncorroborated statements of promoters and vendors do not afford reasonable grounds for directors believing them to be true (Adams v. Thrift, 1915, 2 Ch. 21). As to Similar Facts to show fraud, see post, 17S, 182. Inadequacy of Price or Value. Gross, though not slight, inadequacy of price xn&y imply fraud, e.g. in the sale of reversions (Tay., s. 153), negotiable instrimients (Jones v. Gordon, 2 App. Cas. 616), stolen property (Eos. Cf. Ev., 12th ed., 708; B. v. Powell, 3 Cr. App. E. 1), or the goods of a bankrupt (Be McOue, 12 Ir. L.T.E. 37 ; as to such sales being merely under-value, however, and not under-cost, see B. v. Crane, 6 Cr. App. E. 185), So, on a charge of false pretences, evidence of value may be material as showing tiiat the prosecu- ,tor was induced to aCt to his injury (B. v. Newton, 109 L.T. 747) ; while the trifling value of the property may be relevant for the accused (Ei. v. Millington, 11 Cr. App. E. 86). Digitized by Microsoft® CHAP. X.] PACTS EELBV-ANT TO PROVE STATES OF MIND. 151 MALICE, {d) The nature of malice varies in law with the proceedings in which it is in question. Thus, it means one thing in relation to murder, another in relation to the Malicious Damage Act, 1861, and a third in relation to Ubel (iJ. V. Tolson. 23 Q.B.D. 168, 187; see fully 106 L.T. Jo. 9; 24 Law Mag., 1899, 341; 18 Harv. L. Eev. 411). It has generally, however, to be inferred from the previous and subsequent conduct of the parties, or the terms upon which they have lived — e.g. previous enmity, threats, quarrels, and violence; while in rebuttal previous expressions of good-will and acts of kindness may be shown (Euss. Cr., 7th ed., 3114; post, 156-7). In cases of libel, malice may be inferred not only from the transaction itself (t.6. the nature of the Ubel, with its mode and extent of publication), but from previous iU-f eeling or disputes between the parties, the repetition of the libel, the publication of similar ones on other occasions (post, 175), and in fact from the defendant's whole conduct down to, or even at, the trial (Praed v. Ghraham, 24 Q.B.D. 53, C.A.; Simpson v. BoUnson, 12 Q.B. 511). [Tay., ss. 340-344; Eos. N. P., 836:865; Odgers, Libel, 306-335]. So, the knowledge and belief of the defendant as to the truth of the statements made by him is often material in determining his state of mind towards the plaintiff {ClarJc V. MoJiynmux, 3 Q.B.D. 237; Fountain v. Boodle, 3 Q.B. 5). In actions for malicious prosecution, the defendant's negligence in not making proper inquiries, or his want of reasonable and probable cause for the proceediiigs, is evidence of malice, though it does not necessarily import it. So, his recklessness as to whether the charge be true or false, or a corrupt motive in instituting the charge, although coupled with an honest belief in its truth, will constitute malice {Brown v. HawTces, 1891, 2 Q.B. 718 ; Moore V. Trulock. 33 Ir. L.T.E. 62; Coulter v Dublin Ry., 9 Ir. L.T.E. 209) ; while the mere fact that the honest belief was not based on reasonable grounds, is no evidence of malice {Watson v. Smith, 15 T.L.E. 473; see, however, Derry V. Peek, ante, 150). As to the different burdens of proof in actions for malicious prosecution and those for false imprisonment, see ante, 31. EXAMPLES. (a) Knowledge. Admissible. Inaimissiblc. Direotors. The question being whether Directors. The question being whether A., a director of a company, had notice of A., a director, had notice of an illegal an illegal transfer passed at a board meet- transfer passed at a board meeting in his ing in his absence ; — the fact that A. was absence ; — the fact that A., though not pre- present at the next board meeting when sent at the next board meeting when the the minntes of the former one were read minutes of the first meeting were con- and confirmed, affects him with such no- firmed, was present at a tihird meeting, tice, although he did not arrive till after when a formal minute approving of the they had been read, and denied aU know- transfer was passed, held not sufficient to ledge of them, for he had the opportunity affect A. with notice (Ashhurst v. Mawn, of reading them though ne came late (Ash- opposite). hurst V. Mason, 20 Eq. 225; Joint-^tock The question being whether A., a di- Oo. V. Brown, 8 Eq. 381 ; Re Llanharry rector of a company, knew that his name Co., 4 DeG. J. & S. 426 ; but mere pres- was inscribed on the share register ; — the ence at such confirmatory meeting is no eon- mere facts that A. attended meetings of currence in the illegality, Re Lands Allot- the company and acted as director are no men* Co., 1 Manson, Bpy. Rep. 107). As proof of such knowledge (Hallmark's Case, to miniog directors' knowledge of books 9 Ch. D. 329). kept at the mine, see Shrewslury v. Blount, post, .155. Digitized by Microsoft® 153 THE LAW OF EVIDENCE. [book II. Admissible. Debtors. The question being whetlier A., a debtor, knew that he had committed an act of bankruptcy ; — the fact that he had notice of a bankruptcy petition hav- ing been filed against him, which was founded on such act, is admissible. (Re Sedgwick, Exp. Hobhs, 9 Morell, 217 ; for other facts relevant for the same purpose, seo Exp. Snowball, Re Douglas, L.R. 7 Ch. 534 ; and as to debtor's own statements to show his knowledge, ante, 86-7). Consignors. The question being whether A., in sending goods by rail " at owner's risk," knew the meaning attached by the company to the phrase; — the fact that he had previously sent goods by the same com- pany, sometimes at the owner's risk and sometimes at the company's, paying differ- ent rates for each, is relevant {Leicis v. (I. W. Ry., 3 Q.B.D. 195; cp. Peek v. Isl. Stuff, Ry., post, chap. xlvi). So to show that cargo owners knew that a charter- party contained a negligence clause, evi- dence (1) that they knew they had con- tracted for sucli a charter-party, and (2) that such a chartei'-party had in fact been made, — is admissible (The Draiipner, 1910, A.C. 450). Knowlcilfic of Character of Ship. A., a ship-owner, sues B., an underwriter, for loss of A.'s ship X. by> capture. Defence, that A. concealed from B. that X. was a notorious Confederate cruiser, which en- hanced B.'s risk. Evidence that the ex- ploits of X. bad been discussed in Par- liament, the Press, and mercantile circles, admitted to show that though B. swore he did not know of the identity of the ship, yet that by ordinary care and inquiry he might have known [Bates v. Hewitt, 15 L.T. 366. A. failed, however, to recover, as actual knowledge by B. was not proved]. Knowledge of Insanity. The question being whether A., at the time of making a contract with B., knew the latter was in- sane ; — evidence of B.'s conduct, both be- fore and after the transaction, is admis- sible as showing that his lunacy was of such a character as must have been appar- ent to A. (Beavan v. McDonnell, 10 Ex. 184; Lovatt v. Tribe. 3 F. & F. 9 ; Has- sard V. Smith, I.R. 6 Eq. 429). JSnowledge of Propensities' of Animals. The question being whether A., the owner of a dog, knew of its mischievous propen- sities ; — evidence that he genei-ally kept it tied up, and had promised to pay com- pensation to a person whom it was alleged, though not proved, to have bitten (Beck v. Dyson, 4 Camp. 198) ; or that he had of- fered to pay compensation for its biting cattle, " if it wa.s proved to have done so" (Thomas v. Morgan, 2 Cr. M. & R. 496) ; o" had warned another person to beware of it (Judge v. Goa, 1 Stark, 285) ; — Is admissible ; so, where the dog was reported to have been bilton by another dog which Inadmissible. Knowledge of Insanity. The question being whether A. knew at a certain time that B. was insane ; — the fact that B. was generally reputed to be- insane in the neighbourhood in which A. and B. lived at the time in question, is inadmissible (Oreenslade v. Dare, 20 Beav. 284; Ilas- sard V. Smith, opposite, and' see R. v. Gun- iiell, ante, 86). Knowledge of Propensities of Animals. The question being whether A., the owner of a dog, knew of its mischievous propen- sities; — ^mere proof (1) that the dog was in fact of a savage disposition, or (2) that after biting the plaintiff's cattle, it had bit- ten other people's cattle, — is no evidence of A.'s scienter at the time the plaintiff's cattle were bitten (Thomas v. Morgan, opposite) . Digitized by Microsoft® CHAP. X.] FACTS RELEVANT TO PROVE STATES OF MIND. 153 Admissible. was mad, this fact, especially as ' tlie de- fendant had tied it up, was held evidence of scienter (Jones v. Perry. 1 Esp. 482 ; see, ihowever, Qreenslade v. Dare, sup. ) . As to complaints of the dog made to A.'s agents see ante, 95. Where A.'s sow had killed B.'s cow, the fact that A. had pre- viously seen his sow kill C.'s cocks and hens, was admitted to prove A.'s scienter of its mischievous propensities (Quin v. Q. 39 -Ir. L.T.R, 163; cp. post, 162). Enoicledge of Poisons. See R. v. Don- nellan, ante, 142. Inadmissible. Knowledge of Contents of Xenespaper. To prove that an article in a certain news- paper had come to A.'s knowledge; — evi- dence that a copy of such newspaper had been printed and deposited at the Stamp Office, held not admissible to show that other copies of the same issue had been printed and published to the world, so as to come to A.'s knowledge ( Watts v. Frttser,_ lost, 167) (6) Intention. Insuranee. A. having insured his life, but neither the proposal nor agent's re- ceipt for premium stating for whose bene- fit it was to be, and the policy being only completed after A. died ; — declarations ittade by him to the agent, that it was for his wife's benefit, held admissible, the con- tract being partly written and partly oral. Similar -declarations by A. to his wife rfnd friends both before the proposal that he intended to insure for her, and after it, that he had done so, were also received, ap- parently in corroboration. [Ifeicman v. Belston, 76 L.T.Jo. 228; affd. 28 Sol. Jo. 301 C.A. : cp. contra, R. v. Thomson, infra, 154]. In an action against an insurance of- fice, on a policy on the life of A. (de- ceased), brought by his representatives, to which the defence was that A. had insured not for his own benefit, but for that of his son, B. ; — (1) Evidence tendered by plain- tiffs of conversations some time before the insurance between A. and a witness for the plaintiffs, showing that A. intended to insure for his own benefit; and (2) Evidence tendered by defendants of con- versations between B. (deceased) and a witness for the defendants, that B. in- tended to insure A.'s life as a provision for himself in ease of A.'s death — ^held admis- sible as conduct relevant to the issue [Shil- ling V. Accidental Death Co.. 1 F. & F. 116. In a shorter report of this case in 4 Jur. N.S. 244, it is stated that, on a wit- ness being asked whether the intestate had consulted Mm about insuring his life, and the questfon being objected to as hear- say. Erie, C. J., remarked that there were cases where a man's words are his acts, and that this question came within the category and was not inadmissible as hear- say : cp. post, 219-21]. For testament- ~ ary ca.ses in which intent at one time (proved by the testator's own declara- tions) have been received to show intent at another, see po.it. chaps, xxvii.'., xlvi. Merger of Lease in Fee. On Jan. 27, 1914. A. & B., sisters, purchased certain Bankruptcy. The question being whether A., an insolvent, in executing a trust deed for his creditors on Jan. 1, did so with intent to petition ; — statements in a schedule of his affairs delivered in con- nection with a petition filed in Jlay, held inadmissible to show such intent [Peacock V. Ilanis, 5 A. & E. 449. Denman, C.J., remarked : "Here the evidence is of some- thing done under the statute alio intuitu. And even if it were not so, an act cannot be qualified by insulated declarations made at a later time "]. Adva^icement. A. lodges certain secur- ities at a bank in the joint names of him- self and B., his daughter. After A.'s death, a memorandum, dated fifteen months sub- sequently to the deposit, is found in which he directs the securities to be applied to other purposes. Held the memorandum was not admissible to rebut the presump- tion that the money was a gift to B. [O'Brien v. Sheil, I.R. 7 Eq. 255; Williams V. W.. .32 Beav. 370 ; post. chap, xlvii. Aliter if the memorandum had been con- temporaneous with the deposit, since the question was what was the intention at the time of the transaction and not what it was suhseqiientlij. See as to these cases ante. 148.] Digitized by Microsoft® 154 THE LAW OF EVIDENCE. [booKii. A (Imissible. Inadmissible. freehold land subject to an existing lease of part thereof, -which lease was on Dec- 3, 1914, assigned to them as tenants in common. By a subsequent deed on Oct. 7, 1915. A. and B. mortgiiged the lease- hold premises and freehold land as separ- ate properties, to O. Held, that the last named deed was admissible as evidence not only that A. aad B. believed there had been no merger on Dec. 3, 1914, but that such was their intention at that date. [Be Fletcher, 1917, 1 Ch. 339, C.A. ; ante, 85 ; Lea V. Thursly, 1914, 2 CSh. 67.] Murder. A. is charged with the murder of B. The facts that A. bad a motive for killing B., had made preparations for it, and had previously attempted B.'s life, are relevant to show, not only that A. did the act {ante, 125), but also that it was in- tentional and not accidental (post, 156) ; and to rebut such intent A. may prove pre- vious expressions of goodwill and acts of kindness by himself towards B. (Tay. ss. 347; Buss. Cr. 7th ed. 2114; cp. R. v. Hardy, 24 How. St. Tr. 1082, 1091, 1094) ; or that he (A.) was so drunk as to be in- capable of the intent (B. v. Beard, 1920, A.C. 479, oualifying B. v. Mead, 1909, 1 K.B. 895). As to the effect of provocation when the accused was drunk, see R. v. Letenosk, 12 Cr. App. R. 221. Treason, Sedition, &c. A. is charged with treasonable conspiracy. Evidence having been adduced that under the cloak of parliamentary reform he meditated the establishment of a treasonable convention ; — ^books published, and public speeches made, by him many years before, and en- tirely disconnected with the alleged conspir- acy, held admissible, in rebuttal, to shoW what were his fixed political opinions on the subject (R. \. Hardy, 'dc, ante, 85-6). Murder. A. is charged with the murder of B. Evidence that A. and two others had been lurking near the spot previous to the killing of B. having been given, it was proposed by the prosecution to show that they were lurking there clandestinely with a bundle of cloth; the object being to raise a presumption that they were there with an evil intent, and ergo, must have had malice against all persons likely to in- terrupt them, and so against B. ; — held in- admissible (B. v. Wilkon, 1 Lew. C.C. 112). A. is charged with the murder of B. as the resiilt of an abortion. Declarations by B., deceased, before the act, that she intended to operate on herself, and after it, that she had done so; — Held inadmis- sible for A. (B. V. Thomson, 1912, 3 K.B. 19 ; see fully, ante, 80) . Treason, Sedition, &c. A., a priest, is charged with blasphemously burning cer- tain Bibles ; — sermons preached by him several days before and on occasions un- connected with the burning—held not ad- missible in A.'s favour to show that he meant immoral books merely and not Bibles to be burnt on the occasion in ques- tion (B. V. Petcherini, 7 Cox, 79 ; ante, 59, 7&). A. is charged with sedition. Evidence that he had on previous occasions ex- pressed principles of an opposite kind, held not admissible in his own favour (ZJ. v. Gantwell, 120 C.C.C. Sess. Pap. 939, per Lawrance, J. ; ante, 79) . (c) Good and Bad Faith. Fraud. Bepresentations by Vendors. The ques- tion being whether A., B. and C, directors of a mining company, acted in good faith in misrepresenting its value to D. to whom they sold the mine ; — conversations be- tween A. and B. (not in D.'s presence) in which A. introduced and recommended the mine to B. and representations made to A., B. and C. by E., who sold the mine to them ; and the fact that although the shares for a time went to a premium, the directors did not part with any but bought more ; — held admissible for A., B. and C. ; and books kept at the mine by their agent, in the course of his duty, showing that Bepresentations by Vendors. The ques- tion being whether A., B. and C, the ven- dors of a mine, acted in good faith in mis- representing its value to D. ; — books show- ing the expenses and receipts kept by their mining agent, but not in the regular course of his duty, and which might have been made afterwards, held inadmissible against thorn (Shrewsbury v. Blount, opposite). So, shop books kept by a party at nis pri- vate house and made up from slips, were held not evidence for su6h party (Ellis v. Coune, 2 C. & K. 719, aUter if kept at his shop and open to the inspection of his clerks). Digitized by Microsoft® CHAP. X.] FACTS RELEVANT TO PROVE STATES OF MIND. 155 they had the means of knowing tlie infer- ior character of the mine, — held admissible against them (Shveivshury v. Blount, 2 M. & Gr. 475 ; as to directors' knowledge of the books of the company genernlly, see ante. 145-6, 151). , A. and B. are charged with conspiring to defraud C. by a deed which falsely rep- resented that A. owned certain property, B.'s defence being that he honestly believed the representation, but was duped by A. : — ^letters between A. and B. (not commun- icated to C.) prior to the completion of the transaction, and regarding it, in which A. made similar representations to B., held ad- missible in B.'s favour [R. v. Whitehead, 1 Dowl. & By. M.O. 367. It was objected tliat the evidence was only admissible against but not for A., but replied tliat as other letters had been put in to prove the conspiracy, the whole correspondence should be read ; Abbott, C.J., thought that, under the anomalous circumstances the. whole correspondence prior to the execu- tion of the deed was admissible. So, on a new trial, Best, J., held th^t what the^ parties said at the time was evidence to show how they acted, see 1 C. & P. 67]. A„ a grocer, is charged under the Weights and Measures Act. 1878, s. 16, with fraudulently includiijg a paper wrapper in tea weighed for a customer. Evidence of a custom among grocers to include the wrapper in the weight is admissible to negative fraud (R. v. Spencer, 20 Cox, 692). Representations as to Credit. The ques- tion being whether A. acted in good faith in representing W., a tradesman, to be solvent, whereby B. trusted W., and suf- fered damage; — the fact that W. had sold goods to A. under cost price is admissible, as negativing A.'s good faith ; the fact that A.'s shopman, who was cognisant of the transactions between A. and W., believed W. to be solvent ; and that other individual tradesmen in the same town who had dealt with W. also believed him to be solvent; and that there was a general reputation in the town tliat W. was solvent, are ad- missible in A.'s favour as showing his good faith (Sheen v. Bumpstead, 2 H. & C. 193. As to the general bdief of the community on other questions, see Lewis v. Fer}nor, ante, 126; and R. \. O'ConnelJ, post, 184). The question being whether A. gave credit to B., a married woman, iona fide believing her to be single; — the fact that B. had represented herself to other trades- men as single, in such a way as to reach A.'s ears, is admissible in A.'s favonr (Borden v. Kyverbern. 2 M. & W. 01). Divorce : Bona fides of Parties. A. iieti- tions for divorce from B.. on the ground of her adultery with C. B. does not answer or appear ; but C. denies and pleads coUu- Iiiadmissihle. A. and B. are charged with conspiring to defraud C. by falsely representing that A. owned certain property, B.'s defence be- ing that he honestly believed the repre- sentations, but was duped by A. ; — letters between A. and B., written subsequently to the transaction, and regarding it, held inadmissible {R. v. Whitehead, 1 Dowl. & Ry. M.C. 367, 368). Malicious Proseoution. In an action for malicious prosecution, the question be- ing whether A., in giving B. into custody for stealing oysters, acted bona fide and under the reasonable belief that B. had in his possession stolen oysters; — a former conviction against , a stranger for stealing oysters from the same bed, but which A. was not aware of at the time he gave B. into custody, is inadmissible. Aliter if he had been aware of it [Thomas \. Russell, 9 Exch. 764. Pollock, C.B., remarked, that the only ground for admitting the record as evidence of bona fides was to show the impression which it might have made on A.'s mind, and 'not as proof of the fact of the conviction itself. For the former pur- pose it was perfectly competent to prove any communication made to A. on which he might have formed an opinion. But here, as he never knew of the conviction, it could not have produced any impression on his mind) . Representations as to Astrology, awned by him tie day before his arrest; — ^Held they were found in his possession within the second paragraph of sec. 19 of the Pre- vention of Crimes Act, 1871, and evidence was admissible of his conviction for fraud withdn the preceding 5 years (R. v. Row- land, 1910, 1 K.B. 458). A. is charged with receiving stolen tin. On the police searching A.'s premises for stolen iron, A. makes a statement both as to the tin and the iron. Held, the whole was admissible, as otherwise the statement about the tin, which was clearly evidence, would be garbled and might be misunder- stood by the jury (R. v. Mansfield, Car. & M. 14G; this case is referred to in R. V. Oddy, sup.). A. is chai'ged with receiving metal know- ing it to have been stolen. To show guilty knowledge, evidence was given by the police that, before his arrest, he stated to them that he had no metal on his premises, hav- ing giving up buying it They then searched and found other metal whici was the sub- ject of other indictments. A., on l>eing asked- how he accounted for It, replying " I don't know who I bought it. from. If I didn't buy it. someone else would." It was then proved that most, but not all, of this other metal was stolen. Held, that under the Larceny Act, 1916, sec. 43, not only the fact of finding the other metal was ad- missible, but all the circumstances thereof, as well as A.'s statements (R. v. Smith, 1918, 2 K.B. 415. The fact that the other metal was produced in Court before proof that it was stolen, was also held not to be a. fatal objection).. [As to similar facts admissible or not to show a defendant's knowledge that representations made by him were f.ilse, see R. V. Franois and R. v. Ottis, post, 181-2]. Inadmissible. the latter (R. v. Head, 67 J.P. Rep. 459, per Loveland, D.C., on the authority of R. V. Carter, sup.) [See now, however, the Larceny Act, 1916, s. 43, cited ante, 174]. A. is charged with receiving goods stolen by B. Evidence that other goods, stolen by B. within the preceding 12 months, were found in A.'s. possession, but had been parted with by selling or pawning be- fore tiie property charged was so found; — Held inadmissible [R. v. Hardy, (1910) 74 J.P. Rep. 396, following R. v. Garter and R. v. Drage, and holding that R. v. Rowland opposite only applied to the 2nd and not to tiie 1st paragraph of sec. 19 of the Pr. Cr. Act 1871 ; per Fulton, R. after consulting Bosanquet, C.S.]. A. was charged with receiving goods stolen from B. At the trial it was opened that other goods (blouses) belonging to C, and stolen from him ajfter B.'s goods, were found in A.'s possession within the statutory period. The evidence as to the blouses consisted of (1) Contradictory ac- counts by A., on her arrest, as to where she had bought them ; (2) Testimony by C.'s shop assistants that they had neither sold the blouses to A. nor given her re- ceipts for the price ; though they produced counterfoil receipts as to other goods which had been purchased by A.; (3) No re- ceipts for the blouses produced by A. — • Held, the evidence as to the blouses was inadmissible, there being no sufficient proof to go to' the jury that t£ey had been stolen \R. V. Qirod, 22 T.L.R. 720; 70 J.P.Ttep. 514. The latter report is fuller, but its headnote was, in R. v. Harding, 3 Cr. App. R. J.0, said to be incorrect]. A. is charged with ' receiving stolen goods; — evidence that there were found in A.'s possession, at the same time as the stolen goods, pawn-tickets for other stolen property, held inadmissible, as the Preven- tion of Crimes Act, 1871, s. 19, only refers to property actually found and not to mere documents of title (R. v. Cheshire, 106 C.C.O. Sess. Pap. 663-4). A. is charged with stealing a marked shilling from B. A constable, having found the shilling upon A., asked him if he had any more of B.'s money. A. then pro-" duced some half-crowns, and made a state- ment about them. Helo, this statement was inadmissible, since if the second charge had been included in the indictment, and appeared to be a different taking from -the first, the prosecution would have been put to their election, but here it was not on the record at all (R. v. Butler, 1848, 2C. &K. 221). Digitized by Microsoft® 180 THE LAW OF EVIDENCE. [book II. Simiiar Facts to rebut Accident, Mistake, Innocent Intention, f > Digitized by Microsoft® CHAP. XV.] FACTS EXCLUDED BY TUBLIC POLICY. 197 Barristers. When statements made by a barrister in conducting a case in Court are required to be proved in another trial, they should in general be established aliunde, and not by calling the speaker, who may refuse to disclose tliem (Gurry v. Walter, 1 Esp. 456). As to explanations by counsel not upon oath, see post, 462. Jurors. Neither the testimony, nor. the unsworn statements, of Petty Jwors are receivable to impeach tiieir verdict. Thus, affidavits by a juryman that he did not agree to the damages awarded {Nesbitt v. Parrett, 18 T.L.E. 510), or by all the jury that by mistake they gave less than they intended (Jackson V. Williamson, 2 T.E. 281), or that their verdict had been decided by lot (Vaise v. Delaval, 1 T.R. 11), have been rejected. ■ So, a compensation jtiror (unlike an arbitrator) cannot be examined to show that the verdict included compensation for matters outside the scope of the inquiry (Buc- chuch v. Met. Bd. of Worhs, sup., per Martin, B.). The same rule obtains as to .proof of misconduct in criminal trials. Thus, a letter from a juryman explaining the circumstances under which he had separated himself from his colleagues after retiring to consider the verdict, has been rejected (B. V. Eetteridge, 1915, 1 K.B. 467, in civil cases, however, separation does not invalidate the verdict, Fanshaw v. Knowlesi, 1915, 2 K.B. 538, C.A.) ; as also his evidence as to the matters which influenced them in arriving at their verdict [B. v. Melik, 11 Cr. App. E. 100 ; cp. B. v. Syme, 112 L.T. 136 ; though where, in aiiswer to the judge, the foreman in court disclosed that they had decided the case on inadmissible grounds, the conviction was quashed, B. V. Newton, 7 Cr. App. E. 214]. So, a juryman was not allowed to prove that questions were put to and answers»given by the Clerk of Assize in the jury room, which influenced their finding (B. v. Willmott, 10 id. 173) ; nor that one of the jury stated his intention to acquit the prisoner whatever the evidence against him (B. v. Brown, 1907, 7 N. S. W. State Eep. 296). Although, however, misconduct connected with the verdict cannot be proved by intrinsic evidence, yet it may be extrinsically, as by the officer in charge of the jury or by any other actual witness of the transaction ; thus, in B. v. Willmont, sup, the Clerk of Assize was allowed to report to the Court what had occurred (cp. B. V. Hancox, 8 Cr. App. E. 193 and B. v. Sijme, 10 id. 284). And the evi- dence of a juryman is receivable upon collateral points — e.g. to show the circum- stances under which he came into the box (Bailey v. Macaulay, 13 Q.B. 815, 829) ; or matters transpiring in Cflurt (Nesiitt v. Parrett, sup.) ; so, he may (without leaving the box, or retiring from the case) be examined as to any facts material "to the case which he knows of his own knowledge (Tay. s. 1379; ante, 19). Grand Jurors. As grand jurors are sworn to secrecy, their proceedings are, in general, similarly protected. Thus, neither they, nor their clerk, nor the prosecuting officer, may disclose the number or names of the juijors present nor the votes given (B. v. Marsh, 6 A. &. E. 236; Tay. s. 943)-; nor -may they explain their finding (B. v. Cooke, 8 C. & P. 582) ; nor, perhaps, disclose the evidence they heard [MicMethwarfs Case, 1641, Clayton Eep. 84 ; B. V. Hughes, 1 C. & K. 519, where Tindal, C.J. in allowing an ordinary witness to prove perjured evidence given before the grand jury, remarked ' he is not a grand juror ' ; Tay., s. 943] . But in B. v. Scarlet, 12 Co. 98, on a charge of fraudulently acting on the grand jury, the judges demanded of the latter on what testimony they proceeded; and in a case Digitized by Microsoft® 198 THE LAW OF EVIDENCE. [bookii. cited by Mr. Christian, 4 Blackst. Com. 126, a witness at York was committed for perjury to be tried upon the testimony of the grand jury. So, in an action for malicious prosecution, a grand juryman has, on two occasions, been permitted to prove tlaat the defendant was the prosecutor {8ykes v. Dunbar, 2 Selw. N.P., 3rd ed., 1915; Freeman v. Arkell. 1 C. & P. p. 137). And the rule apparently, does not apply to ordinary witnesses, as tiiese are not sworn to secrecy. Thus, in R. v. Watson, 32 St. Tr. 107, Ld. BUenborough, while intimating his own doubts, cited a case in which a witness was questioned as to what passed before the grand jury and was permitted to answer. So, a witness on cross-examination has been compelled to say whether he had not stated certain facts before the grand jury {R. v. Gibson, Car. & M. 672, per Parke, B.,; R. v. Riissell, id. 247) ; and in cases of perjury committed before that body, other witnesses present are competent to prove the false evidence given (R. v. Hughes, sup.) [Tay, ss. 938, 942-945; Best ss. 579, 580; Steph. arts. 111-114; 2 Buss. Or., 7th ed. 2237; Whart. ss. 599-603.]- Private Examinations and Records in Bankruptcy, Winding-up, Lunacy, &c. Private examinations taken under the Bankruptcy Acts 1883, s. 27 and 1914, s. 25 (Re Beall, 1894, 2 Q.B. 135 ; Re Walker, 16 Hanson's Bpy. E. 207), and the Companies Act, 1908, s. 174 {Re Greys Brewery, 25 Ch. D. 400; North Australian, &c., Co. v. Goldsborough, 1893, 2 Ch. 381; Re London and Northern Bank, 1902, 2 Ch. 73; Re Property Ins. Co., 1914, 1 Ch. 775; post, 308) to obtain information as to a debtor's or company's assets, &c., are of a secret nature, and in general protected from disclosure. Nor has a debtor any right to inspect the trustee's minute-books of meetings of the committee of inspection, &c. {Re Solomons, 1904, 2 K.B. 917), nor a creditor's liquidator those of the official receiver {Re Lake George Mines, 1904, 1 Ch. 803). So, as to depositions taken by the Eeeeiver of Wrecks {The PaUrmo, 9 P.D. 6; post, 207), Eeports by the Official Eeceivet to the Court under the old Companies (Winding Up) Act, 1890 {Bottomley v. Brougham, 24 T.L.E. 262), and Eeports of Chancery Visitors under the Lunacy Act, 1890, ss. 184- 186 {Roe V. Nix, 1893, P. 55) ; and see generally as to privilege in Lunacy cases. Re Strachan, 1895, 1 Ch. 439. (4) STATEMENTS BY PARENTS BASTARDIZING THEIR OFFSPRING. When the legitimacy of a cffild born in wedlock is in question, neither the testimony, nor the declarations out of court, of the parents are admissible to prove their access or non-access during marriage. [Tay. ss. 950-951 ; Best, 9. 586; Steph. art. 98; Eos. N.P. 1034-6; Whart. s. 608; Hubback, Ev. of Succ. 382-384. The editor of the 10th ed. of Taylor doubts whether this rule still exists (s. 637 n) ; it was, however, expressly recognized in the Aylesford Peerage, 11 Ap. Cas. 1, 9-11, the Poulett Peerage, 1903, A.C. 393, 399, Hewafs Divorce Bill, 12 App. Cas., 312, Nottingham Guardians v. Tomkinson, 4 C.P.D. 343, and Lord v. O'Lewry, 40 Ir. L.T.E. 166. See a discussion of the rule in 26 Law Quart. Eev. 47, and 25 Harv. Law Rev. 746]. Prinoipl*. The grounds of exclusion are said to be that, where the evidence tends to show access, it is unnecessary as proving that which the law presumes; and where it tends to show non-access, it offends against public morality, decency, and policy [Hubb. Ev. of Succ. 382; Goodright V. Moss, Cowp. 591, 594; R. v. Kea, 11 East, 132 ; post, chap, xlvii.]. Digitized by Microsoft® CHAP. XV.] FACTS EXCLUDED BY PUBLIC POLICY. 199 Scope of the Rule. The rule excludes not only direct but collateral inquiries as to access. Thus, the testimony of a husband is not admissible to prove either connection or opportunities therefor; nor, in rebuttal, are the declarations of the wife admissible to prove her hostile feeling towards him {Wright V. Holdgate, 3 C. & K. 158). So, to disprove access, the husband cannot be asked whether he did not, at the time in question, live 100 miles away from his wife and cohabit with her sister {R. v. Stourton, 5 A. & E. 180), or only go once to the place where she resided and then to collect evidence for a divorce {Re R.'s Trusts, 39 L.J. Ch. 192). The rule has been held to apply, also, where the evidence is tendered merely to contradict admis- sions of paternity by a father {Ulverstone Union v. Park, 53 J.P. 629; although in Watson v. Little, 5 H. & N. 472, where a mother having denied, on cross-examination, that she had ever afBliated her child, or stated to a magistrate that it was born on a date before the marriage, the magistrate's order reciting these facts was held admissible in contradiction, though not to prove the bastardy or date of birth.) So, neither the testimony of a surviving parent {R. v. Eea, sup.), nor the declarations of a deceased one {R. v. Luffe, 8 East, 193; Murray v. Milner, 12 Ch.D. p. 849) can be received, unless the latter are tendered, not to prove the truth of the facts stated, but merely as parts of the res gesta, i.e. of a general course of conduct indirectly establishing non-access, when they will be admissible whether the parents are living {Aylesford Peerage, 11 App. Cas. 1 ; Burnaby v. Baillie 42 Ch. D. 282, cited ante, 77), or deceased {Hargrave v. H., 2 C. & K. 701). But the rule is confined to direct issues of legitimacy, and to tiie particular ground of access during marriage. Thus, evidence of access or non-access is admissible in divorce proceedings (32 & 33 Vict. c. 68, s. 6; Nottingham Guardians v. Tomhinson, 4 C.P.D. 343; Re Walker, 53 L.T. 660; Keys V. K., 34 Jr. L.T.E. 190; post, 204). So, proof may be given of the time of birth, i.e. that this was before, or aiter, the marriage {Goodright v. Moss, sup.; Re Turner, 29 Ch.D. 985) ; or that the marriage itself had never taken place {R. V. Bramley, 6 T.E. 330; Murray v. Milner, sup.), or was valid or invalid {Staden v. 8., 1 Peake N.P. 45; Anon. v. A., 23 Beav. 273, 274; Re Darcys, 11 Ir.C.L.E. 298). Nor .does the rule preclude proof of the paternity of a child bom more than nine months after the judicial separation of husband and wife {Hetherington v. H., 12 P.D. 112), ihough the direct effect may be to bastardize or legitimatize the child, respectively. Moreover, in afiBliation proceedings, after independent proof of non-access, the wife may testify as to who was the father {Legge v. Edmonds, 25 L.J.Ch. 125). On the other hand, tiie access or non-access of the parents before marriage is provable either by their own testimony or, if deceased, by their declarations, as relating to a question of pedigree {Poulett Peerage, 11903, A.C. 395, over- ruling Anon. V. Anon., 23 Beav. 273; post, 309). And their access or the reverse during marriage may, of course, be proved presumptively, e.g. by showing that, at tiie time in question, the husband was absent, or incapable ; or the wife living in adultery with another man; or the child reputed to be, or treated by the family as, illegitimate {Morris v. Bavies, 5 C. & P. 163; Barony of Saye & Sele, 1 H.L.C. 507; Poulett Peerage, sup.; Hawes v. Draeger, 23 Ch.D. 173; Aylesford Peerage,' Burnaby v. Baillie, sup.; Evans V. E.; 20 T.L.E, 612; as to the sufficiency of such evidence, see Barony of Saye & Sele, sup.; Gordon v. G., 1903, P. 141; and post, chap, xlviii.). Digitized by Microsoft® ( 200 ) CHAPTER XVI. FACTS EXCLUDED BY PRIVILEGE. The matters protected from disclosure or production on the STounds of privilege are the following: (1) Professional con- fidences; (2) Title-deeds, Evidence, Lien; (3) Matrimonial com- -munications ; (4) Criminating questions; and (5) Admissions of adultery in divorce cases. Nature of the Claim. The privilege may be that either of the witness himself, or of another whom he represents; in the former case he will not he compelled, and in the latter he will not be allowed (without the principal's consent), to disclose the protected matter {post, 201). Such claims arise more frequently on applications for discovery or inspection before trial, than with reference to testimony in the witness-box, but the principles are substantially the same {Oreenough, v. Gashill, 1 M. & K. p. 115, per Lord Brougham; Hennessy v. Wright, 21 Q.B.D. 509, per Wills, J.). By Whom and when made. They should, in strictness, be made by the witness himself, and not be made or argued by counsel, whether in the cause {Thomas v. Newton, Moo. & M. 48 w; B. v. Adey, 1 Moo. & Rob. 94; Doe V. Date, 3 Q.B. 609), or specially instructed {Doe v. Egr^mont, 2 M. & R. 386) ; but in practice they are now usually both taken and argued by the latter on his client's behalf {Rochefoucauld v. Boustead, 65 L.J. Ch. 794; Cowley \. C, 1897, Times, Jan. 20; Evans y. E., 1904, P. 378; post, 198) as, otherwise the privilege might be lost through ignorance, since, though the judge ought, yet he is not obliged {A.-G. v. Radloff, 10 Ex. 88), to adVise the witness of his rights. The claim may be made at any stage of the examin- ation and is determinable by the judge, who may, if he think fit, hear other witnesses on the point {Cleave v. Johes, 7 Ex. 421; ante, 12). He may also read the document itself to determine its privilege {Re Daintry, Exp. Holt, 1893, 2 Q.B. 116; Kerry Council v. Liverpool Assoc, 38 Ir. L.T.R. 7; Power V. Freeman, 42 id. 115; contra. Volant v. Soyer, post, 197; Nagle v. Shea, I.R. 9 C.L. 389, and Tay. s. 919, are not now law on this point); so, in Chambers, on applications to inspect under 0. 31, R. 19a (2) {Birmingham &c. Co. V. L. & N. W. Ry., 1913, 3 KB. 850, C.A.). Effect, when allowed. When allowed, the privilege protects the witness not only from further answers, but from partial ones already given {R. v. Garhett, 1 Den. C.C.,236) ; and where a document is privileged he cannot be compelled to state its contents {Dnvies v. Waters, 9 M. & W. 608), or his knowledge, information, or belief founded thereon {Lyell v. Kennedy, 9 App. Cas. 81), since otherwise the privilege would be illusory. But, unlike the rule as to public policy {ante, 195), if the privilcsed document, or second- Digitized by Microsoft® CHAP. XVI.] PROFESSIONAL CONFIDENCES. 201 ary evidence of it, has been obtained by the opposite party independently, even through the default of the legal adviser, or by illegal means, either will be admissible, for the Court will not inquire into the methods by which the parties have obtained their evidence {Calcraft v. Guest, 1898, 1 Q.B. 759, C.A. ; Lloyd V. Mostyn, 10 M. & W. 478; R. v. Lcatham, 8 Cox, 498, 501; contra, Joyce V. J., 1909, Times, April 30, yer Deane, J., sei qu.; and as to the illegal obtainment of evidence generally, see Wigmore, Ev. s. 2183 and cases cited) ; this, however, will not apply where the right to retain or use the privileged documents is the very subject matter of tlie action {Ashhurton v. Pape, 1913, 2 Ch. 469, C.A.). On the other hand, a prisoner has been' prevented from using a letter which had fallen into his hands, written by the prosecutrix to her solicitor, or from cross-examining her thereon, when she refused to waive her privilege (R. v. Leverson, 11 Cox, 152; sed qu.) ; so Kelly, C.B., rejected a letter from a prisoner to his wife, which had been intercepted by a constable who had undertaken to post it, on the ground apparently that the letter belonged to the wife, who could not have been called to produce it had it reached her hands {R. v. Pamenter, 12 Cox, 177; sed qu.; this case is doubted by Mr. Taylor, 8th ed. s. 881, but in the 10th ed. and the addenda to the 9th it is supported on the authority of an American case, 8cott v. Com., 42 Am. St. Eep. 371, which is to the same effect; cp. post, 211, 269). No adverse presumption is to be drawn from the non-waiver of the privilege {Weniworth v. Lloyd, 10 H.L.C. 598,) except, perhaps, in the case of not answering criminating questions (Tay. s. 1467; as to comment on prisoners refusing to testify, see post, 453)., And the privilege, being that of the witness or his principal, and not of the litigants, no new trial can be had for an erroneous ruling on the point (i?. v. Einglake, 11 Cox, 499; post, chap, xlix.). . ■ (1) PROFESSIONAL COWFTDENCES. A client (whether party or stranger) cannot be- compelled, and a legal adviser (whether barrister, soUcitor, the clerk or intermediate agent of either, or an interpreter, Du Barre V. Livette, Peake, 77) will not be allowed without the express consent of his client, to disclose oral or documentary communications passing between them in professional confidence. [Tay. ss. 911-913 ; Best, s. 581 ; Eos. N.P. 171- 194; Eos. Cr. Ev. 133-135; Steph. arts. 115-116; Bray on Discovery, 1884; id. Digest of Discovery, 1904; Ann. Pr., Notes to 0. 31, r. 1). Principle. The rule is established for the protection of the client, not of the lawyer; and is founded on the impossibility of conducting legal business without professional assistance, and on the necessity, in order to render that assistance effectual, of securing full and unreserved intercourse between the two (Jones v. Great Central Ry., 1910, A.C. 4, 5; Lyell v. Kennedy, 9 App. Cas. p. 86; ^Yheeler v. Le Marchant, 17 Ch.D. pp. 681-2). The privilege, therefore, may be waived by the client, but not by ^e. adviser {Wilson v. Rastdll, 4 T. E. 758 ; Procior v. Smiks, 55 L.J.Q.B. 527, C.A. ; Re Cameron's Co., 25 Beav. 1, 4; R. v. Leverson, sup.; Humplien/ r. Wake, 33 T.L.E. 433; cp. post, 211). Privilege confined to Legal Advisers. The privilege attaching to confident tial professional disclosures is confined to the case of legal advisers and does not protect those -made to Clergi/men [Normanshaw v. N., 69 L.T. 468; Digitized by Microsoft® 202 THE LAW OF EVIDENCE. [bookd. Wheeler v. Le Marchant. 17 Ch. D. 681; Gedge v. 0. (reported 1909, Globe, July 13, and on other points, Times, July 14, where a claim made by a cleric to withhold a communication to his bishop was disallowed. Best, ss. 129B n, 583; Steph. art. 117, note xliv.; 3 Jur. Soc. Pap. 137-40; but there exists a strong body of opinion against the correctness, or at least the enforcement, of the rule, see R. v. Griffin, 6 Cox, 219; Broad v. Pitt, 3 C. & P. 518; R. V. Bay, 2 P. & F. 4; .Be Keller, 22 L.E.I. 158, 160; Tannian V. Synnott, 37 Ir. L.T. Jo. 275; Ruthven v. De Bour, 45 Sol. Jo. 272] ; Doctors {R. V. Gibbons, 1 C. & P. 97; Broad v. Pitt, sup.; Wheeler v. Le Marchant, sup.) ; Agents {Slade v. Tucker, 14 Ch. D. 824, 827; Kerry v. Liverpool Assoc, 38 Ir. L.T.R. 7; so, as to patent agents, Mosely v. Victoria Co., 55 L.T. 482) ; Pursuivants of the Herald's Office, employed to oppose enrolment of a pedigree (Blade v. Tucker, 14 Ch. D. 824) ; and Stewards, Clerks, or Confidential friends (WheeUr v. Le Marchant, sup.; Tay. s. 916.) A qualified protection, however, is accorded to Bankers, who are not compellable, in proceedings to which they are not parties, to produce or give secondary evidence of their books, unless by order of a judge for special cause (post, 375, 457) ; while in the case of Trade Secrets and the like, discovery will only be ordered when, and to the extent that, the Court considers their disclosure strictly necessary for- the purposes of justice, i.e. when not oppressive [Ann. Pr., Notes to 0. 31, r. 7; as to restrainiag disclosure in other cases, see Morrison v. Moat, 9 Hare 241; and Alperton Co. v. Manning, 33 T.L.R. 235]. The Retainer. Neither a formal retainer, nor the payment of fees, is necessary to constitute the relationship of solicitor and client; it is enough if the adviser is in any way consulted in his professional character. And the protection exists notwithstanding a bond fide mistake in supposing that the solicitor had consented to act (Smith v. Pell, 2 Curt. 667) ; or the latter's subsequent refusal of the retainer (Cromack v. Heathcote, 2 Br. & B. 4) ; or the fact that the solicitor had, unknown to the client, become disqualified (Calley v. Richards, 19 Beav. 401). But no privilege attaches to communications passing before the relationship existed, or after it had ceased (Greenough v. Gaskell, ante, 186) ; nor to those made to a lawyer consulted merely as a friend (Smith v. Daniell, 44 L.J.Ch. 189). And where a prisoner, charged with forgery, requested a friend "to ask 6. or any other attorney, as to his probable punishment," it was held that the relationship had not been established between G. and the prisoner (R. T. Brewer, 6 C. & P. 363) ; so, where a party applied to another, not a solicitor, or pretending to be one, to get a conveyance prepared, and the latter wrote to a legal relative, who replied that " the party could not convey," the cominunication was held not privileged (Doe'y. Jauncey, 8 C. & P. 99, 101). Joint Retainer. When two parties employ the same solicitor, the rule is that communications passing between either of them and the solicitor, in his joint capacity, must be disclosed in favour of the other — e.g. a proposition made by one, to be communicated to the other (Baugh v. Cradocke, 1 M. & R. 182; Perry v. Smith, 9 M. & W. 681) ; or instructions given to the solicitor in the presence of the other (Shore v. Bedford, 5 M. & G. 271; Eoss v. Gihbs, L.R. 8 Eq. 522) ; though it is otherwise as to communications made to the solicitor in his exclusive capacity (Perry v. Smith, sup.; Tay, s. 926; Bray, 427, 442-443). The title of either client is generally deemed to fall under Digitized by Microsoft® CHAF.XTi.] PROFESSIONAL CONFIDENCES. 203 the latter head — e.g. where a borrower applies for a loan to the solicitor of the lender, and fumi&hes him with an abstract of title, the solicitor will not be allowed to prove the abstract as against the borrower {Doe v. Watkins, 3 Bing. N.C. 421; Doe v. Seaton, 2 A. & E. 171). So, where one of two joint adventurers referred the other to the former's solicitors as to a matter connected with the adventure, communications between the latter and such solicitor were held privileged in an action against him by a third party as to the subject-matter of the adventure, although the former waived his privilege {Rochefoucauld v. Boustead, 65 L.J.Ch. 794). Scope of Employment. The matter must be within the ordinary scope of professional employment, though it need not involve actual or prospective litigation {Pearce v. Foster, 15 Q.B.D. 114). A correlative test has been said to be whether the nature of the employment would give the Court summary jurisdiction over the solicitor {Turquand v. Knight, 2 M. & W. 98, 101). The sale, purchase, and conveyance of estates {Carpmael v. Powis, 1 Phill. 687), or negotiations for a loan {B. v. Farley, 2 C. & K. 313), are within the scope. But not communications to a solicitor acting merely as under- sheriflE {Wilson v. Rastall, 4 T.E. 753), rent-collector {Stratford v. Hogan, 2 Ball & B., 164; Doe v. Hertford, 19 L.J.Q.B. 526), patent-agent {Mosehj v. Victoria Co., 55 L.T. 482), or trustee {Tugwell v. Hooper, 10 Beav. 348). Commxmications in furtherance of a fraud or crime, whether the solicitor was a party to, or ignorant of, the illegal object, are not protected {R. v. Cox, 14Q.B.r).153; iJ. v. Downer, 14 Cox, 486 ; 5e 4mo«, 60 L.T. 109 ; Postleth- waite V. Rickman, 35 Ch.D. 722 : Williams v. Quebrada Ry., 1895, 2 Ch. 751 ; R. V. Smith, 11 Cr. App. E. pp. 233-4) ; nor, probably, are forged documents, though entrusted to the solicitor in professional confidence {R. v. Hayward, 2 C. & K. 234; cp. R. v. Jones, 1 Den. 166 ;\B. v. Brown, 9 Cox, 281; R. v. Downer, sup.; Tay. s. 929, however, cites two earlier cases, contra). So, a fraudulent, as distinguished from an innocent, device to evade payment of probate duty, is not privileged {Bullivant v. A.-G. of Victoria, 1901, A.C. 196) • But, in order to displace the prima facie right to protection, there must be some definite evidence produced, or charge made, of fraud or illegality {id.) . The Communications must be necessary and confidential. The communica- tions must have been confidentially made for the purpose of the employment, or the knowledge confidentially obtained solely in consequence of it, to be privileged {Gardner v. Irvin, 4 Ex. D. 49 ; O'Shea v. W-ood, 1891, P. 286 ; Doe V. Hertford, 19 L.J.Q.B. 526). Joint Interest. No privilege attaches to communications between solicitor and client as against persons having a joint interest with the client in the sub- ject-matter of the communication, e.g. as between partners {Re Piqkerimg, 25 Ch. D. 247; Gourand v. Edison, 59 L.T. 815) ; a company and its shareholders {Woodhouse v. W., 30 T.L.R. 559, C.A.) ; trustee and cestui que trust {Talbot V. Marshfield, 2 Dr. & S. 549; Re Mason, 22 Ch. D. 609; Postlethwaite v. Rickman, 35 Ch. D. . 722 ; even though the party resisting production has paid for the communication. Bacon v. Bacon, 34 L.T. 349; as to where the solicitor is also a co-trustee, see O'Rourke v. Darbishire, 1920, A. C. 581) ; lord and tenants of a manor as to customs of manor {Warrick v. Queen's Coll., L.R. 3 Ea. 683 ; Owen v. Wynn. 9 Ch. D. 29) ; a lessor and lessee as to production of the lease {Doe v. Thomas, 9 B. & C, 288) ; reversioner and tenant for life as to Digitized by Microsoft® 304 THE LAW OF EVIDENCE. [bookii. common title {Boe v. Date, 3 Q.B. 609) ; two persons stating a case for their joint benefit {A.-G. v. Berkeley, 2 J. & W. 291) ; or a husband and wife who are not genuinely, but only collusively, in contest {Ford v. De Pontes, 5 Jur. N.S. 993). Nor does any privilege attach as between joint claimants under the same client — e.g. between claimants under a testator asito communications between the latter and his solicitor {Russell v. Jackson, 9 Hare, 387; see, however, Curtis v. Beaney, 1911, P. 181). But where the communications relate to matters outside the joint interest, they ■ are privileged even as against a pejson bearing the expense of the communication — e.g. communications between a plaintiff corporation and its solicitors, as against a defendant ratepayer as to matters not connected with the rates {Bristol Corp. v. Cox, 26 Ch.D. 678) ; or between a company and its solicitors consisting of confidential advice to the former in an action against a shareholder {Woodhouse v. W., sup.) ; or between a trustee and his solicitor as against the cestui que trust, where the oommunication is not made for the former's guidance in the trust, but to enable him to resist litigation by the latter {Thomas v. Sec. of State, 18 W.R. 312) ; or where it concerns his character, not as trustee, but as mortgagee, of the client {Johnson v. Tucker, 11 Jur. 382). In cases of joint interest it is sufficient, as against third persons, if one only of the interested parties claims the privilege {Newton v. Chaplin, 19 L.J.C.P. 374; KearsleyY.. Phillips, 10 Q.B.D. 465; Rochefoucauld v. Boustead, cited ante, 189; Rattenhury v. Munro, 55 Sol. J. 76) ; though all must concur in vj^aiving it (Bray, 427). Duration of Privilege. Generally speaking, a communication or document " once privileged is always privileged " {Bullock v. Gorrie, 3 Q.B.D." 356 ; Pearce v. Foster, 15 Q.B.D. 114; Calcraft v.^ Guest, 1898, 1 Q.B. 759, 761). Thus, the protection is not lost in future litigation; on change of solicitors; by the solicitor becoming either personally interested {Chant v. Brown, '7 liare, 790), or disqualified {Qholmondeley v. Clinton, 19 Ves. 268) ; or by the death of the client {Bullivant v. A.-G. of Victoria, 1901, A.C. 196). It has been held, however, that this principle only applies where the parties and the subject-matter , are the same, or where the communications are between solicitor and client {Kerry Council v. Liverpool Assoc, 38 Ir. L.T.R. 7, C.A.), Waiver. The privilege may, however, as we have seen {ante, 187), be waived by the client (though not by the solicitor), either expressly or impliedly — e.g. by the client examining the solicitor as to the privileged matter ; though if only examined as to part, he cannot be cross-examined as to the residue {Bate V. KiMsey, 1 CM. & E, 38; U'Donnell v. Gonry, Ir. Cir. Rep. 807; R. v. Leverson; 11 Cox, 152; Jjyell v. Kennedy, 27 Cli. D. 1) ; or, by sending the opponent & copy (though not necessarily by sending him a mere extract) of the privileged document {Caldheck v Boon, I.E. 7 C.L. 32). Where a corpora- tion elected to answer ihterrogatories through its town clerk, who was also its solicitor, it was held it had impliedly waived its privilege {Swansea Corp. V. Quirk, 5 C.P.D. 106) ; though it was otherwise where it had no option, but was bound to comply with an order to answer through the town clerk {Salford Corp. V. Lever, 24 Q.B.D. 695). Where the client has parted with the property to which the communication relates, his successor in title may waive the privilege (Bray, 385-387) ; this has Digitized by Microsoft® CHAP. XVI.] PEOFESSIONAL CONFIDENCES. 205 been held not to apply to a client's trustee in bankruptcy {Bowman v. Norton, 5 C. & P. 177; but see Bray, 388). And upon his death the same right passes to his personal representative {Doe v. Hertford, 19 L.J.Q.B. 536; Bray, 385- 387). EXAMPLES. (i) Client's Name, Address, Handv>riting, Identity, &c. Privileged. Not Privileged. A solicitor will not be allowed to dis- A solicitor may be compelled to prove dose his client's address if it has been fon- his client's name {Bursill v. Tfmner, 16 fidentially communicated to him for the Q.B.D. 1) ; address, if not confidentially purpose of the eniployment (Re Campbell, disclosed (Re Campbell, opposite) ; or, 5 Ch. App. 703 ; Re Arnott, 60 L.T. 109. even though confidentially disclosed, if the As to names of witnesses, ^ee post, 207) . client is a ward of Court (Ramsbotham V. Senior, L.R. 8 Eq. 575) ; or if it was communicated while engaged in an unlaw- ful act (Re Arnott, opposite) ; handwrit- ing (Dmyer v. Collins, 7- Ex. p. 646)-; identity — e.g. as having executed a deed attested by the solicitor (R. v. Payne, 49 Sol. Jo. 419 ; Robson v. Kemp, 5 Esp. 52 ; see inf. Clients' Documents), sworn an affidavit, or put in a pleading (Dwyer v. Collins, sup.; Stvddy v. Sanders, 2 Dowl. & Ry. 347 ; Qreenough v. Oasketl, 1 My. & K. p. 108) ; the fact of the retainer (Levy V. Bope, M. & M. 410; Gillard v. Bates, 6 M. & W. 547 ; Forshaw v. Lewis, 1 Jur. N.S. 263) ; and perhaps its character — e.g. whether personal or representative (Beckmth v. Benner, 6 C. & P. 682) ; as well as facts showing the client's mental capacity (Jones v. Goodrich, 5 Moo. P.C. 16,25). (ii) Legal Opinions, Drafts, and Communications. Cases submitted to solicitor or counsel for opinion, and opinions thereon (Reece V. Trye, 9 Beav. 316; Penruddock v. Sam- mond, 11 Beav. 59) ; including the opinion of a foreign lawyer (Bun'bury v. B., 2 Beav. 173). Instructions from a party's solicitor to counsel to prepare a deed, to- gether with correspondence and papers relative thereto, unless, on the evidence, it was done with the express object of com- mitting a fraud or illegality (Knares- borough Banking Co. v. Lorrimer, 41 Sol. Jo. 734, C.A. ; Bullivant v. A.G. of Vic- toria, 1901, A.C. 196). Drafts of agree- ment, leases, or conveyances (Reece v. Trye, sup.; Mostyn V. West Mostyn Co., 34 L.T. 5S1) ; draft advertisement settled by counsel (Lowden v. Blakey, 23 Q.B.D. 332). Notes of professional interviews and communications, whether made by solicitor (Ward v. Marshall, 3 T.L.R. 578). or client (Woolley v. N. L. Ry., L.R. 4 O.P. 602'; Bristol Corp. v. Cox, 26 Ch.D. 678) ; or, in the case of a conporation, minutes and reports of a sub-committee in reference to existing or expected lit'gation (ibid.: Worthington v. DubUn Ry., 22 L.R. Ir. 310 ; the last two cases are doubted by Mr. Bray, Ann. Pr., Notes to O. 31, r. 1). Opinions of counsel, effect of which is set out in pleadings (Bristol Corp. v- Cox, 26 Ch.D. 678) ; though the mere reference to a privileged document in the pleadings will not-destroy the protection (Roberts v. Oppenheim, 26 Ch.D. 724) ; nor will furn- ishing the opposite side with an extract of the opinion necessarily waive privilege as to other parts, or as to the case on which it is founded (Carey v. Cuthbert, I.R. € Eq. 599; see Waiver, ante, 204). Communications which are not necessary, for the purpose of the employment — e.g. a defendant's direction to his attorney, or the latter's clerk, to send a particular per- son, not a sheriff's officer, with the sheriff to point out the person to be arrested under a CO. sa. (Caldbeck v. Boon, I.R. 7 C.L. 32 ; op. Sandford v. Remington, 2 Ves. Jun. 189) ; or a plaintiff's admission to his attorney, after trial, that he had given no consideration for a note sued upon (Cobden v. Kendrick, 4 T.R. 431) ; or a prosecutor's remark that "he would give a large sum to have his adversary hanged " (Annesley v. Anglesea, 17 St. Tr. 1224). Client's confession of adultery, to her solicitor, unless latter specifically prohi- bited from disclosing it (Oetty v. (?., 76 Digitized by Microsoft® 206 THE LAW OF EVIDENCE. [book II. Privileged. Solicitor's confidential letters to client, for purpose of obtaining information or instructions as to legal proceedings, al- though containing a statement of fact as to what took place therein in presence of opposite party (Ait^s■loorth v. Wilding, 1900, 2 Ch. 315 ; Irish sooiety v. Cromme- lin, 2 Ir.L.T.Jo. 265). SoUcitor's bill of costs, in his own or his client's possession ; entries relating to actual or contemplated litigation (Ainiioorth v. Wilding, sup.), or other matters of confidential profes- sional advice or assistance (Bray, Dis- covery, 396). Not Privileged. L. J.P. 158 ; the report, 1907, P. 334, does not show the full ruling) . Communications to a solicitor respect- ing matters of fact, as distinguished from legal advice I8aw A. is charged |With a crime ; — A. had, under the expectation of being allowed to turn Queen's evidence against his accom- plices, made a confession to a magistrate ; but, afterwards, refusing to testify against them, had been put upon his own trial. Such a confession has been considered ad- missible [R. V. Burley, 2 Stark., Ev. 3rd ed. 13 Jt; and eases ante, 266; followed in America in Oom. v. Knapp, 10 Pick. 776. In R. V. Oillis, inf.-, however, R. v. Burley was explained as deciding merely" that the prisoner's breach of condition rendered him liable to be tried and convicted on his own confession, if the latter were legally, but not if it were illegally, obtained]. A., a soldier, is charged with murder. B., his superior officer, had Lad A. arrested on suspicion and marched to the guard- room where, in the presence of a superin- tendent of police, B. asked A. " whether he had not broken out of barracks on the night in question." Held, A.'s answer was admissible since it was no breach of dis- cipline to refuse to answer the question, although it was an offence to break out of barracks (R. v. Brovm, 68 J.P.Rep. 15, per Wills, J.). A., a non-commissioned officer, and B., a civilian, are charged with conspiracy to defraud the military authorities. A. and B. had both been invited to give evidence at a prior military enquiry held under the Army Act 1881, and had done so. By a military regulation, statements made at Inadmissible. have had," and A. replied, " Oh, don't do 80 and I will tell you all ;" — ^Held, a con- fession thus made was inadmissible (R. v. ^owden, L'pool Winter Ass., Dec, 1859, per Martin, B., after consulting Willes, J., ex rel. Ch. Hy. Hopwood, 3 Jurid. Soc. Pap. 134; Tay. s. 880 n. Contra, in Ireland, R. V. Cain, 1 Craw, and D. 36; see ante, 265.] A. is charged with setting fire to the house of B., her master. Shortly after the fire some of B.'s goods had been found concealed in the garden of the house. B. thereupon said to A. : " If you don't tell me the truth about the things found in the garden, I will s6nd for a constable." A. then confessed having set fire to the house. This confession is inadmissible, as the thteat was made with regard to a crime which, though different, formed part of the same transaction as the first (R. v. Uearn, 1 C. & M. 109; aliter, if the two crimes had been on distinct occasions, R. v. Warner, 2 Euss. Cr., 7th ed. 2174). A., a postman, being in custody for tamper- ing with letters, a superior clerk in the post-office said to A.'s wife, " Do not be frightened ; I hope nothing will happen to your husband beyond the loss of his situa- tion." A confession afterwards made by A. held inadmissible, as the wife might have communicated the inducement to him (R. V. Harding, 1 Arm. M. & O. 320 ; but see R. y. Bate, opposite). Where the employer of the prisoner said to the latter's brother, "It will be the right thing for him to make a clean breast of it " ; held, tha,t this inducement mdght be inferred to have reached the prisoner, and that it excluded the confession .," is admissible, although the, payments by C. and D. rested merely on hearsay from B. (Percival v. Nanson, 7 Ex. 1). (0) A. (debtor) and B. and C. (sure- ties) sign a promissory note for £300 in favour of D. (creditor). In an action by B. against O. for contribution, an in- dorsement made by D. (deceased) on the note, "Received of B. £280 on account of the £300 originally advanced to A.," held admissible to show that C. was a co-surety and A. the principal debtor (Davies T. Humphreys, 6 M. & W. 153) . To prove that A. lent B. £2000, the fol- lowing entries in the private account-book of A. (deceased) : (1) 1872, Oct 1, B. paid me three months' interest, £20. And on another page, (2) 1872. January. B. acknowledged loan to this date, £2000. 1872. March. Interest £20 July. — ^Interest paid me . . . £20 Oct. — ^Interest paid me . . . £20 Dec. — ^Paid interest £20 £80 1872. Dec. 27. Paid off £20. Left £1980 ; ^held admissible in (1) as being prima facie against interest, though collaterally proving B.'s debt; and in (2) the entries agsinst Interest being sufficiently connected with those >in A.'s favour to render the latter also receivable ITaylor v. Witham, 3 Ch.D. 605; Peek v. Peck, 21 L.T. 670; The Swiftsure, 82 L.T. 3o9]. So, a testa- tor's instructions to his solicitor : " C. owes me £400 which I lent him on two houses, the deeds of which I hold, but have pledged for an overdraft, held admissible, as the pledging clause, which was against interest, could not be separated from the rest (Smith v. Oooch, Chelmsford Assizes, Feb. 6, 1907, per Ridley, J., exrel.). To prove that A. had tendered and B. refused £100; — two entrie? by a deceased clerk of A.'s solicitor made in a day-book, the first charging himself with the receipt of £100 from his master " to tender to B^' the second stating the tender of £100 to B. and B.'s refusal of it, — are admissible, the Inadmissible. (c) An account kept by the deceased steward of A., on one side of, which the steward debited himself, with rents received for A., but on the opposite side credited himself with certain disbursements and the tenants with certain allowances ; — held inadmissible to prove the disburse- ments and allowances, the debit and credit items not being connected together by any specific reference [Doe v. Beviss, 7 C.B. 456; Knight v. Waterford, 4 Y. & Coll. pp. 293-5]. So, a debtor and creditor ac- count, in which a balance is struck in favour of the deceased declarant, but in which the credit items are not otherwise connected with the debit items, held in- admissible [Whaley v. Carlisle, 15 W.R. 1183; 17 Ir.CjL.Rep. 792; aliter as to other items showing how the total of the debit amounts is made up. Compare ex- amples, ante, 236]. T^e question being whether land which A. (deceased) had conveyed to C. had been bought by A., in 1852, as trustee for B. — a statement made by A., at the time of the purchase, that he had bought the land in trust for B., upon the terms of , B. repaying him the amount of the pur- chase-money, having been rejected because not in writing, as required by the Irish St. of Frauds (7 WiU. III. c. 12) s. 4 [cp. however, post, 580-1, 598] ; a further statement by A., made after the convey- ance, that he had received the purchase- money from B., was also rejected — (1) as in derogation of his own grant; and (2) as made after having parted with his in- terest [Lalor V. Lalor, 4 Ii.R.I. 350, affd. 67iS; cp. ante, 241]. Digitized by Microsoft® 286 THE LAW OF EVIDENCE. [book n.' Admissible. I second being connected with the first, as explanatory o£ it {Marks v. Lahee, 3 Bing. N.C. 408). To prove a customary payment by a cer- tain part of a parish ; — two entries on the same page of a parish book, signed by de- ceased Church-wardens, as follows, are ad- missible : (1) " It is our ancient custom thus to apportion church-lay. The chapelry of Haworth to pay one-fifth," &c. (2) Received of Haworth, who this year disputed this our ancient custom, but after we had sued him paid at according — £8 and £1 for costs " (Stead v. Beaton, 4 T.R. 669). So, old unsigned, accounts found in the same box and contemporaneous with a signed account, charging the party signing, are admissible, the sums received being the same in both {Musgrave v. Emmerson, lOQ.B. 326). A. devised property absolutely to B., and B., after A.'s death, devised all her property absolutely to C. In an action by D. (B.'s daughter) against C. for an ^ account, evidence of a declaration by B. (deceased) that "part of what she pos- sessed was devised to her by A. for D." ; — held admissible to prove B. was a trustee of that part for D. (Strode v. Winchester, 1 Dick, 397; see fully as to secret trusts, post, 680). (d) A., a lessee of a corporation, sues B. for toUs. A. puts in an ancient account of tolls purporting to have been rendered by C., a deceased treasurer to the corpora- tion, l)ut in the handwriting of the town- clerk (deceased) whose custom it was to enter the information when received from the treasurer. The treasurer then attended before the auditors and produced vouchers verifying the clerk's statement. Held, that entries charging the treasurer and signed by the auditor as allowed were admissible as against the interest of the formei; {Lan- cum v. Lovell, 6 C. & P. 443-5 ; cp. post, 340. AUter as to others respecting which there was merely an unsigned entry of their having been emamined) . So, to prove payment by B. to A. of interest on a mortgage, accounts showing the receipt of such interest hy C, a de- ceased steward of A., which accounts, though in the handwriting of C.'s clerk, hfxd been delivered by C. at an audit, held admissible as having been adopted by 0. (Doe V. Eawkins, 2 Q.B. 212). So, the signing of a rent account by a deceased agent was held to be an adoption by him of entries for rents expressed to be " paid to me " and made in the hand- writing of a deceased clerk, though they might not have been admissible as declara- tions against interest by the clerk, he not purporting to charge himself therehy (Richards v. Gogarty, 4 Ir. R.C.Ii. 300). Inadmitsihle. A. devises property to B. and O. jointly and absolutely. A declaration made by B. (deceased) tiirty years afterwards that the property was held by him and C. in trust for certain secret purposes, though against B.'s interest, is not admissible to prove the trust against C. (Turner v. A.-a., I.R. 10 Eq. 386, 392 ; ante, 242, 246) . (d) To prove the terms of a tenancy; — entries in the rent-books of a .deceased steward, wherein he was debited with the rents received, the entries being in the handwriting of a person (also deceased) who styled himself "clerk to the steward," held inadmissible as declarations against the steward's interest, in the absence of extrinsic proof that the clerk was employed by him to make the entries; and inadmis- sible as against the clerk's interest, as they did not purport to charge the clerk [De Rutnen v. Fam\ 4 A. & E. 53 ; and see Bright V. Legerton, ante, 98]. A. sues B. for trespass to a several fishery, and tenders a document dated 1733, found among the muniments of C., A.'s deceased ancestor, purporting to be an account of the weirs and nets on the river in question in the possession of persons other than C. Held not admissible as a statement against the proprietary interest of O., since it was not signed, nor was the handwriting proved, nor was there any- thing on its face or otherwise to show by whom, or for what purpose, it was made, or whether the facts were within the writer's knowledge or received from others (Devonshire v. Neill, 2 L.R.I. 132, 157). Digitized by Microsoft® ( 287 ) CHAPTER XXIV. DECLARATIONS IN THE COURSE OF DUTY. Declabations, oral or written, made by deceased persons, in the ordinary course of duty, contemporaneously with the facts stated and without motive to misrepresent, are admissible in proof of their contents. [Tay. ss. 697-713; Best, s. 501; Ros. KP. 59-61; Steph. art. 27; 2 Smith L.C., 11th ed. 330, notes to Price v. Torrington; Wigmore, Ev. ss. 1517-61], Principle. The grounds of reception are (1) death; and (3) the presump- tion of truth which arises from the mechanical and generally disinterested nature of entries made in the ordinary course of duty, and from their constant liability, if false, to be detected by the declarant's superiors. History. As with writings against interest, so the admission of written entries made by deceased clerks, &c., in the ordinary course of duty, probably antedates the establishment of the hearsay rule itself. There seems reason to suppose that the practice of admitting entries made in the books of strangers, grew out of the practice of admitting similar entries in the shop- books of the parties tljemselves {ante, 229). The earliest cases in which such entries appear to have been received after the final establishment of the hearsay rule, and so presumably as exceptions to it, are (1698) Pitman v. Maddox, 1 Ld. Ray. 732, and (1703) Price v. Torrington, 2 id. 873, which is usually referred to as the leading case for the exception. In both cases books kept by deceased servants in the usual routine of business were admitted as evidence for their masters. The admissibility Of oral declarations was not established until later, and appears to have originated with a dictum of Ld. Campbell in 1844 (Sitssex Peerage, 11 C. & F. 85, 113; cp. B. v. Buckley, 13 Cox, 393). [Thayer, Pr. Tr. Ev. 520-1; id. Cas. Bv., 3nd ed. 509, 514, 576; Wigmore, s. 1518]. The Duty, (a) The declarations must have been made in the discharge of a duty to a third person; a mere personal custom, not involving responsi- bility, is insufficient (B.r. Worth, 4 Q.B. 132; Massey v. Allen, 13 Ch.D. 558; Trotter v. Maclean, id. 574). It. has been said, also, that the duty must not be a general one, involving a variety of acts that may change from time to time, but specific and twofold — i.e. to do a particular act and to record or feport it when done (Smith v. Blahey, L.R. 2 Q.B. 336 ; Sturla v. Freccia, 5 App. Cas. 623; Lyell v. Kennedy, 56 L.T. 647, reversed on other grounds, 14 App. Cas. 437; Mercer v. Denne, 1905, 3 Ch. 538, 558; though a rigid application of this dictum would conflict with several of the eases in which the evidence has been received). The acts must have been dorie by the declarant, and not by third persons [Smith v. Blakey, sup.; Ryan v. Ring, 35 L.R.I. Digitized by Microsoft® 388 THE LAW OF EVIDENCE. [bookii. 184; Mercer v. Denne, sup.; in PoKni v. Gray, 13 Ch.D. 411 (afi&rined sub nom. Sturla v. Freccia, sup.), however, James^ L.J., held that entry must relate not to something said, learned, or ascertained by the declarant, but to something done by, or to, him, and in Lyell v. Kennedy, sup., Bowen, L.J., approved this statement; cp. also The Henry Coxon, 3 P.D. 156]. It seems doubtful whether declarations as to acts to be done are admissible; they were received in P. v. Buckley, 13 Cox, 293, but rejected in Rowlands v. Be Vecchi, 1 C. & B. 10, and the principle of the above cases would seem to exclude future acts. It must have been the declarant's duty to make (or cause to be made. Brain v. Preece, 11 M. & W. T'T'S; B. v. St. Mary, Warwick, 22 L.J.M.C. 109) the whole of the entry or record {Trotter v. Maclean, 13 Ch.D. 574). Reports on the value of property, consisting chiefly of matters of opinion, have been considered inadmissible {Be Djambi Rubber Estates, 107 L.T. 631, C.A.; though see North Stafford By. v. Eanley Corp., infra) . Contemporaneousness. (6) The declarations must have been made contem- poraneously with the facts recorded {Doe v. Turford, 3 B. &. Ad. 890; Smith V. Blakey, sup.; Mercer v. Denne, 1905, 2 Ch. 538; Be Djambt Bubber Estates, sup.; Byan v. Bing, 25 L.E.I. 184) ; which term, however, is not to be construed in the strict sense applicable to declarations that are a part of the res gesta; or in the loose one applicable to entries in public Tegisters, or memoranda admitted to refresh the memory of a witness. The entry should be made at or near the time of the act — a record in the evening of an act done the same morning has been received {Price v. Torrington, 1 Salk, 285) ; so, perhaps, might one be which was made the next day {Be Djambi Bubber Estates, sup.) ; while an interval of two days has sufficed to exclude {The Henry Coxon, sup.). Collateral Facts, Personal Knowledge, motive to Misstate, Contradiction, (c) The declarations are only evidence of the precise facts that it was the writer's duty to record, and of which consequently he had personal knowledge ; and not of other matters which, though contained in the same statement, were merely collateral thereto {Chambers v. Bernasconi, 1 CM. & R. 347; Brain v. Preece, Smith v. Blakey, Sturla v. Freccia, The Henry Coxon, and Byan V. Bing, sup.). Moreover, proof of a motive to misrepresent will exclude the declaration {Chambers v. Bernasconi, sup., Poole v. Dicas, 1 Bing, N.C. 649; The Henry Coxon, sup.). The entries cannot be contradicted or explained by subsequent declarations {Stapylton v. Chugh, 2 E. & B. 933). Extrinsic Proof. Extrinsic Proof must be given of the declarant's death, handwriting {ante, 276, 281), Oj^ctoZ character (though where the office is public, proof of acting therein is sufficient: Bright v. Legerton, 2 De G.F. & J. 606), and' duty {Lyell v. Kennedy, 56 L.T. 647, per C.A.; Miller v. Wheatley, 28 I.E.I. 144) ; as to the duty being presumed, see Sly v. 8., post 276. Contemporaneousness must also be established independently, unless it can be presumed from the circumstances of the case (Tay. s. 704; East Union By. V. Symcnds, 5 Ex. 237; Esch v. Nelson, 1 T.L.E. 610, cited, mfra). Note. Declarations in the course of duty differ, as we have seen, from those against interest in requiring contemporaneousness, personal knowledge (though see as to this point, ante, 280) absence of motive to misrepresent, and the exclusion of collateral matters. Digitized by Microsoft® CHAP. XXIV.] DBCLAEATIONS IN THE COURSE OF DUTY. 289 EXAMPLES. Admissible. (o) To prove that A. executed a deed at a certain time and place ; — an entry made by a deceased solicitor in his diary of his 'having attended A. on his executing the deed at that time and place, held ad- missible. [Rawlins v. Richards, 28 Beav. 370. In Bope v. H., 1893, W.N. 20, the Court of Appeal doubted whether a solici- tor is under a sufficient duty to his client within the rule; and North, J., in Ecroyd v. Goulthard, 32 L.Jo. 161, rejected sim- ilar evidence upon the authority of this doubt; cp. also Martin v. Johnston, 1 F. & F. 122, 124-5. The duty in question was, however, expressly recognised in Doe v. Tmiord, cited post, 276; Brain v. Preece. 11 M. & W. 773 ; Dundonald Peerage, cited 2 Sm. L.C. 11th ed. 325 ; Bnght v. Leger- ton. 1 De G.F.&J. 606, 614 • and Bsc7i v. 'Nelson. 1 T.L.R. 610, per Ld. Coleridge, C. J., where, also, the entry being in a diary, was presumed to be contemporane- ous. In Bradshaw v. Widdrington, 86 L.T. 726, 730-33, C.A., in which Hope v. S., sup., was cited, account-books kept by a deceased solicitor were received under the present head, partly, no doubt, because the opposing counsel was precluded from ob- jecting to them, but partly also because the Court " was not disposed to attach very great weight to the objections ' them- selves." (See 27 L.Q. Kev. 117). If the entries Were against the interest of the solicitor as well, they would be admissible on that ground irrespective of the present rule, Re Thomas, ante, 281]. Estimates made by a deceased surveyor to road-trustees as to the expense of con- structing certain roads, and a report as to alternative lines,— held admissible as made by a deceased official in the course of official duty {North, Stafford Ry. v. JJanley Corp. 73 J.P.R. 477, C.A. ; 26 T.L.R. 20 : distinguishing Mercer v. Denne, sirpra. See, however. Re Djambi Ruhler Estates, opposite). And entries made by a deceased surveyor in his field-book for the purposes and at the time, of a survey on which he was professionally employed, held admissible as in the discharge of profession- al dutT Ulellor v. Wahnesley, 1905, 2 Ch. 164, liS7-8. C.A., overruling Eady, J., 1904, 2 Ch. 525, 527-8. As to surveys and re- ports made in the discharge of public duty and admitted as public documents, see post, chap xxxi.]. I..E.— 19 Inadmissible. (a) To prove the purchase of shares for a client ; — an entry made by a deceased stockbroker in his day-book that he had bought the shares for his client, is inad- missible, there being no duty to make the entries (Massey v. Allen, 13 Ch.D. 558). To prove the terms on which A., a farmer, hired B., a labourer ; — a memor- andum of the transaction, made at the time by A. (deceased) in his own books, and according to his usual custom, is in- admissible, there being merely a practice and not a duty to make the entries (R. V. Worth, 4 Q.B. 132). A., the widow of B., deceased, sues C, B.'s employer, under the Workmen's Com- pensation Act, 1906. Statements by B. to his fellow workmen, or employer, shortly after his injury, as to the cause of it, be- ing tendered on the ground that there was a duty upon B. under the Act, to report the occurrence. Held, that the statements were inadmissible, as there was no such duty IWolsey V. Pethick, 1 B.W.C.C. 411 C.A. (1908) ; Tucker v. Oldbury U.D.C. (1912) 81 L.J.K.B. 668, 669, where Buckley, L.J., remarked that though it might have been to B.'s advantage to tell his employer, he was under no duty to do so. (This case is reported on other points, 1912, 2 K.B. 317, see ante 83, 240, 282]. A. a wife, petitions for divorce from B., her husband. To prove that B. had in- fected her with a certain disease, A. tenders an oral statement as to the nature of her disease, made to her by a deceased doctor at a professional consultation. Held, in- admissible, no duty being proved (Dawson V. D., 22 T.L.R. 52; Mills v. M., 36 id. 772). The report of a deceased planter as to the value of a property which he was em- ployed to examine on behalf of a company about to purchase it, which report con- tained one or two statements of fact, the rest being matter of opinion, is (probably) inadmissible [Re Djambi Rubber Estates, per Farwell, L.J., cited post, 292 ; Sturla v. Freccia, post, 293]. To prove that certain lands near Walmer Castle had, in 1616, been covered by the sea ; — statements to that effect contained in an ancient survey, made in that year by a surveyor under the direction of the then Loi-d Warden of the CJlnque Ports, as to the repairs necessary to be done at Walmer Castle, and an estimate made by the King's engineer for the doing thereof ; — held not admissible, there being no proof that they were made contemporane- ously with the doing of some act which it was the duty of the deceased official to record, nor what his instructions were, nor the source of the knowledge on which the Digitized by Microsoft® 290 THE LAW OF EVIDENCE. [book II. Admissible. To prove that A. delivered certain beer to B. ; — an entry of tlie delivery made in A.'s books at night, by his drayman (de- ceased)* whose duty it was to deliver the beer during the day and afterwards to make the entry, is admissible {Price V. Torrmgton, 1 Salk. 285). — So, of entries by the deceased cleric of a notary, to prove presentment and dishonour of a bill (iSiut- ton, V. Gregory, 2 Pea. N.P. 150 ; Poole v. Dicas, 1 Bing. N.C. 649) ; and of the de- ceased clerk of a rate collector to prove payment of rates (jB. v. St. Mary, War- widk, 22 L.J.M.C. 109; and see as to the admissibility of entries by merchants and solicitors' clerks, to prove the contents, service, and posting of documents, infra, 291-2) . To prove the baptism and marriage of A. ;— entries made in old Irish chapel- bO'Oks by a deceased Roman Catholic pi'ipst, who had performed the ceremonies, iielfl receivable [Malone v. Lestrange, (1839), 2 li-. Eg. R. 16; 17 W.R. 345«., 346»i, per Crampton, J., and Plunkett, C. ; on appeal the point was reai-gued, but no decision given, see O'Connor v. Malone, 6 C. & F.' 572; Dillon v. Toiin, 12 Ir. L.T.R. 32; and op. Byam, v. Bing, post, 293]. So, with entries (more than 30 years old) made in parish registers before the Inadmissible. contents of the documents were based [Mercer v. Denne, 1905, 2 Ch. 538, C.A. ; they were also held inadmissible as public documents (post, 358), and as evidence of reputation (post, 301, 304)]. So, to show what had, in 1777, been the line of high-water mark' at a dock, ancient surveys and terriers have been re- jected both under the present rule, and as evidence of reputation (AsshetonrSmith V. Owen, 75 L.J. Ch. 181, 188, 191-2, C.A.) . In Trotter v. Maclean, 13 Ch.D. 574, the diary of a deceased colliery manager, al- leged by a witness to have been kept in the course of business for the purpose of re- porting to the owner, was rejected. Fry, J., remarking that proof must be given not only of its being made in the usual routine of business, but that it was the manager's duty to make the whole of it. To prove the terms on which A. sent goods to B. — a letter, stating the terms, and written by B.'s deceased manager at the branch oflBee at which the goods were received, in pursuance of a duty to keep his principal informed of all business done at that branch, is not admissible, the man- ager's duty being a general and not a specific one (Smith v. BZofcej/, L.R. 2 Q.B. 326 ; cp. ante, 283 ; and see for a similar case, Turner v. Hutohinson, 3 L.T. N.S. 815). To prove the items ui an account ; — the certificate of a deceased solicitor, whose duty it was to audit the account, but by merely checking the arithmetic without testing its accuracy with the vouchers, held inadmissible (Vivian v. Moat, 44 L.T. 210). The question being which of two ships was to blame for a collision occurring on a certain Saturday ; — an entry of the cir- cumstances of the collision, made by a deceased mate in the ship's log on the fol- lowing Monday, held inadmissible — (1) The acts recorded having been done by third persons add hot by the deceased; (2) the entries ' not being contemporaneous ; a.hd (3)' it. being in the interest of the declarant to represent the collision as oc- curring through the fault of the other ship (The Henry Ooxon, 3 P.D. 156). To prove the baptism and marriage of A. ; — entries in old Irish chapel-books by a deceased Roman Catholic priest held in- admdssible [I\Jah}ic v. O'Connor, 1859, Drury, 632 ; 17 W.R. p. 345 n, 347 n, per Napier, C, on the ground that the entries were not contemporaneous and there was not a known legal obligation to make them ; and see Biuiis v. Carrol, 17 W.R. 344, per Walsh, M.R.]. To prove n marriage solemnised in Ire- land in 1842 (before the Irish Marriage Act) in the private house of a Protestaut clergyman ; — an entry made by him in a Digitized by Microsoft® CHAP. XXIV.} DECLAEATIONS IN THE COUESE OP DUTY. 291 Admissible. Marriages (Ireland) Act, 1844, by a de- ceased Protestant clergyman [Miller v. Wheatley, 28 li.R. Ir. 144, per O'Brien, J., 157-9; contra, however, by the major- ity of the Court, on the ground that no proof had been given of the handwriting, official position, or duty ; though aUter if this had been given. As to the necessity of such proof, see also LyeU v. Kennedy, 56 L.T. 647, per C.A. (reversed on other grounds, 14 App. Cas. 437). Both classes of entries would be inadmissible as parish registers -^(post, 344). Mr. Justice Ste- phen, indeed, cites R. v. Glapham, 4 C. & P. 29, as an illustration under this head, but the entry there, which was in an English parish register, seems to have been admitted as a public document, and not as a dteclarabion by a deceased clergy- man in the course of duty; see per Pol- lock, C.B., Milne v. Leisler, 7 H. & N-. 786, 795] To prove the contents and posting of a letter, not produced on notice; — a copy bearing an indorsement that the original had been posted, and made in the hand- writing of a merchant's clerk (deceased), whose duty it was to copy and post all letters, is admissible as secondary evidence ■(Pritt V. Fairclough, 3 Camp. 305 ; Sage- dom V. Reid, id. p. 379 ; Rowlands v. De Yecohi, 1 C. & E. 10; post, 542). To prove the contents of a lost wUl ; — a copy of the will, made by a clerk of the solicitor of the executor of the will, all three being dead, and indorsed "will of iMary Sly," — the same clerk appearing in the copy as one of the attesting witnesses, and the other not being found; — ^held ad- Inadmissible. register which he kept of such private mar- riages, held inadmissible IStookbridge v. Quioke, 3 C. & K. 305, per Parke, B. No i-easons are given ; biit the entry was not made in the ordinary parish register. This case was doubted by O'Brien, J., in Miller V. Wheatley, opposite. Baron Parke in the former case, however, admitted a certi- ficate of the same marriage as being a " part of the transaction " ; a ground which seems unsatisfactory, and was also doubted by O'Brien, J., as in no other case have certificates been so received (see post, 365 ) . A certificate of marriage (not tendered as . secondary evidence of die register) was rejected in Nokes v. Milward, 2' Add, 386; so also In Parrell V. Maguire, 1841, 3 Ir.L.R. 187, where, however, the ceremony had been performed some years before and in a neighbouring parish]. The question being as to the age of A. (a Jew), and a custom being proved to perform circumcision eight days after birth ; — an entry made in course of duty by a deceased Chief Rahbi in the books of the synagogue that he had circumcised A. eight days after his birth, held inadmis- sible [Da/ois V. Lloyd, 1 C. & K. 275, sed qu. No reasons are given: possibly be- cause the duty was not one known to the law., or because it depended on the parents performing their duty by bringing the child within the eight days, of which there was no evidence. This case was doubted by Mr. Taylor, s. 701; by O'Brien, J., in Miller V. Wheatley, sup.; and in America in Kennedy v. Boyle, 10 Allen, 161]. To prove the marriage of a fellow of a college ; — unsigned entries relating to the marriage, and made in the college books by a deceased registrar, whose duty it was to make and sign the entries, were rejected, although in the same handwriting as the signed ones (Fox v. Bearhlock, 17 Ch.D. 429 ; and see Lancum v. LoveU, ante, 270 ; aliter, if there bads been no usage to sign them, Lauderdale Peerage, 10 App. Cas. 692). To prove the posting of a letter; — an entry as to the letter made by a deceased clerk in a book wherein it was his duty to enter all letters to be posted, held inad- missible (Rowlands v. De Vecchi, opposite; aliter if the duty had been to enter the letters after posting) . To prove the contents of a lost deed, executed in 1570; — an entry, stating the substance of the deed, and made in 1610, in the books of a deceased steward of the property to which the deed related, is in- admissible, not being contemporaneous, and it not appearing to be part of the steward's duty to make {he entry (Doe V. Wittcomb, 6 Ex. 601 ; 4 H.L.C. 425; Doe V. Skinner, 3 Ex. 84). So, a copy of a Digitized by Microsoft® 292 THE LAW OF EVIDENCE. [book n. Admissille. missible, being presumably made by the derk in the course of his duty as such (.Sly V. Sly, 2 P.D. 91; ante, 284; and post, 542). So, with drafts of lost deeds, made by the deceased clerk to a solicitor (WaMy V. Chay, L.R. 20 Eq. 238) . And, perhaps, also, an abstract of title, made at the time of a sale and in the course of business, would be admissible as secondary evidence of the deeds recited {Doe v. Wittcomb, 6 Ex. 601). To prove service of a notice to quit on A.'s tenant ; — an indorsement of the fact and time of service made on a duplicate notice by a deceased clerk of A.'s solicitor, whose duty it was to serve the notice, is admissible {Stapylton v. Clough, 2 B. & B. 933; see further, infra, 293). So, a similar indorsement made by a' deceased solicitor, stating that he himself had served the notice - is admissible, the solicitor being under a duty to his client, and the presumption being that the prin- cipal would observe the rules of the offlce as well as the clerks (Doe v. Turford, 3 B. & Ad. 890). The question being whether A. murdered B., -a policeman, at a certain time and place ; — an oral report made by B. in the course of duty, to his inspector, that he was alout to go to that place at that time, in order to watch A.'s movements, held ad- missible (R. V. Buohley, 13 Cox 293; but see contra as to future acts, Rowlands V. De Vecchi, sup.). (i) See P7-ice v. Torrington, 1 Salk. 285, cited ante, 290. Inadmissible. deed made by a deceased solicitor at the time of sending the deed away as a precau- tion in case of its loss, and bearing an in- dorsement by him stating it to be a true copy and executed and witnessed by per- sons whose handwriting he knew, held to be indamissible as " any one may make a copy of a deed ; it is not like a letter copied into a regularly kept 'book " [Kerin v. Davoren, 12 Ir.Ch.R. 352. In the above cases the copies were both produced from proper custody]. Where the appoin'tme^nt of pari* survey- ors was required to be made by magis- trate's warrant under seal, but had for some years been irregularly made without any written evidence except an entry thereof in the minute book of the magis- trate's clerk (deceased) ; — held that such entries were inadmissible without proof of search for the original warrants (whose existence might perhaps be presumed), and of a practice to make such enti-ies ; and gu., even then, whether the latter could be received as secondary evidence of the warrants {R. v. Pemhridge, Car. & JI. 157). (5) See The Henry Coxon, ante, 274; Parrel v. Ma^mre, ante, 291 ; and Ryan V. Ring, inf. A. sues a company for rescission of con- tract to take shares, on the ground of un- true statements in the prospectus, and tenders a report on the pi-operty obtained by the Board from B., an expert, which contains statements conflicting w'ith those in the prospectus. B. had been incapacitated through illness, from making his report until a month after his examination of the property. Held, that the report not hav- ing been made contemporaneously was in- admissible [Re Djamhi Rubber Estates, 107 L.T. 631, CA., cp. Sturla v. Frecda infra. It was also inadmissible because Chiefly containing matters of opiudon (ante 289) ; nor was it receivable as an admission by the company's agent (ante 247), or as having been adopted by tlie Directors (ante, 262]. (o) The question being whether A. was arrested in a certain parish ; — a certificate annexed to the writ by a deceased sheriff's officer stating the fact, time, and place of the arrest, returned to him by the sheriff, held inadmissible, on the ground that the duty merely required the fact and time, but not the place, of the arrest to be D;g;f;zecf by Microsoft® cjiAP. XXIV.] DECLAEATIONS IN THE COUESE OF DUTY. 293 AdinissiMe. Inadmissiile. returned {Chambers v. Bernasconi, 1 CM. & R. 347. Although tlie principle of this decision, i.e. that such declarations are only evidence of facts which it is the writer's duty to record, and not of in- cidental matters, is now established, yet its stringent application in the above case has been frequently criticised). The question being whether A. and B. were married ; — an entry in a baptismal register made by a Roman Catholic parish priest (deceased), recording the baptism of C. as " born of A. and B. his wife " — ■ is not admissible, as the entry was not contemporaneous with the marriage, which was a collateral fact, and one of which the writer had no personal knowledge [Ryan v. Ring, 25 L.R.Ir. 184; see also Sturla V. Freccia, 5 App. Oas. 623, where the duty of a government committee, whose members were deceased, being to report as to the fitness of A. for the post of consul, a statement of the date and place of A.'s birth, and other details of his personal history, was rejected, as the statement of these facts was not necessary to the per- formance of the duty. The report was also held inadmissible as a declaration on a question of pedigree (post 316), and as a public document (post, 362)]. To prove the delivery of certain coal ; — the duty being for the workman who de- livered it to give an account at the end of the day of all coal delivered during the day to a foreman (deceased), who, being unable to write, got the entries made for him by a clerk, — an entry so made held inadmissiMe, for though made by the direc- tion of the foreman, yet the latter had no personal knowledge of the deliveries (Brain v. Preece, 11 M. & W. 773). The question being whether a certain notice to quit had been properly served, and an entry of its service having been made by a deceased clerk (see Stayplton V. Clough, cited ante, 292), proof of a sub- sequent oral declaration by A. that he had served it on the wrong person, held inad- missible (id). Digitized by Microsoft® ( 294 ) CHAPTER XXV. DiECLAEATIONS AS TO PUBLIC OE GENERAL RIGHTS. Deolabations made by deceased persons of competent knowledge, ante litem motam, are admissible in proof of ancient rights of a public or general nature. [Tay. ss. 607-634; Best, s. 497; Ros. N.P. 48-51; Steph. art. 30; Thayer, Cas. Ey., 3nd ed. 418-20. Evidence of this description is frequently included under the'general term Reputation {post, chap, xxxv.) ; and is admissible for or against the Crown, as well as an ordinary party (A.-G. v. Emerson, 1891, A. C. 649)]- Principle, The grounds of admission are (1) death; (2) necessity, ancient facts being generally incapable of direct proof; and (3) the guarantee of truth afforded by. the public nature of the rights, which tends to preclude individual bias, and lessen the danger of misstatements by exposing them to constant contradiction. History. The admission of statements under the present head long ante- dates amy formal rule against hearsay. In old days when jurors informed themselves as to disputed facts by inquiry out of court {ante, 209), this was probably the most common example of the reception of hearsay evidence. Thus, in 1456, a jury based their finding of a prescription thereon (Y.B. 34 Hen. VI. 36, 37). The earliest examples, after the establishment of the hearsay rule and by way of exception to it, are (1684) Mossam v. Ivy, 10 How. St. Tr. 602, 61.0-13 • (1695) Stayner v. Droitwitch, Skin. 623; and (1722) Somerset v. France, 1 Strange, 654, .659. Originally, however, such evidence was receivable whether the prescription was public or private; but by the end of the .eighteenth century this had become doubtful {Morewood v. Wood, 14 East, 328 n), and finally, in Duryraven v. Llewellyn, 15 Q.B. 791, its admission was definitely confined to cases involving public or general rights merely [Thayer, Cas. Ev., 2nd ed. 418-20; id. Prelim. Tr. on Ev. 520]. (1) What are Matters of Public and General Interest, (a) The interest involved must be of a pecuniary nature, or one affecting the legal rights or liabilities of the community {R. v. Bedfordshire, 4 E. & B. 535; op. ante, 262). Public Bights are those common to all members of the State — e.g. rights of highway and ferry, or of fishery in tidal rivers. General Rights are those affecting any considerable section of the community — e.g. questions as to the boundaries of a parish, or manor. Declarations by deceased persons as to private rights are inadmissible, since these are not likely to be so commonly or correctly known, and are more likely to be misrepresented {Dunraven v. Llewellyn. 15 Q.B. 791). Where, however, Digitized by Microsoft® CHAP. XXV.] DECLARATIONS AS TO PUBLIC RIGHTS. 295 the question is whether a right is pubUc or private {R. v. Bliss, 7 A- & E. 550; R. V. Merger, post, 284-5) ; or the private right is identical with a public one {Thomas v. Jenkins, 6 A. & E. 525), such declarations are receivable. Competency and Identity of Declarants. (6) In the case of public rights, all being concerned may generally be presumed competent, so that the absence of peculiar means of knowledge goes, strictly speaking, to weight and not admissibility; but in the case of general rights the competency of the declar- ants must be proved {Crease v. Barrett, 1 C.M.R. 928-9; Rogers v. Wood, 2 B. & Ad. 24:5 ; Devonshire v. Neill, 2 L.R.I. 159-60; Mercer v. Denne, 1905, 2 Ch. p. 560; Assheton-Smith v. Owen, 75 L.J.Ch. pp. 188, 192); and this qualification applies also to competency with respect to maps, surveys, &c., {A.-O. v. Earner, 1913, 2 Ch. 140, 156, C.A., over- ruling dicta to the contrary of Cave, J., in R. v. Berger, 1894, 1 Q. B. 823, 827, and Vyner v. Wirrall Council, 73 J. P. Hep. 242; see post, 297, 303-5). This may be either shown extrinsicaUy {e.g. by proof of residence in, or other connection with, the locality) ; or presumed from the circumstances imder which the declarations were made {Freeman v. Phillipps, 4 M. & S. 486 ; Newcastle v. Broxtowe, 4 B. & Ad- 273 ; Mercer v. Denne, sup.) . Where, however, the circumstances show that the declaration is made other- wise than upon the declarant's own knowledge, it will, even when relating to a public right, be inadmissible {Devonshire v. Neill, sup.; cp. Bidder v. Bridges, and Gianifs Causeway Co. v. A.-C, post, 305). The identity of the declarant must also be established, and in the case of documents, the signatures or handwriting proved ; unsigned or uhauthenticated documents, even though produced from proper custody, are inadmissible {Devonshire v. Neill, sup. pp. 157-60). lis Mota and Interest, (c) The declarations must, in order to prevent bias, have been made a/ate litem motam — i.e. before the commencement of any controversy, and not merely before the commencement of any suit, involving the same subject-matter {Berkeley Peerage, 1811, 4 Camp. 401, 417; Butler V. Mountgarret, 7 H.L.C. 633, 639; Shedden v. A.-O., 30 L.J.P. & M. 217; in Davies v. Lowndes, 6 M. & G. 518, Parke, B., remarked that the doctrine of lis mota was introduced in the first mentioned case) . Declarations made after the commencement of. the situation from which the controversy springs, are admissible if made before any dispute has in fact arisen {Shedden v. A.-G., sup.) ; while those made after a dispute has arisen are inadmissible, although the dispute was unknown to the declarant, for that is a collateral issue which it might be impossible to prove {Berkeley Peerage, and Shedden v. A.-G., sup.), or was fraudulently commenced with a view of excluding the declarations {Shedden v. A.-G., sup.), or involved different parties'OT related to different property or claims (Tay. s. 633). On the other hand, declarations as to the right will be received although made for the express purpose of preventing disputes {Berkeley Peerage, sup.; Monkton v. A.-G., 2 Russ. & Myl. 147 ; Brisco v. Lomax, 8 A. & E. 198 ; Shedden v. A.-G., sup.) ; or after a claim ha^ ieen asserted hut finally aban- doned (Hubb. Ev. of Succ. 668); or after the existence of non-contentious legal proceedings involving the same right (Brisco v. Lomax, sup.; Gee v. Ward, 7 E. & B. 509) ; or after the existence of contentious legal proceedings involving different rights, or even the same right, if only collaterally and not Digitized by Microsoft® 396 THE LAW OF EVIDENCE. [book ii. directly involved {Freeman v. Phillipps, sup.; Devonshire v. Neill, 2 L.K.I. 132, 156-7). Interest. Declaration made in direct support of a claim contemplated to be brouglit by the declarant, or otherwise obviously to subserve his own interest, will be rejected {Brocklehanh v. Thompson, 1903, 2 Ch 344, 351-3 ; and see Plant V. Taylor, post, 317) ; but if no dispute has arisen, or claim been con- templated, the fact that the declarations tend to support his own title, or that the declarant stood, or believed he stood, in pari jure with the party relying on them, affects their weight only and not their admissibility {Doe v. Davies, 10 Q.B. 314; Dunraven v. Llewellyn, 15 Q.B. 791; Moseley v. Davies. 11 Price, 162). Particular Facts, (d) Corroboration. The declarations must relate to tlie general right, and not to particular facts which support or negative it [R. y. Bliss, 7 A. & E. 550; Crease v. Barrett, 1 CM. & E. 919, 930; R. v. Berger, 1894, 1 Q.B. 823, 826-7 ; Mercer v. Denne, 1905, 2 Ch. p. 565 ; Radcliffe v. Marsd^, 72 J.P. Eep. 475; Fowlce v. Berington, 1914, 2 Ch. 308, 312-3; Tay. s. 617, who remarks that the latter, not being equally notorious, are liable to be misrepresented or_ misunderstood, and may have been connected with other facts which, if known, would qualify or explain them]- Declara- tions are receivable, however, which not only directly negative a general right, but which indirectly do so — e.g. by setting up an inconsistent private claim {Drinkwater v. Porter, 7 C. & P. 181) ; or by omitting all mention of it where mention might reasonably be expected {Edgar v. Fisheries Comms., 23 L.T.N.S. 723 ; Portland v. Hill, L.E. 2 Eq. 765 ; Tay. s. 620) . . Corroboration. It is not essential to the admissibility, though it is to the weight, of the declarations, that they should be corroborated by proof of the exercise of the right within living memory {Crease v. Barrett, 1 CM. & K. 919). Form, of the Declarations, (e) The following are some of the principal forms in which evidence of this nature may be tendered : Oral Statements by deceased persons of competent "knowledge as to the existence or non-existence of the right, e^g. statements by perambulators, which, provided they are not confined to particular facts, are evidence either of reputation or as declarations accompanying the exercise of a right (Tay. s. 618; though it is otherwise with entries in parish books regarding the fact that perambulators have taken a particular line, Taylor v. Devey, 7 A. & E. 409). So, also, provided they do not relate to private rights or particular facts, their depositions in old suits in which the same right was incidentally, but not directly, involved {Freeman v. Phillips, post, 286 ; Devonshire v. Neiil, id.; Crease v. Barrett, post, 286-7; Evans v. Merthyr Tydfil Council, 1899, 1 Ch. 321; Mercer T. Denne, 1905, 2 Ch. 538, 559-60). Old Deeds, Leases, &c., reciting or describing the public right or matter {Brett V. Beales, M. & M. 416 ; Gurzon v. Lomax, 5 Esp. 60 ; Plaxton v. Dare, 10 B. & C 17). Mere copies and abstracts of such deeds are not generally so receivable, the contents of a document being in the nature of a particular fact, and not provable by reputation {Doe v. Wittcomh, 6 Ex. 601 ; 4 H.L.C 425). When, however, the existence and loss of the originals have been proved, such copies, if produced from proper custody, may be admissible as secondary evidence {id.) ; thus, a Bishop's register of chapter leases has been Digitized by Microsoft® Chap, xxv.] DECLARATIONS AS TO PUBLIC RIGHTS. 297 received as evidence of reputation respecting the limits of a parish {Coombs V. Coether, M. & M. 398; Ros. N.P. 317; post, 347). Private Acts appear to be admissible as reputation on questions of public or general right, and were received as such in Ourzon v. Lomax, sup., and Carnarvon v. Villebois, 13 M. & W. 313 (though in the latter case their reception might have been sup- ported on the footing of admissions by parties or privies) ; but they were rejected (though apparently not on this ground, bijt rather as public docu- ments) in Beaufort v. Smith, 4 Ex. 450; see Ros. N.P. 189; and post, chap, xxix., p. 336. Maps, Surveys, and Assessments. Private Maps are evidence of reputation, if proved to have been made by (or under the direction, or from the informa- tion, of) deceased persons of competent knowledge {Mercer y. Denne, 1904, 2 Ch. 545-6; affd. 1905, 2 Ch. pp. 561, 568; Assheton-Smith y. Oiven,- 75 L.J. Ch. pp. 188, 192; A.-G. v. Horner, 1913, 2 Ch. 140, C.X., see ante, 280; Smith V. Lister, 72 L.T. 20; Hammond v. Bradstreet, 10 Ex. 390; R. v. Milton, 1 C. & K. 58) ; or to have been recognised or used by such persons for the purpose of defining the general right and not merely particular mat- ters {Pipe V. Fulcher, 28 L.J.Q.B. 12; Smith v. Lister, sup.; Daniel v. Wilkin, 7 Ex. 4:29; Vyner v. Wirral Council, 73 J. P. Rep. 342) ; and if, where ancient {i.e. more than 30 years old), they are produced from proper custody (see post, chap, xlii., Ancient documents; in R. v. Norfolk, 26 T.L.R. 369, however, old maps were admitted without such proof, sed qu.). So, a map made under a private Inclosure Act, is admissible providing the Act itself be proved {B. v. Milton, sup.; R. v. Berger, 1894, 1 Q.B. 833). Public Surveys are more generally tendered as public documents {post, chap, xxxi.), than under the present head. But where ancient and produced from proper custody", they are also receivable as reputation if made under competent authority {Freeman V. Read, 4 B. & S. 174; Smith v. Brownlow, L.R. 9 Eq. 241 ; 2 Eagle on Tithes, 402-403), or by persons of competent knowledge {Beaufort v. Smith, 4 Ex. 450, 468, 470; Daniel v. Wilkin, sup.). As to modern public surveys, there is "some doubt. A Tithe-map has been admitted as evidence of reputation upon a question of public or general interest {Smith v. Lister, sup.) ; but in Copestake v. West Sussex Council, 1911, 2 Ch. 331, 341, Parker, J., rejected it as proof of the extent of a public right of way, though he thought it might be evi- dence of what portions of the land were tithable (see post, 289). In Ireland an Ordnance Survey map has also been so received {Qiant's Causeway Co. v. A.-G., post, 289), though in England a similar map compiled under statutory authority, and to some extent from competent information, was rejected {Bidder v. Bridges, post, 305). Ancient public assessments {e.g. the taxation of Pope Nicholas) are admissible on the same 'footing (see Eagle on Tithes, supra, as to these and similar documents). And an old churchwarden's assessment is evidence of reputation that the land is within the parish {Plax- ton V. Dare, 10 B. & C. 17) ; as are entries in old Vestry Books, provided they do not relate to private rights or particular facts {Cooke v. Banks, 2 C. & P. 478; see also post, chap, xxx.) ; so, the books of a deceased steward of a manor showing fines assessed are evidence of a custom to take such fines,' at least if coupled with some evidence of their payment {Ely v. Caldecott, 7 Bing. 433). Manor Books and Presentments. Entries in Court Rolls (provable by, production of the original, or by copy), may be received either as acts or Digitized by Microsoft® 298 THE LAW OF EVIDENCE. [book n. assertions of ownership {A.-G. v. Emerson, ante, 113, the ease of a demise by cop3' of court roll); or as public documents {post, 354), or as evidence of reputation {Roe v. Parher, 5 T. R. 26, 31-2; Tay. s. 623; Eos. N.P., l^th ed., 212; see also Portland v. Hill, 2 L.E. Eq. 769, Johnstone v. Spencer, 30 Ch. D. 581 ; Ooote T. Ford, 17 T.L.E. 58, and Foljamhe v. Smith, 91 L.T. 312; in none of which, however, were the grounds of admission stated). So, the draft of a surrender has been received, though no entry appeared on the roll {Doe v. Calloway, 6 B. & C. 488) ; and even an unsigned custumal, not properly a Court EoU, but preserved therewith and purporting to be made with the assent of the tenants {Denn v. Spray, 1 T.R. 466 ; cp. however, post, 290.) So, presentments by a manor jury as to matters within their jurisdiction are receivable {Roe v. Parher, 5 T.E. 26; Evans v. Rees, 10 A. & E. 151; Richards v. Bassett, 10 B. & C. 657) ; though not, it has been held, as to matters to be done {Goote y. Ford, 17 T.L.E. 58; but a presentment by a jury of the repairs to be done to a road at the public expense and a memo, of repairs done under it, has been admitted to show that the road was a public one. Giant's Causeway Co. v. A.-G., cited post, 305) ; as well as the depositions of manor tenants (if not relating to particular facts) taken in an authorised inquiry {Crease v. Barrett, 1 CM. & E. .919). As to manor assessments,^ see Ely v. Caldecott, sup.; and as to statements by perambulators, ante, 296. Verdicts, Judgments, and Awards. When juries were summoned de vicmeto and assumed to be personally acquainted with the subject in controversy, their verdicts were properly evidence of reputation ; but at the present day neither verdicts nor judgments can strictly be so classed. Whether admissible as in the nature of reputation, or as amounting to acts done in the exercise of a right {ante. 111), however, the rule is now established that on questions of public or general, but not of private, interest, the verdict, judgment, or order, even inter alios, of a competent tribunal whether Superior Court {post, 306, 426, 428), Duchy, Manor or Survey Court, or Statutory Commission {post chap, xxxi.), is admissible, not, however, as evidence of any .particular fact, but as an adjudication upon the state of facts and question of usage at the time {Pim v. Currell, 6 M. & W. 234, 266; Neill v. Devonshire, 8 App.Cas. 147, 164-5, 185-6; Tay. ss. 624-637). As to Depositions, see ante, 296. It does not affect the admissibility (though it may the weight) of a verdict when tendered under this head, that it was not succeeded by judgment; or of a judgment, that it went by default {Neill v. Devonshire, sup.) ; or was recent {Carnarvon- \. Villehois, 13 M. & W. 313) ; or not followed by execution or satisfaction {id.; Tay. s. 624). And verdicts and judgments standing upon a different footing from ordinary declarations, depositions, or entries by private persons, the conditions as to death and lis moia do not, and indeed cannot, apply to them (Greenleaf, s. 139; Stark. Ev., 4th ed., 190, note c; Carnarvon v. Villebois, sup.; R. v. Brightside Bierlcw, 13 Q.B. 933; Rogers V. Wood, 2 B. & Ad. 245 ; Brisco v. Lomax, 8 A. & E. 198 ; Reed v. Jackson, 1 Bast, 355). , Such judgments, however, must not be interlocutory {Pim v. Curell, sup.), nor collusive {Neill v. Devonshire, sup.) ; and mere awards have, for no very intelligible reason, been altogether rejected as evidence of reputation {Evans V. Rees, 10 A. & E. 151; Rogers v. Wood, 2 B. & Ad. 245; R. v. Cotton, 3 Camp. 444). , Digitized by Microsoft® CHAP. XXV.]. DECLARATIONS AS TO PUBLIC RIGHTS. 299 Claims, informations, or indictments not followed hy verdict or judgment, are not admissible as evidence of reputation {Lancum ¥. Lovell, 6 C. & P. 437 ; Devonshire V. Neill, 2 L.R. Ir. 132, 165, per Palles, C.B.) ; though they may be as acts of ownership (ante. 111, 129). Thus, old Bills and Answers in Chancery have been admitted on the latter ground to show claims made to a public right and abandoned {Mcdcolmson v. O'Dea, 10 H.L.C. 611-13; Miller V. Wheatley, 28 L.R. Ir. 144, 163) ; and an indictment for non-repair of a highway is similarly admissible, whether submitted to or prosecuted to con- viction (R. V. Brightside Bierhw, cited ante, 133; and cp. Blandy-Jenl-ins v. Dunraven, ante, 129). EXAMPLES. Admissible. (o) The following have been held to be matiteTs of publio or general .interest: Questions as to the boundaries of a county, town, parish, manor, or hamlet (Nioholls V. Parker, 14 East, 331 n). Proceedings against the lord of a manor for causing, or suffering, the destruction of a sea-bank whereby a royal castle was injured (.Meroer v. Denne, 1904, , 2 Ch; pp. 542-3; 1905, 2 Ch. pp. 559-60). The existence of a highway {Crease v. Barrett, 1 CM. & R. 919 ; Pipe v. Fulcher, 1 E. & E. Ill ; R. V. Serger, 1894, 1 Q.B. 823; A.-&. V. Homer (No. 2), 1913, 2 Oh. 140, 153-5, C.A., or of a right to tolls on a public road (Brett v. Bealea, M. & M. 416) . A claim by one of the public to fish in a tidal river (NeiU v. Devonshire, 8 App. Cas. 35). The question whether certain land- owners were liable to repair a bridge or sea-wall (R. v. Sutton, 8 A. & E. 516 ; R. V. Bedfordshire, 4 B. & B. 535 ; R. v. Leigh, 10 A. & E. 398; Budson v. Tabor, 2 Q.B.D. 290). A custom of electing the church-wardens of a parish (Berry v. Banner, Pea. R. 156). Inadmissible. (a) The following have been held to be matters of a private nature : Questions as to the boundaries of two private estates (Olothier v. Chapman, 14 East, 331 n) ; or the boundary of a waste over which some tenants only of a manor claimed a right of common {Dunraven v. Lleioellyn, 15 Q.B. 791). The existence of a private right of way over a field (Reed v. Jackson, 1 East, 355) ; the preliminary fact that there was a way, whether public or private (Pipe v. 'Fuloher and A.-Gf. v. Horner opposite) ; or the boundary of a highway on a charge against an adjoining landowner of ob- structing the highway [B. v. Berger, 1894, 1 Q.B. 823. In this case the evidence ten- dered was a map attached to an old In- closure Award, showing the highway as existing at the date of the award, though the conunassioners had no jurisdiction over the defendant's land. In rejecting it, Cave, J., remarked that though reputation was admissible to prove whether a road was a highway or not, it was not evidence of particular facts (i.e. of the boundaries of the highway) from which an inference might be drawn as to individual rights]. A claim by an individual to a several fishery in a non-tidal river (Be De Burgho's Estate, 1896, 1 I.R. 274). The question whether the sheriff of a county, or the corporation of a city, was liable to execute criminals (R. v. Aniroftus, 2 A. & E. 793). A custom of electing 'the master of a grammar school (WithnellyV. Gartham, 1 Esp. 322). The birthplace and age ot an applicant for the post of foreign consul in London, stated in a confidential report to a for- eign government made by a committee (de- ceased) appointed to enquire as to his fit- ness (Stiirla V. Freocia, 5 App. Cas. 623, 640-1). The rights of a particular church, or chapel, e.g. whether, it was a parish church or not ( Carr v. Mostyn, 5 Ex. 69, 87 ; op. Fowke V. Bernngton, 1914, 2 Ch. 308, 312-13). Digitized by Microsoft® 300 THE LAW OF EVIDENCE. [book II. Admissiile. A right to a pew {Price v. Littlewood, 3 Camp. 288 ; tiut see, as to this case, post, 347). A custom of descent {Denn v. Spray, 1 T.R. 466), or of heriot (Damerell v. I'rotheroe, 10 Q.B. 20), in a manor. The existence of a parish or district modus (Moaeley v. Davies, 11 Price, 162; Rudd V. Wright, 1 Phil. & Arn. Ev., 10th ed. 171). A right of common to all tenants of a manor {Dunraven v. Llewellyn, 15 Q.B. 791 ; Warrick v. Queen's Coll, 40 L.J. Ch. 780; Smith v. Li^er, 72 L.T. 20) ; or a question whether land was subject to the commonable rights of the commoners of certain parishes (Evams v. Merthyr Tydfil Council, 1899, 1 Oh. 241, 251, O.A.). A lord's prescriptive right of free-warren over the entire manor (Carnarvon v. Ville- hois, 13 M. & ty. 313) ; or his claim to the minerals under a certain district (Barnes v. Mawson, 1 M. & S. 77; Crease V. Barrett, sup.). (b) Competency, do., of declarants. To prove a custom of a manor ; — declarations by deceased tenants of, or even by mere residents in, the manor are admissible (Dunraven y. Llewellyn, 15 Q.B. 791). — So, to prove a custom of mining, declara- tions by deceased owners of the surface are receivable, for they were more likely to become adventurers than persons living at a distance ( Crease v. Barrett, sup.) . To prove that a public building was within the hundred of B. ; — ancient orders made by Justices at <3uarter Sessions for the county so describing it, are admissible without proof that the justices resided in the hundred ojr county, — their competency being presumed from their office (New- castle y. Bromtowe, 4 B. & Ad. 273). — So, competerit knowledge will be presumed from the declarants having been called as witnesses in an ancient suit (Freeman v. Phillipps, 4 M. & S. 486 ; in Bowe v. Brenr ton, 8 B. & C. 736, 765, answers to inter- rogatories put to tenants at the Assession Court, 1 Hliz., were allowed to be read, without the questions, after proof of loss of, and search for, the latter, though ob- scurity caused thereby might affect the weight of the evidence) ; or becoming parties to an Inelosure Act (Carnarvon v. Villelois, 13 M. & W. 313) ; or to Condi- tions of Sale (Williams v. Goodohild, cited 2 Eagle on Tithes, 440). As to what is, or is not, competent knowledge in the case of map-makers, see infra, 303-5. (c) Lis Mota and Interest. The ques- tion in an action being as to the boundar- ies between two manors ; — the verdict of a jury of a Duchy Court in former non-con- tentious proceedings on the joint petition of previous owners of the two manors InadmissiMe. A right of presentation to a living (R. v. Erimell, 3 T.R. 707, 723, per Ld. Ken- yon; contra, Meath v. Belfield, 1 Wils. 215). The existence and nature of a farm modus (Wells v. Jesus , Coll., 7 C. & P. 284 ; Pritchett v. Honeyborne, 1 Y. & J. 135; 1 Phi. & Arn. E.v. 10th ed. 172). A private right of common to individual tenants of a manor (Dvnraven v. Llewel- lyn, sup.; Williams v. Morgan, 15 Q.B. 782) ; or the right of all the tenants to cut and sell' wood (Blackett v. Lowes, 2 M. & S. 494). A lord's prescriptive right to all wreck within the manorial 'boundaries (Talbot v. Lewis, 1 CM. & R. 495 ; Stacpoole v. The Queen, Ir.R. 9 Eq. 619). (6) Competency &c. of Declarants. The question being as to the boundaries of a county; — declarations by deceased law officers and dignitaries of the Crown; who had no personal knowledge of the subject except what they derived from an irregular judicial inquiry, are inadmissible (Rogers V. Wood, 2 B. & Ad. 245; post, 290). The question heing as to a public right of fishery in a tidal river ; — a paper dated 17S3 found amongst the plaintiff's muni- ments of title, and purporting to be an account of weirs and nets in the river in question and in whose possession, but not signed, and the handwriting of which was not proved, held inadmissible (Devonshire V. Neill, 2 li.R. 1, pp. 157-60 ; see infra) . Depositions made in answer to an in- formation by the A.-G. against the lord of a manor for causing the destruction of a sea-bank and so injuring a royal castle, held inadmissible, competent knowledge by the deponents not being either imputable from the circumstances, or proved alininde [Mercer v. Denne, 1905, 2 Oh. pp. 559-60, C.A. ; though the deponents resided in the locality, see p. 544, cp. Evans v. Merthyr Tydfil, 1899, 1 Oh. p. 24S.]. (c) Lis mota and Interest. The ques- tion being as to a right of common in a manor ; — declarations as to the right made by deceased manor tenants during a former (although irregular) inquiry, as to the same right, are inadmissible, being post Digitized by Microsoft® CHAP. XXV.] DECLARATIONS AS TO PUBLIC EIGHTS. 301 Admissible. which alleged that disputes as to the boun- dary were likely to arise, is admissible {Brisco V. Lomax, 8 A. & E. 198 ; and see Gee V. Ward, 7 E. & B. 509). — So, deposi- tions in an ancient suit brought to decide the possession of a fishery, as between two private claimants, are admissible in a sub- sequent suit involving the right of the puhlic as against the descendants of one of them (Devonshire v. Neiit, 2 L.R.Ir. 132) . • — So, the question being as to the mode of assessment of a customary fine — deposi- tions showing this and made in an ancient suit against a former lord, but in which suit only the amount of the fine, and not its mode of assessment, was in question, were held admissible, the lis mota being different {Freeman v. Phillips, 4 il. & S. 486). (d) Particulm- Facts. The question being whether a road was public pr pri- vate ; — declarations by deceased residents in the neighbourhood that it was public {Crease \. Barrett, 1 CM. & R. 928-9), or that it was private {Drinkwater v. Porter, 7 •0. & P. 181), are admissible. — So, to prove that the boundary of a town extended to a certain spot, declarations by deceased inhabitants that it extended thither are receivable {see Ireland v. Powell, Pea. Bv. 16). The question being as to a right of common ; — declaration by deceased manor tenants that they possessed unlimited right of common, but for convenience had agreed to use it in a restricted manner, held admis- sible to prove the general right, and to negative a prescription for the restricted one {Chapman v. Gowlan, 13 East, 10). To disprove a manorial custom ; — an old deed, purporting to state the manor customs, and made between a former lord and certain of fie copy-holders, but which omitted the alleged custom, is receivable [Anglesey v. Hatherton, 10 M. & W. 218 ; and omission from an ancient customary was held conclusive against the custom (Portland v. Hill, 2 L.R.. Bq. 765)]. JnadmissiMe. litem motam {Riohards v. Bassett, 10 B. & C. 657). A., the lord of a manor, sues B. for trespass in using an alleged churchway over A.'s lands. To prove that the way was confined to certain of A.'s tenants — i.e. to those " above wall " — and was not common to all the parishioners, A. ten- ders a memo, in the handwriting of C, a former lord, and coming from proper custody, that " About 1763, soon after I came to the estate, I called it at three or four churches that there was no road through the demesne, but to . . .tenants above wall to church, which I hope wiU be remembered for the good of the fam- ily." Held, inadmissible (1) as exprsss- ing not a common opinion or report, but merely a private one, privately kept, as to a particular fact, viz. the publication of the notice ; (2) as being obviously in C.'s own interest (Brochleiank v. Thompson, 1903, 2 Oh. 352). (d) Particular Facts. The question being whether a road was public or pri- vate ; — declarations by a deceased resident in the neighbourhood that he had seen re- pairs done upon it {R. v. Bliss, 7 A. & E. 550) ; or proof that he had planted a tree near the road, stating at the time that he did it to show where the boundary had been when he was a boy {id. ante, 72) : — are inadmissible as relating to par- ticular facts. So, to prove that a town extended to a certain spot, declarations by deceased inhabitants that houses formerly stood at that spot, are inadmissible (Ire- land V. Powell, opposite, cited in R. v. Bliss, sup.). And see R. v. Berger, sup. 284-5; and A.-G. v. Horner, inf.). The question being as to a right of com- mon ; — declarations by deceased manor tenants that " the commons belong to the tenants unstinted, who have always en- joyed the same at a yearly rent of 33s, 4(J.," have been rejected (Crease v. Bar- rett, 1 CM. & R. 919). The' question being whether a custom to dry nets on the foreshore of Walmer Castle had existed from time immemorial, — old surveys. War Office plans, and depo- sitions taken in a suit by the Crown against the owners of the manor for allow- ing the destruction of a bank protecting the Castle from the sea, all showing that in the seventeenth century the land in ques- tion was below high^water mark, and so that the custom could not have been im- memorial, held inadmissible as relating to particular facts and not to reputation (Mercer v. Denne, 1905, 2 Ch. pp. 560-1, 564-5, 567-8; A.-G. v. HOrner, and Clode V. L.C.C. infra, 303-4). The question being whether an old track across a moorland was a public packhorse way ;^Evidence that an aged witness had Digitized by Microsoft® 303 THE LAW OF EVIDENCE. [book II. Admissible. (e) Form of the Declarations. The fol- lowing forms are admissible : — Leases, Pwrticulars of Sale, do. To prove the boundary of a manor; — an ancient lease, granted < by a former lord, in which the boundaries were described, is receivable {Doe V. Wittcomb, 6 Ex. 601; Brett v. Beales, M. & M. 416). To prove lands tithe-free, an old cata- logue and particulars of sale in which they were so described have been received (Wil- liams V. QoodcMld, cited 2' Eagle on Tithes, 440) . — So, to prove that a road was not a highway, a document signed by several deceased residents in the locality at a pub- lic meeting called to consider the question of repairing the road, and which document stated that the road was not a highway {Barraolough v. Johnson, 8 Ad. & E. 99). • — -So, a paper, preserved among the muni- ments of a manor, purporting to be signed by several deceased copyholders, has been admitted to prove a right of common (Chapman v. Gowlan, sup.). Private Acts. To prove the existence of a manor ; — an old Private Act under which it had been sold, and wherein it was so described, held admissible (Curzon v. Lomaw. 5 Esp. 60) . So, to prove a lord's right of free-warren as against copy-holders of the manor ; — recitals in an old Inelosure Act, and a proviso therein preserving the right, hnvo been received [Oama/rvon v. Ville'bois, 13 M. & W. 313. In this case, as the recitals showed that the copy-holders were inter- ested, they were tendered and received at the trial as admissions against the latter. On appeal, however, they appear to have Inadmissible. heard her mother, long deceased, say that " when it was fine and clear you could hear the bells coming down very plain from the top of the hill to the bottom," — Held inadmissible as relating to a particu- lar fact IRadoUffe v. Marsden, U.D.C. (1908) 72 J.P. Eep. 475, per ChanneU, J] The question being whether certain ruins, adjoining a parish church near Wor- cester, were part of the parish church, or ooly a separate conventual church in which the parishioners had been allowed to worship — statements contained in' Habington's Survey of Worcestershire, written before 1647, from the personal observation of the author, were tendered as reputation to Show the physical condi- tion of the church at that date. Held, in- admissible as relating, not to a reputed parish church, but merely to the condition of the particular building \_Fowke v. Ber- ington, 1914. 2 Oh. 308, 312-3 ; it was also rejected, for the same reason, as a public ■history (post, SSI)].- As ka copies of documents, see Doe V. Wittcomb, infra. (e) Form of the Declarations. The fol- lowing forms are inadmissible : — Leases, erly rejectod (post. .3.S6)]. Digitized by Microsoft® CHAP. XXV.] d:bclarations as to public eights. 303 Admissible. been received as reputation, i.e., " as some recognition of the right upon a subject- matter upon wbich evidence of reputation would be admissible " per Parke, B.A., 322)]. Map», surveys, plans, and pictures. To prove the boundaries of a parish ; — a map, thirty-four years old, made by a surveyor, who testified that he had comlplled it from information received from a deceased par- ishioner who had shown him the boundar- ies, is admissible [B. v. Milton, 1 C. & K. 58 ; Smith v. Lister, 72 L.T. 20. In Pol- lard V. Scott, Pea. R. 19, however, a map made by the directions of former church- wardens was rejected ; sed gu., unless upon the ground that no proof of their death was given (see 1 Phil. & Am. Ev., 10th ed. 182; Tay s. 662)]. So, to prove a public right of way over a manor — a map used by a deceased steward to define the public ways of the manor, is admissible (see Pipe V. Fulcher, 28 L.J.Q.B. 12) ; as also, to prove that a road Was a highway repair- able by the inhabitants at large, is a map used by those concerned (Vyner v. Wirral Council, 73 J.P. Rep. 242). And manor boundaries may be shown by a manor map which is proved to have been used by par- ish officers for assessment purposes {Smith v. Lister, sup.). An old county map, published in 1797 by a King's Geographer, and a map dated 1826, made by a well-known surveyor, both being produced from the British Museum — ^held admissible as reputation that a certain way was a public road, though it was not s'hown that the surveyor had any local knowledge or from whom he obtained his information, the judge remarking that although he may. not have been an inhabitant, no doubt he derived his information from persons in the vicinity [Traford v. St. Faith's B.D.C. 74 J.P. Rep. 297, per Neville, J., sed qu. both as to the competency of the surveyor and the custody from which the map came. This case was doubted by Hamilton, L.J., in A.-O. V. Horner, opposite']. — So, also, on an indicbnent for non-repair of a bridge, an ancient map purporting to have been made by one C, a person of repute in connection with surveys, proof being given of the custody from which it came. Sernble, the map would have been admis- sible without proof of custody. The Court also admitted, without proof of custody, two maps purporting to have been made by the King's Geographer, but refused to admit a copy of an old minute-book pro- d\iced from the jcustody of thfe bridge reeves of another bridge in the sanie distinct (R. v. Norfolk, 26 T.L.R. 269). Inadmissiile. Maps, &c. To prove the boundaries of a parish; — an old map, not signed, but produced by the representatives of a de- ceased rector from an old box of his papers relating to the parish, is inadmissible (Earl V. Lewis, 4 Esp. 1). — ^So, to prove the boundaries of a county; — a map of the county, republished in 1766 with oor- reotions and additions by the sons of K. from a ma^) published by the. latter thirty years earlier, who then took an accurate survey of the Whole county, is inadmissible, the new editors not being proved to have personal knowledge nor to be connected with the district, so that it might be pre- sumed [Hammond v. Bradstreet, 10 Bx. 390. Nor does the fact of its production from the custody " of a county magistrate (living) who had bought it twelve years previously,, vouch for its authenticity (id.)]. — So, to prove a public right of way over a manor ; — a map made by a deceased steward showing the lines of a road, but with nothing to indicate whether it was public or private, is inadmissible; and the fact that it was used by him to define, not the alleged public road, but merely the boundaries of the copyholds, is not suffi- cient to render it receivable (Pipe v. Fulr cher, opposite). The question being whether there were public highways around the Spitalfields Market 1682 when a Royal Charter was granted therefor; — ^Two old maps dated 1677 and 1681, produced from the British Museum and prepared and publicly sold by the King's Cosmographer, and a map dated 1703, produced from the GuUdhall library and called Gascoigne's Map of Stepney, — ^but as to all of which tiiere was nothing to show that the map-makers had any special knowledge of the locality, or any special duty to make them, or were publishing them otherwise than as a pri- vate speculation, — ^were tendered by A. to show the physical features of the locality at these, respective dates (e.g. that the market site was then a vacant space with some trees, that buildings existed on one side of a street only, and that there were no buildings at certain other points) ; — Held inadmissible (1) as not made by persons of competent knowledge; and (2) as relating to particular facts [A.-Q-. v. Horner (No. 2) 1913. 2 Ob. 140 C.A.]. To prove that certain' buildings existing before 1862, had been erected on new foundations and so were illegal, — Two old maps, called Horwood's maps, dated 1793 and 1819, and published, not as official documents, but as a private speculation to Digitized by Microsoft® 304 THE LAW OF EVIDENCE. [book II. Admissiile. To prove the boundaries of a manor ; — a public survey of the manor taken under the authority of the Crown, or of the Duke of Cornwall, while it belonged to either {Smith V. Brownlow, L.R. 9 Eq. 241), or under the authority of Parliament during the Commonwealth, is admissible (Free- man V. Read, 4 B. & S. 174 ; the Court in this case remarking that it was sufficient for the purposes of reputation if taken under the de facto authority of a usurper). So, as to signed presentments of a manor jury (Beaufort v. Smith, 4 Ex. 450; Dan- iel V. Wilkin, 7 Ex. 429, 437-8). To prove that certain land was part of the waste of a manor ; a Tithe Commuta- tion map, made fifty-one years before, has been admitted as reputation [Smith v. Lister, 72 L.T. 20, per Charles, J. A pri- vate map, made by a deceased surveyor, conversant with the place, and recognised by the parish for rating purposes, had been received, and the Tithe map was ad- mitted " substantially on the same grounds," though presumably compiled on the information of third persons. It had, however, been acted on for the past three years, and from this, a still earlier user by competent persons might possibly be pre- sumed. In A.-ff. V. Antrolus, 1905, 2 Oh. 188, a similar map was tendered as reputa- tion, but though Smith v. Lister was cited, Inadmissible. serve as guides to various London areas, which showed that at those dates there were no buildings on the site in question ; — ^Held, inadmissible (Clode v. L.G.G., 19tt4, 3 K.B. 852, followung A..-&. v. Horner, sup.; affirmed as to this point, sub nam. L.C.G. v. Clode, 1915 A.C. 947). To disprove an immemorial custom to dry nets on a foreshore ;— a map made sixty-seven years before the trial, prepared for the purposes of a new harbour, and signed " C. Labelye, engineer, late teacher of mathematicks in the Royal Navy," who stated it to have been made with the as- sistance of " several able pilots " and " Mr. P., master" of the Royal Navy-^held inad- missible to show the true high-water mark at the spot, C. L. being on the face of it not a person competent to make it quoad these marks at that sport (Mercer v. Denne, 1904, 2 Ch. 544-6; affd. 1905, 2 Ch. pp. 561, 568). So, the question feeing as to the limits of a harbour, old terriers and surveys stating the high-water mark, and made in 1777 by " W.W." land surveyoir," were rejected (Assheton-Smith v. Otcen, 75 Ii.J.Ch. p. 188, per Kekewich, J., be- cause they were tinsi{ined and no proof was gdven by whom, or for what purpose, or by what authority they were made ; p. 192, per Williams, L.J., the competency of the declarants not being proved aliunde) . To prove the boundaries of a manor ; ■ — surveys taken by former lords (e.g. the Earl of Leicester, temp. Eliz., and General Oliver Cromwell, 1650), and founded upon unsigned presentments of jurors, are in- admiissible [Daniel v. Wilkin, and Bemi- fort v. Smith, opposite. Aliter if the pre- sentments had been signed by a manor jury (id,; overruling on this point, Evans V. Taylor, 7 A. & E. 617)]. A Tithe map is not admissible as evi- dence in a case of disputed iboundaries be- tween private* owners [Frost v. Richard- son, 103 L.T. 22, affd. C.A„ 416. Semlle, per Eve, J., that an Enclosure map might be evidence against the owner of land com- prised in the enclosure awai'd]. A Tithe map has been rejected as evi- dence of the extent of a public right of way, since the compiler's duty was only to enquire what lands were tithable ; though it might be evidence that certain parts of the adjoining land were not then enclosed, or used for such purposes as to make them tithable [^Copestake v. West Sussex, CO., 1911. 2 Ch. 331. The map here, however, was apparently tendered as a pullio doou- ment and noit as Reputation, for which Digitized by Microsoft® CHAP. XXV.] DECLAKATIONS AS TO PUBLIC EIGHTS. 305 Admissihle. the map was received not on this ground, but as a puilio document (post 359)]. To prove a public right of way ; — an Ordnance Survey map, original and pro- duced from proper custody, proved to have been made and signed sixty-five years be- fore by an Engineer officer, now presum- ably dead, held admissible as reputation, being " the opinion of a person who had an opportunity of acquiring knowledge on the spot which, on the cases, may be ac- quired by hearsay from other people" l&iant's Oavsmoay Co. v. A.-&. (1898), 5 New Ir. Jurist Rep. 301 (1905) ; US L.T. Jo. 544; per Chatterton, V.O. The ques- tion wasx apparently not raised or discussed on appeal. In 38 Ir.L.T.Jo., p. 107, it is stated that, although at one time such maps were held not to be evidence, yet now, having regard to the lapse of time, they have in several cases been held ad- missible as evidence of reputation in Ire- land]. An Ordnance map of 1S37, ob- tained from the Board of Agriculture, is admissible to ^ow the condition of a dis- trict (N. Stafford By. \. Hanley, 73 J.P. 477, C.A.) So, a niap annexed to the Provisional Order of a Commission under the Commons Act, 1S76, ss. 7, 36, ia ad- missible but not conclusive evidence of the boundaries shown thereon (OolUa v. Amphlett, 144 L.T. Jo. 215, C.A.) Manor Boolcs and Presentments. To prove a custom in the tenants of a manor to take hedge-boote, &c., an entry in the Court rolls as follows : " We present our custom is to have hedge, housefire, plough and cart boote without leave of the lord, and timber for repair with his leave," — is admissible as a presentment of the cus- tom (Goote V. Ford, 17 T.L.R. 58).. To prove that a certain road was a pub- lic one, a presentment for its repair by the grand jury of the county, 80 years old, followed by a memo, in the presentment book that the sum presented for had been expended, held admissible, though no affi- davit of the work having Deen done, as re- quired by statute, was forthcoming (Oiant's Caustiway Co. v. A.-G., sup.)^ So, the question being whether A., a landowner, was liable to repair a neigh- bouring public bridge ; — the record _ of an old presentment, temp. Edw. IV., in pro- ceedings against the owners of otiier neighbouring land, in which the jury stated they did not know who were liable to re- pair the bridge, and finding that it was built, of alms, sixty years before, is admis- sible (R. V. Sutton, 8 A. & B. 516) . . L.E. — 20 Inadmissible. latter purpose evidence of particular facts, such as what partis of the land were then unenclosed, would be inadmiissible]. To prove a right of common; — an Ordnance Survey map, held inadmissible as reputation iBidder v. Bridges, 34 W.R. 514, affd. on other grounds, 1886, W.N. 148. No public inquiry had there been held, but local J.P.'s had appodnted certain men to point out the boundaries. Trac- ings of the maps thus produced were ten- dered. As to such derived informatisn, see also Devonshire v. 'Neill, ante, 295]. Old maps and plans prepared by direc- tion of the Board of Ordnance in 1641-47 and tendered as reputation were also re- jected because relating to particular facts (Meroer v. Derme, 1904, 2 Ch. p. 544;, 1905, 2 Ch. p. 561). To prove a public right of way to the Oiant's Causeway : — old engravings of the locality, prepared on behalf of a learned public society in DubUn and publicly hung lin the haU of the latter, held inadmissible as reputation [Oiamt's Causeway Co. v. A.-Q-., opposite.- But pictures and engrav- ings are evidence as to matters of general history, post, 381].. Manor Books, do. To prove that A. had a freehold and not only a right of common over land; — a former presentment of the manor jury purporting to decide this ques- tion, is inadmissible, either as a present- ment, for they had no jurisdiction to in- quire into the freehold; or as reputation, being post litem motam (Richards v. Bas- sett, 10 B. & C. 657). To prove a custom in the tenants of a matter to destroy rabbits ; — a copy of the Court Rolls containing the following en- try ; — " We present that any person shall have liberty to destroy the rabbits by guns, dogs, or otherwise, without molestation " ; — held inadmissible, not being a present- ment of an existing custom, but merely of a license to do future acts (Coote v. Ford, opposite) . Verdicts, &o. On a question as to the mutual rig'hts of a city and county ; — an old decree finding the rights, and made by the Lord Treasurer, the Lord Chancellor, and the law officers, constituting an in- formal legal tribunal, but having no per- sonal knowledge of the matter except what they acquired during the inquiry, is inad- missible (Rogers v. Wood, 2 B. & Ad. 245). The question being as to a puljlic right of fishing ; — an ancient writ reciting Digitized by Microsoft® 306 THE LAW OF EVIDENCE. [book II. Admissible, Ferdiot* and decrees. In an action against a trespasser, who justified under a puWie riglit of way over tlie land; a ver- dict obtained against a former trespasser, who justified under the same right of way, is admissible {Beed v. Jackson, 1 East, 355; Petrie v. Nutiall, 11 Ex. 569) ; so, a similar judgment obtained only four years before ' against another trespasser, though no execution or satisfaction was shown (Carnarvon v. Villebois, 13 M. & W. 313). So, orders of Commissioners of Sewers, requiring certain landowners to repair sea- walls, are evidence of reputation to fix such liability (R. v. Leigh, 10 A. & E. 398). Inadmissihle. claims which would tend to negative the right, and directing inqiuiry to be made into them, and possession to follow the re- sult, but upon which no verdict or jiudg- meut was given, held inadmissiole (Devon- shire V. Neill, 2 L.R.Ir. 165-6). — So, on a claim of toll, an ancient information, quo warranto,- or indictment in respect of the claim, but upon which there was no find- ing by a jury, has been rejected (Lanciim V. Lovell, 6 C. & P. 437, 439-40). Digitized by Microsoft® ( 307 ) CHAPTEE XXVI. DECLARATIONS AS TO PEDIGEEB. Deglabations by deceased relatives, made ante litem motam, are admissible to prove matters of family pedigree. [Tay. ss. 635-657; Best, s. 498; Eos. N.P. 44-48; Steph. art. 31; Hubback, Ev. of Succession, 648-711; Wigmore, E. ss. 1480-1503. Frinciple. The grounds of reception are — (1) death, (3) necessity, such inquiries generally involving' remote facts of family history known to but few, and incapable of direct proof; and (3) the peculiar means of knowledge and absence of interest -to misrepresent of the declarants — ^members of the family having the greatest interest in seeking, the best opportunities of obtaining, and the least motives for falsifying, information on such sub-jects (Tay. s. 635). The above principle, or rather group of principles, has been variously stated : ' The law resorts to hearsay of relations upon the principle of interest in the person from whom the descent is to be made out. . . . It is evidence from the interest of the declarant in knowing the connexions of the family.' {Vowles V. Young (1806), 3 Ves. 140, per Ld. Erskine, L.C.). ' The prin6ip"le is that the. declarations are the natural effusions of a party who^must know the truth, and who speaks upon an occasion when his mind stands in an even position, without any temptation to exceed or tall short, of the truth.' {White- locke V. Baher (1807), 13 Ves. 514, per Ld. Eldon, L.C.). 'I suppose the ground is that they were matters relating to a long time past and that it was necessary to relax the strict rules of evidence for the purpose of doing justice ' (Sturla V. Freccia, 5 App. Gas. 623, 641, per Ld. Blackburn) . History. In tracing pedigrees, family tradition appears to have been resorted to long before the establishment of the hearsay rule. Indeed, before jury-trial itself was developed, such matters were " tried " by witnesses, who stated circumstantially the sources of their knowledge, which included family hearsay and reputation. Thus, in the thirteenth century, a witness, in prov- ing another person's age, gave as the basis of his testimony the fact that the mother had recorded the age in the records of a Priory, which records he had seen (PI. Ab. 293, col. 1). Later on, when the rule against hearsay was estab- lished, such evidence continued to' be received by way of exception to that rule, one of the earliest cases of the kind being Herlert v. Tuchell, 1663, T. Raym. 84. Originally, however, the use of such evidence was characterised by a much greater latitude than at present, both as to the issues involved {id.), and the persons from whom the hearsay proceeded {Annesley v. Anglesea, 1740, 17 How. S. T. 1166, 1179, 1181; Morewood v. Wood, 1791, 14 East, 330 n; B. v. Eriswell, 1790, 3 T. E. 707). Its restriction to purely genealogical questions Digitized by Microsoft® 308 THE LAW OF EVIDENCE. [book ii. appears to date from B. v. Eriili, 1807, 8 East, 539; its limitations to declar- ants who were members of the same family, and not merely friends or neigh- bours, from Johnson v. Lawson, 1824, 2 Bing. 86; and the requirement of ante litem motam from the Berkeley Peerage case, 1811, cited ante, 395 [Thayer, Pr. Tr. Ev. 520; id. Gas. Ev., 2nd ed., 383; Wigmore, Ev. ss. 1483, 1503]. Matters of Pedigree. Genealogical Purpose. Particular Facts, (a) It is not easy to define, save by enumeration, what are "matters of pedigree," or what is a "genealogical purpose." But the terms appear to be confined primarily to issues involving /awiiZy succession (testate or intestate) j»(^escen<, relationship (by consanguinity or affinity, with its respective degrees), and legitimacy, or, as it is said, to cases in which the pedigree to which the declarations relate is in issue and not to cases in which it is only relevant to the issue (Steph. art. 31) ; and, secondarily (contrary to the rule applicable to public and general rights, ante, 296, 301-3), to such particular incidents of family history as are immediately connected with, and required for the proof of, those issues — e.g. the hirth, marriage, and death of members of the family; with the respective dates, either absolutely or relatively, and places, of those events (Tay. 643-646; Steph. art. 31), age, celibacy, issue or failure of issue (Tay. s. 642; Hubback, 69, 204, 648-650), as well, probably, as occupation, residence, and similar incidents of domestic history necessary to identify" the individuals in question (Hubback, 468, citing Hood v. Beauchampj Shields v. Boucher, 1 DeG. & S. 40; Bishton v. Neslitt, 3 M. & E. 554; and see Lovat Peerage, 10 App. Cas. 763). Mr. Taylor remarks that B. v. Erith, 8 Bast, 539, has repeatedly been cited as an authority for the proposition that even on 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 married, resided, went to, or died, cannot be received ; but, as was pointed out in Shields v. Boucher, sup., the case decides no such point, as Ld. EUenborough carefully rested his judgment on the fact that no question of relationship was involved. Had, therefore, the evidence there tendered been required for some genealogical purpose it is possible the court would iis.Ye arrived at a different conclusion, since hearsay evidence of locality has on several occasions been admitted to elucidate matters of strict pedigree {Hood v. Beauchamp, Hubb. Ev. of Sue. 468; Shields v. Boucher, sup.; Bishton v. Neshitt, post, 297; Monhton v. A.-O., 1 DeG. & Sm. pp. 147- 151), [Tay., 8th ed., ss. 646-7; post, 314-5]. On the other hand, when such incidents, although inferentially tending to prove, are not immediately con- nected with, the question of pedigree (Tay. s. 644) ; or when they are not re- quired for some genealogical purpose (Haines v. Outhrie, 13 Q.B.D. 818), they will be rejected. Particular Facts. It is sometimes said that such declarations, in analogy to the rule as to public and general rights (ante, 296), are only receivable to show family reputation, and not to prove particular facts (Plant v. Taylor, 7 H. & N. 211, 326, per Pollock, C.B.; Shields v. Boucher, 1 DeG. & S. 40, 51, per Knight Bruce, V.C.; Isaac v. Oompertz, Hubb. 650, per Ld. Cottenham), but this is not now sustainable, and even in the two cases first cited, the proposition was immediately qualified by instances to the contrary (Berkeley Peerage, 4 Camp. 415, 416; Tay. s.'643). Indeed, all matters of pedigree may be said to consist of particular facts (Hubb. 650). Digitized by Microsoft® CHAP. XXVI.] 'DECLARATIONS AS TO PEDIGREE. 309 Declarants must have been Blood Relations or their Consorts. Illegitimates Excluded. (6). The declarations are only reofeivable from persons legitimately- connected by blood with the person or family whose pedigree is' in question, or from the husbands or wives (whether the marriage was subsisting or not) of persons so connected; and must not proceed from mere relatives of such husbands or wives {Shrewsiury Peerage, 7 H.C.L. p. 23) ; nor from friends, servants, or neighbours of the family {Johnson v. Lawson, 2 Bing. 86), nor from the family solicitor (Re Palmes, 1901, W.N. 146). When a deceased declarant, himself competent, has spoken of another person as being his rela- tive, it will be presumed that he intended thereby a legitimate relative {Smith V. Telhittj L.R. 1 P. & D. 354) . Indeed, it seems doubtful whether the legitimate members of a family may by their declarations, impeach the legitimacy of their reputed relations. Thus, declarations by a deceased uncle that his nephew was illegitimate, have been rejected on the ground that they concerned one who though de fcuito related was de jure a stranger {Crispin v. Doglioni, 32 L. J. P. & M. IQ^; Plant v. Taylor, 7 H. & N". 211; Tay. s. 636) ; while a direct assertion by a deceased parent of his child's illegitimacy would seem to be open t© the further objection that, as the ground of illegitimacy might be non-access during marriage, it would infringe the rule against bastardising offspring {ante, 198; Murray v. Milner, 12 Ch. D. 845, 849). On the other hand, declarations by a father indirectly establishing his child's illegitimacy by impeaching the validity of his marriage, or stating the birth to have pre- ceded it, have been received {Goodright \.Moss, Cowp. 592 ; Murray v. Milner, sup.; Re Turner, 29 Ch. D. 985 ; Payne v. Bennett, 20 T.L.R. 203) . So, with declarations by a deceased husband as to his wife's illegitimacy {Vowles v. Toung, 13 Ves. 140; Doe v. Harvey, R. & M. 297). The declarations of deceased illegitimate relatives are wholly inadmissible to prove the- condi- tion of their family, since a bastard being filims nullius can have no relations {Doe V. Barton, 2 M. & R. 28; Doe v. Davies, 10 Q.B. 314). Mr. Taylor con- siders it very doubtful whether the declarations of a deceased person even as to his own illegitimacy are receivable, except as admissions against himself, or those who claim under him by title subsequent to the declarations (Tay. ss. 636-7; Hubb. 649-50). But such evidence has in several cases been received without this restriction ICooTce v. Lloyd, Pea. Ev. App. xxviii. ; Proe.-Gen. v. Williams, 31 L.J.P. & M. 157; Queen's Proctor y. Fry, per Hannen, J., 1878, cited 53 L.T. p. 709; Be Perton, 53 L.T. 707, where Chitty, J., held such state- ments admissible, not only for or against those claiming the bastard's estate, since in such cases, being filius nullius, he may be said to constitute the whole' of the family, but generally, as declarations against pecuniary and proprietary interest, ante, 282; contra, Haslam v. Gron, id., is probably not sustainable.] B«IationsMp must be proved independently, The declarant's relationship must be shown aliunde, and cannot be established by his own statemente [Berkeley Peerage, 4 Gamp. 419; Monkion v. A.-G., 2 Buss, and Myl. 156-7; A.-G. V. Kohler, 7 H.L.C. pp. 657, 660 ; Proc.-Gen. v. Williams; 31 L.J.P. 157, where strict proof of this condition was required; Eitchens v. Eardley, L.R. 2 P. & D. 248, where the legitimacy of the declarant being both in issue and necessary to be proved in order to admit his declarations, prima facie evidence only was required. The precise degree, however, need not be shown; it is Digitized by Microsoft® 310 THE LAW OF EVIDENCE. . [book ii. sufficient if he was in some manner related by blood or marriage {Vowhs v. Young, 13 Ves. 147). And if the question be as to the supposed relation- ship between two branches of the same family, proof that the declarant is related to either will suffice, otherwise it would be necessary first to prove the very fact that the declarations were afterwards tendered to establish [Monkton v. A.-6., sup. 155-7; Smith v. TelUtt, L.R. 1 P. & D. 354; Tay. s. 640; Wigmore, s. 1491, who adds that it is immaterial which branch claims the inJieritance ; in some jurisdictions in America, however, proof of the declarants' membership of ttie family whose inheritance is in dispute is required, see 28 Harv. L. Eev. 107]. Competent Knowledge. Hearsay upon Hearsay. Contemporaneonsness. Indirect and Negative Evidence, (c) It is not necessary that the declarant should have had personal knowledge of the facts stated; indeed, if this were otherwise, the main object of relaxing the hearsay rule would be frustrated, since most faniily information is obtained at second hand. It is sufficient, consequently, if his information purported to have been derived from other relatives, or from general family repute, or even simply from "what he has heard," provided such " hearsay upon hearsay " does not directly appear to have been derived from strangers {Shedden v. A.-G. <& Patrick, 30 L.J.P. & M. 217 ; Lovat Peerage, 10 App. Cas. 763, 768; Tay. s. 639); while, if the declarant's information expressly purport to have be^n derived either wholly or in part from incompetent sources, the declarations so founded vrill be excluded {Bavies v. Lowndes, 6 M. & G-. p. 537 ; Lovat Peerage, 10 App. Cas. 763.) The declarations need not refer to contemporaneous events; state- ments as to matters occurring six generations before have been received (H'ubback, 659; Monkton v. A.-Q., 2 Russ. & Myl. pp. 157-8; Davies v. Lowndes, sup.). It is not necessary that the declarations should be direct or express, it is sufficient if they speak of the rights and benefits to which the party would be entitled in virtue of his birth ahd relationship; thus the status of a member of the family might be conveyed by saying that "he would have the property and be a gentleman" {Isaac v. Gompertz, cited Hubback, 651; Doe v. Bandall, post, 96). And the evidence may be negative as well as positive, e.g. the omission of particular persons from mention or benefit in family wills and settlements, and (especially in proving the exhaustion of remoter members of the family) unanswered advertisements and ineffectual enquiries [Greaves V. Greenwood, 2 Ex.D. 289; cp. the presumption of death as to persons not heard of for 7 years, post, chap, xlviii.] Lis Mota and Interest, (d) The declarations to be admissible must. have been made ante litem motam, i.e. before the commencement of any controversy, actual or legal, upon the same point. [Berkeley Peerage, 4 Camp. 401 ; Butler V. Mountgarret, It H.L.C. 633, 639, where the existence of the lis was shown by the contents of the declaration (a letter) which were inspected by the judge to determine the point; Shedden v. A.-G., 30 L.J. P. & M. 217; and see fully ante, 295-6] . As to the degree of interest which will exclude, the authorities are somewhat conflicting. Declarations in direct support of a claim contem- plated to be brought by the declarant {Slane Peerage, 5 C. & F. 39-40 ; Hubback 668-9; Tay. s. 630, citing Zouch Peerage), or otherwise obviously made to subserve his own interests {Plant v. Tdylor, 7 H. & N. 211; Dysart Peerage, Digitized by Microsoft® CHAP. XXVI.] DECLARATIONS AS TO PEDIGEEE. 311 6 App. Gas. 489; antej 296, post^ 317), have been rejected. But declarations made-before any controversy arose, or claim was contemplated, though tending directly to support the title of the declarant, or of another in pan jure vith him, have been received (Doe v. Tarver, Ey. & M. 141) ; as also have those made to induce a third party to claim property or rank to which the declarant himself had no title, and which claim was in fact never prosecuted (Hubback, sup). Form of the Declarations, (e). The following are some of the principal forms in which hearsay upon matters of pedigree may be- tendered : Oral state- ments; family correspondence; recitals or descriptions in Deeds, Settlements, and Wills (even if cancelled or invalid) ; or entries in almanacs, prayer-books, and missals. Such declarations must, if modern, be proved to have been made, jfritten, or signed by (or by the direction of) a deceased relation, or to have been acknowledged or treated by him as correct {Hood v. Beauchamp, 8 Sim. 26; Be Perton, 53 L.T. 707). In the ease of deeds, proof of execution by a relation seems indispensable (SJaney v. Wade, 1 My. & Or. 338; Fort v. Clarke, 1 Russ, p. 640; Hubback, 675; Tay. s. 651). And even where a document is ancient, its mere production from the family archives will not dispense with proof that it was made \pr recognized by some member of the family {Fitzwalter Peerage, 10 C. & F. 193; Tay. s. 654; as to proof of ancient handwriting, see ante, 109, post, 338, 399). So, the original deed, or will must, if in existence, be produced, though if lost or destroyed secondary evidence will be received; and probate of a will is for this purpose, secondary evidence only (Hubback, 677; Ros. N.P.' 46; post, 560). Family Bibles stand upon a somewhat different footing, not because of the sacred nature of the volumes, but from the customs of using them as family registers. Entries therein are receivable on the grounds of publicity and family acknowledgment, without proof of identity, relationship, or (presum- ably) death {Berkeley Peerage, 4 Camp. 401; Monkton v. A.-O., 2 R. & M. pp. 163-3; Hubbard v. Lees, L.R. 1 Ex. 355; cp. Payne v. Bennett, 20 T.L.R. 303). The mere fact that the book is a Bible, however, is not sufficient ; it should be shown to be a family Bible, in the sense of having been handed down and preserved as such in the family, and should come from the custody of a member thereof {Hubbard v. Lees, sup.; Martin, B., remark- ing, " It is in the nature of a record, and being produced from proper custody is itself evidence without proof of handwriting or authorship. To require such would be to mistake the distinctive character of the evidence, for it derives its weight not from the entries having been made by a particular person, but that, being in that place, they are taken to be assented to by those in whose custody the book has been"). See, too, Splents v. Lefevre, 11 L.T. N'.S.-114, in which the Ir. Ex. Ch. rejected entries in a Bible partly from the absence of such preliminary proof, and partly because the entries had been made by a living person, it being said , that the entries must be made or sanctioned by, or brought to the knowledge of, deceased members of the family. Sed qu. as to this qualification in the case of family Bibles. Inscriptions on tombstones, coffin-plates, mural tablets, hatchments, family portraits, rings, and pedigrees are also admissible. If these are proved to iiave been made by, or under the direction of, a deceased relation, they will be received as his declarations ; if they have been publicly exhibited, they will Digitized by Microsoft® 312 THE LAW OF EVIDENCE. [book ii. be admitted on the presumption of family acknowledgment, though their authors be alive {inf.j Tay. s. 653; Hubback, 684-694.) The value of mural and other funeral inscriptions as evidence depends on the authority under which they were set up, and the distance of time between their erection and the events they commemorate. Where immovable, defaced, or destroyed, they are provable by secondary evidence (post, 547-8; Tay. s. 653; Hubback, 690-694). Armorial Bearings may also be included under this head; but their weight depends wholly on their antiquity, since corrective authority in such matters ceased to be exercised by the Heralds after the Eevolution. [The first Herald's visitation was in 1528, the last in 1686.^ Family Tradition, Repute, Treatment, and Recognition. The tradition and repute prevailing in the family as to any genealogical event may also be proved, and will be received as presumptive evidence thereof (as to marriage, see further post, 384). So, family conduct and treatment — e.g. the tacit recogni- tion of relationships; the distribution of property; -the omission of particular persons from mention or benefit in family wills and settlements {Greaves V. Greenwood, 3 Ex.D. 389, cited a«.ie,310) — are admissible as showing acknow- ledgment or the reverse by the family, though such facts fall, more properly, under the head of original evidence, than of hearsay, since they are not used as declarations to prove the truth of the matter stated, but merely as relevant conduct, nor are they confined solely to matters of pedigree {ante, 116-7, 134-5), When a document or inscription has been privately kept, independent proof must be given of its acknowledgment by the family as an authentic memorial of pedigree before it will be admissible {see, however. Re -Waite, 133 L.T.Jo, 398) ; but where it has been publicly preserved in the family, such acknowledg- ment may be presumed [Hubback, 685; Tay. s. 654]. Such documents, however, must not, as we have seen, purport to be compiled from incompetent sources {Davies v. Lowndes, 7 Scott, N.E. 311). Repute, Treatment, and Recognition by Strangers. In the case of Marriage, the repute and conduct need not be confined to the family, reputation among, and treatment by, friends and neighbours being receivable {Doe v. Fleming, 4 Bing. 266; Re Thompson, 91 L.T. 680; ante, 117; post, 384). A witness deposing to the existence of such a general reputation must not, however, state what some particular individual has said on the subject; and if it appears that his testimony is based merely on the declarations of such person, the evidence ceases to be admissible as general reputation, and can only be received if the declarant was a deceased member of the family {Shedden V. A.-G., 30 L.J.P. & M. 317, cited, post, 316). Recognition by the Sovereign^ has been admitted to prove the legitimacy of a peer (Hubback, 698) ; and the • conduct and statements of the paramour to prove the illegitimacy of a child born in wedlock {Morris v. Davies, 5 C. & F. 163; Aylesford Peerage, 11 App. Cas. 1; Burnahy v. Baillie, 42 Ch.D. 283; such statements, however, though receivable as part of the res gestce, are no proof per se of their truth, ante, 77). So, the conveyance of property by a stranger to a member of liie family who was only entitled to it as such, has been admitted in proof of the latter's relationship to the family {Slaney v. Wade, 7 Sim. 595 ; ante, 117). Judgments, Decrees, and Verdicts in matters of pedigree bind. the parties or privies thereto ;' but if, inter alios, they are inadmissible either as evidence of the facts found, or as family reputation (Hubback, 705; posi, 435-30), Digitized by Microsoft® CHAP. XXVI.] DECLARATIONS AS TO PEDIGREE. 313 though they may be received to show the subject-matter of the suit, and the char- acter in which the parties sue, defend, or obtain property {Davies v. Lowndes, 7 Scott, N.R. 311; Lyell v. Kennedy, inf.; post, 404-5). As to Probates, see ante, 311. Answers in Chancery are admissible when the facts of pedigree are not in dispute, but only incidentally mentioned (Hubback, 681- 683 ; Lyell v. KerMedy, 14 App. Gas. 437) . If they have been filed they will be admissible though not signed or sworn {Shrewsbury Peerage, 7 H.L.C. p. 32) ; though when sworn, but not filed, they have been rejected {Wharton Peerage, 12 C. & F. 295). To make an answer evidence, .however, the BiU must always be put in, though the latter is not evidence per se unless made so by the answer {Lyell v. Kennedy, sup.; Boileau v. Rutlin, 2 Ex. 665) . As to answers by guardians of infants, see Eccleston v. Petty, Garth. 79, and Slane Peerage, Min. Ev. p. 28. Recitals of relationship in a case for the opinion of counsel^ drawn on behalf of a deceased member of the family by his solicitor, though receivable as admissions {ante, 234), have been rejected as declarations by such member on the ground that statements for counsel are frequently made to obtain a favourable opinion in order to drive persons to a reference {Slane Peerage, cited Hubback, 684-685). As to Private Acts, see post, 336. As to Parish Registers, Herald's Books, Inquisitions, and the like, to which recourse is frequently had in cases of pedigree, and which are admissible, not as the declarations of deceased relatives, but as public documents, see post, chaps, xxx.-xxii. A description in a marriage register, implying that the parents of the bridegroom were . legitimately married, has been accepted as prima facie proof of this fact {Wigley v. Treasury Sol., 1902, P. 333; na reasons are given, but perhaps the evidence was received as a declaration by the son.) EXAMPLES. Admissible. Inadmissible. (o) Matters of Pedigree. On a claim (o) Not Matters of Pedigree. In an ac- to freehold property by B. as heir-at-law tion for use and occupation by a rever- to A.; — the death of A. and of any of his sioner against a tenant pour autre vie, relations entitled in priority to B. may be who had held over after tie death of the proved by family repute as being matters cestui que vie; — the death of the latter of pedigree (Doe v. Oriffin, 15 East, 293 ; cannot be proved by the declarations of Betty V. NtiU, 6 Ir.C.L. 17). The same deceased relatiives, not being a matter of species of proof is admissible on an appli- pedigree (Whittuok v. Waters, 4 C. & P. eation by B., as next of kin of A., to ad- 375). minister the latter's personal estate (Re So, in an action for goods sold, to which Thompson, 12 P.D. 100 ; Wigley v. Treas- the defence is infancy ; — the latter fact ury Sol., 1902, P. 233).— So, where A. had cannot, for the same reason, be .proved by devised lands tojiis son B. for life, then an affidavit of the infant's deceased father to B.'s sons, C, D., and E., in succes- made dn a previous Chancery, action to sion ; — ^in an action by E. to recover which the plaintiff was not a party the lands, the deaths of B., C, and D. (Saines v. Guthrie, 13 Q.B.D. 818). In may be similarly proved (Pahner v. a settlement case the declarations of a de- P., 18 KR.Ir. 192). So, to prove which ceased father as to the place where his of two trustees was the survivor, in trac- child was born, are not receivable to prove ing the descent of the trust estate to the the bdrth settlement of the latter, this not heir of such survivor (Smith v. S., 1 L.R. being a matter of pedigree [R. v. JSrith, It 206) 8 East, 539 ; approved in B. v. Rishumrth, 2 Q.B. 496, cited, ante 226. In the former case, the child being a bastard, the declara- tions of his putative father would also have been inadmissible, even on a question of pedigree, though this point was not raised Digitized by Microsoft® 314 THE LAW OF EVIDENCE. [book II. AdmisHile. To prove whicli was the eldest of three sons born at one birth ; — a declaration by theiir deceased father that he had for the purpose of distinction christened them Ste'phanus, Fortunatus, and Archaicus, ac- cording to the order of names in St. Paul's First Epistle to the Coninthians : and a declaration by their deceased aunt that she had for the same purpose tied strings round the arms of the second and third children at their birth, are admissible (Via. Ab. Ev. T. b. 91). On an issue from Chancery, tried at law, as to whether Mrs. Bliz. A., deceased, was the daughter of John H. of Kinver, Staffs., paternal unde of Richard H., whose estate the plaintiff claimed as a daughter of Mrs. A., the following ques- tions to, and answers by, a witness were allowed: — (1) Have you heard Mrs. Bliz. A. say' what was her maiden name? She said it was H. (2) What her father's name was? — ^John H. (3) What he was? The following were disallovned : — 1(1) Have you heard her say where her family came from? (2) Where she came from? (3) Where she was married? (4) Of what place her father was? — ^The jury having found that Mrs. EKz. A. was the daughter of one John H., but that there was no evidence of what John H., Knight Bruce, V.C, on a motion for a new trial, expressed a strong opinion that the whole of the above questions were unobjectionable ; and that, generally, on a genealogical enquiry, the foUowiing facts were admissible : — Births, marriages, deaths (with their dates) ; legitimacy or illegitimacy ; con- sanguinity and affinity (with their de- grees) ; whether a man's grandfather was said to be related to some other man ; of what parents he was said to have been born ; whether his mother was said to be illegitimate (see ante 309), or to have brought a child into the world before or after a marrdage, or what her name was said to have been, or what her father was ; the_ original seat of the family, its former residences, possessions, local or other dis- tinctions, advancement or decay ; with such statements as 'my father was J. S. of the Hill, not of the Dale, his mother came from Suffolk ; my sister married a man of the same name, it ds true, but he was born and bred in Berkshire, as he often told me, and he died there ' [Shields V. Bomher (1847), 1 De G. and Sm., 40]. On a question of pedigree, to show that the family concerned had had relatives living at Blackburn, declarations by a de- ceased member, made when leaving his Inadmissible. (Tay. 8th ed. s. 645 n) ]. Nor, for thife same reason, are declarataons by deceafied rela- tives as to ithfe age of the insured, admis-' sible in an action on a life-policy {8plelit■^ V. Lefevre, 11 L.T. N.S. 114). The question being as to the legitimacy of A. ; — a declaration by A.'s deceased aunt that she had suckled A., coupled with proof that her own child was born subse- quent to the taarriage of A.'s parents, held inadmissible llsaao v. Q-ompertz, Hubback, 650-1, per Ld. Cottenham, because stating " a particular fact " ; but Mr. Hubback suggests the more satisfactory ground that , the fact was at the time wholly immaterial, and only subsequently became one from which legitimacy was inferaWe by argu- ment. Mr^ Taylor remarks that the dis- tinction between this case and that in Vin. A.C. opposite is dear, since 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 strings were from the first intended to show their relative seniority]. Digitized by Microsoft® CHAP.xxvi.j DECLAEATIONS AS TO PEDIGREE. 315 Admissible. home at Manchester, that he was going to visit his relations at Blacbhurn, — Held ad- missible [Rishton v. 'Neslitt, 2 Moo. & Bob. 534. They had been objected to as too vague, no individuals- being specified ; and also as relating to place (see ante 308). Rolfe B. remarked, they were not evidence that he did go to Blackburn, or that any one named N. (has relative) lived there ; but of a tradition in the family that they had relatives there, so that if shown aliunde that there were N.'s_at BlacbBurn, this was connective evidence. In Shields V. Boucher sup. p. 45, the A.-6. conceded that such declarations would be admissible as res gestce (ante 79) ]. (i) Who May Be Declarants. A. claims property as cousin and heir-at-law of JoBn F., who died seised of at in 1769, leaving a son, James F., under whose descendants A. claimed. A. having proved the relation- ship of John F., evidence that the latter's widow (deceased) had stated (1) that the estate would go to James F. ; and (2) that her husband told her on his death-bed that James F. would have the estate, and that after his death it would go to his heir: — Held admissible to prove that James F. was a member of the family in question. It was objected that declarations of John did not prove that James was the heir of John, but only that a James was to have the estate ; and that James might have been related without being heir-at-law (Doe v. Randall, 2 Moo. and P. 20; Shreiosiury Peerage, 7 H.L.C. pp. 23,26). So, the de- clarations of the deceased husband of a member of the family but who was not otherwise related to it, ore admissible {Doe V. Harvey, 1 Ry. and Moo. 296; Shreios- iury Peer., sup.) ; even as to his wife hav- ing been illegitimate (Vowles v. Young, 3 Ves. 140). In Proc. Oen. v. Williams opposite, the Crown tendered declarations by B. that she had no relations and that pointed to her illegitimacy. A. objected that declarations by an illegitimate as to any relations ex- cept her own children, were inadmissible. Held, B.'s declarations might be received [Here each side adopted as the ground of admission the hypothesis of his opponent whi^ real estate in the County of Limerick and City of Limerick " to trustees. He had no real estate in the County of Limerick, but had some in the County of Clare and Oity of Limerick. Evidence was tendered that A. had written and intended Clare, but that by mistake of the draughtsman, 'County' of Limerick' h&d been substituted for 'County of Clare.' Held, inadmissible (1) as an attempt to add a new devise, omitted by mistake from the will, in contravention of the statute; and (2) that the case could not be treated as one of misdescription, since there was neiither an imperfect, nor any, description of the Clare estates in the will IMiller V. Trovers, 8 Bing. 244; see fully as to mistakes and misdescrip- tions, posi, 584-5, 642, 655]. A., by will, makes a gift to commence " after his four daughters have attained twenty-one, or died," and later in the will directs the first payment thereunder to be made " six months after his death." In a Chancery action, — ^held, evidence that the latter words were inserted fin the will by mistake, contrary to the express instruc- tions of the testator, and not known or approved by him, was not admissible, though it might have been in a probate action ; but that on tne construction of the two clauses the direction, being incon- sistent with the gift, must be disregarded (Be Bywater, 18 Ch.D. 17, 22 O.A.). A testator appointed " Matthew Carrol of K." his executor. Evildence that there was no such person, but that there was a Thomas Carrol of.R. who was me testa- tor's intimate friend, was received; but not his instructions for the will in wMch Thomas was named, nor a statement to the latter that he had appointed him his executor (Re Murphy, 7 L.Jtt.lr. 561, fol- lowing Charter v. C, infra.). A testator appointed his " son Forster Charter " his executor. A dead son had been so called ; but his only two living sons were William Forster Charter and Charles Charter; the will, however, had been drawn by the vicar, who was im- perfectly acquainted wfith their names. Held, that though the testator's treatment and habits of speech as to both sons might be proved, yet as there was only a mis- description, and not an equivocatioii, his declarations "showing that he intended Digitized by Microsoft® GHAP. xxTiii.] DECLAEATIONS BY TESTATOES. 333 Admissille. Jnadmissihle. Charles and not William, were inadmis- sible lOharter v. C, L.R. 7 H.L. 364 ; see fully post, chap, zlvi., Rule iii, ; Re Ghap- peU, 1894, T. 98 ; aliter if there had been an egaiTocation], (o) Revocation. A testator having executed a will, a friend on reading it over, told him "it was not legal because certain particulars had not been set out." Thereupon the testator tore up the will, saying, " Well, then it's of no use." Held, these statements were admissible as showing that he had no animus revocandi {Oiles v. Warren, Ii.R. 2 P. & D. 401). So, where a testatrix, whose will was found after her death, torn and ■mtii the signature erased, told a wit- ness, nine montiis after she had received the will back from her solicitor, that she had destroyed it, but would make another if she recovered, and if not ^e would die in- testate, these declarations were received as showing an animus revocandi (,2forth V. N., 25T.L.R. 322). A., having executed three wiUs, the last of which revoked all former wills, told his wife he had been unjust to her ih the third, and desired to destroy it, wishing his pro- perty to go by the first. Afterwards he tore up the third will in the presence of a witness, to whom he repeated this state- ment. Held, these facts were admissible to show it was not an absolute, but a "de- • pendent relative revocation," conditional on the revival of the first, and so inoperative to revoke the third will (Cossey v. C, 82 L.T. 203 ; Powell v. P., L.R. 1 P. & D. 209) . So, as to declarations, made after the destruc- tion, to the testatrix's daughter who had been absent at the time, but on returning saw the pieces lying in the grate, that " she had desbroyed it intending her former will to take effect. (Re Weston, L.R. 1 P. & D. 633). A., having made his will an favour of his daughter B., and the will not being forthcoming at his death ; — dieclarations made by A. after its execution and shortly before his death that he had left all his property to B. as he feared her brother would turn round on her after A. was gone, and that she would find his will in a particular drawer ;^held admissible, in rebuttal of the presumption of revocation, to show that A. remained in the same mind from the date of the will till his death (J'inch.v. F., L.R. 1 P. & D., 371). So, subsequent declarations by a testator that be had burnt (Keen v. K., L.R. 3 P. & D. 105), or cancelled (Drake v. Sykes, 23 T.L.R. 747C.A.), his wiU have been re- ceived, not as evidence of the destruction, but as showing an intention to destroy. A testatrix having executed two wills, the later of which contained no revocatory A. executed .i. will in favour of B. which, after A.'s death', was found with A.'s signature and that of one of the witnosse»: erased and the words in A.'s handwriting. "Null and void through injustice on the part of B." Declarations by A. that " she had executed her wiU in duplicate and had destroyed one part with the dutention of revoking it; — held inadmissible, as hear- say, to prove either the execution of the duplicate, or its destruction (Atkinson v. Morris, 1897, P. 40, C.A. ; Staines v. Stewart, 2 S. & T. 320). A. ezeouted a will in 1858 wliich he destroyed animfO revocandi. Afterwards through a different soricitor he execHted another will in Jan. 1859. In Feb; 1859 he executed, through his first solicitor, who was ignorant of the second will, a codicil " to my last will of 1858," and after certain alterations confirmed that will. Held, that the first will could Hot be re- vived ; that on the construct on of the codicjl the second will was revoked ; and that declarations by the testator were in- admissible to show that the second will was only intended to be revoked it the first one was revived (Newton v. N., 12 Ir. Ch. Rep. 118 ; but see O'Leary v. Douglass, 3 L.R.Ir. 323. per-Christian, L.J.) . A testatrix having executed two wills, the later of which contained no revocatory Digitized by Microsoft® 334 THE LAW OF EVIDENCE. [book II. Admissible. clause, but her property being insufficient to pay the legacies in both; — held, that the intention being doubtful, a. document executed by her on the same day as, but earlier than, the second will in whuch she stated, " I wish the will I made de- stroyed," was admissible to show that the second will was intended to revoke the first {Jenner v. Ffinch, S' P.D. 106) . A testator having in 1890 executed a codicil to his will, and also in 1892 a second codicil in many respects identical therew'Jth ; — held, it being doubtful whether the second was in addition to, or in sub- stitution of, the first, evidence of sur- rounding circumstances, and also of an in- dorsement by the testator on the second that it " superseded and cancelled the other," was admissible (Waineioright v. W., 71 L.T. 265). Jnadmissiile. clause, but, subject to certain legacies, left " the whole of her other property " to certain persons; — ^held, (1) there being no ambiguity on the face of the second will (the word "other" not being suffi- cient to raise one) and it dealing with the whole of the property, it revoked the first; and (2) that declarations that she intended it to operate as a codicil to the first will were inadmissible (Re Palmer, 58 L.J.P. 44). So, a statement in the handwriting of the testatrix, inserted in the attestation clause of a third codicH, that " the first codicil is cancelled " ; — ^held inadmissible, the attestation clause forming no part of the codicil (Re Atkinson, 8 P.D. 165). Digitized by Microsoft® ( 335 ) , CHAPTEE XXIX. STATEMENTS IN PUBLIC DOCUMENTS. The third class of exceptions to the hearsay rule consists of state- ments contained in public or official documents, which, subject to the qualifications hereinafter specified, are in general prima facie, though not conclusive, evidence of the truth of the facts recorded, even against strangers. Principle. The general grounds of reception are (1) that the statements and entries have been made by the-authorised agents of the public in the course of official duty; and (2) that the facts recorded are of public interest or notoriety. To which it may be added that it would not only be diificult, but often impossible, to prove facts of a public nature by means of actual witnesses examined upon oath (Greenleaf, s. 483; Tay. s. 1591; Best, s. 319). — As to the proof of Public Documents, see post, 549-56. The following are the principal documents of this description : (1) Statutes, State Papers,, and Gazettes. (2) Public Eegisters. (3) Public Inquisitions, Surveys, Assessments, and Eeports. (4) OiBcial Certificates. (5) Corporation, Company, and Banker's Books. (6) Published Histories, Maps, Dictionaries, Tables, &c. STATUTES AND STATE PAPERS. Statements and recitals of public mat- ters contained in public statutes; Royal proclamations (R. v. Sutton, 4 M. & S. 532 ; R. v. de Berenger, 3 M. & S. 67 ; c.p. R. v. Oppenheimer, 1915, 2 K.B. 755) ; Speeches from the Throne; Addresses to the Grown from either House of Parliament {R. v. Franchlin, 17 How. St. Tr. 636-638; Tay. s. 1661); State Papers {Thellnison v. Gosling , 4 Esp. 266; including, perhaps, diplo- matic correspondence, (see R. v. Francklin, 17 How. St. Tr. at 638; Rac^clife V. Union Ins. Go., 7 Johns. 38 ; Talbot v. Seeman, 1 Cranch. 1, 37, 38) ; or Parliamentary Journals as to all matters properly before either House, whether legislative, ministerial, or, in the H.L., judicial {A.-O. v. Bradlaugh, 14 Q.B.D. 667; Jones v. Randall, 1 Cowp. 17; Root v. King, 17 Cowan, 613; Hubb. Ev. of Succ. 613-15), are in general prima facie, but not conclusive, evidence of the facts recited (R. v. Greene, 6 A. & E. 548 ; R. y. Franchlin, sup., A.-G. v. Bradlaugh, sup.). A certificate under the hand of the returning oflBcer indorsed on the writ of election, produced from the custody of the clerk of the Crown in Chancery, is the best evidence of the return of a member of Parlia- ment; and the Test EoU, signed by such member, is also, on proof of such Digitized by Microsoft® 336 THE LAW OF EVIDENCE. [book ii. member's handwriting, evidence thereof {Forbes v. Samuel, 1913, 3 K.B. 706, 719-20, 725). The Eeturn-book, from the same custody as above, has, how- ever, been rejected on the somewhat obsolete ground of not being the best evi- dence {id. at p. 720, and see 82 L.J.K.B. p. 1141; ante, 48) sed. qu. This book was made evidence by 7 & 8 W. 3, c. 7, s. 5, an Act limited by s. 7 to 7 years, but extended by 12 & 13 W. 3, c. 5, and made perpetual by 12 Anne, c. 16. The last two Acts and s. 7 of the first were repealed by the S.L.E. Act, 1867, so that the original Act still remains in force. Moreover, as this book has always been, and still is, received by the House itself as evidence both of the return of a member and his seniority (May's Pari. Pr., 12th ed., 158-9, 167-8), it would, perhaps, be admissible even at common law in proof of these facts. The register of divisions, made up from the daily tallies and printed by the authority of the House, is evidence of the votes given by members {Forbes v. Samuel, sup., at pp. 720-1). Neither Hansard's Debates, nor the Authorized Parliamentary Debates printed by the Government printer are, however, admissible to prove the questions, answers, and speeches of members; these publications not having the authority of Parliamentary Journals {McCarthy V. Eennedy^Tim^s, Mar. 4, 1905, per Darliag, J.). Private. Acts are not evidence against strangers, either of the facts recited {Brett V. Beales, Moo & M. 421-6; Beaufort r. Smith, 4 Ex. 450; Cowell v. Chambers, 21 Beav. 619; Mills v. Colchester Corp., 36 L.J.C.P. 210; Polini v. Gray, 12 Ch.D. 411; Locke-King v. Wohing Council, 62 J.P. 167), or as notice of such facts {Ballard v. Way, 1 M. & W. 529 ; though dealing with a statutory company may imply notice of its regulations, Cahill v. L. & N. W. Ry., 30 L.J. C.P. 289). And this is so, although they contain clauses requiring them to be judicially noticed as public statutes, for the effect of such clauseis is not to vary the nature or operation of the Acts, but merely to dispense vrith the necessiiy of setting them out on the record, as was formerly required in the case of deeds {Brett v. Beales, sup.). Recitals in such Acts are, however, receivable, inter alios,in peerage claims, if passed when it was the practice for the evidence upon which they were founded to be approved by the judges {Wharton Peer- age, 1845, 12 C. & P. p. 302; Polini v. Gray, sup.) ; though not if passed after- wards {Shrewsbury Peerage, 1857, 7 H.C.L. 13). This practice only applied to private estate Bills, and was current from 1705 to 1843 (2 Clifford, Private Bills Legislation, 768-9). — As to the admissibility of private Acts as evidence of reputation, see ante, 297, 302. [Tay. ss. 1660-1661; Eos. N.P., 18th ed., 189; Steph. art. 33.] EXAMPLES. AdmissilU. Inadmissible. To prove that certain organised outrages To prove the existence of a certain had occurred in various parts of England ; Popish plot ; — the Journals of the House — recitals that the outrages had occurred, of Commons recording a resolution as to contained in a public statute, and also 5n the existence of such plot is inadmissible a Royal Proclamation, which offered a [R. v. Oates, 1685, 10 How. St Tr 1163- reward for the discovery of the perpetra- 1167, the reason alleged being that that *o°''J"lS? admissible (U. v. Sutton, 4 M. House, unlike the Lords, was not a court c %; ?.„ ''^^^^ ^tP ^- '^- ^^ Berenger, 3 M. of record and could not administer an & S. 67, 69). So, to prove the existence oath. But in Jones v. Randall 1774 1 and _ nature of certain political contro- Cowp. 17, Ld. Mansfield limplies 'that this versies between the Kings of England and rule had been reversed in his time remark- Spain ;— entries in the journals of the ing that "formerly a doubt was enter- Digitized by Microsoft® CHAP. XXIX.] STATEMENTS IN PUBLIC DOCUMENTS. 337 AdmUsible. Jnadmissiile. House of Lords (or copies of such entries) tained whether the Minutes of the House are admissible {It. v. Francklin, 17 HoW. of Commons were admissible because it is St. Tr. 636-638) . And entries in the not a court of record " ; and see now, A.-G. journals of the Committee of Privileges v. Bradlauffh, 14 Q.B.D. 667. Starkie have been received to show the limitations Ev., 4th ed. 282, cites R. v. dates as an in a patent of nobility, though the patent authority merely that Parliamentary Jour- itself might have been produced (Ditfferin nals are not evidence of particular acts Peerage, 4 C & F. 562). which are no part of the proceedings of To prove the date of the commencement the House; and see Vaua Peerage^ 5 O. of a war between two foreign States; — a & F., p. 541, where a copy of an inscrip- paper from the Secretary of State's office, tion dn the Minutes of one case was held transmitted thereto by the British Ambas-. inadmissible in another]. ' sador at the Court of one of such States, The question being whether a certain M.P. and purporting to be a declaration of war sat and voted in the House of Commons' by one of the States, is receivable {Thel- while interested in a Government con- luson V. Gosling, 4 Bsp. 266). tract, Hansard's Reports of the debates and proceedings therein are inadmissible to prove such sitting (Tranton v. Aator, 52 L.Jo. 185). To prove the title of the lords of a manor to toll on all coal exported within the manor ; — a Private Act preserving such right is inadmissible {Beaufort v. Smith, 4 Ex. 450; ante, 288). So, as to a statement in the schedule to such an Act that certain lands are part of the waste of the manor {Locke-King v. Woking Council, 62 J.P. 167). GOVERNMENT GAZETTES. The Gfovermnent Gazettes of London, Edin- burgh, and Dublin are admissible (and sometimes conclusive) evidence of the public, but not of the private, matters contained therein. [Tay. ss. 1537, 1662-1666; 2 Phil. & Am, Ev., 10th ed., 138-140; Whart. ss. 671-675.] At Common Law, the Gazette is evidence of Acts of State — e.g. addresses to the Grown; proclamations for reprisals, pubMc peace, or quarantine (R. v. Holt, 5 T.E. 436; A.-G. v. ThecJcstone, 8 Pri. 89); articles of capitulation for the surrender of an island (i2. v. Picton, 30 How. St. Tr. 493) ; Privy Council proclamations (B. v. McCarthy, 1903, 2 I.E. 146) and the like; but it is not evidence of acts of public oflBeials, having slight or no reference to the affairs of Government — e.g. the grant of land to a subject {R. v. Holt, sup.) : an Order in Council for the division of a parish (Greenwood v. Wood- ham, 2 Moo. & R. 363) ; or the appointment of an officer to the army (B. v. Gardner, 2 Gamp. 513; though see now the Army Act (1881), s. 163, sub-s. cZ). By Statute, the Gazette is expressly rendered evidence of various public matters. Thus, by the Documentary Evidence Act, 1868, s. 2, amended by the Documentary Evidence Act, 1882, s. 2, the Gazette is made prima facie evidence of any proclamation, order, or regulation issued by His Majesty, the Privy Council, or any of the principal departments of State. And where the London Gazette, on April 36th published a proclamation of martial law in Dublin, it was held operative there from that date, although not published in the Dublin Gazette until May 9th (R. v. Governor of Lewes Prison, Times, Feb. 13, 1917, and 33 T. L. E. 222). So, by the Bankruptcy Act, 1914, s. 137, a copy of the London Gazette containing any notice inserted therein in pur- suance of the Act, is evidence of the facts stated in the notice ; and the produc- Digitized by Microsoft® 338 THE LAW OP EVIDENCE. [bookii. tion of such copy containing any notice of a receiving, or adjudication, order is (except on appeal) conclusive evidence of the validity and date of such order {cp. Exp. French, 53 L.J.Ch. 4:8; Exp. Learoyd, 10 Ch.D. 3; Exp. Geisel, 22 Ch.D, 436; Bader v. Power, 1910, 2 K.B. 229, C.A.). So, Orders in Council under the Extradition Act, 1870, become, on being published in the London Gazette, conclusive evidence that the arrangements therein referred to comply with the Act, and that the Act applies to the foreign State mentioned in the Order (s. 5). And where any Statutory Eules are required by any Act to be published or certified in the London, Edinburgh, or Dublin Gazette, a notice therein of such Eulef having, been made, and of the place where copies of them can be purchased, shall be sufficient compliance with the said requirement [Eules ^Publication Act, 1893 (56 & 57 Vict. c. 66), s. 3 (3)]. Where, however, the Gazette is by statute rendered "conclusive evi- dence" of given facts, this will not necessarily exclude alternative evidence thereof (posi, 571)., The Gazette is also sometimes receivable to prove knowledge. Thus, to show that the captain of a ship kneW that a certain port was blockaded, a notice of the blockade in the' Gazette was held evidence thereof, though the jury in fact negatived such knowledge {Harratt V. Wise, 9 B. & C. 713). It is usually necessary, however, to give some evidence that the party has probably read the paper, in order to fix him with knowledge of its contents {ante, 146) ; though in the case of Gazette notices of dissolution, &c., of partnership, such additional evidence need only be given as against persons who have had pre- vious dealings with the firm, and not as against strangers (Tay. ^. 1666; Partnership Act, 1890, s. 36). As to Gazette notices by carriers restricting their liability, see the Carriers Act, 1830; and by Eailway and Catial Com- panies, see 17 & 18 Vict. c. 31, s. 7. The Gazette will be judicially noticed on its mere production {ante, 22), provided the entire paper and not a mere cutting is shown {R. v. Lowe, 15 Cox, 286). But where a Gazette was made evidence of certain facts, if it " purported to be printed by the Queen's printer or by the Queen's authority," a Gazette purporting to be printed merely by " authority," was rejected [R. v. Wallace, 10 Cox, 500 ; this case is doubted, in Tay. s. 15 n, and it would have been otherwise, perhaps, had evidence been given that it was the Gazette in which such matters were usually published, or had the particular authority mentioned been proved, R. v. Wallace, sup."]. In R. v. Raudnitz, 1869, 11 Cox, 360, where a statute declared that " a copy of the London Gazette shall be evidence of any matter therein contained," the mere production of a paper purporting to be such Gazette was held sufficient though it did not purport to be printed by any authority ; and in R. v. McCarthy, 1903, 2 I.E. 146, where the Act required that the Gazette should " purport to be printed and published bv the Queen's authority," a Gazette headed "Published by authority," and ending "Printed by the authority of H.M.'s Stationery Office, by A.M.," was received. So, one printed " at Dublin for H.M.'s Stationery Office, by A. & Co." is sufficient as being printed " by the Government Printer " (Corlc C C V. Farfe, 41 Ir. L.T.E. 206). Digitized by Microsoft® ( 339 ) CHAPTER XXX, PUBLIC REGISTERS AND RECORDS. At Common law, public registers are admissible (but not generally- conclusive, post, 571, 577, 588) proof of the facts recorded therein when (1) the book is required by law to be kept for public inform- ation or reference; and (2) the entry has been made promptly, and by the proper officer. By. Statute, also, the registers, minute- books, records and documents kept by many public or semi-public departments or bodies are frequently made evidence either prima facie or conclusive of the matters therein recorded. [As to Cor- poration, Company Registers and Bankers 'Books, see post, chap, xxxiii.] [Tay. ss." 1591-1595, 1774-1780; Ros. N.P. 125-131, 219-221; Steph. art. 34; Hubback, Ev. of Suce. 469-583 ; Whart. ss. 639-660; Wigmore^ Ev. ss. 1639-58. As to proof of the contents of registers by certified or examined copies, &c., see post, 554] . As to mechanical registers, e.g., gas, electric light, and water meters, see ante, 163. As to custody of registers, see post, 525. Principle. The principle upon which entries in a register are received is, that it is the public duty of the person who keeps the register to make such entries after satisfying himself of their truth; it is not that the writer makes them contemporaneously, or of his own knowledge, for no person in a private capacity can make such entries {Doe v. Andrews, 15 Q.B. 756, per Brie, J. ; cp. Sturla V. Frecda, 5 App. Cas. 623, 644, per Lord Blackburn ; and Lyell v. Kennedy, 56 L.T. 647, per C.A.). Public Authority and Benefit. There must be a legal duty to keep the register for the benefit or information of the public ; registers kept under pri- vate authority, or for the benefit or information of private individuals, are inadmissible {Henry v. Leigh, 3 Camp. 499 ; R. v. Bebenham, 2 B. & Aid. 185 ; Huntley v. Donovan, 15 Q.B. 96 ; Merrick v. Wahley, 8 A. & B. 170 ; Irish Society v. Berry, 12 C. & F. 641 ; Sturla v. Frecda, supra) . Examples of the former are parish registers, which are receivable as being kept under the authority formerly of the common law, and now of statute. The registration of baptisms seems not to be traceable earlier than the fifteenth century, though that of deaths and burials is much older (Blunfs Book of Church Law, 7th ed., App. i. 65). Examples of the latter are Nonconformist, and other non-paroch ial registers which, until the last century, were not kept under legal authority, and could only be received in evidence if admissible upon other grounds {e.g. as declara- tions by deceased persons in the course of duty, ante, 290-1). By The ISTon- Parochial Registers Act, 1840 (3.& 4 "Vict. c. 92), and The Births and Deaths Registration Act, 1858 {31 & 22 Vict, c, 25), however, many thousands of Digitized by Microsoft® 340 THE LAW OF EVIDENCE. [book ii. such records kept by Quakers, Presbyterians, Methodists, Baptists, Independ- ents, and some Eoman Catholic and Unitarian congregations are rendered admissible in evidence upon proof of deposit with the Begistrar-Oeneral and entry in his list and upon previous notice to the opposite party of the intention to use them, and in civil, but not in criminal cases, certified copies (though not copies made and retained by the various religious bodies, Re Woodward, 1913, 1 Ch. 392, cited post, 344) thereof are also receivable; though, where the pro-visiolis of these statutes have not been complied with, as in the case of the Jews, and many Eoman Catholic prelates, who have refused to part with their registers, these old records will still be inadmissible as public documents (see Tay., 10th ed., s. 1504 n; 115 L.T. Jo. 319). The same difficulty ^oes not arise with regard to the proof of births, marriages, and deaths of Noncon- formists since 1836, or of their burials since 1864, the former being registered under the Births, Marriages, and Deaths Eegistration Act, 1836 (6 & 7 Will. IV. c. 86), amended by the Births and Deaths Eegistration Act, 1874 (37 & 38 Vict. c. 88), and the Marriage Act, 1898 (61 & 62 Vict. c. 58), and the latter under .the Eegistration of Burials Act, 1864 (27 & 28 Vict. c. 97, s. 5), amended by the Burial Laws Amendment Act, 1880 (43 & 44 Vict. c. 41, s. 10). Golonial registers are also receivable upon proof that they are required to be kept by the law either of their own {Evans V. Ball, 38 L.T. 141), or of this (Tay. s. 1593), country {post, 343, 345). Foreign registers (which term includes Scotch registers) are evidence of matters properly and regularly recorded therein, when proved by experts, and to the satisfaction of the judge, to have been kept under the sanction of public authority, and to be recognised by the tribunals of their own coimtry {Lyell v. Kennedy, J.4 App. Gas. 437 ; Albott V. A., 29 L.J.P. & M. 57; cp. B. v. Righy, 73 J.P. Jo. 301, 311; Tay. s. 1593). Proper Officer. Promptness. The entries must be made by, or under the direction of, the person whose duty it is to make them at the time {Doe v. Bray,8B.& G. 813). Thus, where -entries in the books of a public office had been made, not by some specific person in the discharge of his official duty, but indiscriminately by any of the clerks in the office, they were rejected {Henry v. Leigh, 3 Camp. 499). So, where a baptism had been performed by a minister, an entry of it made in the parish register after his death by his successor was held inadmis- sible {Doe T. Bray, sup., though the entry in this case was made from the information of the parish clerk who had been present). But where the ceremony has been performed by a substitute, the entry may, it seems, be made either by the substitute {Zouche Peerage, Hubback, 482), or by the incumbent {Doe v. Andrews, 15 Q.B. 756). And entries in a parish register by a parish clerk will be presumed to have been made under the sanction of the minister {Doe v. Bray, sup.; Ghandos Peerage, Hubback, 482), although his private memoranda of the event are inadmissible, as it is not his duty to make them {id.). Where the practice was for a registrar to sign the entries, unsigned entries, though in his handwriting, were rejected {Fox v. Bearlock, 17 Ch. D. 429; and see Lancum v. Lovell, ante, 286) ; though aliter if the practice was not to sign them {Lauderdale Peerage, 10 App. Gas. 692, 706; Barrett v Henru post, 354:). ' "' Digitized by Microsoft® CHAP, xxs.] PUBLIC EEGISTERS AND RECORDS. 341 The entries should also be made promptly, or at least without such long delay as to impair their credibility. Thus, an entry made more than a year after the event has been rejected {Doe v. Bray, sup.; and cp. Farrell v. Maguire, 3 Ir. L.R. 187, ante, 291). Special provision is made by the Births and Deaths Registration Act, 1874, s. 38, as to entries made more than three or twelve months respectively after the event (see ^ost, 343, 343). Originality. Errors. Interest. It is not essential that a register should be a strictly original document, for such a rule would exclude nearly all the early parish registers, which were in general mere copies {Walker v. Wing- field, 18 Ves. 443). Accordingly, a parish register which was transcribed every three months, from a day-book, wherein the entries had been made immediately after 1;he events, has been received, although the day-book, which differed from it, had been rejected, the reason assigned being that there could not be two parish registers {May v. May, 2 Stra. 1073 ; Lee v. Meecoch, 5 Esq. 177; but see B. v. Head, Pea. Ev. 93 n, post, 373). So, the verified copies of registers of baptisms and burials made by the clergy of the Church of England, undei; 53 (Jeo. III. c. 146, and required to be annually sent by them to the registrar of the diocese, are themselves regarded as original public documents, and provable by copies {Walker v. Beauchamp, 6 C. & P. 553 ; A.-G. v. Oldham, cited Burn on Parish Registers, 209), as are, also, the Bishop's transcripts made before that Act and under the authority of the Canon Law {id.; Hub- back, 496-503), and the duplicate registers of marriages kept under 6 & 7 Will. IV. c. 86. And see as to Indian Registers, post, 346. Errors, erasures, alterations, and minor irregularities affect the weight- of the entries, and not their admissibility {Lyell v. Kennedy, 14 App. Cas. 437, 449; Hubbaek, 485-488; cp. post. Corporation Books), nor the validity of the ceremony {Re Butter, 1907, 2 Ch; 593). As to the correction of errors in registers kept under the Births and Deaths Registration Act, 1836, see s. 44; and as to the admissibility of extrinsic evidence to contradict the register, post, 577, 588. So, alsa, the fact that the entry is in the interest of the offirers or body keeping the register, affects weight only, not admissibility {Irish Society v. Berry, 13 C. & E. 641 ; Sturla v. Freccia, 5 App. Cas. 633, per Lord Blackburn) . Of what Facts Registers are Evidence. A register is evidence of the par- ticular transaction which it was the officer's duty to record, even though he had no personal knowledge of its occurrence {Doe v. Andrews, 15 Q.B. 756). Thus, entries, made by an incumbent, of parish burials reported to, but not performed by, him are admissible {id.) ; so, of -entries of births and deaths under the Births and Deaths Registration Act, 1836, s. 38, as amended by the Births and Deaths Registration Act, 1874, s. 38. But entries of matters which it was not his duty to record — e.ff. entries in a parish register of baptisms or marriages perforlned in a neighbouring parish {Lyell v. Kennedy, sup.; and see Farrell v. Ma-guire, 3 Ir. L.R. 187, ante, 291), or by a predecessor- in office {Doe v. Bray. 8 B. & C. 813), are inadmissible. It is doubtful how far a register can be received to prove incidental particulars concerning the main transaction, even where these are required by. law to be included in the entry. If such particulars are necessarily within the knowledge of the regis- tering officer they will doubtless be admissible {Doe v. Barnes, 1 M. & E. 386), otherwise they seem not to be evidence unless expressly made so by statute . Digitized by Microsoft® 343 THE LAW OF EVIDENCE. [bookii. {Huntley v. Donovan, 15 Q.B. 96; i2. v Clapham, 4 C. & P. 39). In a case of pedigree, however, a description in a marriage register pointing to the parents of the bridegroom being legitimately married, was held prima facie evidence of the latter fact {Wigley T. Treasury Sol. 1902, P. 233). Registers of Birth (or certified copies thereof) are, on their mere produc- tion, evidence both of the fact and date of birth {Re Goodrich, Payne v. Bennett, 1904, P. 138; Wilton v. Phillips, 19 T.L.E. 390; R. T. Weaver, L.K. 2 C.C. 85; R. v. Taylor, 96 L.T Jo. 443; R. v. Bellis, 6 Cr. App. K. 283; R. V. Rogers, 111 L.T. 1115; and being statutory proof of these facts, an entry thereof by a mother has been received as a confession in a divorce case without corroboration, Brierley v. B., 87 L.J.P. 153; 34 .T.L.E. 458; contra. Re Wintle, 9 Eq. 373, that it is proof only of the fact of birth before the entry is not now law). The register is also evidence of the place of birth where this fact has been added under the direction of the Eegistrar- General (Births and Deaths Registration Act, 1837, s. 8). Entries in registers under the Births, Marriages and Deaths Eegistration Actj 1836, and the Births and Deaths Eegistration Act, 1874, are prima facie, but not conclusive, evidence of these facts (Brierley v. B., sup.), but must purport to be signed by the person bound to inform the registrar thereof, or to be made in pursuance of the provisions of the latter Act as to the registration of births at siea; and further requirements exist when the entries are made more than three or twelve months respectively after the event (see s. 38 of the latter Act). In vaccination cases, also, the justices may require proof of birth by the parents to be supplemented by the certificates for purposes of identification {R. v. Buckingham, 106 L.T. Jo. 368; see further infra, 343). Independently of the register, proof of the fact and date of birth may of course also be given by some one who was present at the birth {R. v. Nicholls, 10 Cox, 476) ; but the affidavit of a deceased parent, if the case is not one of pedigree (Haines v. Guthrie, ante, 313), or the oral testimony of a father who was absent for a few days at the time, and was only told on his return by the grandmother (R. v. Wedge, 5 C. & P. 298) ; or the testimony of the person himself (post, 467; though as to his admissions, see ante, 236) will not be received. Registers of Baptism are evidence of the date and place of baptism (Hub- back, 493), but not of the date or place of birth (R. v. Clapham, 4 C. & P. 29 ; Wihen v. Law, 3 Stark. 63; Burghardt v. Angerstein, 6 C. & P. 690), though if it were proved aliunde that the child was very young at the former date, the register might afford presumptive proof of its birth in the parish in which it was baptized (R. v. North Petherton, 5 B. & C. 508; R v. Lubben- ham, 5 B. &. Ad. 968; R. v. 8t. Katharine, id. 970 n; R. v Grediton, 27 L.J.M.C. 265). In Re Turner, Glenister v. Harding, 29 Ch. D. p. 991, Qhitty, J., held that on questions of pedigree this strictness might be relaxed, 'and the register, though not per se evidence of birth, might, in conjunction with other facts, be taken as evidence thereof. It has since been decided, how- ever, that a certificate of baptism is no evidence of age in a pedigree case (Robinson v. Buccleuch, 3 T.L.E. 472, C.A.; 31 Sol. Jo. 329; cp. Steph. arts. 31 n and 34 n). Registers of Marriage are evidence of the fact and date of marriage (Doe v. Barnes, 1 M. & Eob. 386; R. v. Hawes, 1 Den. C.C. 270), from which also its Digitized by Microsoft® CHAP. XXX.] PUBLIC EBGISTEKS AND RECOEDS. 343 validity may be presumed (Tay. s. 173). And where- its celebration de facto is shown, a cogent legal presumption will, except in cases of bigamy and divorce, arise in favour of its validity (posi, 679). In the case of Colonial or Foreign marriages, however (as to Indian, see post, 346), the production of the local statutes or expert testimony is usually, but not always required {Bent V. D., 1897, Times, Dec. 16; King v. K., 1897, id. Nov. 23; Marshall V. M., 1907, id. May 8; Brinhley v. A.-G., 15 P.D. 76; B. v:Naguib, 1917, 1 K.B. 359; see post, 345-7), and this is sometimes exacted even in the case of an Irish marriage {Darcy Evans T. D. E., 1902, Times, Oct. 25; contra, Whitton V. W., 1900, P. 178; Guillet v. G., 27 T.L.E. 416; Bury v B., 35 id. 220; post, 34:5-6). - Registers of Death are evidence of the fact and date of death, and of its place, where tiiis is added xmder the direction of the Eegistrar-General (7 "Will.- IV.^ & 1 Vict. c. 23, s. 8; cp. Re Goodrich, &c., ante, 342), but not of the cause of death {Bird v. Keep, L. Jo-., July 13th, 1918, O.A.) ; and the entry, or a certified copy thereof, has been held sufficient evidence of the death without a cettiflcate of burial {Re Valter's Trust, 1887, W.N. 128), though it should, in general, be supported by some evidence of the latter fact {Riseley V. Shepherd, 21 W.E. 702; Williams, V. & P. 125, where, however, Re Valter's Trust is not cited) . Entries in registers of death under the Acts of 1836 and 1874 must purport to be signed by the person bound to inform the registrar thereof, or to be made upon a coroner's certificate, or in pursuance of the provisions of the latter Act as to the registration of deaths at sea ; and further requirements exist where the entry is made more than twelve months after the event (s. 38 of the latter Act). A register of hurial kept under the Eegis- tration of Burials Act, 1864, is "evidence of the burials therein recorded" (s. 5). The entry is required to be made by the registering officer upon the certificate of the person in charge of the burial (Burial Laws Amendment Act, 1880, s. 10). A register of burial is generally evidence of the facts of death and burial (Hubback, 184, 193), but not of the date of death {id.), nor of the age of the deceased, though stated therein {Robinson v. Buccleuch, supra) . Identity. The identity of the parties named in the register must alvrays be proved independently, sufficiently to satisfy the jury. Thus, in the case of Births, the testimony of the parents is usually sufficient. But evidence of treatment is also admissible; thus, on a charge of carnal knowledge of a girl under 16 it was shown that justices had made an older charging her upon a union, the clerk of which had satisfied himself as to her identity, that she was an inmate of the poor-law school, where children were not kept after 16, and that she had always been treated as the person named in the certificate {R. v. Bellis, 6 Cr. App. E. 283; cp. R. v. Rogers, 111 L. T. 1115). In Re Bulley, 1886, W.N. 80, Pearson, J., indeed, allowed a petitioner to identify his own bap- tismal certificate on coming of age> sed. qu., and see R. v. Rishworth, cited ante, 219, and post, 467. In the case of a marriage, identity may be proved by calling the minister, clerk, attesting witness, or others present ; or by proof of their handwriting, even without the production of the original register {Sayer v. Glossop, 2 Ex. 409) ; or by the help of photographs {R. v. Tolson, 4"E. & F. 103; Eos. N.P., 18th ed., 135). And in a pedigree case, the mere similarity of names has been held sufficient evidence of identity, for as the jury were satisfied, the Court would not interfere {Hullnrd v. Lees, L.E. 1 Ex. 255; Digitized by Microsoft® 344 THE LAW OF EVIDENCE. [book II. cp. La Cloche v. La C, L.E. 4 C.P., 325, 333; contra. Miller v. Wheatley, 28 L.E. Ir. 144). In a bigamy case, evidence that the prisoner had co-habitated with a woman of the same name as that mentioned in the certificate and also spoken of her as his wife, was held sufficient to identify the parties (B. v. BirtleSj 27 T.L.R. 402; cp., however, B. v. Simpson, 15 Cox, 323). [As to the identity of the author of a document, see post, 523 ; and generally as to identitj', ante, 136]. The following are some of the principal documents which are admissible or not as official registers : — Registers of Birth, Baptism, Marriage, Death and Burial. Parish Books. Admissible. Inadmissible. Old English parish registers (kept under the canon law) of baptisms and burials before 1812, and of marriages before 1837 (Doe V. Barnes, 1 M. & Bob. 386). Parish registers of baptisms and burials kept under 52 Geo. III. c. 146 (1812), which i» still in force. Old Knglish non-parochial registers of births, baptisms, marriages, deaths and burials kept by various religious denomina- tions, and deposited under 3 & 4 Vict. c. 92, and 21 & 22 Vict. c. 25 (ante, 339-40). Civil registers of births and deaths kept under 6 & 7 Will. I\, c. 86, s. 38, ex- tended by 7 Will. IV. & 1 Vict. c. 22, s. 8, and by the Births and Deaths Registra- tion Act, 1874, s. 3S. Registers of marriages kept under 6 & 7 Will. IV. c. 86, s. 31; the so'lemnising clergyman of the Ch. of Eng. registering Ch. of Eng. marriages; the secretary of the synagogue, Jewish marriages (who should sign the certificate both as secre- tary and registrar, Prager v. P., 108 L.T. 734) ; In cases of bigamy, executibeing a mere prac- tice, but no legal duty, to keep the regis- ters, the informatvon being often derived from subordinates, and the gaoler keeping them chiefly for his own information and security. See Stark. Ev., 4th ed. 308 ; and Merrick t. Wesley, opposite]. As to Registers of Minutes of Convic- tions under the Summary Jurisdiction Act, 1879, s. 22, see post, 558. As to Registers and Minute-Books of Companies see post 373-5 ; certificates of incorporation and proprietorship of shares, post 36&-70 ; and declarations by chairmen as to the passing of resolutions, post, 370, 374. Mdnute-books of meetings of creditors, kept under the Bankruptcy Act, 1914, and signed by the chairman either of that or of the next ensuing meeting, are evidence of tlie validity both of the meetings and the resolutions passed (s. 138 snb-ss. 1 and 2), and of the correctness of the' chair- man's decision on aU incidental questions arising thereat {Re Indian Zoedone Co., 26 Ch.D. 70). Registers and enrolment of deeds, wills, and charges affecting land in Yorkshire (47 & 48 Vict. c. 54, ss. 9, 20, 21, 51) ; Mid- dlesex (7 Anne, c. 20, ss. 6, 12, 19; amended by 54 & 55 Vict. c. 10, by whicli the duties of the Middlesex Registry have been transferred to the Land Registry) ; and Ireland (6 Anne, c. 2, Ir. ; Carlisle v. Whaley, L.B. 2 H.L. 391). The registrar's certificates of registration and enrolment are evidence of the fact and date of those events, and that the necessary formalities have been complied with (floe v, Lloyd, 1 M & G. p. 684;, post, 370), but not of the validity of the deed, e.g. that the necessary majority of assents to a compo- sition deed had been obtained (Hare v. Waring, 3 M. & W. 362, except in the case of Crown deeds enrolled in the Land Revenue OflSce undei: 2 & 3 Will. IV. c. 1, s. 26). As to Certificates of Title to Land, see post, 371; and generally as to land certificates, certificates of charges, and office copies of registered leases, see the Land Transfer Act, li897, s. 8; and as to the effect of registered dispositions. Cap. it Counties Bfc. v. Rhodes, 1903, 1 Oh. 631. [Tay. ss. 1645-1649; Ros. N.P., 17th ed. 145, 213.] Inadmissihle. An attendance register kept by the toedi- cal officer of a uniooi under the orders of the Poor Law Commissioners, and in- tended to operate as a check upon himself, held inadmissible, the entry not being of a public nature {Merrick v. Wakley, 8 Ad. & E. 170; Irish Society v. flejry, 12 C. & F. 641, per Parke, B.; Sturla v. Freccia, 5 App. Cas. p. 646, per Lord Blackburn). A register of bankruptcy certificates kept under the old law in the office of the Secretary of Bankrupts, but not under the orders of the Lord Chancellor or any pub- lic authority ; and the entries in which were made indiscriminately by any of the clerks in the office as mere private mem- oranda for the information of inquirers, held inadmissible {Henry v. Leigh, 3 Camp. 449). The books of the clerks of markets, kept formerly under 47 Geo. III. (sess. 2), c. 68, s. 29, have been held no evidence of the sales therein recorded, although ex- pressly made evidence by the statute " touching all matters done in pursuance of the Act" {Brown v. Capel, M. & M. 374). A manuscript Book, kept temp. Eliz., and purporting to be written by an officer of the Dxic'hy of Lancaster, and preserved and treated as authentic in the Duchy Office, has been rejected to prove the duties of the office as described therein {Jewison V. Dyson, 2 M. & Rob. 377). Digitized by Microsoft® 350 , THE LAW OF EVIDENCE. [bookii. Admissible. Inadmissible. Kegisters of voters under the Ballot Act, 1872, are conclusive (as well upon the returning ofiScer as upon the Court for the trial of election petitions), of the qualification of the persons named, except where they are prohibited from voting by law {Stowe y. -JoKffe, L-R. 9 O.P. 734). Poll-books or office copies thereof, are also evidence in all courts of law (6 & 7 Viet. c. 18,8.94). The Minute-books of Parish Oouncils, OT of committees of parish or district coun- cils, or of parish meetings, required to be kept under the Local Government Act, 1894, are, if date signed, to be re- ceived in evidence without further proof; purporting to be until the contrary is shown, meetings whereof minutes have been so made, are deemed to have been duly held, &c [Sch. I. Part III (1-3)]. Minute-books of the proceedings of Edu- cation Committees, or of Managers, re- quired to be kept under the Education Act 1902, are also, df purporting to be duly signed, receivable in evidence with- out further proof ; and until the contrary is shown, such committees or managers shall be deemed to be duly constituted, &c. [Sch. I. A (3-5); B. (8-11)]. Minutes of proceedings at meetings under the Public Health Act 1875, and orders and resolutions passed thereatjif pur- porting to be duly signed, are receivable in evidence in all legal proceedings ; and until the contrary is sKown such meetings and proceedings are deemed to have been duly convened, held &c. [Sch. I. r. 1 (10) ]. As to minutes of proceedings at meet- ings- of creditors, under the Bankruptcy Act, 1914, s. 188, see ante, 349, and post, 561. Documents under the Friendly Societies Act, 1896, if purporting to be signed by the chief or assistant, registrar, or any inspector, public auditor, or valuer, are, in the absence of evidenv-e to the contrary, receivable in evidence without proof of the signature, and documents bearing the seal or stamp of the Central Office, are also receivable without further proof (s. 100). Judicial, Military and Maritime Registers and Records. The minutes and memoranda of convic- An attestation paper, purporting to be tions, orders and proceedings of justices signed by a soldier on his being attested as under the Summary Jurisdiction Act, such, although "evidence of his having 1848, s. 14 ; and the register of these kept given the answers therein recorded "— ^ under the S.J. Act, 1C79, s. 22, have been no evidence of his place of birth as alleged held evidence of such matters in the same, by him in one of such answers (Ohertsey but not in other, courts (Com. of Police Union v. Sun-ey Clerk, 69 LT 3S4) V. Donovan, 1903, 1 K.B. 895); but the u , . . ooi;. admissibility of the latter registers has now been extended by the Or. Justice Admin. Act, 1914, s. 28, as to which see fully post, 558. Regimental registers and records, kept in pursuance of any statute, or of the Digitized by Microsoft® OHAP.xxx.] PUBLIC REGISTERS AND RECORDS. 351 Admissible. King's Regulations, or of military duty, and purporting to be signed by the com- man^ng or odier officer, whose duty it is to make them, are evidence of the facts stated [Army Act (1881), s. 163, subs. . 1 (g) , as are certified coipies thereof, sub-s. 1 (h) ; e.g. Army registers of births, mar- riages, and deaths among British officers and men abroad (e.g. of a marriage n iBnrma, Adams v. A., 1900, W.N. p. 32) ; or Muster Rolls, or Pay Lists, kept under 42 & 43 Viet. c. 8> ss. 2, 3. Medical. Sheets, kept under the Army Medical Service Rules, have been received to prove that a military patient was suf- fering from a venereal diseajse, and so to establish adultery (GFIeen T. Oleen, 17 T.L. R. 62; but, where the Sec. of State for War objected to their production, as being against public interest, the privilege was upheld, though waived W the patient (An- thony V. A., 35 T.L.R. 5d9 ; ordinarily, how- ever, no privilege attaches to medical con- fidences, .ante, 201-2). As to Army and Navy Ijists, see post, 353 ; and as to certificates of military and naval service, &c., post, 371. The books of the Sick and Hurt Office, kept by a public officer under the authority of the Admiralty, and the register and ^uster-books of the Ncvy Office, similarly kept, are evidence of the fact, and date, of the death of a sailor [Wallace v. Cook, 5 Esp. 117; R. v. Rhodes, 1 Lea. 24; Barber v. Holmes, 3 Esp. 190; and see Huntley r. Donovan, 15 Q.B. 96, 100 ; the latter books are also evidence of the ship to which he belonged and the amount of wages due to him (R. v. Fitzgerald, 1 Lea. 20; R. V. Rhodes, sup.)]. The log-book of a man-of-war is evidence of the time of sailing and the motions of the fleet (Disraeli v. Jowett, 1 Esp. 427), provided dt is produced as an official public book from the Admiralty, otherwise it can only be used to refresh the writer's mem- ory [Rundle v. Beaumont, 4 Bing. 537 ; Burrough v. Martin, 2 Camp. 112. In Heathcote's Divorce, 1 Macq. H. L. Cas. 277, it was held admissible, but insuffi- cient to prove the whereabouts of a ship's officer at a given time. In R. v. Mylius, Times, Feb. 2, 1911, however, the log-books and records produced by the Admiralty were held evidence of the movements of ^ips and presence on I>oard ' of officers from day to day]. An official letter writ- ten at flje conclusion of a voyage by the captain of a convoy and produced by the Admiralty, has also been held evidence of the facts stated (Watson v. King, 4 Oamp. 272). The offlcial log-book of merchant ships is by statute made '-admissible in evidence ' [Merchant Shipping Act, 1894, s. 239 (6) ; so, also under the former M. S.^ Act, 1854, Inadmissible. The shipjs log-book of merchant vessels is only evidence ''III. (ihid.; and Drake v. Smyth, 5 Price, 369. See also 2 Eagle on Tithes, 402, 403). Ecclesiastical terriers (i.e. returns of the temporal possessions of the church in every parish) are evidence of the matters stated, being made under the authority of the 87th Canon (see Stark. Ev., 4th ed. 289- 232; 2 Phil. & Am. Ev., 10th ed. 120; Tay. s. 1772). A bishop's returns in obedience to writs from the Exchequer, stating the vacancies, &c., in his diocese, are admissible as state- ments by a public officer in discharge of a public duty. So, his returns as to first- fruits; and thie entries in the first-fruits books are admissible as secondary evidence of the returns {Irish Society v. Derry, 12 CI. & F. 641; Sturla v. Freccia, 5 App. Cas. 623). An incumbent's returns in answer to in- quiries by his bishop, for the information of the governors of Queen Anne's bounty, are admissible as in the nature of an in- quisition in a public matter (Con- v. Mostyn, 5 Ex. 69). Titiie Commutation maps are admissible as public documents on questions of tithe [6 & 7 Will. IV. c. 71, ss. 60-4; 7 id. & 1 Vict. c. 69, s. 2). They have also been received to prove other matters within the authority of the Commissioners, e.g. that fences existed, or tracks were visible on the land at their respective dates (A.-G. v. Aratro6«s, 1905, 2 Ch. pp. 193-4; followed in A.-&. V. Moorsom Rolerts, 72 J.P.II. 123, and Fuller v. Chippenham R.D.C., 79 id. 4 ; and cp. Caton v. Samilton, infra) ; that certain strips of land bordering a highway were when the map was made not enclosed or used for purposes rendering them tithe- able (Gopestake v. West Sussem C. C, 1911. 2 Ch. 331) ; as well as to fix third parties with notice of the apportionment {Gifard v. Williams, 38 L.J. Cb. 597, Inadmissihle. A survey and report defining, inter alia, the boundaries of a Duchy manor, and made under 4 Edw. I. stat. 1, by a deputy surveyor-general, temp. Eliz.,— held inad- missible, tiie statute giving no power to ascertain boundaries (Evans v. Taylor, 7 A. & E. 617; cp. Mercer v. Denne, 1905, 2 Ch. pp. 557, 563). Tithe Commutation maps, made undet 6 & 7 Will. IV. c. 71, although by s. 64 "satisfactory evidence of their accuracy," are inadmissible to prove private boundar- ies as between two adjoining owners {Wilberforce v. Bearfield, 5 Ch.D. 709, per Jessel, M.R. ; Coleman v. Kirkaldy, 1882, W.N. 103, per Kay, J. ; Frost v. Richard- son, 129 L.T.Jo. 132-3) ; or the extent of a public right of way (Copestake v. West Sussex, C.C. opposite) ; or other matters not wJtliin the scope of the statutory authority (A.-G. v. Antrolus, opposite). Digitized by Microsoft® 360 THE LAW OF EVIDENCE. [book II. Admissible, 604). As to their admissibility as evidence of i-eputation, see ante, 297, 304. Ordnance Survey maps have, like Tithe maps, been admitted as prima faoie evi- dence to show what fences, tracks, &c., were visible to the surveyor at their respec- tive dates (A.-O. v. Antrolus, <£o., sup.; A.-G. V. Merrick, 79 J.P. 515) ; — also, in an action of trespass, to show not what the boundary was, but what had been the position of a fence, alleged to be a boun- dary fence, in 1875, when the survey was made (Gaton v. Hamilton, opposite, per Grantham, J.); also, in an action on a covenant not to trade within half a mile of plaintiflE's premises, to show how far the half mile extended IMoufiet v. Oole, 8 Ex. 32-35, per Blackburn, J. ; see generally as to measurement of distance, post 379) ; also to show the general position of a particular place or district {Bristow v. Cormican, 3 App. Oas. 641, 664, per Ld. Blackburn) ; and also on a question of private boundaries, (Spike v. Thompson, per Blackburn, J., cited 1882, W.N. 103). An Award Map, under the Commons Act 1876, is admissible but not conclusive as to boundaries (GoUis v. Amphlet, 1918, 1 Gh. 232, C.A.; see 1920, A.C. p. 272) . Plans deposited by a Railway Co. with a local authority in connection with a pro- posed light railway which was ultimately abandoned, are admissible as public docu- ments, on a question as to the existence of a public road, to show that the alleged road was not marked thereon, the local authority being the statutory guardian of public roads and the plans being published for inspection and objection by those in- terested (A.-G. V. Antrobiis, 1905, 2 Oh. 188, 192, 194-5). Herald's Visitation Books (made under the authority of Royal" commissioners and upon sworn testimony between the years 1528 and 1688) , are evidence of the pedi- grees, &c., of the nobility and others. So, the Book of Funeral Certificates contain- ing copies of the certificates given by the Heralds after attending, dn the course of their duty, the funerals of great men, are admissible as secondary evidence of the certificates [Sturla v. Freccia, sv,p.; Ros. N.P. ; 18th ed. 214 ; Tay. s. 1769 ; and see fully Hubback, Ev. Sue. 538-566). In the above case Lord Blackburn pointed out that these books are admissible, not merely in peerage claims (as stated by James and Brett, L.JJ., 12 Ch.D. at pp. 428, 433), but at nisi prius as well]. Ap order of a Naval Court, held under the Merchant Shipping Act, 1894, s. 483, rlischarging a seaman from his ship, is con- clusive evidence of such discharge even inter alios (Ilutton v. Ras Steam Shipping Co.. 1907, 1 K.B. 834, C.A.). Inadmissihle. Ordnance Survey maps are not admis- sible under the present head on questions of private boundaries or title [4 & 5 Viet, c. 30, s. 12 ; since the materials before tlie surveyor do not include private titl?-(leeds, and he has no authority whatever to bind the parties, Tisdall v. Parnell, 14 Ir.C.L.R. 1, 27-8; Gaton v. Hamilton, 53 J.P. 504; Goleman v. Kirkaldy, stip., not following Spike V. Thompson, opposite} { nor to ex- plain a deed (Wyse v. Leahy, I.R. 9 O.L. 384). As to their admissibility as Reputa- tion, see ante, 297, 305 ; to show general geographical facts, post, 378-9 ; under the Land Transfer Act, 1897, see s. 14 and Rule 269 ; and to explain convejances, post, 624. Herald's Books of Benefactors' Pedi- grees, kept in pursuance of a Royal com- mission empowering the Heralds to raise funds for the restoration of tlie college, and to enrol the pedigrees of the donors, held not admissible as public documents, the duty being not to investigate and re- port on the truth of such pedigrees, but merely to enrol such as were presented (Shrewshury Peerage, 7 H.L.O., p. 14). So, a Book of Pedigrees, which was merely a collection of private entries in the hand- writing of a deceased Herald, but not an ofiice book kept in the discharge of duty (id. 33). So, a book of "Arms and Descents of the Nobility, B. 16," kept by the Heralds distinct from the records, and not under Royal authority, or in the dis- charge of any duty (id. 24). A Board of Trade inquiry and order under the Merchant Shipping Act, 1854, resulting in the suspension of a master's certificate on the ground of negligence, is inadmissible to prove such negligence in an action against the owners, although by s. Digitized by Microsoft® CHAP, xxxi.j PUBLIC INQUISITION'S, SURVEYS, &c. 361 Admissible. In a County Court action, under the Workmen's Comp. Aot, 1906, to prove the fact and cause of a seaman's death in the Bed Sea,^-depositions by the Captain of the ship taken at Aden on an enquiry be- fore a Consular officer pursuant to the Merchant Shipping Act, 1894, s. 691, held admissible under s. 7 (1 c) of the former Act ; and semhle the Report of the Consular officer would also be admissible [Pyper v. Manchester Liners, 5 L.Jo. Cy., Ct. Rep. 26 (Ap. 15, 1916), per Judge Mellqr, K.C. Sed. gu and see cases opposite.} Land Tax Assessments are evidence of the assessment upon the person, and for the property named; as well as of occupa- tion (.Doe V. Seaton, 2 A. & E. 171 ; Doe V. Arkwright, id. 182 «.; Doe v. Cart- tdright, 1 C. & P. 218; Johnson v. Thomp- son, 15 L.T. (O.S.) 437; Ronkendorif v. Taylor, 4 Peters, 349). Valuation Lists of property in the metropolis are rendered conclusive evidence of. the gross or rateable value of heredita- ments for various purposes by 32 & 33 Vict. c. 67, s. 45. The Poor Law valuation in Ireland is admissible, but not conclusive, evidence of the value of land, — ^being " a public docu- ment made for a public purpose" (Wei- land V. Middleton, 11 Ir. Eq. 603, per Sug- den, L.C. ; Swift v. M'Tieman, id. 602) . Rate-Books of the Poor Law Unions in Ireland are prima facie evidence of* the liability of the person rated {Gastlelar Guardians v. Lord Lucan, 13 Ir.L.R. 44). And Poor-Rate Books in England are prima facie evidence of the making and publication of the rate (Poor Rate Act, 1869, s. 18 ; Beeson v. Derhy, Ryde and Konstams Rating Appeals, 328, 331) ; and of the occupation or ownership of the per- sons rated at any given time {Smith v. Andreics, 1891, 2 Ch. 678 ; Blount v. Lay- ard, id. p. 681 n, per Field, J.) ; although they are not conclusive {R. v. Simmons, 95 L.T. Jo. 61; and see also 28 L.Jo. 164). When, however, on objection, the commit- tee have fixed the gross estimated rental of premises this is, on appeal to Q.S., con- clusive against them, and they cannot show it was too low (Sorton v. Walsall Committee, 1898, 2 Q.B. 237). The printed Reports of the Charity Com- missioners appointed under 58 Geo. III. c. 91, are prima fade evidence of the docu- ments and facts stated thereon, on due notice being given to the opposite side [Charitable Trusts Recovery Act, 1891, 54 & 55 Vict. c. 17, s. 5 (1) ; post, 434; and unless othervMse directed, a two days' no- tice is sufficient, R.S.C. (C.T.R.) 1892, r. 4; C.C.R. 1903, O. 48, s. 22]. The report of a Committee of the Gen- eral Medical Council finding A., a dentist, guilty of professional misconduct, and an Inadmissihle. 18 of the Act made prima facie evidence of the truth of the matters stated (J7c- Allum V. Reid, L.R. 3 Ad. & E. 57 n; The ilaiuicrton, Swab. 120; The City of Lon- don, id. 245, 246 ; Hill v. Clifford, 1907, 2 Ch. p. 251-2) . So, as to Wreck Enquiries under the same Act and Depositions taken thereat (.Nothard v. Pepper, 17 G.B.N.S 39 ; The Little Lizzie, L.R.3 A. & B. 56 ; The Henry Coxon, 3 P.D. 156, 159; ante 252, post, 440), or Pilotage Bnqiciries (The Lord Seaton, 9 Jur. 603). Land Tax Assessment BoO'^ are no evidence of seisin ; nor of the names of the occupiers, where proof is given that it was usual to make no alteration in the name so long as the land was in the same fam- ily (Doe V. Arkwright, 2 A. & B. 182 n; 5 C. & P. 575) . The report and finding of a Royal Com- mission though composed of Judges and Law Lords, does not bind, and is not re- ceivable in evidence in, any Court to de- cide any question of law or fact therein (Judge v. Horrell, 140 L.T.Jo. 359. G.A. Ir.) The confidential Report of a Committee appointed by a public department of a for- eign State, to ascertain the fitness of a Digitized by Microsoft® 362 THE LAW OP EVIDENCE. [book II. AdmissiMe. order of the Council, founded thereon, and made under the Dentists Act, 1878, ss. IS- IS, directing the registrar to strike off A.'s name from the Register of Dentists ; — held, prima facie evidence of such mis- conduct, in an action brought by B., an- other dentist, against A., to dissolve their partnership by reason thereof ISill v. Clifford, 1907, 2 Ch. 236, C.A., affd. on other grounds, sub nom. GUfford v. Timms, 1908, A.C. 12. Ov- Re Felfhnann, 97 L.T. 548]. The Keports of the Searchers at the Custom House are evidence of the cargoes on board, being official documents made under statutory authority (Johnson v. Ward, 6 Esp. 48) . Aa to .Engineers' Eeports concerning scientific facts beyond living memory, see East London Ry. v. Thames Conservators, post. 3S0. As to Certificates by Public Analysts under the Pood and Drugs Act, 1875, see infra, 368-9. [As to Reports and Awards by various classes of Judicial -Officers, which are evi- dence only inter partes, but not against strangers, nor as public documents, see post, 433-5, e.g. Reports and Awards by of- ficial referees under the Arbitration Act, 1889 ; by the Official Receiver under the Bankruptcy Acts ; by Inspectors under the Company (Cons.) Act 190)8: by the Law Society under the Solicitors Act 1888 ; and by Licensing Justices under the Licensing Act 1904.] Inadmissihle. candidate for a public office, in which his age and other details of his personal his- tory are stated, is not receivable as evi- dence of those facts ; such an authority not being a legal one for a public purpose, nor the matter inquired into one of a pub- lic nature \_Sturla v. Freccia, 5 App. Cas. 623. It would also be inadmissible as a declaration by deceased persons in course of duty, or upon a matter of pedigree, or upon a question of public and general right, ante, 316]. The Report of the master of a foreign ship as to its burden, &c., required to be filed in order* to get the cargo landed ; — Held inadmissible, as not being made by a public officer in the discharge of a public duty, but by a private individual for his own hene&t (Huntley v. Donovan, 15 Q.B. 96). Similarly, the captain's Protest is not evidence in chief of the facts stated, though admissible on cross-examination to contradi'Ct his testimony (Christian v. Coombe, 2 Esp. 489 ; The Heduoig, 1 Spink 19 ; cp. The Lyndica, 28 L.T. 474) . A Report as to the ingredients of food, made by a Public Analyst, but not in pur- suance of any statutory duty, is not ad- missible as evidence thereof (Shortt v. Robinson, -63 J.P. 295). [As to Reports by Chancery visitors under the Lunacy Act 1890; of the Post- master-General as to a publication being a newspaper; and of Gas-Inspectors made ex pa/rte, which are not evidence even inter partes, see post, 434-5]. Digitized by Microsoft® ( 363 ) CHAPTEK XXXII. OFFICIAL CEETIFICATES, LETTEES, AKD EETUEXS. The certificates, letters or returns of public officers, intrusted by law with authority for the purpose, are prima facie, but not gener- ally conclusive, evidence of the facts authorised to be stated, but not of extraneous matters. And where it is part of the duty of an official to supply copies of any record, register, or other document, such copies are admissible as secondary evidence of the originals {Brown v. Thornton, 6 A. & B. 185; post, 539-42) ; unless, how- ever, expressly so made by statute, a certified extract from, such documents, or a certificate of its effect or result; is inadmissible {Finlay v. Fivday, 31 L.J. Mat. 149; post, 542). [Tay. ss. 1610-1659, 1784-1784A; Eos. IST.P. 18th ed., 317; Wigmore, Ev., ss. 1674-83]. Principle. The ground upon which such documents are admitted is that where the law has appointed a person to act for a specific purpose, it will trust him so far as he acts under Ms authority (B.N.P. 229 ; Brown v. Thorn- ton, sup.; and see Sturla v. Freccia, 5 App. Cas. 623). Where, the certificate consists merely of a copy of another document, e.g. a. register, its admissibility will depend on that of the original document {wnte, chap. xxx.). History. In ancient times, trials ia certain cases were by certificate merely, the certificates being conclusive. Lord Coke enumerates six of such cases, viz.: — (1) That of the King's Marshal of the Host that a man was serving in the army; (2) That of the Mayor of a town in France that a person was in his custody as prisoner; (3) That of the Ld. Mayor and Aldermen, by the Eecoider, as to the customs of London (ante, 21; Plummer v. Bentliam, 1 Bur. 248 ; a custom once certified is looked upon as laid and cannot be certi- fied again, Blacquiere v. Hawkms, 1 Doug. 380; Burin t. Nott, 12 Sim. 436) ; (4) That of the Sheriff whether a man be a citizen or foreigner; (5) That of a Judge to prove records {ante, 7) ;' (6) That of the Ordinary, or Bishop, to prove marriage, bastardy, excommunication, or profession {Norwood v. Stephenson (1738), Andrews, 227; Ilderton v. I., 2 H.Bl. 155-60). Later on, apparently in analogy to the above, the use in certain cases of certificates by public officers came to be allowed, not as conclusive, but as evidence merely, though now by way of exception to the hearsay rule [Gresley on Ev., 2nd ed., 253-4; Wigmore, s. 1674]. At Common Law, however, a certificate of a mere matter of fact not coupled with matter of law, remains generally speaking inadmissible, though given by a person in an official position, or even, it is said, by the Sovereign imder Digitized by Microsoft® 36-i THE LAW OF EVIDENCE. [book II. the sign-manual {Omiclmnd v. Barker, Willes, 538^ 549-50; but see Mighell V. Johore {Sultan), 1894, 1 Q.B. 149; and cp. Best, s. 183). If, therefore, the person is bound to record the fact, the proper evidence is a copy of the record duly authenticated; but as to matters which he is not bound to record, his certificate, being extra-judicial, is merely the unsworn statement of a pri- vate person and will ibe rejected (Tay. s. 1784). Certain exceptions, how- ever, have been allowed to this rule, partly on the historical analogy mentioned above, and partly on grounds of convenience, although the cases themselves are neither uniform nor very satisfactory. By Statute, also, a variety of matters have been rendered provable by the certificates of ofiicials, either generally, or for the special purposes of certain Acts ; the certificates being sometimes made conclusive (as to the efEect of this provision, see post, 369), sometimes sufficient (which appears to mean conclusive in the absence of evidence to the contrary: Board of Trade v GlenparTc, 1904, 1 K.B. 683, 687 ; cp. Garbutt v. Durham Committee, 1904, 2 K.B. 514), and sometimes merely prima facie evidence of the matters certified. The insertion of extraneous matters wiU not invalidate the certificate (Bake- well V. Davis, 10 T.L.K. 40) ; but it seems doubtful whether a statutory certificate, when defective, can be supplemented by the oral evidence of its author (Hudson v. Bridge, 88 L.T. 550; post, 588). Identity of Persons, &c., named in Certificates (see atite, 343-4; post, 523). EXAMPLES. Common Law Certificates. Admissible. The King's certificate under the sign- manual, authorising the release of a pris- oner, is evidence of the legality of the dis- charge {B. V. Miller, 1 Itea. 74; R. v. Gully, id. &S; cp. Mighell v. Johore (8ul- tmi), infra). The license of the Pope during his supremacy in this country is evidence of an impropriation (Cope v. Bedford, Palm. 426) ; so, the Pope's Bull is evidence that monastic lands were tithe free at the time of the dissolution of the monasteries (Glanricarde's Oase, Palm. 37-8). A certificate or letter from, or on behalf of, a Secretary of State in his official capa- city is equivalent to a certificate or letter from his Majesty, and is conclusive evi- dence of the matters stated, e.g. the in- dependence of a foreign Sovereign [Mighell V. .Johore (Sultan) , X894, 1 Q.B. 149, C.A. ; and under the Foreign Jurisdiction Act, 1890, s. 4, the certificate of one of his Majesty's principal Secretaries of State is conclusive as to the extent of British jur- isdiction abroad]. The certificate of the See. of State for India is evidence that an Indian official is entitled to administer oaths, and judicial notice will be taken of a signature so authenticated (Ferguson v. lienyon, 16 W. R. 71; ante, 23). Inadmissible. The King's certificate, under the sign- manual, of a mere matter of fact, has been said to be inadmissible (Omichund v. Barlcer, Willes, 550 ; and see the discussion in Berlieley Peerage, 1891, Times, June 27, and L.Jo., July 4, in which a letter or certificajte of the Prince Regent, written when the Regency Act was in force, was rejected in proof of certain facts known to him, and relating to the pedit'ree of the claimant. The document in that case, however, appears to have been written by the Prince dn his private capacity and post litem motam) . Digitized by Microsoft® CHAP. xxxii.J OFFICIAL CERTIFICATES AND RETURNS. 365 Admissible, The certificate of a Colonial Secretary is said to be evidence of Colonial law (Tristram & Coote's Probate Practise, 14th ed., p. 52.) An Ambassador's certificate has in two cases been admitted to prove foreign law (see Foreign Law, post, 389; this is doubted in Tay. s. 1784) . The Heralds' Funeral Certificates are evidence of the matters of pedigree stated therein {Sturla v. Freccia, 5 App. Cas., 623, 645; Hubback, Ev. of Suec. 565). A passport granted by an English Secre- tary of State is evidence that the person described therein was abroad at a given date (Whaley v. Carlisle, 17 Ir. C.L.R. 792). The certificate of the Sec. of State for War as to a sergeant's station is similarly admissible (Lloyd v. Woodall, 1 Wm. Bl. 29, 30). A bishop's certificate of ordination is evidence of holy orders (R. v. Bathicick, 2 B. & Ad. 639, where the certificate was 30 years old, produced from proper cus- tody, and seaJed with the bishop's private seal; aliter perhaps, had it been his cor- porate seal, for then some evidence would have been required that it was the proper one) ; and in cases of dower his certificate of msirriage is conclusive (Ilderton v. nderton, 2 H. Bl. 155-60) ; as is his certi- ficate that a chapel is licensed for mar- riage (7 & 8 Viet. c. 56, s. 2) . A certificate that a marriage had been solemnised at Utrecht, and that the parties had cohabited there as man and wife, such certificate being given under the seal of the Minister there and of the said town, — Held sufficient proof of such mar- riage from the necessity of the case and as the best evidence obtainable (Alsop v. Bowtrel, Cro. Jac. 541, disapproved- in Omichund v. Barker, WJUes, 538, 550). A minister's certificate of a marriage performed by him was admitted by Parke, B., at nisi prius, on the ground that it was part of the transaction, Oiough the register itself was rejected [Stockhridge v. Quicke, 3 C. & K. 305, sed qu. The ground stated is not satisfactory, and the case was doubted in Miller v. Wheatley, 28 L.R. Ir. 144, 158. See ante. Declarations in course of Duty, p. 291]. A certificate of a Japanese marriage, given by the secretary of the governor before whom it was performed, was admitted in Bnnhley v. Att.-Oen., 15 P.D. 76, but the leave of the Court had been obtained, and the Att.-(Jen. consented. A certificate may of course be admissible if tendered as secondary evidence of the register ; and Inadmissihle. The certificate of a commissioner of Excise as to the accuracy of the Excise books, is inadmissible (Dunlar v. Barvie, 2 Bli. 351). An officer's certificate is not (at coiu mon law) evidence of the military service, &c., of a subordinate [Roiinson v. Buc- cleuoh, 31 Sol.Jo. 329, C.A. ; see, however, the Army Act (1881), s. 163, cited infra j and as to Army Lists, &c., ante, 350, 353. The certificate of the rector or prefe;;sors of a University is not evidence of the grant of a diploma. IMoises v. Thornton, 1799, 8 T.R. 303. In this case, to prove a medi- cal degree, the plaiutifiE produced a diploma under the seal of a University, and to authenticate it called a witness who had no previous knowledge of the University, its constitution, or professors, but to whom the above officials had admitted the diploma and its signatures to be theirs, and also signed a certificate to the same effect. It was held that the diploma was not evi- dence either as the original corporate act, or as a copy thereof, but that either the ori- ginal books containing the act should have been produced and the seal proved to be the proper seal by some one who knew it, or else an examined copy of the entry ten- dered.] The certificate of the Veterinary College is not evidence that a student had attended lectures there (S^well v. Corp, 1 C. & P. 392 ; the ground of rejection here was that the College was not a public body known to the law.) A minister's certificate of a marriage performed by him, but not tendered merely as secondary evidence of the regis- ter, was rejected in Nokes v. Milioard, ti Add. 386; and see Farrell v. Maguire, 3 Ir.L.R. 187, cited irnYe, 291 ; and Hubback, Ev. of Suce. 258. Digitized by Microsoft® 366 THE LAW OF EVIDENCE. [book II. Admissihle. it would be receivable in a case of pedigree if i/roved to bave been acknowledged by a deceased relation (Hubback, Ev. of Succ. 258). ■ . Justices' certificates as to encroaebments on, or repairs to, highways used, by long- established practice, to be admissible to prove the facts certified (B. V. Mawhey, 6 T.R. 634-8). The ' certificate of a Judge or clerk ot a Foreign Court, is evidence that a foreign official is duly qualified to adminsiter oaths (Be Lambert, L.R. 1 P. & D; 138 ; Levitt V. L., 2 Hem. & M. 626) . As to certificates of Foreign Law, see sii/pra, and post, 389. A certificaite -of a Notary is evidence of the protest abroad of a foreign bill of exchange (Bayley on Bills, 490; Oeral- opulo V. Wieler, 10 C.B. 690) ; or that an affidavit has been duly sworn before him abroad {Be Davis' Trusts, L.R.8.Eq.98 ; Be Lambert, sup.; and' see Annual Prac- tice, Notes to O. 38, r. 6) ; or that a power of attorney has been duly executed in a British colony (Arrr),strong v. Stockham, 24 L.J.Ch. 176; Hayward v. Stephens, 36 L.J. Ch. 135) ; or that a foreign official is duly qualified (Exp. Worsley, 2 H. Bl. 275 • Omealy v. Newell, 8 East, 364 ; Cole V. Sher'ard, 11 Ex. 382; AUott v. A., 29 L.J.P. & M. 57 ; Be Magee, 15 Q.B.D. 332 ; Brookes' Notary, 6th ed. 157-8 ; as to judi- cial notice of notarial seals and signatures, see ante, 24; and as to where verification is required, see 8harpe v. Jackson, 39 L. Jo. 400; and Stringer on Oaths, 3rd ed. 46-55) . A consular certificate has been received to prove that a certain person held the office of notary abroad {Haggitt v. Ineff, 24 L.J.Oh. 120; and see now the Com- missioner for Oaths Acts, 1889, and 1891, ante, Judicial Notice, 24). It was also made evidence of certain facts connected with marriages solemnised before him un- der the Foreign Marriages Act, 1849, s. 17 ; but see now ante, 346. As to a certificate of the personal service of a writ by a foreign process-server, see Ford V. Miescke, 1885, W.N. p. 198. Inadmissiile. In a Workman's Compensation case, the certilicate of a doctor that the applicant was " incapacitated from work," ds not ad- missible to prove that fact [Biohards v. Sanders, 5 B.W.C.C. 352, C.A.; Flynn v. Burgess, 48 Ir. L.T.R. 132. C.A. AUtet as to the statutory certificate by a Medical Bieferee, see Chuter v. . Ford, cited post, 371;]. In Appleton v. Braybrook, 6 M. & S. p. 37, Abbott, J., said : " The certificate of a notary is not received as evidence of the facts certified." And a Notarial certificate has been rejected as evidence of the pre- sentment 5n England of a foreign biU (Ghesmer v. Noyes, 4 Camp. 129) ; or of tiie due execution of a deed in a foreign country (Exp. Church, 1 D. & R. 324), or British colony (Nye v. Maodonald, L.R. 5 P.C. 357). And a notarial copy has been rejected as secondary evidence of a foreign will (Be Brdxcn, 80 L.T. 360) ; and of a foreign marriage settlement (Permanent Trustee Go. v. Pels, 1918, A.C. 879; op. post, 538, 548, 560) . A consular certificate is not evidence of the amount realised by the sale of goods at a foreign port, although the consul is required by law to superintend the sale (Waldron v. Coombe, 3 Taunt. 162). The certificate of Lloyd's agent abroad is not receivable to prorve the amount of damage done to goods at a foreign port, even against a subscriber (Drake v. Mar- ry at, 1 B. & C. 473). Statutory Certificates. The following are some of the principal matters provable by certificate under vari- ous statutes : The certificate of the Speaker of the House of Commons as to any matter, given under the Parliament Act, 1911, s. 3, is conclusive. Birth, Baptism, Marriage, Death and Burial. As to these certificates, which are merely certified copies of the registers, and Digitized by Microsoft® CHAP, xxxii.] OFFICIAL CERTIFICATES AND RBTUENS. 367 Admissible. Inadmissible. whose admissibility is determined by that of the latter, 'see ante, chap. xxx. A certificate of Naturalization (prov- able by production or certified copy) con- fers the same status as that of a natural- born British subject [British Nationality and Status of Aliens' Act, 1914, ss. 3, 21. The Act contains no provision as to the evi- dential effect of the certificate]. Previous trial and conviction or abguittal of Indictable Offences may (either in civil or criminal cases, Richardson v. WilUs,' L.R. 8 Ex. 69) be proved by the certificate of the clerk, or other person having the custody of the records, or his deputy ; the certificate to contain " a copy of the in- dictment, trial, conviction and judgment, or acquittal, as the case may be, omitting the formal parts" (14 & 15 Vict. c. 99, s. 13; as to the Begisters of Convictions under the Summary Juris. Act, 1S79, see post, 558). A previous conviction of any indictable offence may, for the purpose of discrediting a ^witness, be proved by a certificate containing the subsitance and effect only of the indictment and convic- tion and signed as above (28 & 29 Vict. c. 18, s. 6; post, 482) ; and a previous conviction of any indictable offence may also be proved for any purpose, in a sim- ilar manner to that last mentioned ; and any summary conviction may be proved by a copy of such conviction purporting to be signed by the justice, or tie officer of the court, or the clerk or other oflBcer of any court to which such conviction has been returned (34 & 35 Vict. c. 112, s. 18 ; Tay. s. 1613), or by a copy of the minute or memo, of the conviction entered in the register required to be- kept under the Summary Jurisdiction Act 1879, s. 22 (Or. Just. Admn. Act, 1914, s. 28; post, 558). Production of the certificate, with evidence of defendant's identity, is sufficient proof of his " previous conviction " {R. v. Drab- ble, 53 Sol. Jo. 449). Proof of previous trial for felony or mis- demeanour may in subsequent trials for Perjury, or subornation, committed there- in, be given by a certificate containing the substance and efEect only (omitting the formal part) of the previous indictment and trial, purporting to be signed Dy the clerk of the court or other officer having the custody of its records, or by the deputy of such derk or officer, which shall be sufficient evidence thereof without proof of the signature or official character of the person appearing to have signed the same (Perjury Act, 1911, s. 14; post, chap, xliii., 556, 557) . Dismissal of Charges at Petty Sessions may, in addition to other modes, be proved as follows : — By a copy, certified by the justices, of the order dismissing any charge of an. indictable offence (42 & 43 Digitized by Microsoft® 368 THE LAW OF EVIDENCE. [book II. Admissihle. Vict. c. 49, s. 27, the dismissal to have the same effect as an acquittal on a trial on indictment) ; or dismissing any charge of an offence heard summarily out of ses- sions (11 & 12 Vict. c. 43, s. 14). The dismissal of charges of Assault may be proved by the justices' certificate stat- ing, the fact of such dismissal (24 & 25 Vict. c. 100, ss. 42, 43) ; which operates to release the defendant (but not joint- tort-feasors with him. Dyer v. Munday, 1895, 1 Q.B. 742) from all proceedings civil or criminal, for the same cause (s. 45 ; as to similar relief in other cases of dismissal or summary conviction, see post, 410-1, 413). Such certificate must be made on the merits and in presence of both par- ties (Reed v. Nutt, 24 Q.B.D. 669) ; it should specify the grounds of dismissal; it should he given within a reasonable time after the hearing, if not before the justices separate, and to operate as a bar, must be specially pleaded [Tay. ss. 1615-1620; 1710; Eos. N.P. 903; ep. Great Southern By. V. Dariy, 27 Ir.L.T.R. 45; Donnelly V. Ingram, 31 id. 139]. Certificates of Ministers of Pensions, Labour, Food, Shipping, National Service and of the President of the Air Board and President of the Air Council, that docu- ments purporting to be issued by them were duly issued, are conclusive [Ministry of Pensions Act, 1916, s. 16; New Minis- tries and Secretaries Act, 1916, s. 11 ; Ministry of National Service Act, 1917. s. 2; Air Force (Constitution) Act 1917. s. 10]. Adulteration of Food. Under the Sale of Food and Drugs Act, 1875, s. 21, the analyst's certificate is sufficient evidence against the defendant of the result of the analysis, unless he requires the analyst to be called as a witness, or gives rebut- ting proof (Hemtt v. Taylor, 1896, 1 Q.B. 287). So, under the Act of 1899, s. 22, its production by the defendant is similarly sufficient; and op. the Fertilizers and Feeding-Stuffs Acts, 1893, s. 5, and 1906, s. 3. See further the Food and Drugs Acts, 1875 to 1907 as amended by the Milk and Dairies Act, 1915, ss. 8-9. It has been doubted whether a defective certificate can be supplemented by the oral evidence of the analyst (Hudson v. Bridge, 68 L.T. 550). A certificate stating that the sample of milk analysed contained " 6 per cent, of added water, which opinion is based on the fact that the sample contains 7.97 per cent, solids not fat, whereas genuine milk contains 8.5 per cent, solids not fat," is admissible, for though not stating the constituent parts of the sample, yet it showed the grounds on which the opinion was based and on which the court could act (Bridge v. Boward, 1897, 1 Q.B. 80; Qukilan v. Evison, ir97, Times, January Inadmissible. Adulteration of Food. A certificate obtained in proceedings against a retail dealer is not admissible on a subsequent charge against the wholesale vendor (Tyler V. Kingham, 1900, 2 Q.B. 413; R. v. Mahony, 1909, 2 I.R. 490) ; nor even on a second charge against the same defendant (Fulham Council v. Farmers' Co., 39 Ii.Jo. 195; cp. Haynes v. Davis, 1915. 1 K.B. 332). A certificate stating that the sample of milk analysed contained "5 per cent of added water to the prejudice of the pur- chaser," is inoperative since, as the amount of water inherent in milk varies apart from adulteration, it gave no grounds for the opinion on which the court could act (Fortune v. Sanson, 1896, 1 Q.B. 202. Semite, the certificate should have set out the constituent parts of the sample, in- cluding the total percentage of water therein). Digitized by Microsoft® CHAP. XXXII.] OFFICIAL CEKTIFICATES AND EETURNS. 369 Admissible. 30). Where in a case, not of adulteration, but of abstraction of fat from food, the analyst added in his certificate under head of " Observations," that the abstraction of fat was a f(aud and might be injurious to health," — held, though " observations " should only be made in cases of adultera- tion, yet that as "they were mere expres- sions of opinion on which the magistrate had not acted, they did not invalidate the certiificate [Bakewell v. Davis, 1894, 1 Q.B. 296; and see Hindley v. Haas, 88 L.T. 465; Bayley v. Cook, 92 L.T. 170; and Hull v. Horsnell, id. 81 ; aUter, if they had been statements of fact, since the lat- ter being evidence of their truth under the statute, might tend to convict the defen- dant; and see Roiinson v. Newman, 86 L.J.K.B. 814, holding that as the statute allows observations {e.g. whether a mix- ture is in excess of the normal) a convic- tion may be founded on these alone]. So, a certificate showing results only, but not details, is admissible {Jenkins v. Warden, 35 T.L.R. 368). Incorporation of Joint Stock Compan- ies. The Registrar's certificate is con- clusive evidence that all requisitions in respect of (o) registration, or (6) matters precedent or incidental thereto, have been complied with, and that the association is a company authorised to be registered and duly registered under the Act (Com- panies (Consolidation) Act, 1908, s. 17). [Under the Act of 1862, s. 18, which, however, only referred to requisitions -in respect of (a), the registrar's certificate was generally held to be conclusive {Oakes V. Turquand, L.R. 2 H.L. 325, 354; Peel's case, 2 Ch. 674, 682; Re Nassau Co., 2 Ch.D., 610; Olover v. Gales, 18 id. 173) ; but it was held not conclusive on the ques- tion whether its provisions applied to the Co. at all {Salomon v. S. 1897, A.C. 22, 55; Re National Del. Corp. 1891, 2 Ch. 505 ; and 'cp. Re Hercules Ins. Co. 11 Eq. 321, and Re Northumberland Co., 2 De G. and J. 357, 371 ; contra Ladies' Dress Assoc. V. Pulbrooh, 1900. 2 Q.B. p. 381; Re Laxon, 1892, 3 Ch. 555). In Buckley on Companies, 9th ed. 31, i; is said that thp present sec. presumaibly omits the ob- jections raised in Salomon v. S., and Re National Deb. Corp. sup.; but in British Assoc, do. v. Nettleford, 27 T.L.R. 527, Hamilton, J., decided that sec. 1 of the CJompanies Act 1900, which is in similar terms to the present sec, did not make the certificate conclusive that the Co. was validly registered and was not really a trade union, and that the sec. only dealt with ministerial acts]. Under former Acts, the certificate was said also to be exclusive evidence, i.e. the only proof of incorporation receivable ,{Re Dudley LE. — 24 Inadmissible. So, a certificate that " I estimate the excess of water as 13 per cent, above what is allowed by statute,'' ds inadmis- sible as stating matter both of law and fact (Newby v. Sims, 1894, 1 Q.B. 478 ; Hudson V. Bridge, 88 L.T. 550) ; or one stating merely that a sample of beer con- tained " arsenic," or a " serious quantity of arsendc "_ (Lee v. Bent, 45 Sol.Jo. 505) ; or one which omits to insert the weight of a sample when the validity of the analysis depends thereon (Sneath v. Taylor, 1901, 2 K.B. 376; Hudson v. Bridge, sup.). And a report made by a Public Analyst, but not pursuant to any statutory duty, is not admjissible to prove the ingredients of food {Shortt v. Robin- son, 63 J.P. 295, cited ante 362). [As to the sufficiency of the certificate, see further Goulder v. Rook, 1901, 2 K.B. 290; Bayley v. Cook, 92 L.T. 170; and 67 J.P. 363, 374. And as to samples taken subsequently to the date of the offence, see Wilkinson v. iClark, 1918, 2 K.B. 636; Smith V. PhiUpott, 1920, 1 K.B. 222. Digitized by Microsoft® 370 THE LAW OF EVIDENCE. [book II. Admiasiile. Tramways, 42 W.B. 126; sed qu. and this fact may also be inferred from trading, t6c., ante, 109). [As to corporation and company books, generally, see post, chap, xxxiii]. Proprietorship of Shares. A certificate under the common seal of the company is prima facie evidence of the title of a member to the share specified (Companies (Consolidation) Act, 1908, s. 23) ; and will prevail over the transfer, or an entry in the register (Henderson v. Coulson, 6 T.L.R. 28). As to estoppel by the cer- tificate, see post, chap, xlvii; and as to Company Books generally, post, chap, xxxiii. The Passing of Resolutions. The decla- ration of the chairman of a general meet- ing is, unless a poll is demanded, conclu- sive evidence of this fact [Companies Act 1908, s. 69 (3) ; though this has been held not to apply to invalidity appearing on the face of the resolution as vfhere the required majority is shown not to have been obtained {Be Caratel Mines, 1902, 2 Ch. 498; Allison v. John- son, 46 'Sol. Jo. 686) , or where fraud is shown (Arnot v. United African Lands, 1901,1 Ch. 518, C.A.). Composition or ticheme in Bankruptcy. A certificate of the Official Receiver that a composition or scheme has been duly accepted and approved, shall, in the absence of fraud, be conclusive as to its validity [Bankruptcy Act, 1914. s. 16 (14)]. Patents, Designs, and Trade Marks. A certificate purporting to be given by the Comptroller-General of Patents, &c., "as to any entry, matter, or thing which he is Eiuthorisfed by this Act, or by any general rules made thereunder, to make or do, shall be prima facie evidence of the entry hav- ing been made, and of the contents thereof, and of the matter or thing having been done or left undone " [Patents and De- signs Act, 1907 (7 Ed. VII. c. 29), s. 78-9 ■ so, also, the Registrar's Certificate under the Trade Marks Act, 1905 (5 Ed. VII. c. 15), s. 51; cp. ante, 348]. Registration and Enrolment of Deeds and Wills, in Yorkshire, Middlesex and Ireland. As to such certificates, see ante, 349, and post, 580-1: and certificates of searches axe also admissible under the Acts thwe mentioned. As to the effect of reg- istration, see further, ante 349 ; »lso Ros. N.P 18th ed. 143, 211; and Tay. ss. 1645- 1648. Registration of Deeds of Arrangeme.t, Bargains and Sale, Conveyances in Mort- main, do. As to the effect of certificates of the registration of these, see post, chap, xliii., p. 565. Registration of British Ships. The Registrar's certificate is prima fade evi- dence of the matters contained or endorsed (Merchant Shipping Act, 1894, ss. 84, 695). Inadmissible Registration of Bills of Sale. The cer- .tificate of registration is no evidence that a proper affidavit has been filed {ante, 122; post, 564. Digitized by Microsoft® CHAP. XXXII.] OFFICIAL CERTIFICATES AND RETURNS. 371 Admissible. Inadmissible. Title to Land. Under the Land Transfer Act, 1875, s. 80, certificates of title or charge (or office copies thereof), are prima facte evidence of the matters contained. See Land Transfer Rules, 1903, rr. 258-68. Rules of BitUding Society. The cert: ficate of the Registrar is conclusive evi- dence of the validity of the rules of any Building Society, i.e. that all necessary steps were taken to render them binding on the society and its members [Bldg. Soc. Act, 1874, s. 20 (3) iBosenlerg v. Jforthumlerland goo., 22 Q.B.D. 373.] Post Office Savings Bank. The certifi- cate of the Postmaster-General, or of one of his Secretaries, is admissible to prove that a bank is sudh (post, 376). Qualification of Apothecaries. A certifi- cate, purporting to be given under the com- mon seal of the Apothecaries' Co., is evi- dence of qualification, the seal being judici- ally noticed (14 & 15 Vict. c. 99, s. 18, ante, 24). Service of Military and Naval Officers. By the Army Act (1881), s. 163, sub-s. (1) (6), any letter, return, or other docu- ment, purporting to 1>e signed by, or on be- half of, a Secretary of State, or the Com- missioners of Admiralty, [or of .the Air Council, (Air Force Constitution Act 1917, s. 12) ] or the commanding-ofiScer of any i)ortion of his Majesty's forces, or of any of his Majesty's ships ; — ^is evidence of service in, or discharge from, such forces or ships respectively; In Re Limond, 84 L. J. Ch. 833, letters from the India Office, and from the colonel and a captain of a deceased's officer's regiment were read to show that his wall was made whale on ac- tive service. It is not clear whether this was by consent or otherwise. See, how- ever, Robinson T. Bucdewsh^ante, 342, 365 ; cp. R. V. Orav, 6 Cr. APP. K. 242. Age, Fitness and Wages of Children, etc. Under the Factory and Workshop Act, 1901, s. 147 (3), a declaration by the certifying, surgeon of the district that he has personally examined the person in question and believes him to be under age stated is admissible as evidence of such age; and his . certificates, under ss. 63-5, are probably also evidence of age and fit- ness for employment (Tay. s. 1645). And, under the Children Act, 1908, s. 123, a copy of an entry in the wages book of the employer, or if no book is kept, a statement by him, or any responsible_ person in his employment, is prima facie evidence of the amount and payment of wages to the person stated. The certificate of a Medical Referee, under tiie Workmen's .Compensation Act, 1906, s._8, is conclusive of the existence of the disease from which a workman was suffering, and the date of his disablement. {Chuter V. Ford, 1915, 2 K.B. 113). [For a fuller list of Statutory Certifi- cates, see Tay. ss. 1611-1659]. Digitized by IVIicrosoft® ( 3;2 ) CHAPTBE XXXIII. COEPOEATION, COMPANY AND BANKERS' BOOKS. Entries in the public books of a corporation, made by the proper officer, are, at common law, prima facie evidence, even against strangers, of the public acts of the corporation ; and are, by statute, often made evidence,,prima facie or conclusive, of private matters as well. [Tay. ss. 1781-1783; Eos. ]Sr.P.'125, 219; Grant on Corporations, 317-319; Hubback, Ev. of Suce. 536-537; Wliart. ss. 661-663.] At Common Law. The books must have been publicly kept as the corporation books {Shrewsbury v. Hart, 1 C. & P. 113), and the entries made by the usual officer or his substitute (B. v. Mothersell, Stra. 93; and see Baker v. Cave, 1 H. & N. 674). Unsigned entries will be rejected {Fox T. BearbloclCj 17 Ch.D. 429), unless there has been a usage not to sign them {Lauderdale Peerage, 10 App. Cas. 693, 700.) So, where an" entry required a stamp, an unstamped entry was rejected in favour of a loose paper, properly stamped, from which the entry had been transcribed, and which was held to be the only original and effectual act of the corporation {R. v. Head, Peake Ev., 5th ed. 84 n, cited ante, 341). Erasures will generally be presumed to have been made before the entries were signed {Steevens' Hospital v. Dyas, 15 Ir. Ch. E. 405; post, 520). As to informalities in books kept under Statute, see post, 374. Entries in the public books of a corporation as to private matters, and entries in its private boohs, are only receivable as admissions against the corporation {Brett V. Beales, M. & M. p. 429; Hill v. Manchester Waterworks, 5 B. & Ad. 866), or members who have acquiesced in them {Hill v. Manchester Water- works, sup.; Waterford Corp. v. Price, 7 Ir. L.E. 310 ; Re Llanharry Co., Stock's Case, 10 Jur. KS. 790, 812; Hallmark's Case, 9 Ch.D. 329; Lindley's Com- pany Law, 6th ed. 432-3; ante, 146, 258) ; but are not admissible in its own favour {id.; R. v. Debenham, 2 B. & Ad. 145 ; Marriage v. Lawrence, 3 B. & Aid. 142; A.-G. v. Warwick, 4 Euss. 223). Private entries have, however, been received on questions of ancient possession, not as evidence of the facts stated, but to show acts of ownership, or to explain local terms {Malcolmson V. O'Dea, 10 H.L.C. 593; ante, 113). EXAMPLES. Admissible. Inadmissible. Entries relatipg to the following matters Entries relating to the following matters have been received as bedng of a public have been rejected as being of a private nature : nature : Digitized by Microsoft® CHAP. xxxiii.J CORPOEATION AND BANKERS' BOOKS. 373 Admissille. Inadmissible. The election, swearing in, disfrandiise- Proceedings against certain persons for ment, or restoration of a corporator refusing to pay toll (.Brett v. Beales, M. (Symmers v. Regem, Cowp. 489 ; Brown & M. 419 ; London v. Lynn, 1 H.Bl. 214 n ; V. Ijondon Corp., 11 Mod. 225) ; the cus- Marriage v. Laioi-ence, 3 B. & Aid. 142) ; toms of a corporation (Bruin v. Knott, 12 a right to the ownersh/ip of a house Sim. 436); and its by-laws (Holdsworth (Waterford Coi-p. v. Price, sup.) ; or, to V. Dartmouth Corp., cited Eos. N.P., ISth the apiwrintmeut of a curate (A.-G. v. ed. 217). — So, on a question of pedigree, Warwick, 4 Russ. 222). So, to prove entries in the books of a corporation have fraud or irregularity in the execution of a been received to prove thaf a member was bond by a corporation, their books have received by a certain deseniption ( Collins been rejected as evidence for them, against V. Maule, 8 C. & P. 502) ; or was ordained a member of the corporation (Sill v. Man- and despatched as a missionary abroad Chester Waterworks Co., sup,.; Holdsworth (Lauderdale Peerage, 10 App. Cas. 692). v. Dartmouth Corp., opposite). See further as to University and College books, ante, 354. By Statute. The books of corporations and public companies are in some instances rendered admissible by statute iu proof of their contents, not only as to public, but also as to private matters. Thus, the registers of companies, subject to the Companies Glauses Consolidation Act, 1845, required by s. 9 to be sealed with the company's seal, and to contain the names and addresses of the shareholders, the shares (distiaguishing each by its number) held by them, and the amounts paid thereon, are, in actions for calls by the company, made by s. 28 prima fade evidence of the defendant being a shareholder and of the number and amount of his shares (see Portal v. Emmens, 1 C.P.D. 201, 312-313, per Lindley, J.) ; and by s. 98 the minute-books which are required to contain notes, minutes, or copies of the directors' appointments, contracts, orders, and proceedings of meetings, are* if signed by the chairman of such meetings, receivable in all courts as prima facie evidence of the inatters entered therein, of meetings having been duly convened and held, of the persons making or entering the orders, &c., being shareholders, directors or members of the committee, and of the signature of the chairman and the fact that he is such. So, by the Companies {Consolidation) Act, 1908, the Register of members required by s. 35 to cbntaiu the names, addresses and occupations (if any) of the members ; the shares (distinguishing each by its number) held by them ; the amounts paid, or agreed to be considered as paid, thereon; and the dates of entry and cessation of membership, are primA facie evidence of the matters directed or authorized by the Act to be inserted therein (s. 33, replacing s. 37 of the Companies Act, 1863). By s. 71 of the same Act (replacing s. 67 of the Companies Act 1863), the Minute-hoolcs required to contain minutes of all proceedings of general meetings and (where they are directors or managers), of its directors or managers, are, if purporting to be signed by the chairman of that or of the next succeeding meeting, evidence of the proceedings; and, until the contrary is proved, every general meeting of the company, or meeting of directors or managers, in respect of the proceedings whereof minutes have been so made, shall be deemed to have been duly held and convened, and all proceedings had thereat to have been duly had, and all appointments of directors, managers, or liquidators, shall be deemed to be valid. Jlinute-books under the repealed Act of 1856, s. 40, have been held evidence between shareholders, but not to prove a party a shareholder {Fox's Digitized by Microsoft® 374 THE LAW OF EVIDENCE. [bookii. Oase, 3 De G. J. & S. 465; and see Maguvre's Case, 3 De G. & S. 31; and Clarice v. Imperial Cos Co., 4 B. & Ad. 315) ; but under the Acts of 1862 and 1867, the register and minutes, &c., were received as prima facie evidence of the ownership of shares against a director, though held to be rebutted, by his own conduct and that of the company (Re Barangha Oil Co., Arnot's Case, 36 Ch.D. 703, C.A.). And the chairman having prima facie authority to decide all incidental questions which arise at such meeting and necessarily require decision at the time {Henderson v. Bank of Australasia, 45 Ch.D. 330), the entry by him in the minute-book of the result of a poll, or of his decision .on all such questions, is prima fade evidence of such result and of the correctness of such decisions {Be Indian Zoedone Co., 36 Ch.D. 70.) As to the chairman's Declaration as to the due passing of resolutions at General Meetings, see ante, 370. By c. 330, "Where any company is being wound up, all books and papers of the company {e.g. an allotment book. Re Great Northern Salt Works, Exp. Kennedy, 44 Ch.D. 473, though no record appears of any board or committee having been held at that date, id.) and of the liquidators, shall, as between the contributories of the company (or an alleged contributory. Re Barangah Co., sup.; but as to strangers, see Re Pyle Works, 1891, 1 Ch. 173, 184), be prima facie evidence of the truth of all matters purporting to be therein recorded." Minute-books of meetings of creditors under the Bankruptcy Act, 1914, s. 138, are similarly receivable {ante, 349, post, 661). As to the admissibility of certificates of incorporation, or of the proprietorship of shares, see ante, 369-70). Informalities and Errors. Where the Act requires ,a register to be sealed, an unsealed register is inadmissible {Birkenhead Co. v. Brownrigg, 4 Ex. 436 ; Cheltenham Co. v. Price, 9 C. & P. 55 ; Wolverhampton Co. v. Hawhesford, 11 C.B. N.S. 456) ; but otherwise clauses as to the mode of signing minutes, keeping registers, and making oiEcial returns, are considered as directory only ; it being sufficient if the provisions of the particular Act are substantially complied with {Bain v. Whitehaven Ry., 3 H.L.C^ 1; East Oloucestershvre Ry V. Bartholomew, L.R. 3 Ex. 15; Lindley's Company Law, 6th ed. 143-8). Thus, company books have been received notwithstanding the omission of a shareholder's address, or of the amount paid, or of the distinctive numbers of his shares; and an official return will be admissible although its heading may be inaccurate, or although it does not purport to be signed by the proper officer, or is signed at'a wrong time (Lindley, 74-85, and cases cited.) A share ledger has been received as a register {Weikersheim's Case, L.R. 8 Ch. 831) ; as also a "series of volumes, the last only of which, containing a recapitulation of the others, was sealed in accordance with the Act {Inglis V. G.N.Ry., 1 Macq. 113). On the other hand, a rough memorandum-book or paper containing the names of, and shares held by, a portion of the shareholders, although sealed has been rejected as a register {Wolverhampton Co. V. Hawkesford, sup.; see Lindley, 76, 144-6) ; and so also a series of allotment sheets not intended as a register but only as materials from which one might be prepared {Re Printing Co., Exp Cammell, 1894, 2 Ch. 393, 398. Aliter, perhaps if the sheets had been treated by the Company as a register until a formal one existed, per Kay, L.J.). Corrections. A company may correct errors in its own register, at least such as the Court would authorize or compel the correction of {Hartley's Digitized by Microsoft® CHAP. xxxiii.J COEPOEATION AND BANKBKS' BOOKS. 375 Case, L.E. 10 Oh. 157; Be Etna Co., Ir. R. 7 Eq. 264); or it may be allowed or compelled to do so, either under statutory provisions to that effect. (as in the Companies (Consolidation) Act, 1908, ss. 32, 163), or by inandamus [Lindley, 79; 165-172; 1045]. Bankers' Books. Copies of entries in bankers' books — i.e. ledgers, day- books, cash-books, account-books, and all others kept in the ordinary business of the bank (whether by the bank making the entries, or its successors, and whether for daily use or only occasional reference, Asylum for Idiots v. Handysides, 22 T.L.E. 573)— are receivable in all legal proceedings (for or against any one, and though ttie originals might not b§ so, Harding v. Williams, 14 Ch. D. 197; Land, and Westr. Bank v. Button, 51 Sol. Jo. 466 ; in Amott v, Hayes, 36 Ch.D. 731, 735, however, Cotton, L. J., remarked that bank books were only evidence against a customer if he had recognized the account, and in the same ease, reported 56 L. J. Ch. 844, 847, Fry, L.J., who decided Harding v. Williams, sup., stated that the latter case had been disapproved by the C.A.) as prima facie evidence of the entries, or of the matters, transactions, and accounts therein recorded, upon proof that (1) the book was, at the time of the entry, one of the ordinary books of the bank; (2) that it is in the custody or control of the bank (or of the successor of the bank which made the entry. Asylum, &c. v. Handysides, sup.) ; and (3) that the entry was made in the ordinary course of business [Bankers' Books Evidence Act, 1879 (42 & 43 Vict. c. 11) ; ss. 3 & 4; repealing Bankers' Books Evidence Act, 1876 (39 & 40 Vict. c. 48). Prior to these Acts, entries in bankers' books (other than those of the Bank of England, as to which see ante, 348) could only be proved by production of the originals on suipcena duces tecum, and calling the clerks who made the entries, (Cooper v. Marsden, 1 Esp. 1; though in Fumess v. Cope, 5 Bing. 124, Best, C.J., allowed a clerk to prove that a certain party had no balance at the bank by production of a ledger kept by another clerk, remarking that this was sufficient to prove the Negative, though it might not have been to prove the affirmative.) The above proof may be given by a partner or officer of the bank, and either orally or by affidavit (s. 4). But the copy must be examiiied copy, proved orally or on affidavit by some person (who need not necessarily be an officer of the bank, B. v. Allhut, 75 J.P.E. 112; 6 Cr. App. E. 55) who has examined it with the original entry (s. 5), and a mere certified abstract has been rejected (B. v. Scale, 150 C.C.C. Sess. Pap< 329). Production of Original Books. 'No banker or officer of a bank is in any legal proceedings to which the bank is not a party, compellable to produce the bank books, or to appear as a witness to prove their contents, unless by order of a judge for special cause (s, 6). Inspection. Under s. 7, a Court or judge (or stipendiary magistrate, B. V. Kinghorn, 1908, 2 K.B. 949; though quxisre the Ld. Mayor, B. v. Bradlaugh, 15 Cox, p.' 222 n), may, on the application of any party to a legal proceeding, empower him to inspect and take copies of entries in the accounts either of parties or strangers (provided such entries would have been admissible in evidence prior to the Act, Howard v. Beall 23 Q.B.D. 1 ; South Staffordshire Co. v. Ebsmith, 1895, 2 Q.B. 669 ; M' Gorman: v. Kierans, 35 Ir. L.T.E. 84; Be Marshfield, 32 ChJD. 499; Lister v. Yarley 89, L.T. Digitized by Microsoft® 376 THE LAW OF EVIDENCE. [bookii. Jo. 233 ; but see Pollock v. Garle, 1898, 1 Ch. 1, in which the C.A. refused to make such an order in the case of third persons who were neither actual nor constructive parties to the case, e.g. as to the bank balance of a company, in an action against one of its directors for inducing a purchase of its shares by alleged misrepresentation as to such balance; and cp. L'Amie v. Wilson, 1907, 2 Ir. 130) ; and even in the case ^of Banks in •Scotland and Ireland {Eissam v. Link, 1896, 1 Q.B. 574), fpr the purpose of the proceedings (s. 7; see Parnell v. Wood, 1892, P. 137; Fitzpatrick v. M'DonaU, 30 L.E.I. 249; Perry y. Phosphor Co., 71 L.T. 854); but not for ulterior purposes, e.g. to support a libel stating that the plaintiff was a man of no means (Emmott v. Star Newspaper Co., 62 L.J.Q.B. 77; B. V. Bono, 29 T.L.E. 635). Such order must, unless otherwise directed, be served upon the bank three clear days (exclusive of Sundays and bank holidays) before it is to be obeyed (s. 7). The Court may (Arnott v. Hayes, 36 Ch.D. 731, C.A.), though it should not generally {L'Amie v. Wilspn, sup ; Davies v. White, 53 L.J.K.B. 275) make the order ex parte, and also without any affidavit in support of the application — e.g. where the materiality of the entries appears by the pleadings, but the inspection should be limited to the period covered by the matters in dispute (Arnott V. Hayes, sup.). Meaning of "Bank." The word "Bank" is (by s. 9) restricted to (1) banks which have made a return to the Commissioners of Inland Eevenue (such return may be proved by a copy verified by the affidavit of a partner or officer, or by producing a newspaper purporting to contain such copy published by the Commissioners) ; (2) Savings Banks certified under the Acts relating thereto (such certificates may be proved by an office or examined copy of the certificate) ; and (3) Post Office'Savings Banks (proved to be such by the certificate of the Postmaster-General or one of his secre- taries). But by 45 & 46 Vict. c. 72, s. 11, sub-s. 2, the word is extended to include any banking company to which the Companies Acts of 1862 to 1880 apply, and which the Eegistrar of Joint Stock Companies shall have certified to have furnished to him the list and summary with the addition specified by the Act ; and where the bank is a company so registered, such certificate must be produced before the evidence can be used. As to the practice under this Act see, generally, Ann. Pr. Notes to .37, r. 7. Banker and Customer. Pass-Books. In actions between the Bank and a customer, production of the original books may be compelled without a special order under the above Act (s. 6) ; and the pass-book operates as an admission against either {Gaden v. Newfoundland Bank, 1899, A.C. 281, 286). Thus, the pass-book is prima facie evidence against the banker of the state of the customer's account, though he is not estopped from correcting mistakes therein {Gaden v. Newfoundland Bank, sup.; Gordon v. Bank of Syria, 1896, Times, Dec. 7; Holland v. Manchester Banking Co., 25. T.L.E. 386; and see Brighton Syndicate v. Lond. and Cy. Bank, 39 L.Jo. 168, where the bank had negligently allowed the customer's manager to make fraudulent entries), unless the customer has been induced thereby to alter his position {Brighton Empire v. Lond. & Cy. Bank, 1904, Times, Mar. 24; Skyring v. Greenwood, 4 B. & C. 281) ; tod the pass-book is also evidence, Digitized by Microsoft® CHAP. XXXIII.] CORPORATION AND BANKERS' BOOKS. 377 though not conclusive, against the customer {Williamson v. W., L.R. 7 Bq. 542 ; Chatterton v. Land. & Cy. Bank, 39 L.Jo. 168 C.A.), thue the mere fact of his returning it to the bank without ' objection does not constitute it a settled account (Kepitigalla Co. v. National Bank of India, 1909, 3 K.B. 1010; Tagliano v. Bank of England, 23 Q.B.D. p. 263, per Bowen, L.J.), nor preclude him recovering {Walker v. Manchester &c.. Banking Co., 108 L. T. 728) ; nor can the directors of a building society be held to have ratified an illegal borrowing by simply returning a pass-book {Blackburn Building Soc. v. Cuncliffe, 22 Gh.D. 61, 72). Digitized by Microsoft® (378 ) CHAPTER XXXIV. PUBLISHED HISTORIES, MAPS, DICTIONARIES, GRAMMARS AND ALMANACS. SCIENTIFIC, PROFESSIONAL, AND MERCANTILE RECORDS. HISTORIES, (a) Approved public and general histories are admissible as in the nature of public documents or reputation, to prove ancient facts of a public or general, though not of a private, particular or local, nature [Read V. Lincoln (Bp.) 1892, A.C. 644, 653; contra. Darby v. Ouseley, 1 H. & N. 1, must now be considered as over-ruled] . The Court may also, as we have seen, irrespective of this rule, take Judicial notice of public facts, past or present, affecting the government and constitution of the country, and may refer to accredited histories to satisfy itself of their existence (ante, 21, 26). The only practical difference between these two modes of proof is that the evidence in the former case goes to the jury, and in the latter to the Court. As to declarations by deceased persons and reputation respecting public and general rights, see ante, chap, xxv.; as to public Registers and Records, chap, xxx; and as to Public Inquisitions, Surveys, Assessments, and reports, chap. xxxi. [Tay. s. 1785 ; Ros. N.P., 18th ed. 216 ; Steph. art.^^ 35.] MAPS. Published maps generally offered for- public sale are, on similar grounds, admissible to show the relative positions of towns, countries, and other matters of geographical notoriety [B. v. Orton, cited Steph. art. 35, where maps of Australia were received to show the situation of various places at which the defendant was alleged to have lived; B. v. Jameson, 1896. Trial at Bar, Q.B., July 21, Official Rep. 91-5 where standard maps of Rhodesia and the Transvaal were admitted to show the general positions of the places referred to; Bdmundsen v. Amery, Times, Jan. 28, 31, 1911, where War Office Maps were admitted to show the position of various places in S. Africa] . Judicial notice will, as we have seen, also be taken of the geographical position and general names applied to the districts in the Admiralty charts (Birrell v. Dryer, 9 App. Cas. 345; ante, 22). Maps and surveys may be admissible (1) as public documents under chap, xxxi. ; (2) as quasi-public documents under the present heading to prove general geographical facts; (3) as reputation, under chap, xxv.; and (4), private maps and plans may be received as admissions against the party under whose authority they were prepared, or his successors in title (ante, chaps, xviii.-ix. ; Graven v. Pridmore 18 T.L.R. 282 ; M'Eenna v. Eowth, 27 Ir. L.T.R. 48 ; see, however, Phillips v. Hudson, explained ante, 358) ; though not in their favour as against strangers (Pollwrd v. Scott, Peahe, 19' ; Waheman v. West, 7 C. & P. 479). Maps on the back of a lease or conveyance, however, are Digitized by Microsoft® CHAP. XXXIV.] PUBLISHED HISTOEIES, MAPS, &c. 379 part of the contract, and, as such, evidence for or against both parties and their successors, of what was demised or conveyed {Waheman v. West, sup.; as to how far they restrict the deed, see post, 634) . Measurement of Distance by Maps, &c. Where, to show that an offence had been committed within 500 yards of a County boundary, Jt was claimed that the distance could be measured by the nearest road, Parke, B., remarked " I think J must take the distance measured geometrically from the boundary to the spot" \B. V. Wood, (1841), 5 Jur. 335^. So, where in an action for breach of a covenant not to trade within half a mile of the "plaintiff's premises, the question was whether the distance should be measured by the road, by the fields, by the nearest available means of access, or as the crow flies, the court held that it should be measured on the Ordnance Map, by the compass, taken from the nearest point of one house to the nearest point of the other {Moujiet V. Cole, (1872), L.E. 8 Ex, 33; this, as Blackburn J., explained, though it is wh,at would commonly be meant by drawing a circle of half a mile radius round the spot in question, is not precisely the same as an actual straight line between two points, since in the map the surface is treated as a plane and in drawing a straight line it will vary in level.] Under certain acts, e.g. the Parliamentary Voters Eegistration Act, 1843, s. 76, the Muni- cipal Corporation Act, 1883i s. 331, measurement by map is expressly sanctioned by the words "in a straight line on a horizontal plane," as Blackburn, J., pointed out in Mouflet v. Gole, sup. And, now, under the Interpretation Act, 1889, s. 34, measurement of distance under Acts passed since 1889 is, unless a contrary intent is expressed, to be in this manner, i.e. " in a straight line on a horizontal plane." In the Licensing Act, 1910, s. 61, however, a contrary intent 'is expressed and distances thereunder are to be measured by " the nearest public thoroughfare." This, in ordinary eases, can be done by surveyors going over such thoroughfares with a chain; but to measure de novo an imaginary straight line over intervening obstacles obviously requires scientific calculation (see 80 J.P. Jo. 3). DICTIONAEIES AND GRAMMARS. Standard dictionaries are admissible to show the meaning of words [Mathew v. Purchings, Cro. Jac. 303 ; Answer of the Judges to the H.L. (1789), 23 How St. Tr. 303, " Judges can resort to grammars and glossaries if they want such assistance"; B. v. Tomlinson, 1895, 1 Q.B. p. 709; Homer v. H., 8 Ch.D. p. 775; Ee Bayner, 1904, 1 Ch. p. 188; Yangtsze Ins. Assn. v. Indemnity Ass. Co. 1908, 3 K.B. 504, 507], though whether as evidence per $e, or merely to refesh the memory of the judge on a matter judicially noticed (ante, 36), is not very clear. Probably the former view may be supported on the analogy of histories, maps, and scientific tables; thus in B. v. Peters, 16 Q.B.D. 636, 641, Ld. Coleridge, C.J., observed : " It is a well-known rule of courts of law that words should be taken to be used in. their ordinary sense, and we are therefore sent for fnstruction to these books." So, also, Sir J. Wigram: "For the purpose of ascertaining what the characters or words in a document are, the court may call a witness, as it would look into a dictionary for the same purpose " (Extr. Ex. s. 56). See, however, Canada v. Commrs., &c., infra. Although, however, dictionaries (unlike expert or other oral evidence, Camden v. Commrs. of Inl. Bev., 1914, 1 K.B. 647-50 C.A.; post, 390), Digitized by Microsoft® 380 THE LAW OF EVIDEXCE. [bookii. are admissible to show the meaning of statutory words, they are not always reliable guides thereto (R. v. Peters, sup.; Midland Ry v. Robinson, 15 App. Gas. 19, 34) ; nor are they necessarily safe authorities as to technical or foreign terms, which must usually be explained by experts (post, 387-8 ; moreover, the meaning of English legal terms can, it is said, only be shown In- the decisions of Courts, or the dicta of recopiised text-books, or, perhaps, by the prnctiee of conveyancers (Underhill on Wills, 7; Re Athill, 16 Ch.D. 211. 823) ; though law dictionaries have also been referred to (Blandford v. Marlborough, 2 Atk. p. 545; i2e Bright-Smith, 31 Ch.D. p. 317). ALMANACS. Judicial notice will be taken of the Almanac annexed to the Conimoh Prayer Book, as being part of the law of the land, but not of matters not contained therein — e.g. the time of the rising or setting of the sun; nor is an almanac evidence of such matters (Tutton v. Darhe, 5 H. & N. 647; Collier v. Nokes, 2 C. & K. 1012; a«/e, 25). SCIENTIFIC AND PROFESSIONAL, &c., RECORDS.' The' Carlisle Tables have been admitted to prove the average duration of life at a particular age, on proof that they were accepted as authoritative by insurance companies {Rowley v. L. &N. W. Ry., L.R. 8 Ex. 221 ; approved in Carman v. Brighton Electric Co., 1890, Q.B.D. June 28, ex rel.). Dr. Wharton distinguishes between works of exact and those of inductive science, the former being, he states, admissible in America, the latter not (ss. 665-667). The report of a deceased engineer as to the construction of the Thames Tunnel has been received as evidence of scientific facts beyond living memory, on proof that it was accepted as accurate amongst engineers [Ea^t London Ry, v. Thames Conservators, 90 L.T. 347; 68 J.P. Eep. 302). Scientific and professional treatises may also, as will be seen, be used to refresh the memory of experts {post, 392-3). As to Scientific Instruments, see ante, 162-3, 170-1. The British Pharmacopceia, published by the Medical Council under the authority of the Medical Acts, 21 & 22 Vict, c: 90, s. 54; 25 & 26 Vict. c. 91, ss. 2, 3, is admissible, though not conclusive, as the recognised professional standard for the proper ingredients of drugs, &c. {White v. Bywater, 19 Q.B.D. 582; Dickens v. Randerson, 1901, 1 K.B. 437; Boots v. Cowling, 88 L.T. 539; Hudson v. Bridge, id. 550; ante, 109) ; and by 31 & 32 Vict. c. 121, s. 15, a penalty of £5 is imposed for compounding them otherwise than in accordance therewith. Stock Exchange Journals have been admitted to show the price at which stock was made up at the fortnightly settlement, on proof that they were generally accepted as accurate, though any criticism thereof would also have been considered {R. v. Perryman, 147 C.C.C. Sess. Pap. 1099, per A. T. Lawrence, J.). And the Racing Calendar was accepted by the magistrate's court in Dublin to prove that a particular horse won a race on a certain day (Sunday Times, Sep. 22, 1918). Digitized by Microsoft® CHAP, xxxiv.] PUBLISHED HISTOEIES, MAPS, &c. 381 EXAMPLES. Admissible. (o) Published Mstories have heen ad- , mitted to prove the following public mat- ters: Speed's Chroriide, to prove the date of the decease of Isabel, Queen Dowager of Ed. II. (Ld. Broimker v. Atkyns, Skin. 14 ; citing also Ld. Bridgewaier's Case, id. 15) ; and Pitinoe Cantemir's History of the Ottoman Empire, to prove a universal custom of the Mahomedan religion (R. v. Warren Bastings, cited 2 Phil. & Am. Ev., 10th ed. 156, and by Lord Bllenborough in R. y. Pioton, 30 How. St. Tr. 492).— Aames v. Hartley, 3 Ex. 200; Brunswick v. Harmer, 3 C. & K. 10; Barnett v. Allen, 3 H. & N. 376; Oallaher v. Murton, 4 T.L.E. 304; Simmons v. Mitchell, 6 App. Gas. 156, 163; see Curtis v. Peeh, 13 W.E. 230; Odgers, 4th ed., 14, 120, 633). Handwriting. (6) The genuineness of a party's handwriting, or mark, may be proved by the opinions not only of experts (see ante, 388), but of non-experts; and this is so even where the writer himself or fee attesting witness is actually in Court and might be called {Be Clarence, 54 Sol. Jo. 117 ; B. V. Derrick, 5 Cr. App. E. 162), the standard of comparison being either some specimen document produced at the trial and proved to the satisfaction of the judge to be genuine {ante, 108), or, an exemplar formed in the mind of the witness from his previous knowledge of the party's handwriting. A statement that the witness is acquainted with the party's writing is generally sufficient in chief, it being for the opponent to cross-examine as to means and extent. Such knowledge may be acquired : (1) By having at any time seen the Digitized by Microsoft® 400 THE LAW OP EVIDENCE. [book ir. party write, though the value of the opinion will, of course, vary with the frequency and recentness of the occasions and the attention paid to the matter by the witness; or (2) by the receipt of written, communications pur- porting to be in his handwriting, in reply to documents addressed to him by or on behalf of the witness {Re Clarence, sup. ) ; though the evidence will be strengthened by the communications having been acted on as genuine between the parties; or (3) ty having observed, in the ordinary course of husiness, documents purporting to be in the party's handwriting; a metnod which applies also to the proof of ancient handwriting [Doe v; SucTcermore, 5 A. & E. 703, 730-1; FitzwaUer Peerage, 10 C. & P. 193; Crawford Peerage, 2 B..L.G. J,. 557; ante, 109]. The witness's knowledge must not, however, have been acquired for the express purpose of qualifying him to testify at the trial (Best, s. 336; B. v. Crouch, 4 Cox, 163; B. T. BicTcard, 13 Cr. App. R. 140; Stanger v. Searle, 1 Esp. 14:; Doe Y. Suckermore, 5 A. & E. 703; FitzwaUer Peerage, sup.). And if his opinion rests upon extrinsic circumstances, e.g. the probabilities of the ease, or the character or conduct of the supposed writer, and not on his actual knowledge of the handwriting, it will be rejected {Da Costa v. Pym, Peake, Add. Cas. 144). The witness need not swear to his belief, his bare opinion being admissible, though a mere statement that the writing is like that of. the supposed writer is insufBcient (Tay. s. 1868). The evidence being primary, and not' secondary, in its nature, will not become inadmissible because the writer himself, or some one who saw the document written, might have been called {Lucas y. Williams, inf.; Wright y. Coli, 1 T.L.R. 555; Best, s. 332; Tay. s. 1863) ; or becaiuse the document cannot be produced, as where it is lost, or incapable of removal, or not liable thereto, as in the case of public registers or books of the Bank of England {Bayer v. Glossop, 3 Ex. 409 ; Mortimer v. McGallan, 6 M. & W. 58, 63 ; Lucas v. Williams, 18.93, 3 Q.B. 113). And further proof may have to be given of identity of the writer and party, where the witness is not personally acquainted with this {post, 533) . Mental and Physical Conditions. Age. Sp«ed. Value, (c) A witness may, as we have seen, testify as to his own mental or physical condition at a given time {ante, 61, 83-7) ; or state what he thinks induced him to do a particular act {Mansell v. Clements, L.R. 9 C.P. 139) ; or what opinion he formed on receiving a certain letter {B. v. King, 1897, 1 Q.B. 314) . Whether he is competent on the question of his own sanity is, perhaps, doubtful, though the weight of authority seems now in the affirmative. The evidence was admitted in Hunter y. Edney, 10 P.D. 93, and Jackson v. J., 1908, Times, May 33, and see B. v. Bill, 3 Den. 354, and B. v. Smith, 8 Cr. App. R. 73, 74; but excluded in Knight v. Young, 3 V. & B. 184, and Booth v. Blundeli, 19 Ves. 494, 506 ; see also Pope on Lunacy, 3nd ed., 434, and cp. post, p. 453. The value of such evidence, however, would appear to lie not in its quality of testimonial assertion or opinion, but rather in its manifestation of the witness's mental capacity or the reverse, i.e., as circumstantial or presumptive evidence. With respect to the mental condition of others, neither the opinion of witnesses who are not experts {R. v. Neville, Craw. & Dix. Abr. Cas. 96 ; R. V. Loake, 7 Cr. App. R. 71-371), nor general reputation {Creenslade v. Dare, 30 Bear. 384), is admissible in this country to prove insanity, as dis- tinguished from the conduct from which it may be inferred ; though witnesses Digitized by Microsoft® CHAP. XXXV.] OPINIONS OF NON-BXPEETS. 401 are sometimes allowed to give such evidence, not as opinion per se, but as a compendious mode of eliciting facts {Wright Y, Tatham, 5 C. & F. pp. 690, 720-1, 735; cp. Durham T. D., 10 P. D. 80). Nor are the opinions of witnesses admissible to prove another person's intention {Townsend v. Moore, 1905, P. 66, 80; ante, 61). Witnesses may, however, describe the apparent condition of people and things, for here tiie phenomena are often too numerous and vague to be otherwise conveyed (Best, s. 517 ; Tay. s. 1416 ; ante, 45). So, statements of opinion as to the age of children have been received {B. v. Cox, 1898, 1 Q.B. 179). And the rate of speed of motor-cars may be similarly proved (Motor-Car Act, 1903, s. 9). As to proof of value by non-experts, see B. v. Beckett, post, 403. Character. Although not, perhaps, in strictness, yet in practice, the opin- ions of witnesses are receivable on this subject {ante, 188). Interlocutory Matters. So, on motions, &c., affidavits as to the deponent's information or belief are admissible, provided the grounds thereof are set out, otherwise not (0. 38, s. 3; Be Anthony, 1899, 2 Oh. 50; post, 500). And as to summons for directions, see post, 499. Other Cases. Questions for the Jury and Not the Witness. As most language embodies inferences of some sort, it is not perhaps piossible wholly to dissociate statement of opinion from statement of fact. The evidentiary test has been said to be, that if the fact stated necessarily involves the com- ponent facts, or can only be expressed by a direct statement or opinion, it wiU be admissible as amounting to a mere abbreviation, even though it be the very fact the jury have to decide; if it does not necessarily involve them, but may be supported upon several distinct bases of fact, the particulars only should be given and not the inference. Thus, though a vsdtness might, without objec- tion, state that " A. shot B." or " A. stabbed B." yet the statement that " A. killed B." would be improper, as involving a conclusion that might be remote and doubtful, and apply equally to a variety of different incidents [ante, 56, 65 ; Whart., ss. 15, 509-513. And see a reply to Dr. Wharton on this point by Mr. Justice Stephen, 3 Southern Law Eep. (Amer.) 567; and Chamber- layne's Best, s. 511]. EXAMPLES. Admissihle. Inadmissiile. (a) To prove that a libel referred to the plaintiff, though it did not mention him by name, both the plaintiff and his friends may swear that, upon reading the libel, they understood it to refer to him (jB. v. Barnard, 43 J.P. 127; Broome V. Oos- den, 1 C.B. 728; Bourke v. Warren, 2 C. & P. 307). So, where A. sued B. for damages for destroying a picture called " Beauty and the Beast," to which B.'s defence was that the picture was a libtl on his sister and her husband ; — evidence was admitted of exclamations of recognition to that effect, uttered by spectators while looking at the picture in a public gallery in which it L.K.— 26 Digitized by Microsoft® 402 THE LAW OF ETIDENCE. [book II. Admissible. was exiiiuited {Du Bost v. Bcresford, 2 Camp. 511, 512). A. is indicted for writing to B. threat- ening that if B. sold his farm to certain persons he would " suffer as before " ; — B. may, after explaining the circumstances, state that he understood by the expression that A. intended to burn his house down (B. V. Hendy, 4 Cox, 243). (6) To prove A.'s handwriting, the opinion of B., who had seen him write hut once, and then only his surname (Lewis V. Sapio, M. & M. 39) ; of C, who only saw him write twenty years ago (JB. v. Eome Toohe, 25 How, St. Tr. 71) ; and of D., A.'s servant, wiho ihad never seen him write, but had habitually posted his letters (Doe X. Suckermort, 5 A. & E. 703, per Lrord Denman), are admissible. — So, to prove the writing of A., a merchant living abroad ; — the opinion of B., a merchant in London who had writen to, and re- ceived answers purporting to come from, A. (Carey v. PiU, Peake, Add? Cas. 130) ; of C., B.'s clerk, who had constantly read such letters ; and of D., B.'s broker, who had habitually seen, and been consulted about, th«n (Doe v. Suckermore, sup., per Lord Denman), are admissible, although neither B., C, nor D. ever saw A. write. — See also R. v. Tranter, ante, 125. To prove the handwriting of A. (a de- ceased curate) to a marniage certificate eighty-five years old, the opinion of B., the parish clerk, who only knew A.'s writing Inadmissible. A. sues B. for libel in having written that A. should " return to his natural and sinister obscurity." The opinions of wit- nesses are not admissible to explain these words, there being nothing to show that they were not used in their ordinary sense (Brvnsnick v. Harmer, 3 C. & K. 10; an Bamett v. Allen. 8 H. & N. 376, the Court was divided as to whether the word "blackleg" could be so explained). (6) To prove the handwriting of A. (a prisoner),- the opinion of a constable, who in order to obtain a knowledge of his writing had paid him some money, and got him to write a receipt, is inadmissible (R. V. Crouch, 4 Cox, 163). To prove a defendant's handwriting, the opinion of the plaintiff's attorney, who had frequently seen and acted on papers in the master's office, which the defendant's attorney admitted had been written by the defendant, is inadmissible [Greaves v. Bvnter, 2 C. & P. 477. In Smitli v. Sains- bury, 5 C. & P. 196, where one party had filed an affidavit made by A., the attorney to the opposite party was allowed to .prove A.'s signature to another document from merely having seen the signature to the affidavit. This case is doubted by Jlr. Taylor, 8th ed., s. 1865, in spite of the consideration, which would seem also to apply to the previous case, that the party who filed A.'s affidavit might be deemed to be estopped from denying the genuine- ness of A.'s signature; cp. Brickell v. Hulse, ante. 261]. A. sues B., C., and D., on their joint and several promissory note. To prove the signature of D., A. calls E., the soli- citor for. the defendants, whose only know- ledge of D.'s handwriting was derived from a retainer, purporting to be signed by all of them, on which E. had acted in defend- ing the action. Held, E.'s opinion was not admissible without proof that D. had acknowledged his signature, since B. and C. might have signed the document for him with his assent (Drew v. Prior, 5 M. & Gr. 264). So, to prove the signature of A., a Member of Parliament, the opinion of an inspector of franks who had fre- quently seen franks pass tlirough the post office bearing A.'s name, but had never communicated with iiim thereon, has in two cases been rejected, as the signatures might have been forged (Carey v Pitt Pea. Add. Cas. 130, per Lord Kenvon ;' Batchelor v. Honeyicood, 2 Esp. 714" per id. Mr. Taylor considers that these two cases carry the law to the verge of impro- priety, as they conflict with the presump- tion of innocence, s. 1886, 8th ed.). To prove the handwriting of an ancient document, the opinion of a witness, al- though an expert, who had acquired his knowledge not, from a course of business Digitized by Microsoft® CHAP. XXXV.] OPINIONS OF NON-EXPEETS. Admissible. Inadmissihle. 403 from various old signatures of A., in the parish regiister, is admissible (Doe v. Davies, 10 Q.B. 314). — So, the opinion of C, the solicitor to A.'s family, who only knew A.'s writing by having ex- amined, in the course of business, docu- ments purporting to be in A.'s writing (Fitzimlter Peerage, 10 C. & F. 193). (c) In an action by a house-agent to re- cover commission on the sale of a house,, the evidence of the purchaser that " he thought he should not have bought the house had it not been for the agent's card to view," is receivable {Mansell v. Cle- ments, L.R. 9 O.P. 139). A. is charged with obtaining certain churns from B. by a false pretence, con- tained in a letter, that " the churns are required for home use." A question put to B., "what opinion did you form as to A.'s position and occupation from the receipt of that letter?" and B.'s answer, " I thought A. was either a farmer or a dairy- man," held admissible as showing B.'s be- lief in the truth of A.'s representation, and that he was thereby induced to trust A. with the goods (B. v. King, 1897, 1 Q.B. 2114, C.C.E,.). A is charged, under the Prevention of Cruelty to Children Act, 1894, with ill- treating certain cbildren under the age of sixteen entrusted to her care. The fact that the children attended an elementary school, and testimony given ty the mis- tress of the school ithat she believed they were under sixteen, as well as similar evi- dence by .policemen and others who had seen the children, held admissible [R. v. Cox, 1898, 1 Q.B. 179. By s. 17 of that Act and by s. 123 of the Children Act, 1908, which replaces it, if a child appears to the Court to be under the age an ques- tion it shall be deemed to he so tUl the contrary is proved. In B. v. Cow, sup., however, only one of the children was pro- duced in court, so that opinion evidence as to age, and inspection out of court by the witnesses, appear to have been con- sidered of general admissibility. Cp. ante, 371, as to meddcal certificates of the age and fitness of children under the Factory and Workshop Act, 1901.] A. is charged with causing malicious damage of over^£5 to a plate glass window at a post office. The Acting Assistant Superintendent to the General Post Office, was allowed to testify, that, though not a glass expert, he had been informed by their clerk of the works that the damage was £8, and in his own opinion that was a correct assessment (R. v. Beckett, 8 Or. App. R. 204; 29 T.L.R. 332). For cases in which the opinions of ordinary witnesses have been received, al- though on the very questions which the jury have to decide, see ante, 56, 65. but from having studied one or two genu- ine signatures (not produced) for the ex- press purpose of testifying, is inadmissible (Fitxwalter Peerage, opposite; and see ante, 108-9). (c) The question being as to the sanity of a testator ; — the opinions of non-medical friends called as witnesses (R. v. Neville, Craw & Dix, Abr. Cas. 96, 97 »), or of deceased friends expressed by their letters and conduct, are inadmissible unless ac- companying and explaining acts done by the testator (Wright v. Tatham, cited ante, 84). [For other cases in which the opinions or inferences of ordinary witnesses have been rejected to prove facts which are for Court or jury, e.g. Negligence, Promise to Marry, &c., see ante, 651. _ For cases in which the opinions of or- dinary witnesses have been rejected as be- ing on the very question which the jury have to decide, see ante, 56, 65. Digitized by Microsoft® ( 404 ) CHAPTEE XXXVI. JUDGMENTS. General Bules. The following general rules apply to judgments of every description : (1) All Judgments are conclusive of their Existence as distinguished from their Truth. Judgments being public transactions of a solemn nature are presumed to be faithfully recorded. Every judgment is, therefore, conclusive evidence for or against all persons (whether parties, privies, or strangers) of its own existence, date and legal effect, as distinguished from the accuracy of the decision rendered. In. other words, the law attributes unerring verity to the substantive, as opposed to the^ judicial, portions of the record (Best, 8. 590; Tay. s. 1667; Steph. art. 40). Thus, where A. has been tried and acquitted of a crime against B., and afterwards sues B. for malicious prosecution, the record in the criminal trial is conclusive evidence of A.'s acquittal; but it is, as we shall presently see, no proof whatever that A, was innocent, or that B. was the prosecutor, or was actuated by malice {Legatt v. Tollervey, 14 East, 303 ; Purcell v. Macnamara, 9 East, 361; Leyman v. Latimer, 3 Ex.D. 353, 354). So, a verdict against a master in an action for the negligence of his servant is conclusive proof, in an action by the master against the servant, of the amount of the damages recovered against the master; but it is not even admissible to prove the servant's negligence {Green v. New River Co. 4 T.K. 590; Pritchard v. Hitchcock, 6 M. & G. 151, 165). And, similarly, a judgment by a creditor against a surety is evidence in an action by the surety against the principal debtor, of the amount the surety has been compelled to pay, but not of his liability to pay it {King v. Norman, 4 C.B. 884; Exp. Young, Re Kitchin, 17 Ch.D. 668; post, 415, 427-8). And to rebut a surety's defence that the creditor had received money from the principal in satisfaction of his claim, the creditor was allowed to prove a judgment against himself by the assignees of the principal, by which such moneys were recovered back, not as conclusive against the surety, but as explanatory of the transaction {Pritchard v. Hitchcock, sup.) So, judgments are admissible in this connection when they are tendered to contradict a witness [Watson v. Little, 5 H. &. N. 472, where A. having sworn that her son B. was bom on March 18, i.e. five days after her marriage, an affiliation order of deceased justices reciting that A. swore B. was born on March 8, was received to contradict her testimony, though not to prove the bastardy or date of birth; R. v. M'Cue, cited post, 428, where, on the trial Digitized by Microsoft® CHAP. xxxvi.J JUDGMENTS. 405 of a receiver, the thief's testimony that he had committed the theft was allowed to be contradicted by the record of his acquittal] ; or as constituting a link of title, or an act of ownership {Brew v. Hwren, I.E. 11 C.L. 198) ; or as explaining the character in which the parties sue, defend or hold property {Demies v. Lowndes, 6 M. & Gr. 520; Lyell v. Kennedy, 14 App. Cas. 437) ; or as influencing conduct {Thomas v. Bussell, 9 Ex. 764, cited ante, 155). (2) All Judgments are conclusive of their Truth in Favour of the Judge. The judgment of a court of competent jurisdiction is conclusive for the purpose of protecting the judge who pronounced, and the officers who enforced, it when acting within the scope of their authority. This rule is founded on public policy for the protection of judges and their subordinates, since without it no one would be so rash as to undertake such ofQces (Tay. s. 1669). In the Superior Courts, therefore, the original proceedings and judgment thereon constitute conclusive proof of the facts stated if, assuming such facts to be true, they show that the judge' had jurisdiction (Tay. ss. 1669-1672; and see ss. 84-86 ; Steph. art. 45 ; Eos. N.P. 208-209, 1124-1129) . In the Inferior Courts, however, the maxim omnia rite esse acta does not apply to give juris- diction {Falhingham v. Victoria By., 1900, A.C. 463-4; see 33 Am. L. Eev. 665-84). Thus, in the case of Awards {id.), or Orders made either under special statutory authority, or by Justices, the facts necessary to give the juris- diction must appear on the face of the proceedings, either expressly or by necessary implication {Taylor v. Clemson, 11 C. & F. 610; Christie v. Unwin, 11 A. & E. 373; E. v. Kent, 16 Cox, 583; Jones v. German, 1897, 1 Q.B. 374) ; though such recitals are no evidence of their existence for other purposes {R. V. Qilhes, 2 Man. & Ey. 454; B. v. Dublin, 43 Ir. L.T.E. 271). The rule only protects where the judge has acted without jurisdiction under a iona fide mistake of fact; and not where he has so acted wilfully, or under a mistake of law {Colder v. Halhet, 3 Moo. P.O. 2S;Houlden v. Smith, 14 Q.B. 841; Anderson v. Oorrie, 71 L.T. 382). Thus, where a justice had ordered the seizure of a boat under the provisions of the Buniboat Act (2 Geo. III. c. 28), the owner was precluded in an action against the justice from proving that it was a vessel and not a boat {Brittain v. Kinnaird, 1 B. & B. 432; and see Kemp v. Neville, 10 C.B. N.S. 523; and Eos. N.P. 1124-1129, et seq.). So, with an order under a Highway Act for the removal of timber encumbering the highway, the owner was estopped in an action against the justice from proving that the place was no part of the highway {Mould V. Williams, 5 Q.B. 469). And under the Justices Protection Act, 1848, s. 41, magistrates are expressly exempted from liability for issuing warrants of distress in respect of a poor rate which proves to be invalid; although, at common law, they would have been liable therefor, since the validity of the rate, which was necessary to give them jurisdiction, could not be determined by them (Tay. s. 1672; see Fourth Building Soc. v. East Earn, 1892, 1 Q.B. 661). On the other hand, a county court judge was not protected where he committed a party residing out of his jurisdiction for contempt in disobeying an order of the Court {Eoulden v. Smith] sup.) (3) All Judgments ar« impeachable on Certain Grounds. Domestic Judg- ments, when tendered to prove the truth of the finding, may, in general, be impeached on the grounds that they were (1) Not Knal (which does not Digitized by Microsoft® 406 THE LAW OF EVIDENCE. [bookii. mean not subject to appeal, but final as distinguished from interlocutory, Euntley v. Gashell, 1905, 2 Ch. 656, C.A.; see Ann. Pr. Notes to _0._ 58, r. 15), reversed (the pendency of an appeal is not sufBcient, Scott v. Pilkington, 2 B. & S. 11), a mere nonsuit (now abolished. Fox v. Star Co., 1900, A.C. 19), discontinuance (under 0. 26, r. 1; or by agreement. The Kronprintz, 13 App. Cas. 256), stay, on payment of money {Kelly v. Hammond, 2 T.L.E. 804), or withdrawal (of the record, under 0. 26, rr. 1 & 2; or of a juror, Thomas v. Exeter Post, 18 Q..B.D. 822; Ripley v. Arthur, 86 L.T. 735); though judgment by default may estop if the grounds appear on the face of the judgment {Irish Land Com. v. Ryan, 1900, 2 I.E. 565; Bowling v. Dillon, 39 Ir.L.T.E. 121) ; or (2) Not on the Merits, e.g., obtained on some technical objection, or default of pleading {Re Orrell, 12 Ch.D. 681) ; or misconception of the form of action, or because the debt was not then due, or the plaintiff was under a temporary disability to sue (Tay. s. 1719) ; or (3) Without Jurisdiction (or in the case of orders by justices, or under special statutory powers, omission to recite facts showing jurisdiction, supra; or (4) Fraudulent, Collusive or Forged. As to fraud, see Priestman v. Thomas, 9 P.D. 210, and Wyatt v. Palmer, 1899, 2 Q.B. 106. A plea of fraud, however, can in general only be takep advantage of by a stranger to the judgment who is in no way privy to the fraud, and not by a party, since, if the latter were innocent he might have applied to vacate the judgment, and if guilty he cannot escape the consequence of his own wrong (Tay. s. 1713; Steph. art. 46) ; so, as to collusion — e.g. where the parties, even without fraud, were not really in contest {Batidon v. Becher, 3 C. & F. 479, 510; Girdlestone v. Brighton Co., 4 ExD. 107). The rule that fraud can only be proved by an innocent party does not apply, however, to probate {Birch v. B., 1902, P. 130), or divorce {Bonaparte v. B., 1892, P. 402) cases. As to impeaching Probates, &c., see post, 431-33. On the other hand, judgments by consent are binding {Serrao v. Noel, 15 Q.B.D. 549; The Bellcaim, 10 P.-D. 165; Re South American Co., 1895, 1 Ch. 37; Huddersfield Co. v. Lister, 1895, 2 Ch. 273; Shaw v. Herefordshire, 1899, Q.B. 282), provided they proceed upon a compromise of the cause of action and not upon some merely technical default {Magnus v. National Bank of Scotland, 57 L.J. Ch. 902), or contract which is ultra vires {Great N.W.C. Ry. v. Charlehois, 1899, A.C. 114; and see generally as to Judgments by conSent, 30 Sol. Jo. pp. 260, 279, 294, 311), as also is a compromise sanctioned by the Court {Worman v. W.. 43 Ch.D. 296). As to parol evidence to affect judgments, see post, 569, 576. Foreign Judgments (which term includes judgments, whether' strictly of record or not, emanating from Irish, Scotch, Colonial, or foreign tribunals) may, in like manner, be impeached because (1) Not final {Nouvion v. Free- man, 15 App. Cas., 1) ; or (2) Without jurisdiction {Pemherton v. Hughes, 1899, 1 Ch. 781) ; or (3) Fraudulent {Abouloff t. Oppenheimer, 10 Q.B.D. 295 ; Vadala v. Lawes, 25 Q.B.D. 319 ; Codd v. Delap, 92 L.T. 510 ; Hip Poong Hong V. Nestia, 1918, A.C. 888; but see Robinson v. Fciiner. 1913, 3 K.B. 853; and as to foreign judgments in rem, Bater v. B,, 1906, P. 209, C.A.) ; or (4) Against natural justice {Pemberton v. Hughes, sup.; Robinson v'. Fenner, sup.) ; though not for mistake of fact, or of foreign or English Law {id.; Piggott, Foreign Judgments, 106-107; 2 Smith, L.C., 12th ed. 815- 22; Tay. s. 1729; Eos. N.P. 209-211). Digitized by Microsoft® CHAP. xxxvi.J JUDGMENTS. 407 (i) Judgments never Evid«nce of Collateral Matters. Xo judgment is evidence of the truth of any matter not directly decided, or a necessary ground of- the decision J thus, it is never evidence of facts which merely came collater- ally in question, or were incidentally cognisable, or can only be inferred by argument from the decision {R. v. Kingston (Duchess), 20 How St. Tr. 538; 2 Smith L.C., 12th ed. 780 ; R. v. Hutchings, 6 Q.B.D. 300 ; Concha v. C, 11 App. Cas. 541) ; nor, d fortiori, does any estoppel arise as to the mere reasons assigned for a judgment (Allsop v. Joy, 61 L.T. 313). So, the opinion of a Eegistrar, when refusing a receiving order, that the creditor was actuated by malice, is no evidence of that fact (King v. Henderson, 1898, A.C. 720; Re Vitoria, 1894, 2 Q.B. 387). (5) Effect of Judgments for and against a Party. Convictions. Dismissals. Acquittals. It should be noticed, that judgments may have a different effect according as they are for or against a party ; thus, a decree of divorce, altering status, concludes even strangers; but a judgment dismissing the petition affects only parties and privies (Needham v. Bremner, L.E. 1 C.P. 583). So, a conviction for non-repair of a road is conclusive against a parish" of its liability to repair, but an acquittal (which does not like a conviction, ascertain any precise fact, though see Kinnis v. Graves, 19 Cox, 42) is not evidence for it of non-liability (R. v. St. Pancras, 1 Peake, 220 ; R. v. Wicfc St. Lawrence, 5 B. & Ad. 526; Coolce v. Shall, h T.R. 255); moreover, convictions may be quashed, but acquittals cannot {R. v. Galway, 1906, 2 I.E. 499; R. v. Simpson, 1914, 1 K.B. 66). As to dismissals by magistrates, see ante, 367-8, and post, 424-5 ; and as to the distinction between judgments for or against joint-debtors, post, 414-5. JUDGIIIEN'TS IN REM. Subject to impeachment on the grounds mentioned supra, a domestic judgment in rem is in civil proceedings (but not in criminal, Tay. ss. 1680-81) conclusive evidence for or against all persons, whether parties, privies or strangers, of the matters actually decided; and this, probably, although it has not been pleaded (Tay. s. 1673). It is also, as between parties and privies, conclusive of the grounds of the decision where these have been put in issue and actually decided by the Court; but as between -strangers, or a party and a stranger, it is no evidence of the truth of such grounds except upon questions of prize; where it is conclusive if the ground of condemnation is plainly stated, and admissible if not (Tay. s. 1733-1734; cp. BaJlantyne v. Machinnon, cited post, 410) ; order's of removal of paupers have been considered to form a second exception {R. v. ^Vye, 7 A. & E. 770; R. v. Eartington, 4 E. & B. 780; though the latter case was doubted in R. v. Hutchings, 6 Q.B.D. 300) ; and Exchequer condemnations a third {Hart v. Macnamara, 4 Price, 154 n; Oeyer v. Aguilar, 7 T.E. 681). As to these alleged exceptions see, however, De Mora v. Concha, 29 Ch.D. 268. In Hill T. Clifford, 1907, 2 Ch. 236, 244. Cozens-Hardy, M.E., stated that there were two classes of judgments in rem, one of which is conclusive against all the world and the other not conclusive, but admissible. In- the latter category, however, he included matters which are not usually treated under this head, but under that of public documents, i.e., public inquisitions &c., as to which see ante. chap. xxxi. [Tay. ss. 1674-1681, 1733-1738; Best, s. 593 Eos. N.P. 196-197, 207; 2 Smith, L.C., 12th ed., 775-81; Everest and Strode on Estoppel, 75-116; Whart. ss. 814-818.] Digitized by Microsoft® 408 THE LAW OF EVIDENCE. [book ii. A foreign judgment in rem is generally conclusive against strangers only upon questions of prize, where the ground of condemnation is -plainly stated; or of marriage and divorce, where the marriage was solemnized and the parties domiciled in the foreign country (Bater v. B., 1906, P. 209) ; or of bankruptcy, as to contracts made in such country; or of probate, adminis- tration, and guardianship to a limited extent. [Tay. ss. 1733-1738 ; Piggott on Foreign Judgments; Foote on International Law, 572-583; Everest and Strode on Estoppel, 157-192; Whart. s. 813-818; 2 Smith L.C., 12th ed., 756-7]. Judgments in Rem and in Personam Distinguished. As applied to judg- ments, the terms in rem andm personam, which are adopted from, though not belonging to, the Eoman law, have never been clearly defined in reference to our own or any other system (Steph. Dig., note xxiii.). A judgment in rem has been described as "an adjudication upon the status of some particular subject-matter by a tribunal having competent authority for that purpose " (2 Smith, L.C., 12th ed. 776; Piggott on Foreign Judgments, 244), a definition which, though seemingly the best that can be framed upon a difiicult subject, is imperfect in that it fails to distinguish between territorial and ex-territorial status (Whart. ss. 815-818), besides including in its terms matters which are not properly classed as judgments in rem — e.g. inquisitions and criminal convictions {sup.; Ta;y. s. 1674). . It has also been defined as "a judgment by a court having special jurisdiction over the subject-matter" (M'Donnell v. Alcorn, 1894, 1 I.E. 274, 278); such judgments, however, only operate in rem if they alter status {Needham v. Bremner. L.p. 1 C.P. 582). The following is a list of the principal adjudications of this nature: — (1) Judgments in condemnation of property as forfeited, whether pronounced by the old Court of Exchequer (now the K.B.D.), or by the Commissioners, or sub-Commissioners of Excise, Inland Eevenue, or Customs (Qeyer v. Aquailar, 7 T.E. 681; Maingay v. Gahan, Eidge, L. & S. 1, 79). (2), A,djudications as to Prize in the Admiralty Court (Le Gaux v. Eden, 2 Doug, p. 612), or for the enforcement of maritime lien {The City of Mecca, 5 P.D. 28). (3) Decrees of the Divorce Court, provided they alter status, ^.g. decrees of judicial separation, or for dissolution or nullity of marriage, but not a judgment of adultery not followed by a decree {Needham v. Bremner, L.E. 1 C.P. 583) ; nor a decree in a suit for jactitation of marriage {R. v. Kingston {Duchess), 20 How. St. Tr. 537-45) ; nor decrees under the Legitimacy Declaration Act, 1858 (see s. 8; and cp. Shedden v. A.-G., 30 L.J.P. & M. 217) ; nor an affiliation order {Anderson v. Gollinson, 1901, 2 K.B. 107, 109). (4) Grants of Probate {Allen v. Dundas, 3 T.E. 125; post, 409, 431-3), and administration {Bourchier v. Taylor, 4 Br. P.C. 708; Prosper v. Wagner, 1 C.B. N.S. 289). (5) Adjudications in Bankruptcy (Bpy. Act, 1914, s. 138, sub-s. 2) ; but not orders winding up companies {Re Bowling, 1895, 1 Ch. 663). (6) Old Judgments of Outlawry. (7) Sentences of Deprivation and expulsion, whether delivered by a spiritual court, visitor, or coUege {Phillips v. Bury, 2 T.E. 346), Orders of Naval Courts dismissing seamen {Button v. Ras Steam Co., 1907, 1 K.B. 834), or of the Medical Council striking off a medical man {Hill v. Clifford, 1907, 2 Ch. 236). (8) Settlement Adjudications, if either unappealed against or confirmed {R. v. Digitized by Microsoft® CHAP. XXXVI.] JUDGMENTS. 409 Kenilworth, g T.R. 598; B. v. Wick St. Lawrence, 5 B. & Ad. 525 ; Uxbridge V. Winchester, 91 L.T. 533), (9) Judges' certificates of election of a member of parliament under 31 & 32 Vict. c. 125 {Waygood v. James, L.R. 4 C.P. 361), but not their reports under the same Act {Stevens v. Tillet, L.R. 6 C.P. 147). (10) Formerly, judgments for the Crown on scire facias for the repeal of patents (Eos. N.P. 196) ; and now orders for their revocation under the Patents Act, 1907, s. 25 {id.; Be Deeley's Patent, 1895, 1 Ch. 687; Poulton V. Adjustable Go. 1908, 2 Ch. 430, 439, C.A.). (11) Adjudications by Commis- sioners of Inland Revenue upon stamp duties (Tay. s. 1763; if delivered before the document is objected to in evidence, Prudential Assoc, v. Gurzon, 8 Ex. 97) ; and various other judgments or orders made under special statutory powers, e.g. a Justice's order tiiat a street is a highway, is a judgment in rem, and conclusive of the status of the street under the Private Street Act, 1892 {Wakefield v. Goohe, 1904, A.C. 31; post, 421) ; as well perhaps as (12) sentences of Courts-martial (Tay. s. 1675). Judgments in personam are the ordinary judgments between parties in cases of contract, tort, or crime. It has been suggested that the term inter partes would be a more correct designation, to distinguish them from those adjudications in rem which affect personal status (2 Smith, L.C., 11th ed. 751) ; but as many judgments m rem also operate inter partes (see e.g. The Dupleix, 1912, P. 8, 12-15), the phrase in personam seems preferable, The former classification, moreover, has been recognised by the legislature (24 & 25 Vict. c. ID, s. 35). Principle. The principle of the conclusiveness of judgment in- rem as regards persons is, that pubHc policy for the peace of society requires that matters of social status should not be left in continual doubt; and as regards things, that geneally speaking every one who can be affected by the decision may protect his interests by becoming a party to the proceedings, (Tay. s. 1676). In addition to which it is to be remembered that a decision in rem not merely declares the status of the person or thing, but ipso facto renders it such as it is declared; thus, a decree of divorce not only annuls the marriage but renders the wife feme sole; an adjudication in Bankruptcy not only declares, but constitutes, the debtor a bankrupt; a sentence in a prize Court not merely declares the vessel prize, but vests it in the captor. Conflicting Judgments in Rem. Where there have been conflicting judg- ments in rem, the effect is to set the whole matter at large again {B. v. Wye, 7 A. & E. 770; B. v. Eutchings, 6 Q.B.D. 300 Poulton v. Adjustable Go., 1908, 2 Ch. 430; cp. conflicting presumptions ante, 34). EXAMPLES. Admissible. Inadmissible. A. obtains probate of B.'s will (which A. obtains probate of B.'s will ; — in he has forged) and sues O. for a debt due proceedings between strangers the probate to B. ; — the probate is conclusive evidence, is neither conclusive nor, perhaps, admis- until revoked, that A. is B.'s executor and sible to show the genuineness of the will has the right to deal with has assets (Alien (see B. v. Buttery, Bus. & By. 342; R. V. Dundas, 3 T.B. 125; see post, 431-433). v. Gilson, id. 343 n) ; the sanity of B. {Marriot v. M., 1 Str. 671) ; his domicile A., in the Probate Division, obtains, ex Concha v. C, 11 App. Oas. 541) ; or death parte, a grant of letters of administration (Tay. s. 1677), or that any particular to B.'s estate. Afterwards C. brings an property is the assets of B. (Re McKenna, action in the Chancery Division tor the 42 Ir. Ii.T.R. 50 [post, 431-3]. Digitized by Microsoft® 410 THE LAW OF EVIDENCE. [bookii. Admissible. Inadmissible. administration of B.'s estate, alleging that In an administration suit, a finding that he was next-of-kin to B., and that A. was A. is entitled to an annuity, charged on illegitimate, «nd applied for a receiver ami the property of the deceased, on the ground iin injunction. — 'Held, tliat the letters were that A. is the legitimate son of B., is not conclusive that A. was next-of-kin, and a judgment in rem as to A.'s legitimacy, that they could only be impeached in the so as to bind persons not parties to the Probate Division (Re Ivory, Hankin v. inquiry (M'Donnell v. Alcorn, 1894, 1 I.R. Turner, 10 Oh. D. 372; post, 419, 420, 274). 431 ) . A. is prosecuted for bigamy In marry- In an action between a shipowner and ing B. during the lifetime of C, A.'s hus- an underwriter, the question being whether band ; — -a decree in a previous suit, the cargo was neutral or enemy's property, brought in an ecclesiastical Court by A. the sentence of a foreign prize Court con- against C, for jactitation of marriage, demning the ship and cargo on the ground which decree was obtained on the ground that the cargo was enemy's property, is that C. was not A.'s husband, — ^held not conclusive, though neither plaintiff nor admissible to disprove A.'s marriage with defendant were parties to the foreign pro- C., since (1) not being in rem, it could not ceedings (Oeyer v. Aguilar, 7 T.R. 681). be given in evidence inter alios, and (2') it was, on the facts, . fraudulent [R. v. Kingston (Duchess) 20 How. St. Tr. 355, Bans v. Jackson, 1 Phill. Rep. p. 586; and cp. Judgments as affecting Strangers, post, 425-30]. JUDGMENTS IN PERSONAM AS AFFECTING PARTIES AND PRIVIES. Subject to impeachment on the grounds mentioned ante, 405-6, a domestic judgment of a court of competent jurisdiction is conclusive proof, in subse- quent proceedings between the same parties or their privies, of the matters actually decided {R. v. Kingston (Duchess), 30 How. St. Tr. 355, 538), as well as of the grounds of the decision, where these can be clearly discovered from the judgment itself {Alison's Case, L.E. 9 Ch. 1, 35; Priestman v. Thomas, 9 P.D. 310; Poulton v. Adjustable &c., Co. 1908, 3 Ch. 430, 433-3; Irish Land Com. v. Ryan, 1900, 3 I.E. 565, C.A. ; Bowling v. Dillon, 39 Ir. L.T.E. 131, C.A.; Steph. art. 41; contra, Ballantyne v. Mackinnon, 1896, 3 Q.B. 456, 463, where it was considered that a judgment in personam, like one in, rem, is conclusive only of the point actually decided, and not of the grounds of judgment; sed qu. as to this case). [Tay. ss. 1684-1710; Best, ss. >588-95; Eos. N.P. 193-194; Steph. "art. 41; 3 Sm. L.C. 13th ed. 781-813; Everest and Strode on Estoppel, 51-74; Whart. ss. 758-794; 33 Am. L. Eev. 665.] Scope of Rule. This rule applies, in general, equally to civil and criminal proceedings, to County Courts, and to courts of summary jurisdiction (Wright V. L. G. Omnibus Co., 3 Q.B.D. 371 ; R. r. Miles, 34 Q.B.D. 433 ; Joint Com- mittee V. Croston, 1897, 1 Q.B. 251; ante, 367-8, post, 420-3). Thus the dis- missal on the merits of a summons, under the Summary Jurisdiction (Married Women) Act 1895, operates as a bar to a fresh one for the same complaint (Blachledge v. B., 1913, P. 9; Stohes v. S., 1911, P. 195), and a withdrawal, if not for a mere technical defect, may have the same effect (Pickavance V. P., 1901, P. 60.; Davis V. Morton, 1913, 3 K.B. 479; though see R. v. Tyrone, 1913, 2 I.E. 44; and Brooks v. Bagshaw, 1904, 3 K.B. 798). But an order of a court of summary jurisdiction will not operate as an estoppel (1) as to any matter which that Court had no authority to adjudicate directly, and immediately between the parties; nor (3) as to any matter incidentally coming in question as to which a finding if held conclusive between the Digitized by Microsoft® CHAP. XXXVI.] JUDGMENTS. 411 parties would operate in prejudice of the rights of others not parties to the proceedings; nor (3) as to any incidental matter not otherwise determined than as having been the particular ground oil which the Court dismissed a charge or complaint (R. v. Hutchings, 6 Q.B.D. 300, 304; A.-G. v. Eriche, 1893, A.C. "518; Wakefield v. Coohe, 1904, A.C. 31). And under certain sta- tutes no estoppel arises — e.g. awards under the Workmen's Compensation Act, 1906 (6 Ed. VII. c. 58) do not estop (BadcUffe v. Pacific Co., 36 T.L.E. 319) ; and the dismissal on the merits of a bastardy summons under 7 & 8 Vict. c. 101, s. 2, though evidence upon, is no bar to, a subsequent summons under the same statute {R. v. Gaunt, L.K. 3 Q.B. 466; R. v. Hall, 57 L.T. 306; R. V. Robinson, 1898 1 Q.B. 734; McGregor v. Telford, 1915, 3 K.B. 337; R. V. 8eddon, 35 L.J.K.B. 806) ; a bastardy order is, however, res judicata to a limited extent {Williams v. Davies, 11 Q.B.D. 74). So, under the Vaccination Act, 1867, s. 31, repeated fines might be inflicted {Allen v. Worthy, L.E. 5 Q.B. 163; though aKier under s. 39, Blade v. Epping Union, 49 J.P. 16; and see the Vaccination Act, 1898, ss. 3, 4; and 68 J.P. 349-50). In Ireland it has been held that the dismissal on the merits of a civil-bill ejectment, on grounds set out on its face, does not estop either as to the point decided, or as to such grounds, any more than one in the High Court, and though admissible, is not conclusive, upon subsequent proceedings between the same parties for the same cause {Lennon v. Meegan, 1905, 3 I.E. 189; Musgrave v. M'Avey, 1906, 3 I.E. 516). Nor is the dismissal of a bank- ruptcy petition any bar to a second notice and petition for the same debt, though vexatious reapplications will be checked {Re Vitoria, 1894, 3 Q.B. 387 ; King v. Henderson, 1898, A.C. 730, 730). So, the registrar's decision a^ to the validity of a debt for the purpose of granting a receiving order {id.), or his provisional decision on a question of title for the purpose of ordering an account {Re Cronmire, 1894, 2 Q.B. 346), does not estop. Moreover, in bankruptcy, the consideration for a judgment may, on account of the danger of fraud, always be inquired into, at the instance either of the trustee or of the debtor himself {post, 436-7) ; and the file of proceeding creates no estoppel {Exp. Bacon, 17 Oh. D. 447). So, neither a winding-up order {Re Bowling, 1885, 1 Ch. 663), nor a iDalance order under the - Companies Act, 1863 {Westmorland Co. v. Feilden, 1891, 3 Ch. 15) was res judicata. Nor do decisions in ecclesiastical cases, when not affecting rights of property, estop {Read v. Lincoln {Bp.), 1893, A.C. 644, 655). Foreign Judgments. Merger. Election. Foreign judgments in personam are (subject to the various grounds of impeachment mentioned ante, 405-6) also conclusive between parties and privies. But, while domestic judgments • generally operate as a merger of the original cause of action (as to partial merger, see Economic Life Soc. v. Usborne, 1903, A.C. 147, cited post, 431), so that execution can issue therefrom, foreign judgments do not, and the plaintiff must therefore sue either upon the judgment itself, which will then be treated as res judicata {Re Henderson, 37 Ch.D. 255, affd. on other grounds, 15 App. Cas. 1), or upon the original cause of action, when the judgment is considered as evidence merely, but not conclusive, of the debt {Hawkesford v. Giffard, 12 App. Cas. 133). As to the effect of Scotch and Irish judgments registered in England and vice versa, see Be Low, 1894, 1 Ch. 147 ; and Ann. Pr. Notes to 0. 43, r. 38. Where, however, the plaintiff Digitized by IVIicrosbft® 412 THE LAW OP EVIDENCE. [book ii. has elected to take a foreign judgment in discharge of his whole cause- of action, he cannot afterwards sue for the residue of the debt in England (Tayhr v. Hollard, 1902, 1 K.B. 676). [Tay. s. 1786; see Piggott, Foreign Judgments, 22-32; Poote, Priv. International Law, 543-572; Nelson, Inter- national Law, 338-375; and see 2 Smith L.C., 12th ed. 813-857]. Res judicata: effect as Plea, Evidence, or Stay. The old rule, established by R. V. Kingston (Duchess), 20 How. St. Tr. 355, was that judgments upon the same matter and between the same parties were " as a plea a bar, and as evi- dence conclusive " ; but later decisions have qualified the latter part of this rule, and judgments are now only conclusive as evidence where there has been no opportunity of pleading them, since if a party elect not to plead an estoppel where he may, he is deemed to waive it, and to leave the prior judgment as evidence only for the jury, who may find the contrary (Eos. N.P. 192 ; Steph. art. 43 ; see, for an instance of this result, Conradi v. C., L.K 1. P. & M. 514). Where the same question is involved, whether res judicata or not, the party may also, apart from 0. 25, r 4, apply, before pleading, to have the action stayed under the inherent jurisdiction of the Court (Stephen- son V. Garnett, 1898, 1 Q.B. 677; Reichel v. Magrath, 14 App. Cas. 665; MacDougall v. Knight, 25 Q.B.D. 1) ; as, also, if the second action has been commenced lefore judgment in the first (CaJird v. Moss, 33 Ch.D. 23; The Delta, 1 P.D. 393, 404; Houston v. Sligo, 29 Ch.D. 448) . Principle. The grounds upon which parties are precluded from re-litigating the same matter between them are: (1) that of public policy, it being in the interest of the State that there should be an end of litigation, interest ret puhliccB ut sit finis litium; and (2) that of hardship to the individual, that he should be twice vexed for the same cause, nemo bis vexari pro eadem causa; nemo bis puniri pro uno delicto (Loclcyer v. Ferryman, 2 App. Cas. 519, per Lord Blackburn). The grounds upon which privies are concluded, are not only identity of interest, but also the principle qui sentit commodum, sentire debet et onus (Re Lart, 1896, 2 Ch. 788, 795, per Chitty J.) Some Parties or their Privies. Mutuality, (a) The term parties includes not only those named on the record (defendants becoming parties after service of the writ, Evans v. Noton, 1893, 1 Ch. 252, 364), but also those who had opportunity to attend the proceedings (Wakefield v. Oooke, 1904, A.C. pp. 36, 38 ; Askew v. Woodhead, 21 W.E. 573) . So, in probate cases, persons cited, or even cognisant, though not cited, are bound by the judgment, though not by a compromise to which they are no parties (post, 431). And probably, in conformity with the rule as to admissions, all persons who are substantially interested in the result come within the same rule (Tay. ss. 1687-1688; cp. ante, 237-8). Thus, an infant suing by a next friend or defending by a guardian is considered a party, although the latter is not (id.; Sinclair v. Sin^ clair, 13 M. & W. 640; ante, 238) ; and he is bound even if the action was brought without his knowledge or consent (Morgan v. Thome, 7 M. & W. 400 ; see, however, Blair v. Crawford, 1906, 1 I.E. 578) ; though it is otherwise in this respect with a person sui juris (Bayley v. Buckland, 1 Ex. 1). So, judg- ments as to the construction of instruments affecting any unascertained heir, next of kin, or class, are binding upon a representative appointed by the Court to represent such heir or class [0. 16, r. 32 (a) ; a member of a class will not, however, be bound as to a separate and independent right, unless he Digitized by Microsoft® CHAP. xxxvi.J JUDGMENTS. 413 has acquiesced in such judgment {Re Lart, 1896, 2 Ch. 788) ; nor will a person who, though cognisant of the proceedings, has no right to intervene (Young V. fl^oZZowoy, 1895, P. 87)]. A party to be affected must, however, sue or defend in the same right and character; thus, a judgment against a man claiming ex parte paternd will not bind him claiming ex parte materna (Stark. Ev., 4th ed. 337) ; nor would a judgment against him personally be evidence against bim in a representative capacity or vice versa (Eos. N.?. 193 ; and cp. Admissions, ante, 338 ; imless sued personally for a wrong done as such representative, Spencer v. Thompson, 6 Ir. C.L.E. 537, 566; Jewsbury v. Mummery, L.E. 8 C.T. 56; Thompson V. Clarke, 17 T.L.E. 455) ; and the same rule applies where he sustains two different characters {e.g. executor and administrator, Robinson's Case, 5 Eep. 32 6); or represents two different interests {Leggott v. O.N.By. 1 Q.B.D. 599). So, a judgment in a civil action is in general no evidence of the truth of the matter decided against the same person in a criminal trial, nor vice versa, since the parties are necessarily different; moreover, the burden of proof is not the same, the defendant in the criminal trial cannot avail himself of the admissions of the plaintiff in the civil one, and the jury in the latter may decide upon a mere prepondferance of evidence {Castrique v.^ Imrie, and other cases cited, post, 418; Tay. s. 1693; Greenleaf, s. 537), This rule, which certainly savours of technicality, has, however, recently under- gone modification, it being held that a conviction is admissible against the con- vict or his representatives in civil proceedings, not merely as proof of the conviction, but also as presumptive evidence of guilt, at all events where such proceedings are brought to enforce a claim to the fruits of the crime, and perhaps generally [Re Grippen, 1911, p. 108; Re E'ull, 1914, P. 1 ; and in Mash v. Barley, 1914, 1 K.B. 1, reversed on other grounds, 1914, 3 K.B. 1226, G.A., Eidley, J., held that the principle of Re Grippen, sup., applied generally]. Moreover, imder various statutes, in proceedings before magistrates of a civil, and sometimes of a summary criminal, nature the rule in question does not obtain. . Thus, a magistrate'^ award of compensation under 6 & 7 Vict. c. 86^ s. 28, is a bar to an action for the same cause (Wright V. L. 0. Omnibus Co., 2 Q.B.D. 172; post, 423). And the converse also holds, a civil- judgment being a bar to the same claim before a magistrate (Routledge v. Hislop, 29 L.J.M.C. 90; post, 430). So, under the Offences Against the Person Act, 1861, ss. 42-45, a summary conviction, or a certificate of dismissal (ante, 368), on a charge of common assault, or of aggravated assault on a woman or child, is a bar to all proceedings, civil and criminal, for the same cause (Masper v. Brown, 1 C.P.D. 97) ; and so with convictions under the Larceny Act, 1861, s. 109; the Malicious Damage Act, 1861, s. 67; aJnd for aggravated assault under 16 & 17 Viet. c. 30, s. 1 (though not on indictment for unlawfully wounding, Lowe v. Howarth, 13 L.T. 297). Privies. Judgments are also conclusive for or against privies, not only, as we have seen, because of the identity of interest, but also on the principle qui sentit commodum, sentire debet et onus (Re Lart, 1896, 2 Ch. p. 795; Tay. s. 390). Thus, as instances of successive relationship, judgments for or against an ancestor are evidence for or against his heir; those against a testator bind his executor, legatee, or devisee; and the same rule applies to Digitized by Microsoft® 414 THE LAW OF EVIDENCE. [bookii. grantees, mortgagees, and assignees, provided their titles accrue subsequently to the judgment [Doe v. Derby, 1 A. & E. p. ?90: Re De Burgho's Estate, 1896, 1 I.E. 274, where it was held that the conversion of a renewable lease- hold into a fee farm grant was not the acquisition of a new. estate for this pur- pose; Tay. s. 1686]. So, a judgment against the holder of an ofiBce will bind his successor {Reich el v. Magrath, 14 App. Cas. 665) ; and one against a representative class, a future member of tliat class (Sewers Commisdoners v. Gellatly, 3 Ch.D. 610; Llanover v. Hoinfray, 19 Ch.D. 224). And, if successive remainders are limited by the same deed, a judgment for one remainderman is evidence for the next in succession {Doe v. Tyler, 6 Bing. 390; Doe x. Harlow, 12 A. & E. p. 42). But a judgment against a tenant for life or years does not bind a reversioner, for the latter claims independently {Rees v. Watts, 3 il. & W. 527 ; Wenman v. Mackenzie, 5 E. & B. 447; Tay. s. 1693); nor does a decree against a predecessor in title, restraining an injury to land, bind successors {A.-G. v. Birmingham, 17 Ch.D. 685) ; nor a decree against a company, bind another company to which the whole of its assets has been transferred, for here there is no privity of estate {Mercantile Trust y. River Plate Trust, 1894, 1 Ch. 578). The privy may also be bound where the relationship is mutual and not successive. Thus, as instances of joint liability in contract: a judgment against a partner or joint contractor is (unless obtained after the dissolution of the partnership by death. Re Hodgson, Beckett v, Ramsdale, 31 Ch.D. 177; Partnership Act, 1890, s. 9) a bar to separate actions, or a joint action, against the rest for the same cause of action (but not for different ones, e.g. on a cheque and the original debt, Wegg-Prosser v. Evans, 1895, 1 Q.B. 108, overruling Cambefort v. Chapman, 19 Q.B.D. 229), although the former judgment remains unsatisfied {King v. Hoare, 13 M. & W. 494; Kendall v. Hamilton, 4 App. Cas. 504; Isaacs v. Salhstein, 1916, 2 K.B. 139, C.A.), or was rescinded with the judgment debtor's consent {Hammond v. Schofield, 1891, 1 Q.B. 453), or one of the debtors was a married woman contracting in respect of her separate estate {Hoare v. Nihlett, 1891, 1 Q.B. 781), the reason being not only that the cause of action is merged in the judgment, but that the right of each debtor to be sued jointly with the rest is gone {Ken- dall y. Hamilton, sup.; Pilley v. Robinson, 20 Q.B.D. 155; Isaacs v. Salbstein, sup.). But although a creditor cannot sue one partner after suing the other, yet a surety for one of the partners may, since the rights of creditor and surety are not co-extensive {Badeley v. Consolidated Bank, 34 Ch.D. 536). And now, under the Jud. Act, the rule in King v. Hoare sjid Kendall v. Hamilton is restricted mainly, if not wholly, to successive actions against co-debtors (0. 27, r. 3) ; since where several partners or joint-debtors are sued in the same action, neither judgment in default of appearance against one, nor in default of defence against another, nor under 0. 14, against a third {Pwn V. Coyle, 1003, 2 I.E. 457; Walton v. Tophaki/au, ,53 AV-E. 657), nor perhaps a consent judgment against a fourth {Wenll'x. James, 68 L.T. 515; Powell \. Adamson, 1895, 2 I.E. 41; contra, MacLeod v. Power, 1898, 2 Ch. 295), will be any bar to judgment against the rest: nor, where some are out of the jurisdiction, or difficult to servo, will the plaintiff be compelled to join thern as defendants {Robinson v. Qeisel, 1894, 2 Q.B. 685, qualifying Pilley v. Robinson, sup.). A judgment in favour of one of several joint debtors, Digitized by Microsoft® CHAP. xxsvi.J JUDGMENTS. 415 however, must, in order to exempt the others, have proceeded on a ground that would operate as a discharge to all {Phillips v. Ward, 33 L.J.Ex. 7 ) . Where the Lability is joint and several, and the case is one of contract, no estoppel will arise. Thus, a separate judgment, while unsatisfied, against one debtor will not bar separate actions against the rest {Lechmere v. Fletcher, 1 C. & M. 623; Zingf v. Hoare, sup.; Drake v. Mitchell, 3 Bast, 351; Bermond- sey VeMry v. Ramsey, L.E. 6 C.P. 347) ; nor, it has been said, a joint judg- ment against all, separate actions against each {Be Davison, 13 Q.B.D. 50; contra, Lindley, Partnership, 7th ed. 286-7; and cp. Re E.W.A., 1901, 2 K.B. 643). A joint liability in tort has been held to be extinguished by a judgment recovered against any one of the parties liable, even without satisfaction, for the cause of action being one and indivisible and having been merged in the judgment, cannot ground a fresh action {Brinsmead v. Harrison, L.E. 7 C.P. 547 ; BucMand V. Johnson, lb C.B. 145 ; Munster v. Cox, 1 T.L.E. 542 ; Kelly •V. ■Hammond, 2 T.L.E. 804; Goldrei v. Sinclair, 1918, 1 K.B. 180, CA., where it was said that 0. 37, did 'not alter the rule in Brinsmead v. Harrison). But where the liability is joint and several, as in breaches of trust, a joint judgment against all forms no bar to separate proceedings against each {Re Davison, sup.) ; nor a separate judgment against one any bar to actions against the rest {Blyth v. Fladgate^ 1891, 1 Ch. 337 ; Edwards v. Hood-Barrs, 1905, 1 Ch. 20). Where the case is not one of joint-debtors, but of joint-creditors, equity will hold each entitled to a separate interest. Thus, where one joint-creditor sues on a bond, neither accord and satisfaction with, nor probably judgment bv, the other will bar the claim {Steeds v. S., 32 Q.B.D. 537; Palmer v. Mallett, 36 Ch.D. 411). Judgments against executors or administrators do not necessarily bind residuary legatees, next of kin, or devisees, siuce the former do not represent the estate for all purposes {Concha v. C, 11 App. Cas. 541; Harvey v. Wilde, L.E. 14 -Eq. 438; Spencer v. Williams, L. E. 3 P. & D. 330; cp. ante, 243); nor, in the absence *of agreement, will a judgment against a principal bind his surety {Parker v. Lewis, 8 Ch. App. 1035 ; Fxp. Young, Re Kitchin, 17 Ch.D. 668) ; nor a judgment against a wife's separate estate for an ante-nuptial debt bar a subsequent action against her husband {Beck v. Pierce, 23 Q.B.D. 316). The rule requiring identity of parties is often expressed in another form by the maxim Estoppels'must he mutual; it being a well-established principle that no one can take advantage of a judgment unless he would also have been concluded had it gone against him {Wenman v. Mackenzie, 5 E. & B. 447; Spencer v. Williams, sup.; De Mora v. Concha, 29 Ch.D. 268 ; for exceptions to this rule, see post. Judgments against Strangers, 425-30). Same Siibj«ct-matter and Object. (6) In order that a former judgment should conclude the parties thereto or their privies, either as an estoppel or as evidence, the matter in dispute must be identical in both proceedings; though it is not necessary that it should be the only point determined in either [Tay. ss. 1695-1701; 1705-1710; Stark. Ev., 4th ed. 333-337; Eos. F. P. 195-196]. Under the old form of pleadings there was much less difficulty in deciding whether a matter was res judicata'^&n'now, when the pleadings may contain a long story, or be wholly informal, or none may be delivered {Ripley v. Digitized by Microsoft® 416 THE LAW OF EVIDENCE. [bookii. Arthur, 86 L.T. TSj, 736; Banbury v. Bank of Montreal, cited ante, 27). The question is for the judge, or, if the facts are in dispute, for the jury, upon the evidence adduced (Tay. s. 1695) ; and in order to decide it the pleadings in the former action {Bohmson v. Duleep Singh, 11 Ch.D, 798) ; the report of the judge who tried the case {Houston v. Sligo, 29 Ch.D. 448) ; or oral evidence {e.g. the testimony of an arbitrator to explain, though not to contradict, his award, Buccleuch v. Metropolitan Board of Works, L.E. 5 H.L. 418) may be resorted to. On the one hand, the issues may be the same, although the form of action and the marshalling of the parties may be different; on the other, the issues may be distinct, though both relate to the same transaction or property. The safest test, therefore, is to inquire whether the same evidence would support both issues {Furness v. Hall, 36 T.L.E. 233; B. v. Oork JJ., 43 Ir. L.T.E. 154). Even, however, where the two cases are tried before the same judge, judicial notice will not be taken that the issues are the same {Bobinson v. B., 2 P.D. 75; ante, 21). Same Object. It is now settled that when once a given fact has been put in issue and decided between the parties, it will conclude them and their privies from re-litigating such fact in any subsequent proceeding, although brought for a different purpose or object {Barrs v. Jackson, 1 Phill, 582; Flitters v. Allfrey, L.E. 10 G.P. 29; Finney v. F., L.E. 1 P. & D. 483; Priestman v. Thomas, 9 P.D. 70, 210). Though, however, this is true with regard to findings of fact, yet to raise an estoppel on the right determined the two suits must, it would seem, have been brought for the same purpose and object [Hunter v. Stewart, 31 L.J.Ck 346; Nelson v. Couch, 15 C.B. N.S. 99; Bio Tinto Go. v. Societe des Metaux, 6 T.L.E. 408; Whittaker v. KershoAV, 45 Ch.D. 320, 327; at all events, this distinction, which was taken arguendo in De Mora v. Concha, 29 Ch.D. 268, 292, helps to reconcile many of the conflicting dicta on the subject]. ' Election. Fresh Evidence. It is, perhaps, hardly, necessary to remark that, whether the issues are the same or not, the parties may be estopped, not on the ground of res judicata, but of election {Scarf v. J^rdine, 7 App. Cas. 345; iJe Davison, 13 Q.B.D. 50, 53; Taylor v. Hollard, 1902, 1 K.B. 676). bo, though the parties are generally precluded from re-litigating the same pomt, the case may sometimes, by leave of the Court, be reopened upon the discovery of fresh evidence tending in a different direction {Stevens v. Tillett, ^;^; ^ ^-Y-}^"^'}^^' ^' ^"y- ^^ ^^•^- ^le; Phosphate Sewage Co. v. Molleson, 4 App. Cas. 801; Boswell v. Goales, 6 E. 167, H.L.). Whole Case, (c) The parties are also, in general,' estopped as to their whole case, and will not be permitted to reopen the same subject-matter of litigation merely because they have from negligence, inadvertence, or even accident omitted a part of their case {Henderson v. H., 3 Hare, 115 ; Joint Committee, &c., v. Croston, 1897, 1 Q.B. 251 ; see, however, Heath v. Weaver- sham Overseers, 1894, 2 Q.B. 108; post, 423). Thus, they may not split their cause of action {Bussell v. Waterford Bailway Co., 16 L.E.I. 314- MacDougall v. Knight, 25 Q.B.D. 1 ; and see County Courts Act, 1888J s. 81) • nor their relief {Serrao v. Noel, 15 Q.B.D. 649; Wright v. Lond. Gen. Omnv- hus Co., 2 Q.B.D. 271) ; nor set up facts which were available for them under any of the issues tried in the former action {Jewshury v. Mummery, LE 8 C.P. 56; Bagot v. Williams, 3 B. & C. 239; Dunn v. Murray, 9 B. & C 780) Digitized by Microsoft® CHAP. XXXVI.J JUDGMENTS. 417 And if all matters in difference are referred, this is an estoppel as to every claim falling within the scope of the reference {Smith v. Johnsofj,, 15 East, 213; Dunn v. Murray, sup.; Henderson v. H., sup.); though not as to others outside it {Bavee w. Farmer, 4 T. E. 146; see also Rhodes v. Airedale Com- missioners, 1 C.P.D. 402). But plaintifiEs are not bound, nor estopped if they fail, to join distinct causes of action though arising in respect of the same transaction {Brunsden V. Humphrey, 14 Q.B.D. 141) ; nor distinct equities entitling to the same relief (Hunter v. Stewart, 31 L.J. Ch. 346; but see Be Hilton, and Shoe Machinery Co. v. Cutlan, cited post, 424; also Piggott Foreign Judgments, 48-51). Nor formerly were defendants obliged to litigate all, or any, of their defences in a particular suit {Howlett v. Tarte, 10 C.B.N.S. 813; Davis v. Hedges, L.R. 6 Q.B. 687; Houston v. Sligo, 29 Ch. D. 448; Cuird v. Moss, 33 Ch. D. 22) ; though, under the Jud. Acts, this rule has now to some extent been modified (Humphries v. H., 1910, 2 K.B. 531; Coohe v. Bickman, 1911, 2 ;K.B. 1125; post, 423). And no estoppel arises if the parties had no oppor- tunity of obtaining in the former suit the relief sought in the latter (Nelson v. Couch, 15 C.B.N.S. 99; The Orient, L.R. 3 P.C. 696; The Sylph, L.R.2 Ad. 24) ; nor if the question raised in the second action was not, and could not properly have been, decided in the former suit (Bainbrigge v. Baddeley, 2 Phill. '!'05; Toulmin v. Copland, id. 711; Blahe v. O'Kelly, 9 Ir. R. Eq. 54; Houston V. SKgo, sup.; Worman v. W., 43 Gh. D. 296) ; nor if, though in fact raised and decided, it was unnecessary to the decision (Concha v. C, 11 App. Cas. 541). Criminal Cases, (d) In criminal eases similar rules prevail; an acquittal or conviction being a bar to a second indictment for the same offence, or for any other of which the prisoner might have been convicted under the first [B. v. Barron (No. 2), 1914, 2 K.B. 570; cp. ante, 410]. So, where the first offence was the subject of summary proceedings, and the defendant is accused a second time, upon summons or indictment, for the same offence, whether charged in the original form, or a more aggravated one. And, under the Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 33, where an act or omission constitutes an offence under several statutes, or both by statute and common law, the offender shall not, unless a contrary intention appear, be liable to be twice punished for the same offence. [Tay. ss. 1705-1710 ; Russ. Cr., 7th ed., 1981-96; Archb. Cr. PL, 23rd ed., 169-77; Ros. Cr. Ev., 13th ed., 169-72 ; 64 J.P. 611 ; and as to the effect in this country of an acquittal in a Foreign Court, see B. v. Aughet, 13 Cr. App. 101; and 68 J.P. 417]. More- over, where a given fact has been litigated between Crown and prisoner, the judgment therein will be conclusive in a second trial (B. v. WilUhire, 6 Q.B.D. 366). EXAMPLES. (o) Same Parties, or their Privies. Mutuality. AdmissiMe. Inadmissible. A. sues B. for infringement of patent, A. sues B. for infringement of patent, and obtains judgment on the ground that and B. obtains judgment on the ground the patent is valid. In a fresh action by that the patent is invalid. On a subse- A. for a subsequent infringement of the quent petition by B. for the revocation of l,.E.— 27 Digitized by Microsoft® 418 THE LAW OF EVIDENCE. [book II. Admissille. same patent^B. is estopped from impeacb- ing the validity of the patent {Shoe Machi- nery Co. V. Giitlan, 1896, 1 Ch. 667 ; Boi^ rocks V. StuUs, 74 L.T. 58; PouUon v. Adjustable, &c., Co., 1908, 2 Ch. 430; see pos<, 434). A., as public officer of a bank, having obtained judgment against B. for a debt due to the bank, arrests him for a greater amount than is adjudged due. In a subse- quent action for malicious arrest by B. against A. personally, A. is estopped from disputing the correct amount of the debt, though in the former action he sued, in autre droit (Spencer v. Thompson, 6 Ir. C.L.E. 537). A. sues B., as executrix of C, for a debt due from C. to A.; — ^B. does not de- fend, nor plead plene administravit. In a subsequent action by A. against B. per- sonally, B. is estopped from denying that she had sufficient assets of C.'s to pay the debt (Thompson v. Clarke, 17 T.L.R. 455; Barron v. Ryan, 41 Ir.L.T.R. 39; cp. Jeicslury v. Mummery, post, 423). In a probate action, B., who is made a defendant as A.'s next of kin, but not cited as A.'s heir, appears, and unsuccess- fully disputes A.'s will. He cannot after^ wards, as A.'s heir, dispute the will as affecting realty (Beardsley V. B., 1899, 1 Q.B. 746 j cp. Priestman v. Thomas, post, 422). A., as administratrix of B. (her de- ceased husband), sues a railway company under Lord Campbell's Act for damages for B.'s death by a collision. B. had, be- fore he died, accepted a sum of money in full satisfaction of all his causes of action against the company. A.'s claim held to be barred [Read v. G. E. Ry., L.R. 3 Q.B. 555; Griffiths 'v. Dudley, 9 Q.B.D. 357. These cases have been supposed to conflict with Leggot v. G. N. Ry., oppo- site; but in Griffiths v. Dudley, Gave, J., denied this. The Court decided that the Act gave no new right of action, but only substituted the right of the representative to sue, for that of the deceased]. Certain tenants of a manor, on behalf of themselves and all other tenants, sue the lord in respect of a manorial right. The judgment an this suit is condusive in an action for the same cause between a subsequent lord and other tenants, the two sets of parties being privy in estate {I Ann or er V. Homfray, 19 Ch.D. 224). A judgment in a suit between A., the incumbent of a living, and C, the patron, deciding that the living was vacant on the grounds of A.'s resignation, is conclusive in an action by B., the succeeding incum- bent, against A., in which the question was whether A.'s resignation was valid (Reiohel v. Magrath, 14 App. Cas. 665). Inadmissible. A.'s patent, A. is not estopped from again maintaining its validity, since B.'s petition is a proceeding on behalf of the public, and not one personally between A. and B. (Re Deeley's Patent, 1895, 1 Ch. 687). A. ds convicted of forging B.'s signature to a bill of exchange. In an action against B., by C, to whom A. has trans- ferred the bill, A.'s conviction is not ad- missible to prove the forgery [per Black- burn, J., in Castrique V. Imrie, L.R. 4 H.L. p. 434; Leyman v. Latimer, 3 Kx.D. p. 354; Parsons v. L. C. C, 9 T.LJl. 619; Totes V. Kyffin-Taylor, 1899, WJf. p. 141 ; Gaine v. Palace Co., 76 L.J.K.B. 292,-298, 302, C.A. ; Attenioro' v. Salford, 55 L.Jo. 256; cp. post, 429; Coffey v. U.S., 116 U.S. 443]. So, a certificate of acquittal on a charge of rape is not admissible to dis- prove the rape in a divorce suit founded thereon [Virgo v. V., 69 L.T. 460, post, 428. For a converse case in which a civil judgment was rejected in a criminal case, see R. V. Kingston, ante, 410, post, 426]. A verdict and judgment in an action of ejectment, brought to try the validity of a will of realty. — ^Held not admissible in a , suit respecting the same will in the Ecclesiastical Courts (CMndall v. G., 3 Hagg. 259, since in the former action the heir alone was a party, and the verdict might have been collusive). A., as administratrix of B. (her de- ceased husband), obtains judgment against a railway company, under Lord Camp- bell's Act, for damages for B.'s death from a collision. She is not estopped from afterwards, as administratrix, suing the company for loss to B.'s personal estate on account of his medical expenses and inability to attend to business result- ing from the same accident, since in the former she represented B.'s widow and children personally, and in the latter B.'s estate merely [Leggott v. G.N. Ry., I Q.B.D. 599 1 Daly v. DuUin Ry., 30 L.R.I. 514 ; and under Workmen's Comp. Acts, see WiUiams v. Vauichall Colliery Co. 1907. 2 K.B. 433. C.A.] A judgment in a probate suit between the executor and next-of-kin of a testator, in which the domicile of 'the testator was declared to be English, does not estop the next-of-kin from bringing a subsequent action against the residuary legatee, in which the question was whetiier the. domi- cile was not Chilian, and as such did not deprive the testator of the power to be- queath more than, a quarter of his pro- perty to strangers, the executor not repre- senting the parties in such a dispute, and also the question of domicile being unneces- sary to tie former decision [Concha v. C, II App. Gas. 541; and see M'Donnell v. Digitized by IVIicrosoft® CHAP. XXXVI.] JUDGMENTS. 419 Admissible. Where A., one of three brothers, co- parceners in gavelkind, was in possession of the whole of the land and leased it to B., B. was, upon the deaths of A. and of another of the brothers, held estopped from denyiilg that the surviving brother was entitled, as heir and privy in blood of A., to the whole of the land, and not merely to one-third thereof (Weeks v. Birou, ^ L.T. 759). A. and B., co-owners of certain works, sue C. for diverting water therefrom. A judgment obtained by A., when sole owner of the works, agadnst C. for a former diversion of the water, is. admissible in favour of A. and B.; — ^the fact of their joint possession of the works being suffi- cient prima facie evidence of their privity of estate to let in the former judgment [Blakemore v. Olamorganshire Oo., 2 O. M. & R. 133 ; op. Eaton v. Swansea Waterr works, post, ^9- B. v. Brightside Bier- loiD, 13 Q.B. 923; Meroa/atile Trust v. River Plate Go., 1894, 1 Oh. 578]. A. obtains an affiliation order against B., which, on appeal to Q.S., is quashed on the ground of insufficient corroborative evidence. The latter oraer is a decision on the merits and final, and A. cannot afterwards take fresh proceedings against B. [R. V. Glynne, I/.K. 7 Q.B. 16, ex- plained in Anderson v. OoUinson, oppo- site.] Inadmissille. Alcorn, cited ante, 408]. . So, a judgment against an executor does not bind a devisee marvey v. Wilde, L.R. 14 Eq. 438) ; nor, in an administration suit, does a decree against a next-o(£-kin who has renounced, bind his next-of-kin, where the latter's claim arises upon the renunciation and not through the former personally {Spen- cer V. Williams, L.R. 2 P. & D. 280). A. sues B. for necessaries supplied to B.'s wife whilst living apart from him. B.'s defence is that his wife was living in adultery at the time. A verdict in former divorce proceedings iiu^Aing that B.'s wife had committed adultery, but fol- lowed by a judgment dismissing B.'s peti- tion on the ground of his own adultery, is not admissible against A. to prove the wife's- adultery (Needham v. Bremner, L.R. 1 O.P. 583; corUra, Day v. Spread, Jebb & B. 163, where a similar judgment was con^dered as prima facie, though not conclusive, evidence on the ground that A. might be considered as claiming through the wife ; see also Keegan v. Smith, 5 B. & G. 375). A. obtains an affiliation order against B., wbieh, on appeal to Q.S., Js quashed, on the ground that B. was not the father of A.'s childi In a subsequent action for seduction 'against B. by C, A.'s mother, C. is not estopped from proving that B. was the father, since the parties are different (Anderson v. OolUnson, 1901, 2 K.B. 107) . A., the incoming tenant of a public- house, applies for, but fails to obtain, a new license. This is no bar to B., a sub- sequent tenant, obtaining either a new li- cense or a transfer of the old one from A.'s predecessor [R. v. Upper Osgoldoross;- 53 J.P. 823; R. v. Thomas, 1892, 1 Q.B. 426; R V. Bristol J J., 61 L.J.M.C. 141, where the ground of refusal was the dis- orderly character of the house, as to which see Latimer v. Birmingham, and Smith v. Shann, cited ante, 186]. (6) Some Subject-matter. A. recovers judgment against B. for a debt, B. having pleaded, but failed to prove, payment. This judgment is conclusive proof that the debt was owing, in a sub- sequent action brought by B. against A. to recover the money, although B. now produced A.'s receipt for its payment (Marriott v. Hampton, 7 T.R. 269; 2 Smith, L.C., 11th ed. 421). A., being sued .by a company for un- paid premium and calls, obtains judgment on the ground that he was never legally a sharebolder. This judgment is conclusive in A.'s favour in a subsequent action by him against the company to recover moneys paid by him as an alleged share- holder (Alison's Case, L.R. 9 Ch. 24) . A. sues B. for damages for false im- prisonment and obtains judgment. A. is not barred from afterwards suing B. for damages for malicious prosecution, the cause of action being different, though the jury in the former trial were misdirected to consider B.'s malicious conduct (Guest V. Warren, 9 Ex. 379). The owner of vessel A. recovers judg- ment against the "owner of vessel B. for damages for a collision caused by the negligence of B.'s captain. The owner of B. is not estopped by this judgment from recovering damages from the owner of A. for the same collision as being caused by the negligence of A.'s captain (The Gal- Digitized by Microsoft® 420 THE LAW OF EVIDENCE. [book II. Admissible. In a suit between A. and B. for ad- ministration to the goods of C, deceased, a grant is made to A. on the ground that, " as far as appears by the evidence," A. is next of kin to C. This judgment ds conclusive proof that A. is nearer of kin than B., in a suit between them for the distribution of the effects of C. though the two suits are for different objects (Barrs V. Jackson, 1 Phil. 582 ; Spencer v. Wil- ■ Hams, L.R. 2 P. & D. 230; Re Ivory, Hankin V. Turner, cited ante, 410; and see Concha v. C, 11 App. Cas. 541). A. , petitions for restitution of conjugal rights with her husband B., and in these proceedings gives proof of her marriage With B. This evidence as admissible to prove their marriage in a subsequent suit for divorce by A. against B. and suflSeient, unless the v^dity of the marriage is con- tested on any ground by B. (Cowley v. C. 1913, P. 159 ; Vemey v. Y., 36 T.L.R. 203) . A. sues B. in the County Court for dam- , ages for wrongful dismissal. A judgment against A. in this action bars a subseciuent claim before justices against B. to recover hiis wages; the question in the two pro- ceedings being the same — i.e. whether the discharge was wrongful (Boutledge v. His- lop, 29 L.J.M.O. 90). A. sues B. in the County Court to re- cover possession of certain hereditaments. B. applies to a judge in chambers for a prohibition on the ground that their an- nual value exceeds £20. The dismissal of this summons estops B. from proving in the action that the premises are of greater value than £20 (8ymonds v. Bees, 1 Ex. D. 41). A. is charged under the Public Health Act, 1888, s. 3, with erecting a house which projects beyond those adjoining. The justices being equally divided, the charge is dismissed. A. cannot be again charged for continuing the same buildings on future days (Kinnis v. Graves, 19 Cox, 42 ; Wills, J., stated that the proper course where justices were equally divided was to adjourn and reconstitute the Court. See B. y. WoA-dle, 14 T.L.R. 424, where Hawkins, J., remarked that a dismissal where the Court was equally divided was not a decision on the merits). Inadmissible. ypso, 1 Swa. Ad. 28 ; cp. Nelson v. Ooudh, post, 422). — So where, in the first action, vessel B. was in tow of vessel C. at the time of the collision, and at the trial the owners of 0. wei'e let in to defend ; — a judgment by A. against B. does not estop B. from bringing a subsequent action against C, the issue being different (Shankland v. Baine, 1881, cited Priteh. Adm. Dig. 660). A., a railway company, sues B., a cor- poration, for a declaration that A.'s cars are personal property and so not liable to taxation as realty. A previous decision between A. and B. by another Court, which had jurisdiction to determine the am^wnt of A.'s assessment, but- not his liability . thereto, is not res judicata (Toronto Ry~ V. Toronto Corp., 1904, A.C. 809). A. sues B. in the County Court for damages ifor wrongful dismissal. B., without making any set-off or counter- claim, gives evidence, in justification of the dismissal, of A.'s negligence in damag- ing his property. — ^A judgment against B. in this action does not estop B. from seek- ing damages for A.'s negligence before jus- tices, the negligence justifying compensa- tion not being necessarily suflieient to jus- tify dismissal (Bindley v. Haslam, 3 Q.B. D. 481). A. obtains a magistrate's order under 2 & 3 Vict. c. 71, s. 40, against B. for the delivery up of certain goods under the value of £15. This is no, bar to a subse- quent action by A. against' B. cither (1) for trover of the same goods, since the former decision only involves a provisional and not an absolute finding as to their title (Dover v. ChOd, 1 Ex. D. 172) ; or (2) for damages for their detention, since the two proceedings are not for the same thing, the magistrate having no jurisdic- tion as to damage (Midmnd Ry. v. Martin, 1893, 2 Q.B. 172. Nor does the rule as to putting a party to his election, where there are alternative remedies for the same subject-matter, apply). As to delivery up of premises, see id.; and Ros. N.P. 207. A. is convicted under the Public Health Act, 1888, s. 3; of erecting a house beyond those adjoining. This conivietion ds mot admissible to prove its erection, on a sub- sequent charge agaiinst A. of continuing the house (Pommeroy v. Malvern Council, 1903, Times, July 7) ; nor is the A.-G. precluded thereby from suing A. for a mandatory injunction to pull down the house (A.-&. V. Wimbledon, 1904, 2 Ch. 34). A., a house-owner, is sued by the Local Board, under the Public Health Act, 1875, s. 150, for his proportion of the expenses Digitized by Microsoft® CHAP. XXXVI.] JUDGMENTS. 431 Admissible. A. excavates into B.'s mine, causing damage by an inflow of water. — A recov- ery by B. bars an action by him for fu- ture inflovis through the same excavation, the cause of action being entire and not continuous (Glegg v. Dearden 12 Q.B. 576) . A. recovers judgment again'st B. for damages for misrepresentation as to the drainage of a farm; — ^A. is estopped from bringing an action for future damage re- sulting from the same misrepresentation, the cause of action not being continuous (Clarke v. Yorke, 31 W.R. 62). As to successive claims against a ser- vant for absenting himself from work, which claims might have been included in a former claim, see James v. Evans, post, 423. A mortgagor covenants to pay the prin- cipal sum secured by the mortgage and, by a separate covenant, to pay interest at 7 per cent. " so long as the principal sum, or any part thereof, remains unpaid " ; — a judgment recovered by the mortgagee for principal and interest precluues him from bringing a second action for interest at the higher r^te accrued since the judg- ment (Exp. •E'bwings, Re Sneyd, 25 Ch. D. 338 ; approved an Eoonomio Life 8oo. V. Ushome, 1902, A. C. 147, 149-50). In a probate suit between A. and B., a will, propounded by A., is, under a com- promise, admitted- to probate : afterwards B. obtains judgment against A. in a chan- cery action setting aside the compromise on the ground that the will was forged. This judgment is conclusive evidence of Itiadmissihle. of sewering a street, the summons being dismissed on the ground that " the street was a highway repairable by the inhabi- tants at large." Held, that this finding was beyond the jurisdiction of the jus- tices, which was only to make or refuse the order for such expenses ; and that it was no bar to a subsequent claim by the Board for A.'s proportion of the paving expenses for the same street (R. v. Hutch- ings, 6 Q.B.D. 300; approved in Wake- field V. Cooke, ante, 409, 411 ; op. R. v. N. E. Ry., 19 Oox, 682, and N. E. Ry. V. Dal- ton, 1898, 2 Q.B. 66) . A, excavating in his own mine, causes damage to B.'s house by a subsidence. A recovery by B. is no bar to an action for a future subsidence from the same excava- tion, the cause of action being' continuous, whether tSie damage itself is continuous or not [Darley Co. v. Mitohell, 11 App. Oas. 127 ; Crumhie v. Wallsend Local Board, 1891, 1 Q.B. 503; Clarke v. Mid- land &. W. Ry., 1895, 2 I.R. 294. Here the cause of action is not the excavation, which was perfectly lawful, but the dam- age from the subsidence due to such act. And an injury to several persons by the same negligence is a separate accident to each (Soitth Staff. Tram Co. v. Sickness, dc, Co., 1891, 1 Q.B. 402)]. A. erects an obstruction on B.'s land. — A recovery by A. as no bar to a future action in respect of the same obstruction, the cause of action being its continiued non-removal (Bohnes v. Wilson, 10 A. & E. 503; Thompson v. Gihson, 7 l.i. & W. 456; Olegg v. Dearden, sup., in which these cases are distinguished) . As to successive judgments against a servant for absenting himself from work, , see Cutler v. Turner, li.R. 9 Q.B. 502, cited post, 423 ; and as to continued false im- prisonment, Ha^dy v. Ryle, 9 B. & C. 603. A mortgagor covenants to pay the prin- cipal sum secured by the, moirtgage, and by a separate covenant, to pay interest at 7 per cent. " so long as any sum remains due either on the covenants, or any judg- ment in respect thereof." Held, on the construction of this covenant, that a judg- ment recovered by the mortgagee for prin- cipal and interest does not bar a subse- quent action -for interest at the higher rate, accrued since the judgment (E/cp. Eemings, and Economic Life Soo. v. Us- home, opposite; see Popple v. Sylvester, 22 Ch.D. 98; Florence v. Jenings, 2 C.B. N.S. 454 ; and Bake v. French, 122 L.T. Jo. 343). In an administration suit to which A. and B. are parties, A. is found entitled to certain property by purchase ; this is no bar to a subsequent Chancery action by B. against A. to set aside the purchase on the ground of fraud (Widgery v. Tep- per, 7 Ch.D. 423). Digitized by Microsoft® 422 THE LAW OP EVIDENCE. [book II. Admissihle. the forgery in a further probate suit by B. against A. to revoke the probate, al- though the objects of the two suits were different and the relief sought in the former could not have been obtained in the- latter action (Priestman v. Thomas, 9 P.D. 210). See also Brvnsden v. Humphrey, infra. Itiadmissible. In a collision cause iii the Admiralty Court, A. obtains a judgment in rem against B.'s ship ; — ^A.. is not [estopped from afterwards suing B. in personam if the proceeds of the sale are insufficient to pay his claim (Nelson v. Govch. 15 C.B. N.S. 99 ; op. The Calypso, ante, 419-20) .— So, an action to enforce the sale of mort- gaged property does not bar subsequent proceedings against the debtor for the un- paid balance (id.) ; nor does an executor's action against a legateee for the sale of shares prematurely transferred to the latter, bar a subsequent action against him to refund the balance of the legacy (Whit- taker V. Kershaw, 45 Ch. D. 320, 327 ; op. Wright v. Lond. Q-.O. Co., and Jam-es v. Evans, post, 423). (o) Whole Case. A., in a running-down case, recovers damages against B. for injury done to his carriage. A. is estopped from afterwards recovering damages for injury done to his horse by the same accident (see Brunsden V. Humphrey, 14 Q.B.D. 141. — So, if the two injuries had been to different parts of his person, id.). A. sues a railway company for damage done to certain sacks of flour whilst in transit, he having at the time notice from B., to whom he had sold other sacks, part of the same consignment, that such other sacks had also been injured ; — ^A. is pre- cluded from bringing a second action against the company for the damage done to B.'s flour, there being but one cause of action, and A. having had an oppor- tunity of claiming for B.'s damage in the first action (Russell v. Waterford By. Co., 16 L.R.Ir. 314). A. sues B. for libellous statements con- tained in a pamphlet; — ^judgment is given for B. ; — ^A. is estopped from bringing a subsequent action against B. for other ■libellous statements contained in the same pamphlet (MacDougall v. Knight, 25 Q.B.D. 1). A., in a partnership suit against B., obtains a decree ordering a reference to a master to compute what is due to him upon all accounts in question in the pleadings. Under this reference only a portion of such accounts are gone into; — A. cannot afterwards sue B. in respect of the others (Henderson v. H., 3 Hare, 115). A. sues B. for three items of an ac- count, and recovers judgment for two. ' He is estopped from afterwards suing B. for the third (Bagot v. Williams, 3 B. & 0. ,235; Dunn v. Murray, 9 B. & C. 780; Saunders v. Hamilton, 96 L.T. 679) ; so, A. recovers damages against B. for in- jury to his carriage. A. may afterwards recover damages for injury done to his person by the same accident, injury to property and injury to persons giving rise to distinct causes of action which need not be joined (Brunsden v. Humphrey, opposite; but cp. Wemyss v. Hopkins, post, 425). A. recovers judgment against B. for obstructing a watercourse, B.'s defence being a denial of the obstruction. In a second action for a subsequent obstruction, B. is not precluded from denying A.'s right to the watercourse (Evelyn- v. Haynes, explained in On tram v. More- wood, 3 East, 346) ; so, if B. is sued for rent, and lets judgment go by default, he is not estopped in a second action for subsequent rent from raising a set-off which he omitted from the first (Howlett v. Tarte, 10 C.B.N.S. 813, but see now under the Jud. Acts, Cooke v. Rickman, 1911, 2 K.B. 1125, cited infra, 423) . A. sues B. for the price of a kitchen- range and obtains "judgment. B. is not estopped from afterwards suing A. for negligence in the construction of the range (Rigge v. Burlidge, 15 M. & W. 598; Davis v. Hedges, L.R. 6 Q.B. 687). A. sues B. in the County Court, B. pleading a cross-claim exceeding the amount recoverable in a' County Court ; — B. is not estopped from recovering the balance of his claim against A. in a sec- ond action (Webster v. Armstrong, 54 Digitized by Microsoft® CHAP. XXXVI.] JUDGMENTS. 433 Admissible. where costs might have been claimed as damages in the first (Fiirness v. Hall, 25 T.L.R. 23a). And where B. in defence failed to j)lead the Statute of Frauds in the first action, he ds estopped from doing so in the second (Humphreys V. H., 1910, 2 K.B. 531). So, where he iailed in the first action to plead want of consideration, he is similarly estopped. (Cooke v. Rich- man, 1911, 2 K:.B. 1125). A magistrate awards compensation to a master under the Employers and Work- men Act, 1875, s. 4, for a servant leav- ing his employment; this bars further compensation for {i second absence occur- ring before, and capable of being included in, the first summons (James v. Evans, 1897, 2 Q.B. 180). A. summons B. before a magistrate for furious driving, and is awarded compensa- tion; — 'he is estopped from afterwards suing B. for, further compensation (Wright V. London General Omnitus Co., 2 Q.B.D. 271). A. obtains a judgment, finding assets against B., as executor; — in a subsequent action by A. for devastavit, B. is estopped from proving that he misapplied the as- sets with A.'g consent, as this is in effect a plea of no assets which B might have proved by the same facts in the former action (Jeiosiury v. Mummery, L.R. 8 C.P. 56; ep. Thompson v. Clarke, ante, 418). A. sues B. on a bill of exchange to which B.'s defence is a composition deed executed by A. A. consents to judgment in B.'s favour. In a subsequent action by A. ^gainst B. for non-payment of an in- stalment under the deed due 'before the former judgment; — ^held, the former pro- ceedings were a bar to the second action, since the fact of the non-payment might have been raised, in the former action (Neicington v. Levy, L.R. 6 C.P. 180). In proceedings between A. (a commit- tee of river authorities) and B. (an Urban Board), B. consented to a County Court order against him to erect works so as to prevent the pollution of a certain "stream." At the time of the consent B. did not object, though he might have done, that the order could only extend to tidal portions of a stream by a license of the Local Government Board first obtained. Held, that B. was estopped from raising this point in subsequent proceedings against him by A. to enforce the order (Joint Committee of River Riille v. Cros- ton, 1897, 1 Q.B. 251). Inadmissiile. L.J.Q.B. 236; aUter if the plaintiff aban- dons part of an entire claim in order to sue in the County Court, see County Courts Act, 1888, s. 81; Vines v. Arnold, 8 C.B. 632). A recovery against a servant for absent^ ing himself from work is no bar ' to pro- ceedings for a second breach of the same hiring, occurring after the first recovery (Cutler V. Turner, L.R. 9 Q.B. 502). A. sues B. for rescission of a contract, judgment being given for B. A. is not estopped from afterwards suing B. for damages for breach of the contract (Cal- landar v. Dittrich, 4 M. & G. 68). A., as B.'s executor, files a bill against C, as executor de son tort, for administra- tion of B.'s estate, also raising issues in the bill as to the validity of a transfer of stock from B. to C, and as to B.'s sanity at the time ; — ^An ordinary decree for ad- ministration is granted without mention of these issues. This decree does not pre- clude A. from raising the same issues in a subsequent suit against C, as they could not have been properly determined in, and were not relevant to, the relief sought by the former suit (Blake v. O'Kelly, 9 Ir. "R. Eq. 54 ; see Bainbrigge v. Baddeley, 2 Phil. 705). A. sues B. on a bill of exchange, B.'s defence being a composition deed executed by A. A. consents to judgment in B.'s favour. In a fresh action by A. against B. for non-payment of an instalment due after the former judgment, — held, the former judgment was no bar to the second action, since the non-payment could not have been raised in the former proceed- ings (Hall V. Levy, L.R. 10 C.P. 154) . . Ill proceedings in 1866 between A. (a landowner) and B. (a highway board), A. was held exempted from liability to pay a highway rate on the ground that he was liable to'repair a certain road rations tenuroB. The road had before this date been so altered that A.'s liability to repair it had really ceased, but this fact was un- known to the Court and the parties in 1866. Held that A. was not estopped from disputing his liability to . repair the road in subsequent proceedings between B.'s successors and himself (Heath v. Weaversham Overseers, 1894, 2 Q.B. 108 ; cp. Shatv v. I/ay, and Betts v. llenzies, post, 427). Digitized by IVIicrosoft® 424 THE LAW OF EVIDENCE. [book II. Admissiile. A. sues B. in the Chancery Division for the delivery up 'of certain shares, and ob- tains judgment by consent ; — A. is estopped from afterwards suing B. an the Queen's Bench Division for damages for the de- tention of the shares, as the cause of action is the same, and the latter relief might, and ought to, have been sought in the former action (Serrao v. Noel, 15 Q.B.D. 549). In an interpleader issue, ordered dn A.'s bankruptcy, as to the ownership of a debt assigned by A. to B., and the validity of which assignment C, the trustee, disputes on the ground that at the time thereof B. had notice of an act of bankruptcy, judg- ment is given in favour of B. — Held that C. is estopped in subsequent proceedings in the bankruptcy, from impeaching the assignment on the ground either of fraudu- lent preference, or that A.'.s assignment was itself an act of bankruptcy, evidence «is to both points having^ been admissible under the first issue (Re Silton, Exp. March, 67 L.T. 594). A. gets judgment against B. for infringe- ment of patent, B.'s defence being invalid- ity by reason of anticipation. In a subse- quent action by A. for fresh infringements by B., B. is estopped from disputing the validity of th& patent by reason of dif- ferent anticipations only discovered since the prior action ('Shoe Machmery Co. V. Cutlan, 1896, 1 Ch. 667. Romer, J., re- marked that B. was bound to litigate his whole case, and to search and find out all grounds of invalidity that he intended to rely on in support of bis plea pf in- validity. Op. ante, 418). Inadmissible. A. files a bill in equity against a com- pany, claiming to be admitted as a share- holder upon the ground that he is the transferee of certain shares ;— he is not estopped from afterwards filing a bill against the same company claiming to be admitted as a shareholder on the ground that the course of dealing adopted by the company with respect to the issue ■ of shares entitled him to membership (Hun- ter V. Stewart, 31 L.J.Ch. 346). (d) Criminal Cases. A. is indicted for the murder of B. and acquitted. He cannot afterwards be in- dicted for the manslaughter of B. [2 Hale, 246; R. V. Barron (No. 2), 1914, 2 K.B. 570] ; nor vice versa [R. V. Holcroft, 4 Rep. 46 lb. ; and see R. v. Oilmore, 15 Cox 85; and R. v. Tan,eock, 13 Cox, 217]. So, an acquittal on a coroner's inquisi- tion for the murder of an infant, has been held to bar a subsequent indictment for concealment of birth (B. v. Ryland, 1 Russ. Cr., 6th ed. 45 n) . A. is convicted before justices of a com- mon assault upon B. ; — he cannot after- wards be indicted upon the same facts for wounding with intent to murder B. (R. v. SUniion, 5 Cox, 324; R. v. Iflhiiigton, 1 B. & S. fiS8) ; even though so c-hnrged in other counts of the first indictment upon A. is indicted for the murder, of B. and acquitted. He may afterwards be indicted (1) for arson in setting fire to a house whereby B.'s death was caused (R. v. Seme, 107 C.C.C. Sess. Papers, 418-419) ; or (2) for procuring abortion upon the deceased (R. v. Topham, 28 L.Jo. 186). A. is indicted for wounding with intent to kill B. ; an acquittal or conviction on this charge is no bar to a subsequent in- dictment on the same facts for the murder of B. (R. v. De Salvi, cited in R. v. Mor- ris, L.R. 1 C.C. p. 93). A. is convicted of wilful neglect of her child under the Chil- dren Act 1908, s. 12 (1). On tlie death of the child she may also be indicted for manslaughter (B. v. Tanks, 1916. 1 K.B. 443). A. is convicted before justices of a com- mon assault upon B. ;— this conviction is no bar to a subsequent indictment upon the same facts for B.'s murder, man- slaughter, or rape (R. v. Friel, 17 Cox, 325; B. V. Miles, 24 Q.B.D. 423, per Hawkins, J.; R. v. Morris, sup.). Digitized by Microsoft® CHAP. XXXVI.] JUDGMENTS. 425 Admissihle. which no verdict was given (B. v. Gi-im- wood, 41 Sol. Jo. 98; 60 J.P. 809). So, if convicted of disorderly conduct and after- wards charged with assault (R. v. Cork J J., 43 Ir. I,.T.R. 154). So, a conviction for false pretences is a bar to a subsequent indictment for larceny on the same facts (R. v. King, 1897, 1 Q.B. 214; see comments on this case in R. v. Barron, sup.) A. is charged with poaching, and on cross-examination of a witness for the prosecution, it appearing that A. had been illegally arrested, the justices dismissed the charge. Held a bar to a second charge on the same facts, as though they did not go into the merits, yet they might have dome so, and A. could not be put dn peril a second time {R. v. Brackenridge, 48 J.P. 293), A. is convicted before justices of injur- ing a horse ridden by B. This is a bar to a subsequent summons for assaulting B. personally on the same occasion (Wemyss v. Hopkins, L.R. 10 Q.B. 378; but cp. Brunsden v. Humphrey, ante, 422). A. is charged under the Public Health Act, 1875, with exposing bad meat for sale, the summons being dismissed on the ^ound that the oSence was committed dn A.'s absence and without his Jinowledge. A. cannot be charged a second time on the same facts for being in possession of bad meat for purposes of sale, as he might' have been convicted of such charge under the former summons (R. v. Blount, 43 J.P. 383). So, as to "exposing for sale" and " selling," during prohibited hours (Don-tan v. Heugh, 1907, 2 I.R. 464). Inadmissih^.e. A. is convicted for larceny of goods. This is no bar to a subsequent charge of pawning the same goods (Pickford v. Corsi, 84 L.T. 627). A. is acquitted before a magistrate of poaching. This is no bar to his subsequent conviction for unlawfully using a dog for taking game on the same occasion (Bol- lard V. Spring, 51 J.P. 501 ; the facts not being the same, as a license was essential in one case and not in the other). A. is acquitted of sodomy with B. He may afterwards be charged with acts of gross indecency with B. [R. v. Barron (No. 2) 1914. 2 K.B. ,570. So, if acquit- ted of attempting to have carnal know- ledge of a female, he may afterwards ibe charged with indecently assaulting her (B. v; Burke, 47 Ir. L.T. Rep. 111)]. So, a conviction for taking game in a close time is no bar to a subsequent sum- mons for taking game without a license (Saunders v. Baldy, L.R. 1 Q.B. 8 ; the former being an offence against property, the latter an offence against the Revenue) . A. is summoned for contravening a statute as to collieries, the charge being dismissed because his co-owners should have been joined., Held, no bar to a sec- ond charge against A. in respect of the same facts (R. v. Brown, 7 E. & B. 757 ; cp. R. V. Simpson, 1914, 1 K.B. 66). So, wJiere the former judgment had been re- versed for error (R. v. Drury, 18 L.J.M.C. 189) ; or where the jury were improperly discharged after the trial had begun (R. v. Gliarlesworth, 1 B. & S. 460) . See further, Atkinson, Mag. Pr., 1914, 103-71. JUDGMENTS IN PERSONAM AS AFFECTING STRANGERS. A judg- ment in personam is no evidence of the truth either of' the decision or of its grounds, between strangers, or a party and a stranger, except (1) upon ques- tioijis of public and general interest: (3) in bankruptcy, administration, divorce, and patent cases, to a limited extent; or (3) when so operating by contract, admission, or acquiescence. [As to the rule, see Natal Land Oo V. Good, L.R. 2 P.O. 131, 133; B. v. Kingston (Duchess), ante, 410; Tay. ss. 1682-1683, 1694; Best, s. 590; Eos. X.P. 194-195; Steph. art. 44; Whart. ss. 820-823. As to the exceptions, see infra. It must be remembered, however, that a judgment in personam is in all cases evidence between strangers of its existence and legal effect as distinct from its truth (ante, 404), and that a judgment in rem is, in addition, evidence between strangers of the truth of its actual decision (ante, 407)] Digitized by Microsoft® 426 THE LAW OF EVIDENCE. [bookii. Principle. Against Strangers. Though the above rule is well settled, the reasons for the rule are by no means so clear. Such judgments, when tendered against strangers, are sometimes said to be excluded as opinion evidence (B. v. Fontaine Moreau, 11 Q.B. 1028); sometimes as hearsay (Steph. art. 14; Whart. s. 820 ; though even if the judge were called as a witness he would not be competent either to pronounce or to prove his judgment) ; but more com- monly on the ground of res inter alios acta (or judicata) alien nocere nan debet, it being considered imjust that a man should be afEected, and still more be bound, by proceedings in which he could not make defence, cross-examine, or appeal (B. v. Kingston, 20 How. St. Tr. 538 n) . This, however, though a legitimate ground for refusing conclusiveness to such judgments, seems no satisfactory reason for denying them admissibility, since it is to be remem- bered that the objection of res inter alios acta will not suffice to exclude other and less solemn acts of strangers if relevant to the issue {ante, 159-60) ; and cp. Hill V. Clifford, 1907, 2 Ch. 236). It is sometimes said that if a man is not to be bound by the acts of strangers, neither should they be given in evidence against him (Stark. Ev., 4th ed., 83-85; Broom's Legal Maxims, 7th ed., 731) ; but there is no necessary connection between the two; and even a man's own acts, though generally admissible against him if relevant, are in the vast majority of cases not conclusive. For strangers against parties. Judgments in personam are said not to be evidence for a stranger even against a party, because their operation would thus not be mutual. This also, how- ever, seems an objection to conclusiveness rather than admissibility, a view that appears to be gaining increased recognition {Be Orippen, &c., cited ante, 413, posi, 428). (1) Public Rights. Judgments and verdicts upon public or general rights are not only conclusive between parties 'and privies, but prima facie evidence of the matter decided between strangers or a party and a stranger. They are not, however, conclusive in the latter case, for the general reasons stated sup. [Stark. Ev., 4th ed., 386-8; Tay. ss. 624-626; 1682-1684; Eos. N.P. 194-195; Steph. art. 44; ante, 298-9. In Petrie v. Nuttall, cited post, 428, the Court remarked indeed, that such a judgment was " possibly conclusive " and this is adopted by Steph. art. 44, iUust. /; sed qu., ani cp. R. v. Lordesmere, 16 Cox, 65]. Such evidence is sometimes regarded as a species of judgment in rem {Neill V. Devonshire, 8 App. Cas. p. 147), but is more usually considered as in the nature of, though -stronger than, reputation (Stark., 4th ed., 386; Tay. s. 624). It is not, however, receivable in other cases in which reputation is evidence — e.g:, in matters of pedigree {ante, 312-3). Nor are interlocutory judgments, awards, nor claims not prosecuted to verdict or judgment, as we have seen, admissible as reputation {ante, 298-9) ; though they may be as acts of ownership {id.; 113). (2) Bankruptcy, Administration, Divorce, Patents. In bankruptcy, admin- istration, and winding-up proceedings judgments are received as prima facie proof of debt even against strangers. To guard against fraud, collusion, and the miscarriage of justice, however, the Court may, on the hearing of a Bankruptcy petition (though not on a mere application to set aside a bankruptcy notice. Be Boston, Exp. Dixon, 9 T.L.E. 408), inquire into the consideration for, and if necessary reject, the Digitized by Microsoft® CHAP. XXXVI.] JUDGMENTS. 437 judgment, either at the instance of the trustee, or of the debtor himself {Exp. Lennox, 16 Q.B.D. 315; Mxp. Plateau, 22 Q.B.D. 83; Be (?., 44 Sol. Jo. 345-6; Boaler v. Power, 26 T.L.K. 358) ; even though the High Court had refused to set it aside {Be Miller, 67 L.T. 601; Re Praser, 1892, 2 Q.B. 633) ; and even though no fraud was alleged, but only a compromise which was not considered fair and reasonable {Be Eawhins, Exp. Troup, 1895, 1 Q.B. 404; so also as to money-lending transactions. Be A Debtor, 1903, 1 K.B. 705). And when the only evidence of debt was a judgment obtained since the bankruptcy, the proof was rejected {Exp. Bonham, Re Tollemarsh, 14 Q.B.D. 605). Mere irregularity in form, however, will not upset the judgment {Re Beauchamp, 1904, 1 K.B. 572). For bankruptcy cases in which the parties have been precluded or not, on the ground of election, from bringing subsequent actions, see Re Bremner, 10 Ch. App. 379; Be Crooh, Exp. Collins, 66 L.T. 39. In Divorce proceedings, a finding against the petitioner or respondent in a previous suit may be given in evidence though between different parties {Buclc V. B., 1896, P. 152; Swan v. S., 1903, Times, Mar. 24). So the" Queen's Proctor or co-respondent may take advantage of {Conradi v. C, L.E. 1 P. & M. 514), though he is not necessarily bound by {Harding v. H., 34 L.J. Mat. 129), a previous . judgment between the petitioner and respondent. The reasons for these exceptions to the principle of mutuality are peculiar to the Divorce Division. In Patent actions, a judgment as to the construction of the specification, though not strictly an estoppel, will generally be conclusive in other actions concerning the same patent, though between different parties, unless new facts are adduced {Edison v. Holland, 6 E.P.C. 243 ; Pneumatic Co. V. Leicester Co. 16 id. 50, C.A.; affd. id 531, H.L.).. But proof may be given that what was not formerly an anticipation is so now {Shaw v. Day, 11 E.P.C. 185, 189) ; or that the same terms have acquired a change of meaning {Betts V. Menzies, 10 H.L.C. 117). (3) Contract, Admissions, Acquiescence. A stranger to a judgment may also be bound by it if he has expressly so contracted. Thus, if A. contract to indemnify B. against any damages recoverable against the latter by C, and B. has tana fide defended the action and paid the amount, the judgment will be conclusive of A.'s liability. But this does not apply where B. has no con- tract with, but merely a claim against, A. for such indemnity {Parker v. Lewis, 8 Ch. App. 1035; Exp. Young, Be Kitchin, 17 Ch. D. 668). A record is also sometimes received in favour of a stranger against one of the parties, as an Admission by such party in a judicial proceeding, with respect to a cer- tain fact. _ This is no real exception, however, to. the rule requiring mutuality^ since the record is not received as a judgment conclusively establishing the fact, but merely as a declaration by the party which is prima facie evidence • thereof; it belongs therefore to the subject of admissions rather than judg- ments. (Tay. p. 1694; Steph. art. 44). So, not appealing against an adverse judgment may operate as an admission by the party of its correctness {Eaton V. Swansea Water Worhs, 17 Q.B. 267; B. v. Pairie, 8 B. & B. 486). A stranger to a judgment may also be estopped, not directly, but by his acqui- escence therein {Be Lart, 1896, 2 Ch. 788; Mohan v. Broughton, 1900, P. 56; Exp. Yagg, 1899, 2 I.E. 383 ; Mercantile Co. v. Biver Plate Co., 1894, 1 Ch. 578; WUkinson v. Blades', 1%2Q, 2 Ch. 788). Digitized by Microsoft® 428 THE LAW OF EVIDENCE. [book II. EXAMPLES. Admissible. [The Rule.] Inadmissible. A. is convicted of the murder of B., his wife, who died intestate. After A.'s execution, O., as sole executrix, and legatee under A.'s will, claims B.'s property as having passed to A., Held, that a certified copy of A.'s conviction was evidence against A. or Ms representatives not only as proof of A.'s conviction, but as prima facie evidence of his commission of the crime ; and semble not merely in proceed- ings to recover the fruits of his crime,, but against A. or his representatives gener- ally [Re Crippen 1911. P. 108. In Re Hall, 1914, P. 1, 4, in proceedings by A. to recover a legacy under B.'s will, the C. A. treated A.'s conviction for the manslaugh- ter of B. as conclusive evidence that A. had caused B.'s death]. A. applies for an affiliation order against B. as the father of her child, and in cor- roboration tenders proof that B. was con- victed of having carnal knowledge of her, when under 16, on certain dates after her conception of the child. Held, following Re Crippen, sup., that this conviction was presumptive evidence against B. of his commission of the crime, and so was admis- sible in corroboration of her testimony {Mash V. Darley, 1914, 1 K.B. 1; af- firmed on other grounds, 1914, 3 K.B. 1226; cp., however, Watson v- lAttle and R. v. Dibble, opposite) . In nn action by A., a master, against B., his servant, for negligently injuring C.'s horse, a judgment recovered by C. against A. for such injury is not admissible to prove B.'s negligence [Green v. New River Co., 4 T.R. 590. Aliter to show the amount recovered by C. For other ex- amples, see ante, 404]. On the trial of A., as accessory to a felony committed by B., the conviction of B., though admissible to prove that fact, is no evidence of B.'s guilt. [See R. v. Turner, 1 Moo. C.C 347; 1 Lewin, 121; Steph. art. 44, d. In R. v. Smith, 1 Leach, 288 ; R. V. Bliok, 4 0. & P. 377 ; and Com^ v. Knapp, 27 Mass. 483-4, however, the conviction of the thief was held prima facie, but not conclusive, evidence of his guilt against the receiver ; and in R. v. M'Cue, Jebb, C.C. 120, on the trial of the receiver, the record of the acquittal of the thief was admitted to contradict the lat- ter's testimony that he had committed the crime. No reasons are given ; but state- ments used merely to contradict or corro- borate a witness, are in general no evi- dence of their truth (Watson v. Little, dited ante 404; R. v. Dibble, 72 J.P. Rep. 498; ante, 218; post, 480, 488)]. A. petitions for divorce against B., her husband, upon the ground of his incestu- ous adultery with C, their daughter. B. had been acquitted of rape upon C. but found guilty of attempting to have carnal knowledge of her. Held, that B.'s acquit- tal was not evidence of his innocence in the divorce proceedings and that the rape might be proved- therein (Virgo v. V. 69 L.T. 460 ; ante, 418) . A., a publican, is summoned for suf- fering betting on his premises on a certain date. Evidence that B., a bookmaker, was convicted of betting on A.'s premises on that date. — ^Held, inadmissible to prove that fact (Taylor v. Wilson, 106 L.T. 44; 22 Cox 647; 28 T.L.R. 97). [The Exceptions]. Admissible. Publio Rights. A. sues B. fof trespass upon his land, B.'s defence being that the land was part of a highway ; — a previous conviction against A. for nuisance in ob- structing the highway at the spot in ques- tion is prima facie evidence that such spot was part of the highway (Petrie v. Nut- tall, 11 Ex. 569). — So, a previous convic- tion for non-repair against the inhabitants of a district in the parish, is evidence to rebut the presumption that the whole parish is liable to repair (R. v. Lordes- mere, 16 Cox, 65). Inadmissible. Public Rights. In an action between A. and B., the question being whether A. had a private right of common over cer- tain land ; — a verdict in a previous action between strangers, as to such right, is not admissible as evidence of reputation (Wil- liams V. Morgan, 15 Q.B. 782). Digitized by Microsoft® CHAP. XXXVI.] JUDGMENTS. 439 Admissible. ' A. obbaius a verdict and judgment against B., a tenant of adjoining lands, for trespass in taking seaweed from A.'s foreshore. These are evidence against 0., another tenant of adjacent lands, who -claimed to carry off seaweed in assertion of an alleged public right (Mulhollond v. Killin, I.R. 9 Eq. 471; Hemphill v. Mc- Eenna, 8 Ir.L.R. 43). Bankruptcy. A. recovers a judgment for debt against B., who afterwards be- comes bankrupt; — the judgment is prima facie evidence of the debt against B.'s trustee and creditors. {Exp. Anderson, Be Tollemache, 14 Q.B.D. 606). Administration. A., a creditor, recovers judgment {or his debt against B.'s execu- tors ; — in a suit " (or tie administration of B.'s estate, this judgment is prima facie evidence of A.'s debt against C. and D., the persons interested in the realty, though they are not privies in estate to B. (Harvey v. Wilde, L.R. 14 Bq. 438. In this ease the executors were also trustees for the real estate, but that fact was held to make no difference.) Divorce. A. petitions for divorce by reason of his wife's adultery with B., the petition being dismissed on the ground of A.'sown adultery; — this dismissal is con- clusive to prove A.'s adultery in a second petition against his wife for adultery with C, in which suit, neither the wife nor C. appearing, the Queen's Proctor had inter- vened (Conradi v. C, L.R. 1 P. & M. 540). Where, however, in- answer to a husband's petition, the wife pleaded his adultery; — a decree in a former suit in which he was co-respondent, which decree only stated that the respondent had committed adultery with 'him, but did not state in terms t^t he had committed adultery with her, though admissible, was held not suffi- cient evidence of his adultery IRuck v. R., 1896, P. 152 ; In Swan v. S., 1903, Times, March 24, a decree awarding damages against the husband as co-respondent in a former sniit was held sufficient. Op. Bshell V. E., 1919, W.N. 200, and Bntler v. B., post, 433]. Admissions, k£c. A. pleads guilty to a crime and is convicted ; the record of judg- ment upon this plea is admissible against him in a civU action, as a solemn judicial confession of the fact (see B. v. Fontaine M(freau, 11 Q.B. 1028, 1033). A. sues B. for interruption of his right to take water from B.'s watercourse. To show that A. did not enjoy this easement as of right, B. may prove a former con- viction against a servant of A., who had by the latter's orders diverted B.'s water, from which conviction A. did not a/ppeail (Eaton V. Stoansea Watei\morks, 17 Q.B. 267 ; B. V. Fairie, 8 E. & B. 486, 490 ; and cp. BlaJcemore v. Glamorganshire Co., cited ante, 419]. Inadmissible. Divorce. A. obtains a decree nisi for a divorce against his wife, who had pleaded, but failed, to prove, A.'s own adultery. This decree does not debar the Queen's Proctor from proving A.'a adultery on an intervention in which the Queen's Proc- tor alleges the same charges against A., supported by iresb. evidence (Harding v. H., 34 L.J. Mat. 129; CHadstone v. ff., L.K. 3 P. & M. 260). Admissions, £e. A. pleads not guilty to a crime, but is convicted; — tie record of judgment upon this plea is not receiv- able against A. in a civil action as an ad- mission to prove his guilt (B. v. Warden of the Fleet, 12 Mod. 339 ; op. ante, 235, 413, 418). Digitized by Microsoft® 430 THE LAW OF EVIDENCE. [book ii. AdmiasiMe. Inadmissible. A. sues B. (a carrier) for goods delivered to the latter. A previous judg- ment recovered by B. against C, to whom B. had entrusted the goods, but who had lost them, "held admissible against B. as amounting to an admission by him that he had received the goods (Tiley v. Cowl- ling, 1 Ld. Raymond, 744). A., a shareholder in a company, sues B., a director, for damages in respect of an untrue statement in the prospectus, and recovers judgment. Afterwards B. sues the representative of C. and D., other directors, for contribution. Counsel for C. and D. admitted that the facts found in the action by A. against B., and stated in the report of that, case, were sufficient to support the judgment therein, and that ^ ' B. was liable to that extent ; but they contended that the former action was res inter alios acta, and that the evidence in that action was not admissible in the later one. Held that these admissions made it unnecessary for B. to prove over again his liability to pay A. {Shepheard v. Bray, 1906, 2 Ch. 235; reversed, by consent, on other grounds, 1907, 2 Oh. 571, cp. ante, 348). A., and her husband B., in a suit brought to determine the rights to a fund distributable under the will of A.'s father, accept payment of a part of the fund to which, by the judge's constrqction of the will, A. becomes entitled. A. and B. might have intervened in the suit, but did not, and discouraged the parties thereto from appealing. In a subsequent suit brought by B., after A.s death, in respect O'f another fund under the will and to a share of which A. was entitled in a dif- ferent right, B. was held to be estopped from disputing the previous construction placed by the judge on the will (Re Lari, 1896, 2 Oh. 788). So, acquiescence in dis- tributing a fund in Chancery is a bar to an application to revoke the Letters of Administration under which the distribu- tion has taken place (Mohan v. Broughton, 1900, P. 56; Young v. Holloway, 1895, P. 87). And a debtor has been precluded from impeaching a judgment used by him to carry an arrangement beneficial to him- self (Ewp. Vagg, 1899, 2 I.R. 383; cp. Election, ante, 416). Digitized by Microsoft® ( 431 ) CHAPTEK XXXVII. PEOBATBS, VEKDICTS, AWAEDS, EEPOETS, INQUISITIONS, PLEADINGS, WEITS, AND DEPOSITIONS IN POEMBE TEIALS. PROBATES AND LETTERS OF ADMINISTRATION. Probate of WUl of Per- sonalty. Probate of a wiU of Personalty, whether in solemn or common form, is an adjudication in rem, and until revoked affords, in general, conclusive evidence against aU persons of — (1) The appointment of the executor; (3) the validity of the will, and its execijtion according to the law of the testator's domicil {Whicker v. Hume, 7 H.L.C. 124; Concha v. C, 11 App. Cas. 541; Re Wernher, 34 T.L.E. 191) ; as.well as of (3) its contents, the original will not being even admissible for this purpose {Pirmey v. P., 8 B. & C. 335; Pinney v. Hunt, 6 Ch. D. 98; aliter for purposes of construction, post,, 613, 637, 661) ; and this apphes to every part of the will, thus the probate is conclusive proof of a legacy which might have been expunged on the ground of forgery (Williams, Exors., 10th ed., 431-34), or of a will or codicil being distinct instruments, though written on the same paper {Baillie v. ButterfieM, 1 Gox, Eq. 393; but see inf. as to duplicate codicils). And a decree, establishing the will and pronounced in a contentious suit, binds the next of kin, though not cited nor intervening, provided they were cognisant of the suit, and had an opportunity of interveniag {Young v. Holloway, 1895, P. 87) ; though a decree founded on a compromise only binds the parties to the compromise {Wytcherley v. Andrews, L.E. 3 P. & D. 337; Norman v. Strains, 6 P.D. 319; Graham v. M'Cashin, 35 Ir. L.T.E. 169; Ritchie v. Malcolm, 36 id. 56; Aidallah v. Richards, 4 T.L.E. 633; ante, 406). So, Letters of Administration, even though irregularly granted, are, generally, until recalled, conclusive evidence against strangers of the title of the admin- istrator {Mohaiifiidu v. Pitchey, 1894, A.C. 437) ; as well as, against parties and privies, of the persons who are next of kin {Barrs v. Jackson", 1 Phill. 583 ; Spencer v. Williams, L.E. 2 P. & D. 330 ; Re Ivory, Hankin v. Turner, 10 Oh. D. 373; Concha v. C, 11 App. Cas. 541; ante, 406, 410, 420). Although, however, while the probate is unrevoked, other Courts will not receive evidence to show the insanity of the testator (Williams, Exors., 432) ; or that the will, or any part of it, was procured by fraud {Meluish v. Milton, 3 Ch. D.. 27_) ; or that words were inserted by mistake and without the know- ledge of the testator {Be Bywater, 18 id. p. 23) ; yet this rule has not been followed in the case of a compromise or payment obtained in respect of a forged will {Priestman v. Thomas, 9 P.D. 310; Exp. JoUiffe, 8 Beav. 168) ; or where want of jurisdiction is shown — e.g. that the supposed testator or intestate was alive {Allen v. Dundas, 3 T.E. 135; Tay. s. 1714; Williams, Exors., 10th ed., 1532; and'see Concha v. C, sup.; and 1 Am. Law Eev. N.S. Digitized by Microsoft® 432 THE LAAV OF EVIDENCE. [book ii. 337) ; or where the value requires a higher probate stamp {Cormack v. Bar- ragry, 10 Ir. L.T.E. 142; see, however, Eos. N.P., 17th ed., 271), or the seal is forged (Williams, sup.; Eos. N.P. 206) ; and where probate was granted of two codicils as separate instruments, evidence was received to show that they were executed merely as duplicates {Hubbard v. Alexander, 3 Ch. D. 738 ; Whyte V. W., 17 Eq. 50). So, where the grant has been revoked this may, of course, be shown (Williams, sup.; Eos. N.P. 206). Probates and letters are not, as we have seen {ante, 409-10), conclusive, though they may, perhaps, be prima facie, evidence of tiie following matters : — The death of tie testator or intestate (in French y. F., 1 Dick. 268; Lloyd V. Finlayson, 2 Esp. 564; Beilly v. Fitzgerald, 6 Ir. Eq. E. 335, 349; and Be Spenceley, 1892, P. 255, they were held prima facie evidence ; contra, Thomp- son V. Donaldson, 3 Esp. 63 ; Moons v. De Bernales, 1 Eus 301, 306, and Be Beamish, 9 W.E. 475) ; nor of his domicil {Concha v. C, sup.; Bradford v. Young, 26 Ch. D. 656; in Fames v. Eacon, 18 Ch. D. p. 352, the C.A. con- sidered letters of administration prima facie evidence of domicil) ; nor, on a charge of forgery, of the genuineness of the will {B. v. Buttery, Eus. & Ey. 342; B. V. Gilson, id. 343 n) ; nor that any given property is assets of the testator {Be M'Kenna, 42 Ir. L.T.E. 50). The probate of a will in execution of a power is no evidence of the proper exercise of the power (Tay. s. 1712, and cases cited) ; nor is it primary evidence of a declaration contained in the will as to pedigree {ante, 311) ; nor are letters of administration any evidence of the intestate's marriage or the reverse {Blackham's Case, cited in Batrs v. Jackson, 1 Phill. 588, 589; con^a Swifte v. 8., 120 L.T. Jo. 81, in which case they were, where granted to a " wife," held prima facie, though not conclusive, evidence of the marriage). As to foreign probates, see'post, 560. Probate of Will of Realty. Under the Land Transfer Act, 1897 (60 & 61 Vict. c. 65), s. 1, real estate (which does not include copyhold or customary freehold) now devolves on the personal representatives, and their assent is necessary to any devise contained in the will. In such cases, therefore, the vsdll must be proved even if there be no personalty (Jarman, Wills, 6th ed., 42-6). Prior to this Act, wiUs of realty were only entitled to probate if an executor was appointed therein {Be Cubbon, 11 P.D. 169; Be HombucMe, 15 id. 149), or if the realty was held under some other instrument in trust for sale or conversion- {Be Gunn, 9 id. 242). Probate, however, while unrevoked, was conclusive evidence of the validity and contents of the will, if it had been either proved in solemn form, or established by a decree in tontentious pro- ceedings (20 & 21 Vict. c. 77, s. 62) ; but it did not afEect the heir, devisee, or other person interested in the realty, unless he had been cited or made a party to the proceedings, or derived title through a person so cited or made party (s. 63). Probate in common form of the will was also primA facie evidence of any " devise or other testamentary disposition of or affecting real estate " (but not of collateral matters — e.g. the appointment of a testamentary guardian, Cope v. Mooney, 14 Ir. C.L.E. 256), provided ten days' notice had been given to the opposite party of the intention to adduce the evidence (which notice need not have specified the purpose for which the probate was wanted), and provided the opposite party had not, within four days after its receipt, given counter-notice that he disputed the validity of such devise, &c. (s. 65; Barraclough y. Greenhough, L.E. 3 Q.B. 612; Tay. s. 1761). Digitized by Microsoft® CHAP. X5XVII.] PKOBATBS, VEKDICTS, AWARDS, ETC. 433 Where such notices had not been given, the case might be adjourned either for this purpose, or to allow proof of the will, per testes {Hilliard v. Eiffe, L.R. 7 H.L. 39, 49). As to proof of Probates and Letters, see post, 560. VERDICTS. Except upon new ti'ials, when they are not even admissible (O'Connor v. Malone, 6 C. & P. 572), verdicts, like judgments, are conclusive evidence of the facts found as between parties and privies; but they are not admissible between strangers, ,or a party and a stranger, except when operating in rem {ante, 426, 428), or as evidence in the nature of reputation {ante, 298) . Where the object is merely to show a trial had, the associate's or master's certificate of the findings (or formerly the postea indorsed on the record) is sufiicient evidence (^post, chap, xliii.) ; but when the verdict is relied on either as an estoppel, or as evidence of the facts found, the judgment must be proved, for it might be that the latter was arrested, or a new trial granted {Banner t. B., 34 L. J.M. 14 ; Needham v. Bremner, L.R. 1 C.P. 583 ; Bohinson v. Duleep Singh, 11 Ch. D. ,798). When the-judgment has been set aside the verdict will be inadmissible, unless the setting aside was upon a ground independent of the validity of the verdict [Butler v. B., 1894, P. 25, C.A. ; in the Court below, Jeune, P., held, further, that a verdict, though conclusive as evidence, is not an estoppel, and that it is open to the party against whom it is tendered to show inter alia that it applied to a different subject-matter] . As to proof of convictions without production of the judgments rendered thereon, see post, 557. Ancient verdicts are sometimes admitted as reputation without such proof. [Ros. N.P. 193-198; Tay. s. 1570'; Whart. ss. 781, 831; Everest & Strode on Estoppel, 3nd ed., 25-26]. AWARDS. Awards are, until set aside, conclusive proof of the matters decided as between parties and privies ; and this extends also to the construc- tion of a deed by the arbitrator {Gueret v. Audony, 62 L.J.Q.B. 633). But they are not generally admissible between strangers even as evidence of repu- tation {Evans y. Bees, cited ante, 398; R. v. Cotton, 3 Camp, 444; Wenman v. Mackenzie, 5 E. & B. 447). In an issue, however, between a landlord and the execution creditor of his tenant, as to the title to certain crops seized by the creditor, an award between the landlord and tenant in which the tenancy was directed to cease and the tenant to give up possession, was held some evidence as against the creditor that the crops belonged to the landlord, though not of itself sufficient to change the property therein {Thorpe V. Eyre, 1 A. &-E. 926; and see Doe v. Boulter, 6. A. & E. 675; and Shelling v. Farmer, 1 Str. 646; Russell, Arbitration, 9th ed., 328-33). So, awards are sometimes receivable, in conjunction with the submission, as acts of ownership {Brett V. Beales, 1 M. & M. 416 ; Brew t. Haren, Ir. R. 9 C.L. 39 ; affirmed Ir.R. 11 C.L. 198). The award must be final and certain; within the scope of the authority conferred (for otherwise it is a mere nullity, Eutcheson v. Eaton, 13 Q.B.D. 861, 866) ; and must not prescribe what is illegal or impossible (Tay. s. 1458). Moreover, where the arbitrator has been guilty of misconduct, or the finding has been improperly procured, the award may be set aside (Arbitration Act. 1889, s. 11; Russell, Arbit., 9th ed;, 366-74; Re Palmer, 1898, 1 Q.B. 131).. L.E.— 28 Digitized by Microsoft® 434 THE LAW OF EVIDENCE. [bookii. ]3iit tht' mere admission of matters not referred, but not shown to be irrele- vant or included in the lump sum awarded, will not invalidate it (FalMng- ham V. Victorian Rys., 1900, A.C. 452). As to mistake, see Eussell, Arbitr., 369.^ And as to how far an arbitrator may explain his award, see ante, 196, or is bound by the rules of evidence, post, 689. An award under the Lands Clauses Consolidation Act, 1845, has the same effect as the verdict of a sheriff's jury under that Act — i.e. it is conclusive of the amount of, but not of the right to, compensation (jBe Newbold and Metr. By., 14 C.B.N.S. 405 ; Beckett v. Midland By., L.E. 1 C.P. 241 ; B. v. Cam- Irian By., L.E. 4 Q.B. 320 ; Bhodes v. Airedale Commissioners, 1 C.P.D. 240 ; Re East London By., 24 Q.B.D. 507). So, with an award under the Public Health Act, 1875 {Brierley Board v. Pearsall, 9 App. Cas. 595) ; or under the Artisans' Dwellings Act, 1875 {Wilkins y. Birmingham Corp., 25 Ch. D. 78). An award, under the Inclosure Acts, 1845, s. 105, and 1848, ss. 13, 14, is not conclusive of the title to the lands allotted, and if made on the applications of persons not interested in the lands, is ultra vires {JacOmi v. Turner, 1892, 1 Q.B. 47; and see Eos. N.P. 154, 222; Tay. s. 1584). [Tay. ss. 1583-1584, 1607, 1758 ; Eos. N.P. 221, 281-283, 490-496 ; Eussell, Arbitr., 9th ed., 328-32, 366-74; Eedman, id., 3rd ed., 249-257.] REPORTS OF JUDICIAL OFFICERS. Under the Arbitration Act, 1889, s. 15, sub-s. 2, the report or award of any oflScialor special referee or arbitrator on any reference under an order of the Court or a judge in any cause or matter is, unless set aside, equivalent to the verdict of a jury ; and under s. 12 it may, by leave of the Court oi; a judge, be enforced in the same manner as a judgment or order to the same effect (Ann. Pr., Notes to the above Act) . As to reports by experts under ss. 13-14 of this Act, see ante, 385-6. The reports of judicial officers, other than the above, are also in certain cases receivable as evidence of the matters contained. Thus, by-the Charitable Trusts Ee- covery Acts, 1891, s. 6, (1), the printed reports of the Charity Commissioners are, in proceedings under the Act, prima facie evidence of the documents and facts therein stated {ante, 361). On a question of res judicata, the report of the judge is evidence between the parties of what was decided on the former trial (Houston v. Sligo, 29 Ch. D. 448; ante, 416). The report of the Official Eeceiver as to a bankrupt's conduct and affairs is prima facie evidence of the matters contained, on an application for discharge (Bank- ruptcy Acts, 1914, ss. 16, 26, sub-ss. 2 and 6; Exp. Campbell, Be Wallace, 15 Q.B.D. 213 ; Re Sharp, 10 Morr. Eep. 114) ; so, it is prima facie evidence, without an affidavit in support, to show grounds for the summary administra- tion of the estate {Re Horniblow, 53 L.T. 155). And the report of the Board of Trade as to the grounds of its objection to a trustee, is prima facie evidence of the statements therein contained, Bpy. Eules, 1915, E. 328 (3). A report by an Inspector under the Companies Act, 1908, ss. 109, 111, made to the Board of Trade, is not in the nature of a judicial inquiry or determination, and though admissible to show his opinion for the purposes of the Act, is no evidence of the facts stated {Re Orosvenor Hotel Co., 76 L.T. 337 ; and see as to reports by the Official Eeceiver made in Winding-up proceedings. Re Halls, 1893, Times, Dec. 14). The report of the Committee of the Law Society as to the conduct of a solicitor has, under the Solicitors' Act, 1888, s. 13, the Digitized by Microsoft® CHAP. xxxvii.J INQUISITIONS, PLEADINGS AND WEITS. 435 same effect as that of a Master of the Court {Re A Solicitor, 36 Sol. Jo. 94). As to reports by the Greneral Medical Council on the conduct of a medical man, see Hill v. Clifford, ante, 363; by medical men under the Workmen's Comp. Act, 1906, see Johnson v. Oceanic Co., 5 B.W.C.C. 322, C.A., and Scotstown Estate Co. v. Jackson, 4 id. 381 ; by Licensing Justices under the Licensing Act, 1904, and the admission of evidence as to matters outside them, see Howe v. Newington, 52 Sol. Jo. 113 ; by Assessors to the Irish Land Com- mission, see 41 Ir. L.T.E. 33 ; and as to reports under the Married Women's Property Act, 1882, s. 17, see Wilder v. W., 56 Sol. Jo. 671, C.A. As to Inquisitions and Beports as evidence of public matters, see ante, 355-63. As to Consular reports under the Merchant Shipping Act, 1894, ss. 690-1, see Pyper v. Manchester Liners, 5 L. Jo. Cy. Court Kep. 26, Ap. 15, 1916. On the other hand, the reports of Chancery Visitors under the Lunacy Act, 1890, s. 186, are not admissible to show the state of mind of a lunatic at the time of his execution of a will, such reports being confidential and intended ■ to be destroyed upon the death of the limatic {Roe v. Nix, 1893, P. 55). As to the practice with respect to such reports, see Re B., 1892, 3 Ch. 194; and cp. as to Inquisitions, Orders, &c., in lunacy, ante, 357. So, the decision of the Postniaster-Greneral that a publication is a newspaper does not bind the Courts {WilMns v. Gill, 20 T.L.E. 3). Where, also, the statutory report of a Gas Inspector had been made upon evidence supplied by one party and without informing the other, it was held bad {R. v. London County Council, 11 T.L.E. 337). As to Reports by Surveyors of Corporations, see Cooper v. M.B.W., ante 69, 246. INftTJISITIONS. Inquisitions made imder public authorily and for public purposes are, as we have seen, often receivable against strangers in proof of the facts determined {ante, 355-62). Inquisitions for private purposes are only admissible between parties and privies, and to a very limited extent. Thus, an inquisition before a sherifiPs jury, under the Lands Clauses Consolidation Act, 1845, s. 68, is conclusive of the amount of, but not of the right to, com- pensation {supra, 434). An inquisition by a sheriffs jury, taken before the Interpleader Act, 1 & 2 Will. IV. c. 58, for the purpose of ascertaining to whom goods seized under a fi. fa. belonged, was held wholly inadmissible as not being an inquisition under the Queen's writ, but merely a proceeding by the sheriff on his own authority {Glossop v. Pole, 3 M. & S. 175; LatTcow v. Earner, 2 H. Bl. 437). [Tay. ss. 1582, 1585, 1716-1717, 1767; Eos. KP. 112, 198-200.] PLEADINGS AND WJtlxS. Pleadings are admissible, in subsequent pro- ceedings, to prove their own existence, the institution of the suit, and the facts in issue between the parties (Tay. s. 1753; Whart. ss. 838-839; see Neison v. Walters, 61 L.T. 872). But being regarded in other respects rather as the suggestions of counsel than the declarations of the parties, tihey are not receivable to prove the truth of the facts stated, even as admissions {Re Foster, Exp. Basan, 2 Morr. Bpy. Eep. 29, C.A.), unless verified by oath, or signed, or otherwise specifically adopted by those against whom they are tendered {ante, 235, 251). Old Bills in Chancery are governed by the same rule (Eos. N.P. 201 ; Tay. s. 1753; see MaJcolmson v. O'Dea, 10 H.L.C. 593; Lyell v. Kennedy, 14 App. Digitized by Microsoft® 436 THE LAAV OF EVIDENCE. [bookii. Cas. 437) ; but old answers, being upon oath, and fuch pleas as were sworn to, are receivable as admissions against the deponents or their privies {id.; ante, 235; as to their reception in cases of pedigree see ante, 313; and as acts of ownership, ante, 133). Old demurrers in equity are not so receivable, being merely hypothetical statements which, assuming the facts to be as alleged, denied that the defendant was bound to answer (Tay. s. 1753). A Writ of summons is evidence of the amount claimed, but not of a debt due {Brown t. Dean, 5 B. & Ad. 848) ; and a "writ of execution has been held prima facie evidence of a judgment, without the latter's production, against parties, but not against strangers {Doe v. Murless, 6 M. & S. 119; White v. Mon-is, 11 G.B. 1015). [Tay. s. 1766; Eos. N.P. 198.] DEPOSITIONS IN FORMER TRIALS, (a) At common law, testimony given by a witness in a civil or criminal proceeding is admissible in a subse- quent (or in a later stage of the same) trial in proof of the facts stated, pro- vided (1) That the proceedings are between the same parties or their privies ; (2) that the same issues are inyolved; (3) that the party against whom, or whose privy, the evidence is tendered had on the former occasion ^ full opportunity of cross-examination j and (4) that the witness is incapable of being called on the second trial. [Tay. ss. 464-478; 546-549; Eos. N.P. 202- 204; Best, s. 496 ; Steph. art. 32 & note xxii. ; Whart. ss. 177-188. In peerage cases, evidence given before a Committee of Privileges is admissible in a heating of the same case before a subsequent Committee (Beaumont Peerage, 6 C. & F. 868). As to depositions in non-judicial enquiries, e.g. before Eeceiver of Wrecks, see ante, 252 ; and infra, 437.] Where any of the conditions above mentioned is absent the evidence will be rejected either as res inter alios acta {ante, 159, 426), or it is sometimes considered, as hearsay, since, even where the oath and right to cross-examine are present, yet the benefit of the demeanour of the witness is lost on the second trial; as to the latter ground, however, see infra. Depositions in former trials, though not fulfilling the above conditions, are also frequently receivable as admissions {ante, 234), or to contraldict the same witness on the second trial {post, 479-81), or, after the deponent's death, to prove public rights or pedigree {ante, 296, 311). Under 0. 37, s. 3, evidence taken in other causes may, on ex parte applica- tions, be read by leave of the judge, and in other cases on two days' previous notice to the opposite party. This provision, however, is only intended to save the expense of the order necessary under the old Chancery practice, and does not alter the law as above stated. {Printing Co. v. Drucker, 1894, 2 Q.B. 801 ; as to depositions in earlier stages of the same trial, see fully post, chap. xli.). Principle. The admission of such evidence is sometimes thought (1) to form an exception to the hearsay rule (Steph. art. 32; Best, s. 496; Gulson on Proof, s. 354) ; but since both oath and cross-examination were present, the essential requirements of that rule may be said to be satisfied {arite, 221; Wigmore, s. 1370 ; and see Wright v. Tatham, infra). Its weight, however, is of course affected by the loss of the demeanour of the witness. (2) Mr. Taylor considers it an exception to the rule excluding secondary evidence of docu- ments, holding that that rule is wide enough to exclude secondary- evidence of oral testiiiiony (s. 464) ; sed qu., and the Courts have more than once decided Digitized by Microsoft® CHAP. XXXVII.] DEPOSITIONS IX FOIiMEK TIHALS. 437 that depositions are primary evidence, and of as high a nature and degree as vivf voce testimony {Wright v. Tatham, 1 A. & E. 3, 22 j 11. v. Christopher, 2 C. & K. 994, 1000; post, 440, 519). (3) Dr. Wharton bases its admission on the consideration that the parties and the issues being the same, and full opportunity of cross-examination having been allowed, the second trial is virtually a continuation of the first (s. 17T). Qualifications. The conditions are analogous to those relating to judg- ments; and indeed whenever a decree in one case would be evidence of the facts decided when tendered in anoT;her, there the testimony' of a witness in the former trial who Was liable to cross-examination, but is incapable of being called, is receivable. So, as to mutuality, the evidence is not admissible for, unless it would also be admissible against, a party {Morgan v. NichoU, L.E. 2 C.P. 117; Whart. s. 177; Tay. s. 469). The admissibility of the testimony, however, seems to turn rather on the right to cross-examine than on the precise identity of the parties or the issue — only a svibstantial identity in these respects being required (Tay. s. 467). (1) Former Trial. The witness must have been duly sworn in some ywfitciaZ proceeding to which the party against whom the evidence is tendered was legaUy bound to submit (Stark. Ev., 4th ed., 415-418; Tay. s. 484). Thus, depositions taken in a revived suit where a bill of revivor did not lie, have been rejected; though it was otherwise where the matter was within the juris- diction of the Court, but the bill was dismissed merely because the subject was not proper for a decree in equity .(Stark. Ev. 416), or where the depositions were taken, without objection, in judges' chambers in which it was the prac- tice not to cross-examine {Lawrence v. Maule^ 4 Drew. 473; though cp. E. v. Ferry Fry Stone, ante, 235. As to depositions taken at wreck enquiries, see ante, 252. (2) Sam* Parties or Privies. If the parties to be affected are the same in both proceedings, it is no objection that their relative positions were different, or that there were also others joined with either {Wright v. Tatham, 1 A. & E. 3). Privies may also be affected by, or take advantage of, the former testi- mony to the same way that they may a judgment in a former trial {Morgan V. NichoU, L.E. 3 C.P. 117), provided the title of the privy has accrued subsequently to the former trial {Doe v. Derby, 1 A. & E. p. 790; Re De Burgho's Estate, 1896, 1 I.E. 374) . On the other hand, depositions inter alios are inadmissible {Berkeley Peerage, 4 Camp. 401). [See fully ante, 339, 413-5]. (3.) Same Issues. If substantially the same question is in issue in the two proceedings, it is immaterial that they relate to different transactions or pro- perty {Doe V. Foster, 1 A. & E. 791, n (b) ; Llanover v. Homfray, 19 Ch. D. 334). And the same rule holds in criminal cases; thus, a deposition on a charge of stabbing, assault and robbery, or causing grievous bodily harm, is admissible on a trial for murder arising out of the same facts {R. v. Smith, Bus. & Ey. 339; R. v. Lee, 4 F, & P, 63 ; R. \. Beeston, 24 L.J.M.C. 5 ; R. v. Dilmore, 6 Cox, 52 ; R. v. William,s, 13 Cox, 101 ; and see ante, 415-7, 419-23, and post, 505). (4) (^portnnity of Cross-examination. There must have been full oppor- tunity of cross-examination in the former proceedings; thus, if the party against whom the evidence is subsequently tendered had not due notice of Digitized by Microsoft® 438 THE LAW OF EVIDENCE. [book ii. the time or place of the former examination (Fitzgerald v. F., 3 S. & T. 397) ; or if the issues are so dissimilar that cross-examination as to one would only partially cover the other (R. v. Beeston, sup.; Tay. s. 468), the evidence will be rejected. But it is not essential that the opposite party should have exercised, his right, for tlie evidence will be admissible if he voluntarily abstained from, or waived the absence of an opportunity for, cross-examination {Lawrence Y. Maule, 4 Drew. 473; M'ComUe v. Anton, 6 M. & 6. 37; Tay.s. 466). And if the witness died or became insane before cross-examination in the former trial the evidence will still be receivable ( Williams v. W., 13 W. E. 663; R. V. Boolin, 1 Jebb, CO. 133; cp. post, 475). (5) Incapable of being called. For the purposes of the rule a witness is regarded as incapable of being called when he is either (1) Dead (the death must be proved, or evidence given of unsuccessful inquiries or lapse of time sufficient to raise that presumption : Pylee v. Grouch, 1 Ld. Eay. 730 ; Benson V. Olive, 2 Str. 319; Tay. s. 473). (3) Insane {R. v. Eriswell, 3 T. E. 707, 720-1 ; so, it seems, if the insanity be only temporary, R. v. Marshall, Car. & M. 147, but this is doubted in Taylor, s. 476, cp. post 453, 498, 507) ; and if the depositions were taken shortly before the second trial it is unnecessary to show that the witness was sane when they were taken (R. v. Wall, cited 3 Euss. Cr., 6th ed., 563, 573). (3) Seriously ill. The degree of illness is somewhat in doubt ; if it is such that there is no probability of the witness ever being able to attend, the depositions are of course admissible (Tay. s. 477) ; so, probably, if it is such as to prevent his attendance within a reasonable time (see Beau- fort V. Orawshay, L.E. 1 C.P. 699, deciding that the words " permanent sick- ness or infirmity," in 1 & 3 Will. IV. c. 33, were to be thus construed) ; but if the indisposition be merely temporary, the proper course is not to admit the evidence, but to postpone the trial {Harrison y. Blades, 3 Camp. 457; R. v. Savage, 5 C. & P. 143, in which the depositions of a woman. about to be con- fined were rejected, see post, 506-8). (4) Kept out of the way ly the opposite side {R. V. Scaife, 17 Q. B. 338 ; Egan v. Lwrkin, 1 Arm. M. & 0. 403. Mr. Taylor remarks that this proposition rests partly on the authority of decisions in civil and criminal courts, partly on statutory analogy, but chiefly on the broad principle of justice wMch will not allow a party to take advantage of his own wrong, s. 478). (5) In civil proceedings (only), is either out of the jurisdiction, or cannot he found after diligent search. A witness has been considered beyond the jurisdiction who was on board ship ready to sail, but prevented by contrary winds {Fonsich v. Agar, 6 Esp. 93 ; Ward v. Wells, 1 Taunt. 461; Varicas v. French, 3 C. & K. 100; though see Carruthers v. Graham, C. & M. 5). Proof of diligent but unsuccessful search will pro- bably also admit the depositions {Falconer v. Hanson, 1 Camp. 171; Wiede- mann V. Walpole, 1891, Times, June 15, per Pollock, B., affirmed on other grounds, 1891, 3 Q.B. 534; Tay. s. 473). Neither of the above grounds will let in the deposition'in criminal cases {R. v. Scaife,' 17 Q.B. 338 ; R. v. Austin, 7 Cox, 55 ; B.y. Hagan, 8 C. & P. 167). (6) Proof of the Former Testimony; Judge's Notes. The testimony, if oral, may be proved from memory or notes, by any one who swears to its accuracy, e.g., judge, counsel, or reporter {Doncaster v. Day, 3 Taunt. 263 ; R. v. Mor- gan, 6 Cox, 107; R. v. Bird, 5 Cox, 11) ; but not, unless at least by consent, by the judge's notes {R. v. Child, 5 Cox, 197, 303 ; Conradi v. C, L.E. 1 P. & Digitized by Microsoft® CHAP. xxxvii.J DEPOSITIONS IN FOEMEE TEIALS. 439 D. 514; Griffin's Divorce Bill, 1896, A.C. 133; Sinclair's Divorce Bill, 1897, A.C. 469; Tay. s. 546; Best, s. 223; but cp. R. v. Rimes, 28 T.L.E. 409). Where, however, a judge or juror becomes ill, the former's notes may be read over to the substitute and the witnesses re-sworn (ante, 43). And it would seem sufficient if the substance merely, and not the precise words, of the examination and cross-examination be given (Tay. ss. 546-54'i'; though see R.Y.Mitchell, ante, 320). If written, it may be proved either by office copy {post, chap, xliii.) or examined or certified copy (Tay. ss. 1577, 1580). Old depositions in Chan- cery cannot, however, except as admissions, be read without proof, where this is possible, of the bill and answer, so that the judge may see whether a cause was depending and whether the parties and issues were the same; but_ the bill and answer do not thereby become evidence for the jury, nor can they be read or referred to by counsel. Moreover, where the depositions have been taken prior to the English Chancery Act, 1852 (15 & 16 Vict. c. 86), the party putting in the answers is obliged as part of his case to read, not only thp interrogatories, but the cross-interrogatories, and answers thereto. And if the depositions have been taken under a special commission, proof of the commission and return must also be given [Tay. ss. 1576-1578]. (7) Objections. The evidence is open to the same objections in the sub- sequent trial as if tlie witness had been personally present thereat (Tay. ss. 548-549) ; e.g. as to leading questions (Small v. Naime, 13 Q.B. 840) ; hearsay {R. v. Cowle, 71 J.P. Eep. 153) ; or statements of the contents of unproduced documents (SteinJceller v. Newton, 9 C. & E. 313, 319; Tufton V. Whitmore, 12 A. E. 370; save that a party cannot repudiate an illegal question previously put by his own side, Hutchinson v. Bernard, 2 M. & Eob. 1). Mx. Justice Stephen states that the credit of the declarant may be im- peached in the same way as that of a witness who had denied in cross- examination the imputations suggested (art. 135) ; but see ante, 276. EXAMPLES. Admissible. Inadmissible. (a) In an action by A. against D. ; — (a) In an action by A. to recover land the depositions of a deceased witness, from B.'s son; — the depositions of a wit- taken in a prior action involving the same ness, since deceased, taken in a former question, and brought by A., B., and C. action brought by A.'s son as heir-at-law jointly against D., are admissible (Wright of A. (whom he supposed to be dead) V. Tatham, 1 A. & E. 3). So, in an action against B. to recover the same land, are by A., as heir-at-law of B., to recover cer- inadmissible, as A. did not claim through tain land from C, the depositions of a ' his son, though his son claimed through A. ; deceased witness taken in a prior action and the evidence not being admissible by A. as heir of B. against C. to recover against, could not be admissible for, A. different lands, are admissible (Doe v. (Morgan v. Nicholl, L.R. 2 C.P. 117). Derby, 1 A. & E. p. 791 n). A., a shareholder, being sued by a corn- In a suit brought in 1870 by certain pany for calls, pleads misrepresentation, customary tenants on behalf of themselves DepositionsJ:aken in a prior action by the and all other tenants of a manor against company against B., another shareholder, the lord, to establish a dght to the min- for calls, to which B. had also pleaded erals under their tenements: — the deposi- misrepresentation, are not admissible tions of old persons, since deceased, taken against the company either at common ositions of a deceased attesting Tvitness in a former trial 'between the same parties, — ^Held ad- missible without calling a second and sur- viving attesting witness who was available (Wright v. Taiham, 1 A. & E. 3: post, 519). Inadmissible. cross-examination, on a foraier hearing before two magistrates. Held, inadmis- sible [R. V. Fe7'ry Frystone, 2 Bast 54; R. V. Abergwilly, id. 63. In the earlier case of R. v. Eriswell, 3 T.R. 707, 712, the evidence having been received in the Court below, was admitted on appeal, the Court being equally divided on the point; ante, 225-6]. In an action for damages for collision between two ships, — depositions made on oath before the Receiver of Wrecks under the Merchant Shipping Act 1854, by the captain and crew. — Held, not admissible either for or against the owners, and whether the deponents were living or de- ceased at the hearing of the action, al- though by s. 449 of the Act the depositions were expressly made evidence of the truth of the matters stated [The Little Lizzie. L.R. 3 A. & E. 56, on the ground that the deponents were not subject to cross-exam- ination; The Henry Coxon, 3 P.D. 156; The Solway, 10 P.D. 137; ante. 252,^61]. Digitized by Microsoft® ( 441 ) BOOK II. ADMISSIBILITY OF EVIDENCE PART II. WITNESSES CHAPTEE XXXVIII. PEOCESS, KINDS OF. ATTEND AXCE, WITH OE. WITHOUT DOCUMENTS. SEEVICE. EXPENSES. DISOBEDIEXCE. ABUSE OP PEOCESS. PEOTECTIOX OF WITXESSES. PROCESS. There are three methods by -nhich the attendance of ^vitnesse.s may ordinarily be enforced in judicial proceedings — subpoena (which may be either ad testificandum, "ox if the production of documents in the witnesses' -possession or control is required, duces tecum), recognisance, and siimmons. [For the history of Compulsory Process, see Wigmore Ev. s. 2190.] Subpoena ad testificandum. A -nrit of subpoena (which may be issued at any stage of the proceedings and without leave) is the process employed when the proceedings are in the High Court (0. .37, rr. 26-34a; if in Chambers, the writ issues on a note from the judge or master, as the case may be, Ann. Pr. Notes to 0. 37, r. 28) ; or before an examiner (0. 37, r. 20) ; and an affidavit witness may be ordered to attend for cross-examination by this process, as well as by iiotice under 0. 38, r. 28 (Re Baker, Oonnell, v. Baker, 29 Ch.ID. 711). The same process prevails in the Bankruptcy Court (Bank- ruptcy Eules, 1915, rr. 60-72), which has also special power to summons persons likely to give information as to the debtor's property or affairs (Bankruptcy Act,, 1914, s. 25; cp. Re Franks, 1892, 1 Q.B. 646) ; and applies to hearings before an Ariitraior (Arbitration Act, 1889, ss. 8, 18) or Official or Special Eeferee (0. 36, r. 49) ; as well as to the trial of election petitions (Tay. s. 1283) ; and it may also be adopted in Criminal Cases {inf. Eecog- nisance). As to subpoena for the purpose of confrontation only, see, however, Farulli v. F., cited, post, 466. Witnesses present in Court cannot, however, in criminal cases, decline to be sworn or to answer, on the ground that they have not been duly served with a subpoena (R. v. Sadler, 1 C. & P. 218; J2. v. Flavell, 14 Q.B.D. 364; cp. 69 J.P. 347) ; though it is otherwise in civil cases (Bowles v. Johnson, 1 W. Bl. 36; and see Stuart v. Balkis Co., 32 W.E. 676; contra, Blacklurn v. Hargreaves, 2 Lew, C.C. 259, which, however, is doubted by Mr. Taylor, s. 1242 n). Digitized by Microsoft® 442 THE LAW OF EVIDENCE. [bookii. Subpoena duces tecum. Judge's Ord«r. The production of documents in the possession either of strangers^ or of parties (in criminal proceedings, except the accused on whom a notice to produce only should be served, post, 537), may, in general, be secured by subpoena duces tecum, which must specify, and be confined to, the particular documents in the witness's possession of which production is required {Newland v. Steere, 13 W.R. 1014) ; a general direction is bad as amounting to a bill of discovery against the witness. Thus, a subpoena describing particular documents and then directing the production of " all documents relating to the questions in issue," is not enforceable, unless the witness admits their possession {Lee V. Anjgas, 2 Bq. 59; Be Emma Silver Minmg'Go., 10 Ch. App. 194) ; nor is a subpoena to produce " documents relating to the case if he has any," as this requires the witness to decide upon their relevancy {Burchard v. McFarlane, 1891, 2 Q.B. 241, 247). As there is no discovery obtainable against the Crown, the departmental officer having the actual custody of the document must be subpoenaed {Imperial Cold Storage Co. v. B., 1909, Times, Nov. 9). If a witness, served with a subpoena duces tecum, is merely required to produce the document and not to testify, he need not be sworn {post, 463). By 0. 37, f. 7, " The Ctourt ot a judge may in any cause or matter at any stage of the proceedings order the attendance of any person for the purpose of producing any writings or other documents named in the order which the court or judge may think fit to be produced: provided that no person shall be compelled to produce under any such order any writing or other document which he could not be coibpelled to produce at the hearing or trial." The object of this order was to remove the difficulties which existed in compelling the production of documents before or after the trial, at the hearing of motions, petitions, summonses, or examinations before official referees or examiners {Elder v. Ca/rter, 25 Q.B.D. 194, 199). It thus only relates to production as auxiliary to examination for the purposes of a particular motion, &c. {Burchard v. McFarlane, and Elder v. Carter, sup..; O'Shea v. Wood, 1891, P. 237, 286) ; but, under it, a non-party may be compelled to produce documents upon such examination {Zumlech v. Biggs, 48 W.R. 507 ; Be Smith, 1891, 1 Ch. 333), though not for private inspection for trial {Straker V. Beynolds, 22 Q.B.D. 262). The order may be made ex parte and is equiv- alent to a subpoena duces tecum {Be Smith, sup.). In the case of certain ;?M6Ztc documents {e.g. a parish register, Sayer v. Glossop, 3 Ex. 409, though not a rate-book, B. v. Llanfeathly, cited post, 537), production can;iot be compelled under subpoena; and a judge's order, and not a subpoena, is the proper means of obtaining production of an original judicial document {post, 537, 543, 556) or banker's book {ante, 375). Where, however, the document is a private one the witness must, in general, whether possession be held for himself or for another {e.g. solicitor for client), attend with the document and submit the question of privilege to the' judge {B. V. Oreenaway, 7 Q.B. 126; Imperial Cold Storage Co. v. B., sup.). As to what documents are privileged from production in civil cases, see ante, chaps, xv.-xvi.; and in the following cases a witness cannot be compelled to produce his principal's documents:— A steward having the title-deeds of the_ estate, for his possession is that of his employer {Falmouth r. Moss, 11 Price, 455) ; a secretary of a company, whose directors have forbidden Digitized by Microsoft® CHAP, xxxvui.] PEOCESS, ATTENDANCE, SERVICE, ETC. 443 him to produce, or not been shown to have consented to his producing, the company's books {Crowther v. Appleby, L.R. 9 C.P. 33; B. v. Stuart, 2 T.L.R. 144; Eccles v. Louisville By Co., 1911, IK.B. 135, C.A.; cp. Balfour V. Tilhtt, 29 T.L.R. 332, C.A.) ; a clerk in a public office, with respect to official papers {Austin v. Evans, 2 M. & 6. 430) ; or, under the Bankruptcy Act, 1914, s. 25, the managing clerk of a creditor (see Be Higgs, Exp. Leicester, 66 L.T. 296). The partner of a party, however, may be compelled to produce on subpoena his own fully executed counterpart of the joint deed, although his other co-partners object, for each partner has a property in his own copy (Fortes v. Samuel, 1913, 3 K.B. 706, 721-5; and cp. Battenlery V. Munro, 103 L.T. 560), tiiough this does not apply to documents and letters belonging to the firm. In criminal eases, however, the document must be given up, notwithstanding any instructions from the depositor {B. v. Daye, 1908, 2K.B. 333). Recognisance. In indictable offences (and several others • in which an appeal lies to the sessions from a conviction by one or more justices, Tay. ss*. 1237-1238), the witnesses both for the prosecution (11 & 12 Vict. c. 42, s. 20, amended by 42 & 43 Vict. c. 49) and the defence (30 & 31 Vict. c. 35, s. 3, except witnesses to character) may be, and generally are, bound over by the committing magistrate to give evidence at the trial. And a similar power is given to coroners to enforce the attendance of Crown witnesses at trials for murder or manslaughter (The Coroners Act, 1887, s. 5). Where the witness has not been bound over, or is an infant (for then his recognisance cannot be estreated, B. v. Smith, 17 Cox, 601), he should be served with a subpoena issued by the Clerk of Quarter Sessions or Assize, as the case may be, or from the Crown Office, the advantage of the latter being that it may be served anywhere in the United Kingdom and that proceedings upon it for contempt are more speedy and effective (Ros. Cr. Ev. 94). A Crown Office subpoena may' also be resorted to, instead of a " backed " summons in the case of a witness out of the Petty Sessions district (infra). Under the Criminal Appeal Act 1907, s.. 9, the Court of Cr. App. may order the production of any witness or document material to the case and exercise various other powers in respect to evidence. Summons. A summons, which may contain a clause for the production of documents, is the process in use where the attendaiice of witness is required before the Chief Clerk in the High Court (0. 55, rr. 16, 17; Ann. Pr., App. L.) ; and a Chief Clerk's summons, and not a subpoena, is the proper process in winding-up proceedings under the Companies Act, 1908, s. 174 (Be West- moreland C, 40 W.R. 171; Be Oreat Kruger Co., Exp. Barnard, 1892, 3 Ch. 307; and Be Trust and Investment Corp. of S. Africa, id. 332). The same process is also employed in the County Courts (C.C. Act. 1888, s. .110; C.C.R. 1903, 0. 18, r. 3) ; before magistrates [who, if the summons will probably be disobeyed, may in lieu thereof issue a warrant under 11 & 12 Vict. c. 42, s. 16, or. id. c. 43, s. 7; and if the witness be out of the jurisdiction, such summons or warrant may be "backed" by the local justice, or a Crown Office subpoena may be obtained; and imder the Criminal Justice Adminis- tration Act, 1914, s. 29, the above sections shall be deemed to include the power to order production of documents and articles likely to be material on the hearing of any charge, information or complaint, and the provisions as Digitized by Microsoft® 444 THE LAW OF EVIDENCE. [bookii. to the witness's neglect or refusal shall apply accordingly] ; Coroners (The Coroners Acl, 1887, s. 19, sub-s. 3; Tay. s. 1290): and Revising Barristers (6 & ? Vict. c. 18, ss. 35, 50, 51; 41 & 42 Vict. c. 26, s. 36). Witnesses in Court. Persons present in court, though not subpcensed, are in criminal cases bound, if called, to be sworn and give evidence {B. v. Sadler, 4 C. & P. 218) ; and this applies also, it seems, to bastardy eases, though not to other proceedings before magistrates under 11 & 12 Vict. c. 43 (22. v. Flavell, 14 Q.B.D. 364). Witnesses in Prison. The attendance of a witness when (1) m custody on civil process (or detained in a lunatic asylum, Fennell v. Tait, 1 CM. & R. 584; or by his superior officer in the army or navy, Tay. s. 1275) may be enforced in civil or criminal trials (or arbitrations. Arbitration Act, 1889, s. 18), by a writ of habeas corpus ad testificandum, issued by a judge of the High Court in Chambers (44 Geo. Ill .c. 102 ; Ann. Pr., App. J. Form 2 ; Tay. ss. 1272-1275; see, however, Jenhs v. Ditton, 76 L.T. 591, where Stirling, J., held that a judge's order on the governor of the prisoner, and not a writ, was the proper method, following Seton, pp. 89, 94) ; and' (2) when In custody on a criminal charge, by a warrant or order of a judge of the High Court (16 & 17 Vict: c. 30, s. 9; Prison Act, 1898, Sched.), or of a County Court, where the proceedings are in the latter (C.C. Act, 1888, s. 112). And prisoners electing to give evidence at Coroners' Inquests may do so under an order of the Home Office, issued May 1894, upon giving formal notice to the governor of the prison, who is instructed to warn them in the customary manner, and afford facilities for their attendance (58 J.P. 369). Now, also, by the Prison Act, 1898, s. 11, a Secretary of State, on proof to his satisfaction that the presence of a prisoner at any place is required in the interest of justice or for the purpose of any public inquiry may, by writing under his hand, order the prisoner to be taken thither. Witnesses out of Jurisdiction. The attendance of witnesses resident in parts of the United Kingdom beyond the jurisdiction of the Court issuing the process is regulated as follows: Civil Actions. By 17 & 18 Vict. c. 34, ss. 1, 2, amended by the Judicature Act, 1884, s. 16, a writ of subpoena may at any time be issued by special leave of a judge of the High Court, to compel the attendance at trials therein (or before a referee or arbitrator. Arbitration Act, 1889, s. 18) of witnesses resident in Scotland and Ireland. So, County Court summonses to witnesses, to be served either in the home of any foreign district, may be issued without leave (C.C. Act, 1888,. s. 110; C.C.R. 1903, 0. 18, r. 3). Criminal Cases. As subpoenas issued by the clerks of the peace at sessions, or of assize at assizes, are only effectual within their respective jurisdictions, ii is necessary when the witness is resident beyond these limits to obtain a Crown Office subpoena, which is available in any part of the United Kingdom (45 Geo. III. c. 92, ss. 3, 4). The attendance before a magistrate of witnesses resident "in England" beyond his jurisdiction, is effected by means of a summons issued by such magistrate, and backed by another in the witness's district (Summary Jurisdiction Act, 1879, s. 36) ; and their attendance when in "England, Wales, Ireland, Scotland, or the Channel Islands " may be enforced by warrant, backed by any justice of such locality (11 & 12 Vict. c. 42, ss. 11-16; id. c. 43, ss/3, 7); or, in either case, by means of a Crown Office subpoena. Digitized by Microsoft® CHAP. XXXVIII.] SERVICE OF PROCESS, &c. 445 SERVICE OF PROiCESS. Subpoena. Service of a supoena issued by the High Court, or by Court of Assize or Quarter Sessions, is effected by person- ally delivering to the witness a copy of the writ .and of the indorsement thereon, and at the saine time producing the original (0. 37, r. 33; Tay. s. 1244; Ros. Cr. Bv. 95). The service must be made within twelve weeks from the teste of the writ (0. 37, r. 34), and a reasonable time before the trial; service on the day of trial, even where the witness resides in the same town, not being suflBcient unless he is actually within the precincts of the Court, or has admitted the sufficiency of the service, as by promising to attend {Maunsell v. Ainsmortji, 8 Dowl. 869). The subpoena remains in force until the end of the sitting or assize "for which it is issued; after which the former Avrit must be re-issued and re-served, or a new one obtained (Tay. s. 1241). The service may be proved by affidavit (0. 37, r. 33; Tay. s. 1244). Summons. An ordinary witness summons, issued without leave by a County Court, is served by the bailiff, but it may, by leave of the judge or registrar, be issijied in Wank and served by the party applying for -the same, or by his solicitor, or by some person in the permanent and exclusive employment of the party or his solicitor (C.C. Act, 1888, s. 110; C.C.R. 1903, 0- 18, r. 3). The service should be effected personally, or by delivering it to some person apparently of the age of sixteen, at the house, or place of dwelling,^ or place of business of the witness ; but no place is to be deemed his place of business unless he is the master, or one of the masters, of it (C.C.R. 1903, 0. 18, r. 4; Ann. C.C. Pr., 1911, 328). Proof of service may be by indorsement on the copy (C.C. Act, 1888, s. 78). Service of a Police Court summons may be effected by "a constable, peace-officer, or other person," by leaving it with the witness, or with some person for him, at his- last or most usual place of abode (11 & 12 Vict. c. 43, s. 1) — e.g. service upon a servant appar- ently residing at the witness's address, coupled with an explanation ot its purport, is sufficient (R. v. Chandler, 14 East, 267). Proof of such a service may be by declaration before a justice, commissioner for oaths, clerk of the peace, or registrar of a County Court (42 & 43 Vict. c. 49, s. 41; Green- wood's Police Guide, 37-38, 41). Attendanoe' W-aives Irregularity. Attendance in obedience to a subpoena or summons will waive any irregularity in the service thereof {Wisden v. W., 6 Hare, 549; B. v. Widdop, L.R. 2 C.C. 3; R. v. Fletcher, 51 L.T. 334). TENDER OF EXPENSES. Civil Cases. In civil cases a witnesses not bound to attend unless his reasonable expenses of going to, staying at, and returning from the place of trial are tendered to him, either with his subpoena, or at a reasonable time before the'trial (Dowdell v. Australian Co., 3 E. & B. 902; Brocas v. Lloyd, 23 Beav. 129; Re Harvey, 23 T.L.R. 433) ; though he eartnot refuse 'for non-payment for former attendances {Gaunt V. Johnson, 6 Hare, 551). Nor, if he attends (which as we have seen waives any irregularity in the service of the process), is he boimd to give evidence unless such expenses together with, in the case at any rate of professional witnesses, compensation for loss of time, are paid or tendered to him; and this seems to ' hold even though he has been already sworn (Be WorHng Men's Society, 21 Ch.D. 831) ; or the party subpoenaing sues in forma Digitized by Microsoft® 446 THE LAW OF EVIDENCE. [bookii. pauperis {Jacobs v. Lindow, 1898, Times, May 25). But payments made by one side may be taken into account on a subpoena from the other {Allen V. Yoxall, 1 C. & K. 315 ; Betteley t. McLeod, 3 Bing, N.C. 405) ; and witnesses may waive their right to a tender of expenses, either expressly, as by agreeing to take a less siun, or to bear their own expense {Betteley. v. McLeod, sup.; Oof V. Mills, 13 L.J.Q.B. gg?) ; or impliedly, as by accompanying the parties to the place of trial without making any previous claim {Newton v. Earland, 1 M. & G. 956; Tay. s. 1249). An action will also lie against the client to recover the witnesses' expenses {Chamberlain v. Stoneham, 25 Q.B.D. 113) ; though not against the solicitor, unless the latter has expressly bound himself, or the action is a speculative one {Robins v. Bridge, 3 M. & W. 114; Miller V. Appleton, 50 Sol. Jo. 184, 192)'. Where the witness is a married woman the tender should be made to her and not to her husband (Tay. s. 1249). If a party attends on his own account, he is not entitled to conduct money when subpoenaed by his adversary; though a successful party, when a necessary witness in his own cause, will on taxation be allowed his proved expenses {Wiltshire v. Naylor, 43 Ir. L.T.E. 167). Criminal Cases. In Indictable Offences, a witness living within the juris- diction is bound to attend when subpoenaed or summoned by the Crown or prisoner without any tender of expenses {Pell v. Daubeny, 5 Ex. 955, 957; R. V. Coohe, 1 C. & P. 321) ; but power is given to the Court in all cases of felony, and in many of misdemeanour, to order pajrment of their expenses to Crown witnesses -attending on recognisance or subpoena, and to witnesses for the prisoner attending on recognisance (Tay. ss. 1253-1263; Eos. Cr. Ev. 98, 210-214). Witnesses residing in a distant part of the United Kingdom without the jurisdiction, cannot be punished for contempt unless at the time of service a sufficient sum was tendered to them for their expenses in coming, attending, and returning (45 Geo. III. c. 92, s. 4; and see 44 & 45 Vict. c. 24, s. 4, sub-s. 3; and 44 & 45 Vict. c. 69, ss. 15, 27). In Summary Oases, a witness is not bound to attend unless paid his expenses with his simimons, nor can a warrant issue for his attendance xmless such payment has been made (11 & 13 Vict. c. 43, s. 7). ' DISOBEDIENCE TO PROCESS. Subpoena. Wilful failure to attend a trial in obedience to a subpoena issued by the High Court, is a contempt, and punishable in both civil and criminal cases by attachment (Tay. ss. 1365-1369 ; Eos. Cr. Bv. 97) ; as well as, in civil cases, by an action of debt, wherein the aggrieved party may recover a penalty of £10, with such further compensation as the Court issuing the process may assess (5 Eliz. c. 9, s. 13, made perpetual by 26 & 27 Vict. c. 125 ; Tay. s. 1270) ; or, as is more usual, provided the party can prove actual loss or detriment by the non-attendance, an action at Common Law for damages {Crewe v. Field, 13 T.L.E. 405; Tay. s. 1371; Archb. Pr. 568-570). If a witness, duly served- and having his expenses paid, refuses in court to be sworn, to answer, or to sign his deposition, he is guilty of a contempt, and may, in the Superior Courts, be punished instanter, by fine and imprisonment {Exp. Fernandez, 10 C.B.F.S. 3; R. V. Clement, 4 B. & Aid. 318 ; Re Keller, 32 L.E.I. 158 ; Kingston v. Cooper, 41 L.Jo. 317) ; nor can he appeal against the order unless he attends the Court {Gordon v. G., 1904, P. 163, 166, C.A.) So, if a witness subpoenaed Digitized by Microsoft® CHAP. sxxviii.J ABUSE OF PEOCESS. PEOTECTIOISr. 447 before an examiner refuses . to attend, or, having attended, refuses to be sworn or to answer any lawful question, such refusal may be certified to the Central Office by the examiner; and the Court may, on the application of the aggrieved party, made either ex parte, or on notice, order the witness to attend at his own expense, or be sworn, or answer, as the case may be (0. 37, t. 13; Stuart v. Balkis Co., 33 W.R. 676; Exp. Fernandez, supra; post, 498) ; and in default thereof motion may be made for leave to issue a writ of attach- ment {Evans v. Noton, 1893, 1 Ch. 253). And the same practice applies where a witness is summoned by the Chief Clerk under 0. 55, r. 17 (Powell V. Nevitt, 55 L.T. 738). Where the subpoena has been issued, not by the High Court, but by a Court of Assize or Quarter .Sessions, a non-attending witness may be fined, or indicted (B. v. Clement, 4 B. & Aid. 318; Tay. s. 1368; Eos. Cr. Ev. 97); and an attending witness, who refuses to be sworn or to answer, may be committed, or fined, and imprisoned until the fine is paid (Eos. Cr. Ev. 97; B. v. Preston, 1 Salk. 378). Disobedience to a subpoena issued out of the jurisdiction in Scotland or Ireland under 45 Geo. III. e. 93, or 17 & 18 Viet. c. 34 ante, 435, may be certified to, and punished by, the Superior Courts of those countries (Archb. Prac, 14th ed. 570-571). As to refusal to make an affidavit, see post, 446-7; to prove a will, Be Sweet, 1891, P. 400, and Be Bays, 54 Sol. Jo. 300; and to attend an order of the Divorce Court, Townend v. T., 93 L.T. 680, and 0. 41, r. 5. RBCognisance. If a witness refuses to be bound over, he may be committed (11 & 13 Vict. c. 43, s. 30) ; and if he fails to appear, after being bound, his recognisance may ber forfeited and the penalty levied. (As to the practice in such cases' see Tay. c. 1335; Eos. Cr. Ev. 93-94.) Summons. Failure to attend, or refusal to give evidence or produce docu- ments, in pursuance of a County Court summons, subjects the witness to such penally, not exceeding £10, as the judge may think proper (C.C. Act, 1888, s. 111). Obedience to a magistrate's or justice's summons is enforceable by warrant; and if the witness refuses to be sworn, or to answer, he may be committed for not more than seven days (11 & 13. Vict. c. 43, s. 16; id. c. 43, 8. .7; in bastardy cases, but not in proceedings under Jervis's Act, a witness who has voluntarily appeared, without a summons, can it seems be also so committed, B. v. Flavell, ante, 434). Obedience to a summons may also be enjforced by warrant, both in Bankruptcy (Bpy. Act, 1914, s. 35, sub-s. 3; and this, and not committal, is the proper course where the refusal to attend is owing to insufficient tender of conduct-money, Be Batson, Exp. Hastie, 70 L.T. 383), and under the Companies Act, 1908, ss. 174, 336. ABUSE Oi; PROCESS. PROTECTION OF WITNESSES. Every Court has inherent power to prevent an abuse of its process, e.g. service of a subpoena when the cause cannot, be tried in the current sitting's (London Corp. v. Kaufman, 48 W.E. 458), or of one which is oppressive as to the number or nature of the documents required (Steele v. Savory, 8 T.L.E. 94.), or the expense entailed (Baymond v. Tapson, 33 Ch.D. 430), or when the object is notiona fide to obtain relevant evidence (B. v. Baines, 1909, 1 K.B. 358), or whe^n attendance is required merely for confrontation (Farulli v. F., 1917, P. 38; post, 465-6). So, as to a notice to attend for cross-examination served for some indirect motive (Be Mundell, cited post, 475 ; as to oppressive ques- Digitized by Microsoft® 448 THE LAW OF EVIDENCE. [book ii. tions during cross-examination see post, 478-9). As to calling an undue multi- plicity of witnesses, see post, 484. Moreover, in order to encourage the giving of voluntary testimony, witnesses are protected from arrest on civil process, eimdo, morando, et redeundo, e.g. under a commitment for non-payment of rates {Hobern v. Fowler, 62 L.J.Q.B. 49; Tay. ss. 1330-1340). This protec- tion applies to attendance in good faith, even without a subpoena ; and extends to a reasonable time for coming and returning, as well as to the time occupied by the witness in waiting for the trial to come on. Thus, a witness - who comes to town to be examined, is protected the whole time he bona fide remains there for that purpose; though it is otherwise with a witness who already resides in the town {Gibbs r. Phillipson, 1 Russ, & Myl. 19). If the witness has been improperly arrested, the Court issuing the subpoena, or the judge of the Court in which the case has been, or is to be, tried, will order his discharge (Eos. Cr. Ev. 99; Hobern v. Fowler, sUp.). There is no protection, however, from arrest on criminal process, e.g. for disobedience by a solicitor to an order against him as an officer of the Court {Re Freston, 11 Q.B.D. 545; Be Dudley, 12 id. 44; Be Grey, 1892, ^ Q.B. 440), or by a receiver to an order to pay his balance into court {Be Gent. 40 Ch.D. 190). It is a contempt to threaten {Shaw \.'8., 31 L.J. P. & M. 35), bribe {Be Hooley, 79 L.T. 306), or publicly calumniate {B. v. Onslow, 12 Cox, 358) a probable witness, with intent to influence, or prevent his testimony; and it is an indictable misdemeanour to intimidate a Crown witness {B. t: Loughran, 1 Crawf. & Dix, 79), or to endeavour to dissuade him from giving evidence of a certain character, or to alter the evidence he ha^ given at a preliminary hearing {B. v. Greenberg, 147 L.T. Jo. 48, CCA.) The above protection is not confined to witnesses in courts of law, but extends to military courts as well {BawMns v. Bokeby, L.R. 7 H.L. 744). As to .protection in respect of evidence, whether on oath or not, before Parliamentary Committees and Eoyal Commissions, or on special statutory inquiries, see the Witnesses' Protection Act, 1892. On grounds of public policy, no action lies against a witness in respect of his testimony in court {Dawkins v. Bokeby, sup.; Seaman v. Netherclift, 2 CP.D. 53), or of proofs supplied to the solicitor {Watson v. Jones, 1905, A.C. 480) ; nor will one lie for false evidence negligently given, which has procured the plaintiff's conviction, unless such conviction has first been reversed {Bynoe V. Bk. of England, 1902, 1 K.B. 467). Evidence given in an inquiry under the Pluralities Acts is similarly protected {Barratt v. Kearns, 1905, 1 K.B. 504). Digitized by Microsoft® ( 449 ) CHAPTER XXXIX. COMPETENCY AND COMPELLABILITY. OATH AND AFFIRMATION. OOMPETENCY. With the two exceptions mentioned below, all persons are now competent, as distinct from compellable, to give evidence in judicial proceedings, including the Sovereign (Tay. s. 1381; Best s. 183; and see Berkeley Peerage, Times, June 37, 1891, B. v. Mylius, Times, Feb. 2, 1911; and post, 457, 463); Judges {ante, 19, 196); Counsel [ante, 197; advocates may in strictness, although the practice is highly undesirable, testify either for ■ or against the party whose ease they are conducting, Ooibett v. Hudson, 1 E. & B. 11, not following Stones v. Byron, 4 Dowl. & L. 393, and Deane v. Pack- wood, id. 395 n; Best, ss. 184-6; Tay. s. 1391; as to when their evidence may be given without oath, see post, 441] ; Arbitrators {ante, 196) ; Jurymen (ante, 19, 197; R. v. Bosser, 7 C. & P. 648; Manley v. Shaw, Car. & M. 361; Best, s. 188 ; Tay. s. 1379) ; the parties in civil cases (14 & 15 Vict. c. 99, s. 2), and their wives or husbands (16 & 17 Vict. c. 83, s. 1; 33 & 33 Vict. c. 68, ss. 3, 3) ; persons interested in the result (3 & 4 Will. IV. c. 43, s. 26; 6 & 7 Vict. c. 85, s. 1) ; bankrupts (the debtor is also competent to prove ihe petitioning creditor's debt. Be Eaes, 1903^ 3 K.B. 98) ; believers of all creeds, as well as Atheists (providing they comply with the provisions of the Oaths Act, 1888, 'post, 451, 458) ; deaf mutes, providing the Court is satisfied that they understand the nature of an oath (Tay. s. 1376; Steph. art. 1Q7; see post, 465) ; accomplices {post, 486) ; and convicts [6 & 7 Vict. c. 85, s. 1; B. T. Dytche, ante, 144; even a person convicted of perjury is competent (see 65 J.P. 496; contra, Oke's Mag. Synop., 14th ed. 879), as also is a murderer under sentence of death {B. v. Fitzgerald, 1884, Dublia, Nov. 6, per Harrison, J., cited Tay. s. 1347 n, not following 2?. v. Webb, 11 Cox, 133, contra, which case is doubted both in Tay. s. 1347 n and Steph. art. 107 n ; see also 31 L.Jo. 368)] As to the competency of attesting witnesses, see post, 519-33; of experts, ante, 386-9 ; of infants, lunatics and drunkards, post, 452. Former Dis^aalifications: Interest (Parties, Consorts, other Witnesses), Atheism, Crime. History. Prior to 1833, every person haviag an interest, however minute, in the result of the proceedings, was absolutely barred from being a witness. The history of this topic is somewhat obscure. In the older modes of trial, preceding the jury, interest in a witness, far from being a disqualification, was always permissible and often essential. Even when witnesses in the modern sense first appear in courts of justice, as well as for something like a century afterwards (i.e. from about 1400 to 1500) the fact that they were relatives or servants of the parties was considered natural and proper, while testimony from independent sources was not merely deemed i,.E.— 29 Digitized by Microsoft® 450 THE LAW OF EVIDENCE. [bookii.^ officious, but ran the risk of being punished as maintenance. Within the course of the succeeding century, however, a complete reversal of ideas is apparent, what was formerly encouraged now becoming a bar. Thus, in 1683 the rule nemo in propria causa testis esse debet emerged as something well established {Dymohe's Case, Savile, 34 pi. 81, where the joinder of a person as party unless done by covin was recogaised as invalidating his testi- mony), and by 1637 this rule had by analogy become extended to all interested witnesses, even though not parties (Co. Litt. 6a). The cause of this change is by no means clear. It is true that in Eoman law, and in the English Ecclesiastical Courts whose procedure was modelled thereon, the disqualifi- cation' of interest had always prevailed. But so also had others which were not imported into the civil courts. Moreover, the rivalry between the two jurisdictions, particularly at this period, was sufficiently keen to discourage mutual borrowings. Prof. Wigmore suggests, therefore, that from the very beginning the parties themselves must always have been incompetent as wit- nesses in jury trials. The oath was, at that epoch, a solemn and determinative proceeding, a separate form of trial, and in wager of law alone could a party have the benefit of this method of decision {cp. Best, s. 59). Although- therefore, the Court itself sometimes heard affidavit evidence from the parties, both in civil and criminal cases, e.g. on questions of bail {R. v. Bell, 95 E.E. 300, 362) or to explain some collateral point {Turner v. Warren, id. 303), the parties, when before the jury, did not swear, they pleaded orally, or argued, or alleged things in evidence, either by themselves or their counsel; but they did not take an oath, for to have done so would have been to import into jury trials generally a distinct and privileged mode of procedure rigidly confined to a narrow class of cases. With regard to Criminal trials, there appears, before Coke's time, to have been no disqualification of witnesses for the prosecution on the ground of interest; and even when introduced it was but feebly enforced. In jury trials, as distinct from tttose before Parliament, and other bodies {oMte, 311-3), the accused himself was not sworn as a witness, though he might urge what he pleased orally by way of law, evidence, or argument, and he was also freely questioned by the Court, such interrogation, indeed, forming down to the Civil wars, the most important part of the trial, and being still in vogue under the Stuarts. After the revolu- tion of 1688, however, this practice died out, and the civil rule that parties were incompetent as witnesses became extended to criminal trials [Steph. Hist. Cr. Law, Vol. I. 439-42; id. General View, 3nd ed. 186-7; Wigmore Ev. s. 575 ; Best, s. 632 a.; Tay. 8th ed. ss. 1356-82]. At common law the accused could not even call witnesses (see B. v. Turner, 1664, 6 How. St. Tr. 566) ; though in 1589 and 1606 (31 Eliz. c. 4; 4 Jac. I. c. I.) this was partially allowed, the witnesses, however, not being sworn {R. v. Eulet, 5 How St Tr. 1179, 1191; R. v. Morley, 6 id. 770; R. y. Pembroke, 6 id. 1338; Gilbert Bv. 1st ed. 159). Later, compulsory process for these was allowed him (R y Twyn>, 6 id. 516) ; and finally, in 1695 and 1701 (7 Will. III. c. 3. s. l"; 1 Anne, c. 9. s. 3) they were sworn in treason and felony, the usual disqualifica- tions thenceforth attaching. In Equity, the early Chancellors appear to have adopted a hybrid practice, based partly on the civil, or canon law, and partly on the common law, precedents. Thus, though the parties 'wer^ disqualified as witnesses for themselves, they could be compulsorily examined Digitized by Microsoft® CHAP.xxxix.J COMPETENCY AND COilPELLABlLlTY. 451 by their opponents. Those parts of the defendant's sworn answer which consisted of admissions were, of course, evidence against him, but the denials, unless read by the plaintiff as part of the admissions, were not evidence for him, being considered merely as a plea of not guilty, which put the plaintiff to the proof in a particular way; and as the answer happened to be on oath, and the practice grew up of requiring either two witnesses, or one witness and corroborating circumstances on the other side (Attwood v. Small, 6 G. & F. 395, 397). The American rule, indeed, still regards the responsive answer in equity as positive evidence for the defendant (Story, s. 1538; 43 Am. Law Eegister, 537). [Wigmore, s. 575; Thayer, Cas. Ev., 3nd ed. 1066- 7; Best, ss. 137-41; Gest, 43 Am. L. Eegister, 537-75.] Husband- and Wife. Amongst witnesses, whether in civil or criminal proceedings, the wives or husbands of the parties were at Common Law early considered incompetent to testify, either for or against each other, by reason of their unity of person and interest. Even at Common Law, however, an exception was always made, from necessity, in cases of personal violence or forcible marriage, and perhaps also, from public policy, in those of treason. By statute also this general incompetency has been gradually removed, both in civil cases (see 31 Jac. c. 19, s. 6; the County Courts Act, 1846, s. 83; The Ev. Amendment Act, 1853, s. 1 and the Ev. Further Amendment Act, 1869, s. 31) and to a large extent in Criminal trials, by a series of Acts culminating in but ^superseded by the Criminal Ev. Act, 1898, as to_which see fully infra, 453-7 [Co. Litt. 6 6 (1613) ; Gilbert Ev. 1st ed. 135-6 (before 1736) ; Lush, Law of Husband and Wife, 3rd ed. 533-6; Tay. (8th ed.) ss. 1348-73; Best. ss. 173-181; 683 a; Cohen, Spouse-witnesses (1913); R. v. Lord Mayor of London, 16 Q.B.D. 773; Director of P. P. v. Blady, 1913, 3 K.B. 89, 93; Leach v. P., 1913, A.C. 305, For the history of spouse unity generally, see 3 Poll, and Mait. Hist. Bng. Law, 403]. Atheism. At Common Law, Atheists [Maden V. Oatanach, (1861) .7 H. & N. 360; Tay, s. 1383; Best, ss. 134-6; 159-66] and such Infidels (i.e. non-Christians) as were aiieists, but not those that believed in a God who would punish for false swearing [Omichund v. Barker, Willes, 538] were incompetent to be -sworn or to testify. These disabilities have, however, since been removed by statute [Ev. Further Amend. Act, 1869; Oaths Act, 1888; post, 458]. Crime. Originally crime does not appear to have disqualified ; but from . the beginning of the seventeenth century (see Browne v. Grashaw, 1613, Bulstr. 154) tLe rule grew up that conviction for treason, felony or the misdemeanours of perjury, forgery and conspiracy, rendered a witness infamous and incompetent. His competency was, however, restored on reversal of the judgment, pardon, or completion of the sentence. Disqualification for crime was at length totally abolished by 6 & 7 Vict. c. 85, s. 1, ante, 449. - [Best, ss. 141-3; Wigmore, ss. 519-34]. Objections, How taken. Objections to competency, most of which now go merely to credit {e.g. crime and interest), or give rise to privilege {e.g. matrimonial communications), used to be decided by the judge examining the witness on the voir dir£ {i.e. vrai ^tre),« the witness being sworn "to answer truly all such questions as the Court shall demand of him"; but since, if he can be sworn on his examination, he can also be sworn in chief, and if incompetent on the latter, he must also be so on the former, this test was not very satisfactory (Whart, s. 493). The modern practice is either Digitized by Microsoft® 452 THE LAW OF EVIDENCE. [bookii. to interrogate the witness before swearing him, or to elicit the facts upon his examination or cross-examination, when, if his incompetency appears at any stage, his evidence will be rejected (R. v. Whitehead, L.R. 1 C.C. 33; B. v. Moore, (U L.J.M.C. 80). (1) Incompetency from Defective Intellect. No witness is competent who ' is prevented from Lunacy , Drunkenness, Infancy, and the like, from under- standing the nature of an oath and giving rational testimony But the incapacity is only co-extensive with the defect; thus, a lunatic is competent during a lucid interval, a monomaniac upon all subjects save the one, a drunkard upon his return to sobriety (jB. v. Hill, 2 Den. 254; Spittle v. Walton, L.E. 11 Eq. 420; ante, 400; Tay. s. 1375). And generally, the ques- tion is one of degree and weight. Thus, in Durham v. D., 10 P.D. 80, 86, Hannen J., remarked: "I have known instances of persons of unsound mind giving evidence in Court^ of Justice of facts within their own knowledge, and their statements have been acted on. But it is evident that statements made in such circumstances must be received with caution, and they must be considered by, or be considered with, the other evidence of the facts in question." Their testimony has even, as we -have seen, been received where the issue was as to their own sanity (Hunter \. Edney, 10 P.D. 93; ante, 400). Where incapacity is merely temporary, the judge may, in his discretion, provided the application be made before the jury are sworn, postpone the trial until it is removed {B. Y. Wade, 1 Moo. C.C. 86; B. v. White, 1 Lea. 430 w; cp. ante, 438, post, 507). Infancy. No precise rule can be laid down as to the limit of age, or degree of knowledge and intelligence, which will exclude the testimony of Infants. Their competency, however, depends not so much on years as ability to under- stand the nature of an oath and the consequences of falsehood {B. v. Brasier, 1 East, P.C. 443; B. v. Dent, 71 J.P. Eep. 511; as to their unsworn testi- mony, see post, 461-2) . Thus, children of seven (Shewring v. S., 1892, Times, Nov. 11), six {B. V. Holmes, 2 F. & F. 788; B. v. Perkins, 2 Moo. C.C. 135), or even five years of age (B. t. Brasier, sup.; in another report, 1 Lea. 199, the age is stated as under seven) have been allowed to testify, upon the Court being satisfied on the above points; while, where not satisfied, the testimony of a child of seven (B. v. Forsyth, 93 L.T. Jo. 247), or even eight (B. v. Wil- liams, 7 C. & P. 320), has been rejected; as also in B. v. Pike, 3 C. & P. 598, the dying declarations of a girl of four, the Court remarking that it was impossible her understanding could be sufficient for the purpose. The fol- lowing answers have sufficed to admit the testimony: "What becomes of a liar ?" " He goes to hell " ; or, " Is it a good or bad thing to tell lies ?" " A bad thing" {B. v. Holmes, sup.). A child destitute of religious education has been allowed to be qualified therein with a view to the trial {B. v. Murphy, 1 Lea. 430 n; B v. Milton, Ir. Cir. E. 16; B. v. Baylis, 4 Cox, 23; contra, B. V. Williams, 7 C. & P. 320; B. v. Gharlesworth, 1 B. & S. 460, 525; per Blackburn, J., citing B. v. Wade, inf; B. v. Nicholas, 2 C. & K. 246, where an application to postpone the triaHor this purpose was rejected, but Pollock, C.B., considered there were cases in which it might be granted, and see B. v. Cox, 62 J.P. 89). Such an application must, it has been held, be made before the jury are sworn {B. v. Wade, 1 Moo. C.C. 86; contra, B. v. Cox, sup.). On a claim for damages by the next friend of an infant of nine, who did not Digitized by Microsoft® CHAP. xxxix.J COMPETENCY AND COMPELLABILITY. 453 understand the meaning of an oath, Judge Cluer, of the Shoreditch County Court, adjourned the ease for the child to be instructed in the oath (Evening Standard, Nov. 8th, 1918). [Tay. s. 137 'T ; Eos. N.P. 163-164; Ros. Cr. Ev: 100-101; Steph. art. 107.] As to the reception of unsvrorn testimony by children under the Criminal Law Amendment Act, 1885, and the Children Act, 1908, see post, 461-3. (2) Incompetency in Criminal Proceedings. Witnesses for the Prosecution. In criminal proceedings the accused {R. v. Rhodes, 1899, 1 Q.B. 77) ; the wife or husband of the accused (except in the cases post, 455-6) ; any person jointly indicated and jointly tried with the accused {R. v. Payne, L.R. 1 C.C. 349; R. V. Hadwen, 1903, 1 K.B. 883, 886) ; and the wife or husband of such per- son {R. V. Shenff, 35 L. Jo. 644; R. v. Thompson, L.E. 1 C.C. 377) ; are incompetent as witnesses for the prosecution. To render co-defendants or their consorts competent to be called by the prosecution, such co-defendants must have been acquitted, or have obtained a noll^e prosequi, or have pleaded guilty {R.Y. Tomey, 3 Cr. App. E. 329; R. y. Gallagher, 39 J.P. 503), or must be tried separately (Winsor v. R., L.E. 1 Q.B. 389, 39t); R. v. Sheriff, sup.). Eevenue proceedings in the Q.B.D. are not criminal within the rule (39 & 40 Vict. c. 36, s. 359) ; nor those for non-repair, &c., of highways or bridges (40 & 41 Vict. c. 14; Cr. Ev. Act, 1898, s. 6); nor charges before justices not resulting in simimary conviction, and commenced by complaint as distinguished from information- — e.g. affiliation oases (R. v. Lightfoot, 6 E & B. 823). Witnesses for the Defence. By the Criminal Evidence Act, 1898,* which supersedes various prior statutory provisions on the subject [Charnock v. Merchant, 1900, 1 Q.B. 474) ; but does not apply to Ireland (see further post, 456), except under the Motor Car Act, 1903, s. 19, nor to Courts- Martial, except in certain cases (see ss. 6, 7)] — ^Bvery person charged with an offence, whether solely or jointly, and the wife or husband of such person, is by sec. 1 rendered a competent witness for the defence at every stage of the proceedings [i.e. before the magistrate both in summary and indictable cases (R. T. Bird, 19 Cox, 180) ; in extradition proceedings (Biron and Chalmers on Extradition, p. 41) ; at the trial; after verdict, in mitigation of punish- ment {R. V. Wheeler, 1917, 1 K.B. 283, overruling R. y. Hodgkinson, 64 J.P. 808) ; but not before the Grand Jury {R. v. Rhodes, 1899, 1 Q.B. 77)]. The judge ought in all cases to inform accused persons of their right to give evidence, though his failure to do so will not invalidate a conviction {R. v. Warren, 25 T.L.E. Q33 ;-cp. R. y. Saunders, 63 J.P. 24). Moreover, witnesses under the Act are, unless otherwise ordered, to testify from the witness-box (sec. 1 (g)) ; and are punishable for perjury (R. v. Wookey, 63 J.P. 409) ; but their failure to give evidence, though it may be commented upon by the judge in any manner he' thinks fit {R. v. Smith, 84 L.J.K.B. 2153; R. v. Rhodes, sup.; cp. Kops v. R., 1894, A.C. 650), is not to be made the subject of any comment by the prosecution (sec. 1 (6)) ; coniment made by the pro- secution to the magistrate, or even to the jury, though it is improper and should be checked by the Courtj will not, however, necessarily invalidate the conviction {Ross v. Boyd, 10 Sc. L.T. Eep. 750; McAttee t. Hogg, id. 751; distinguishing Charnock v. Merchant, 1900, 1 Q.B. 474). * The full text of the Act (annotated) is given in the Appendix. Digitized by Microsoft® 454 THE LAW OF EVIDENCE. [bookii. Evidence given under the Act is subject to the following qualifications: (a) The Accused. By sec. 1 (a) the accused may not be called as a witness except upon his own application; though where he has testified before the magistrate, but declines to do so at the trial, this evidence may, without his consent, be put in by the prosecution before closing their case {ante, 44. post, 509-10) ; while, if he has declined to testify (R. v. King, 10 Cr. App. E. 44) or call witnesses {R. v. Livocl-, id. 264), at the trial, he will not be allowed to do so on appeal. By sec'. 1 (e) he may, when so called, be asked any question, upon cross-examination notwithstanding that it would criminate him as to tlie offence charged, though he is probably not compellable to answer (J?, v. Senior, 34 L. Jo. 100) ; but by sec 1 (/) he may not be asked, and if asked shall not be required to answer, any question tending to show that be has committed, or been convicted of, or charged with, any other offence, or is of had character [where he was compelled, after objection by his counsel to answer such questions {Ohamock v. Merchant, 1900, 1 Q.B. 474), or placed in the dilemma of having to commit perjury, or admit being in prison on a date referred to (R. v. Haslam, 114 L.T. 617), the conviction was quashed; this protection, however, should be claimed at the trial and may be too late on appeal {R. v. Bridgwater, 1905, 1 K.B. 131, 135 ; R. v. Benson, 3 Cr. App. E. 70 ; R. V. Hudson, 1912, 3 K.B. 464) ; and a question asked, but disallowed, will not necessarily invalidate a conviction {Bartle v. Arnold, 1911, 2 K.B. 120; as to proof of previous convictions before verdict generally, see fully, ante, 41-2] unless : (i) The proof that he has committed or been convicted of such other offence is admissible to show that he is guilty of the offence charged [e.^. proof of similar crimes, if either part of the same transaction under chap, vi., relevant under chaps, xi.-xii., or as corroboration under chap. xli. ; or even dissimilar crimes if relevant under chap, ix {R. v. Ball, ante, 137; R. v. Donnellan, ante, 142] ; but not if merely impeach- ing credit {R. v. Ellis, 1910, 2 K.B. 746; R. v. Biggin. 1920, 1 K.B. 213) ; or (ii) He has personally or by his advocate asked questions of the wit- nesses for the prosecution with a view to establishing his own good character (questions merely negativing the particular charge but not asserting general good character are insufficient for this purpose, R. v. Ullis, sup., p. 762), or has given evidence of his good character (ante, 188; R. V. Ferguson, 2 Cr. App. E. 250), or the nature or conduct of the defence is such as to involve imputations _ on the character of the prosecutor or the witnesses for the prosecution, e.g. that the prosecu- trix consented to the alleged rape [R. v. Fisher, 43 Sol. Jo. 218, per Day, J.; R. v. Wright, 5 Cr. App. E. p. 132, per Phillimore, J.; contra, R. t. Sheean, 21 Cox, 561, per Jelf, J.; per Ld. Alverstone, C.J., see 120 L.T. Jo. 70; and R. v. Biggin, 1920, 1 K.B. 313, '217, per Avory, J.] ; or was a drunken wastrel (R. v. Holmes, 43 Sol. Jo. 219) ; or that a witness for the prosecution had committed the offence (R. v. Hudson, 1912, 2 K.B. 464; R. v. Marshall, 63 J.P. 36) ; or was immoral {R. y. Jones, 26 T.L.E. 59) ; or had kept a disorderly house {R. V. Morrison, 6 Cr. App. E. 159, 169) ; or was connected vnth rogues and got money out of people without repaying it (R. v. Wilson, 11 id. 251) ; or had bribed the accused to confess (R. v. Digitized by Microsoft® CHAP. xxxix.J COMPETENCY AND COMPELLABILITY. 455 Wright, 5 Cr. App. R. 131) ; or that "his brother won't speakto him, he is a horrible liar" (R. v. RappoU, 5 id. 156); or that a wilness for the prosecution, put forward as an accomplice and of bad char- acter, had committed crimes other than those opened by the prosecu- tion {B. V. Cohen, 10 Cr. App. R. 91; B. v. Watson, 8 id. 349) ; or that the police had used bribes of threats to extort defendant's admis- sions {B. V. Wright, 5 Cr. App. E. 131) ; or that "the whole evidence for the prosecution was concocted," if this was really made a basis of defence (B. v. Westfall, 7 id. 176, 179). But not that some pairticular- evidence given by the prosecutor was a lie, " he is a liar " (B. v. Bouse, 1904, 1 K.B. 184; B. v. Grout, 26 T.L.R. 60) ; nor the mere uncon- sidered remark that the identification of the accused was " a put up job " {B. V. Preston, sup.) ; nor that the prosecutor "had overcharged him" {B. V. Morgan, 5 Cr. ApJ). R. 157) ; nor that the prosecutor was an habitual drunkard {B. v. Westfall, sup.) ; nor that the accused was only acting under the orders of a detective, for this was merely develop- ing the prisoner's defence {B. v. Bridgwater, 1905, 1 K.B. 131, 135) ; nor will imputations on the magistrate, or on "the police, if not called as witnesses {B. v. Westfall, 107 L.T. 863; 1 Cr. App. E. 176), or on the character of a deceased " prosecutor " (B. v. Biggin, 1920, 1 K.B. 313), deprive the accused of the statutory protection, (iii) He has given evidence against any other person charged with the same offence {B. v. Hadwen, 1903, 1 K.B. 882; cited inf.). Wliere the only witness to the facts of the case called by the defence is the person charged, he is to be called immediately after the close of the case for the prosecution (sec. 2; ante, 43-4; and cp. 68 J.P. 34, 93). By sec. 1 {h), however, nothing in the Act is to affect the right of the accused to make an unsworn statement either before the magistrate under the Indictable Offences Act, 1848, sec. 18 {post, 508-9), or at the trial {ante, 44-5) ; and evidence by the prosecution to rebut such statements is probably admissible {cp. B. v. Ohantler, 12 New S. Wales L.R. 116), as also to rebut his explanations made out of court {B. V. Wilson, 26 L.J.M.C. 45; ante, 40). Moreover, in cases where the right of reply depends on whether evidence has been called for the defence, the calling of the accused as a witness shall not of itself give the prose- cution the right of reply (sec. 3; ante, 43-5). (6) The Wife or Husband of the Accused. By sec. 1 (c) the wife or husband of the accused may not, save in the scheduled cases mentioned below, be called as a witness in pursuance of the Act, except upon the accused's application. By sec. 4, the wife or husband of a person charged with an offence under any enactment in the Schedule to the Act may be called as a witness either by the prosecution or defence and luithout the consent of the accused; though, when so called, communications made between them during marriage are to be privileged (sec. 1 {d) ; ante, 310-1). The scheduled offences affecting England, under this or other Acts, are : (i) Neglect to maintain, or desertion of, wife or family under the Vagrancy Act, 1824 [or living, wholly or in part, on the earnings of prostitution, whether of wife or other female, under the Vagrancy Act, 1898, s. 1 (see Cr. Law Amded. Act, 1912, s. 7 (6), which over- rides Director of Pub. Pros. v. Blady, 1912, 2 K.B. 89)]. Digitized by Microsoft® 456 THE LAW OF EVIDENCE. [bookii. (ii) The following offences mader the Offences Against the Person Act, 1861 — Rape (s. 48) ; Indecent Assault (s. 63) ; and Abduction of women or girls [ss. 53-55; sections 49-51, which are also mentioned, are repealed, and in charges under other sections the first wife cannot be called without the prisoner's consent, B. v. Green, 63 J. P. 7.45; though as to Bigamy, the wife or husband of the accused may now, by the Or. Justice Administration Act, 1914, s. 28, be called either for the prosecution or defence and without the consent of the accused], (iii) Theft by husband or wife of each other's property under the Married "Women's Property Act, 1882, ss. 12, 16. [Amended by the M.W.P. Act, 1884, s. 1, under which either consort is an admissible and, except when defendant, a compellatle witness.] (iv) Offences against women and girls under the Criminal Law Amend- ment Act, 1885 (whole Act) . (v) Offences against children under the Prevention of Cruelty to Child- ren Act, 1894 (whole Act). [This Act was repealed, but re-enacted with amendments, by the P.C.C. Act, 1904, by s. 12 of which the accused, or the wife or husband of the accused, is a competent but not compellable witness in respect of offences under the Act. Other parts of the letter Act and section were repealed by the Children Act, 1908,-8 Ed. VIL c. 67,] (vi) Offences under the Children (Employment Abroad) Act, 1913 [see s.3(4)]. ,(vii) Offences under the Punishment of Incest Act, 1908 [see sec. 4 (4)). Although this Act applies to Ireland, it does not render the main Act applicable thereto, or enable a wife to be called against her husband on charges of incest there {R. v. H., 47 Ir. L.T. Rep. 154)]. By sec. 4(3) nothing in the Act is to affect cases where the wife or husband of the accused may at Common Law be called without the latter's consent, i.e. -cases of personal injury (including threats, or attempts thereof), forcible or fraudulent marriage, and possibly treason {R. v. London {Lord Mayor), 16 Q.B.D. 775-6; i2. v. Wakefield, 2 Lewin, C.C. 279; Reeve v. Wood, 10 Cox, 58; Director of Pub. Pros. v. Blady, 1912, 2 K.B. 89,92; Le(ich v. R.. 1912, A.C.*305; Tay., 8th ed., ss. 871-2; Cohen, Spouse-witnesses, 23-31). Summary: {Competency). The short effect of -the above provisions is that, for the Prosecution, the consort of the accused is only competent (1) in the Common. Law cases of personal violence, forcible marriage and possibly treason; and (2) in the scheduled cases under the Ev. Act, 1898, as extended by later Acts ; while, for the Defence, the consort is always competent on the accused's application. {Compellability). For the Prosecution, the consort of the accused may, both in cases (1) and (2), be called without the -consent of the accused; but not without such consort's own consent, imless expressly so provided by statute, as under the M.W. Properi^y Act, 1884, s. 1, cited sup. {Leach v. R., 1912, A.C. 305 ; R. v. Arasler, 106 L.T. 384) . For the Defence, the consort of the accused can also probably not be called without such con- sort's own consent, unless expressly so provided by statute {id.; see the obser- vations of the L.C. in the former, and of Darlinc:, J., in the latter case), e.g. under the Sale of Food and Drugs Act, 1875, s. 21; the Army Act, 1881, 8. 156 (3) ; the Explosive Substances Act, 1883, s. 4 (2) ; the M.W. Property Digitized by Microsoft® CHAP. XXXIX.] COMPETENCY AND COMPELLABILITY. 457 Act, 1884, s. 1 ; the Merchandize Marks Act, 1887, s. 38, and the Betting and Loans (Infants) Adt, 1892, s. 6. (c) Co-Defendants and their Wives or Husbands. Under sec. 1 (sup.) every person charged with an offence jointly with another is a competent witness for the defence (either of himself, or a co-prisoner, B. v. McDonnell, 25 T.L.R. 808), but may only be called upon his own application. If, when called on his own behalf, his evidence implicates his co-defendants, the judge should warn the jury that it is not evidence against the latter; but as this direction may not prove a. sufficient protection, the witness may be cross- examined not only by the prosecution, but by his co-defendants, both generally (JS. V. Hawden, 1902, 1 K.B. 882; Hachston v. Millar, 43 Sc. L.E. 395; Allen Y. A., 1894, P. 248; post, 474), and as to other offences and bad char- acter under sec. 1 (e) and (f) ; if, however, called not for himself but for a co-defendant, he may be cross-examined, not only to discredit his testimony, but to criminate himself (B. v. Bowland) 1910, 1 K.B. 458). So, by sec. 1, the wife or husband of a person jointly charged is competent for the defence, but can only be eaUed upon the latter's application (sec. 1 (c)), except in cases falling under see. 4 {sup.). As to the Common Law cases in which a wife may be called by the prosecution against her husband's co-defendants, see supra. The wife or husband of the person prosecuting or complaining is, of course, competent and compellable, either for the prosecution or the defence {B. v. Hulton, Jebb, C.C. 24; Tay. s. 1364). COMPELLABILITY. AU witnesses competent to give evidence are in gen- eral compellable to do so. To this rule the Sovereign forms an exception (Best, ss. 125j 183; Tay., s. 1381) ; and also, it seems, ambassadors of foreign States (Dana's Wheaton, notes 125, 129). So, where prisoners or their wives or co-defendants are rendered competent to testify they are not generally com- pellable (sup.). And under the Bankers' Books Evidence Act, 1879, s. 6, bankers, when not parties to the proceedings, can, as we have seen, only be compelled to produce, or to appear as witnesses to prove, their books by order of a judge for special cause (ante, 202, 375). It is sometimes said {e.g. Wills, Ev., 2nd ed., 130-1-; Cockle, Lead. Cas. on Ev., 2nd ed., 205, 3rd ed, 247), that the parties in Breach of Promise and Divorce proceedings are not compellable witnesses since the Evidence Act, 1869, ss. 2-3, 'uses the word " competent " merely ; but that Act, having by s. 1 repealed the exceptions contained in the Ev. Acts, 1851 and 1853, as to breach of promise and divorce, placed the parties and their husbands and wives- in such proceedings in the same position as to compellability as ordinary witnesses, as was pointed out by Lopes, J., in Guardians of Nottingham v. To7nhinson, 4 C.P.D. p. 50, ,and Tay., 8th ed., ss. 1353-5. General compellability to be sworn must, however, be distinguished from compellability, when sworn, to answer certain specific questions; as to a wit- ness's privilege in the latter case, see ante, chaps, xv.-xvi. A party, when competent, may also insist on his evidence being taken, even though the judge is about to decide in his favour; and if this has not been done, the Court of Appeal will allow it to be taken before deciding the case (Exp. Jacoison, Be Pincofs, 22 Ch. D. 312; Singer Go. t. Wilson, 3 App. Cas. 376; Fletcher v. L. & N. W. By., 1892, 1 Q.B. 122; Jones v. /., 1895, P. 201;an.fe, 13, 39). Digitized by Microsoft® 458 THE LAW OF EVIDENCE. [bookii. OATHS ANT> AFFIEMATIONS. Subject to the exceptions mentioned, postj 461-3, oral evidence must in all cases be given under the sanction of an oath or solemn affirmation, the administration of which will vary according as the witness has, or has not, a religious belief. [For the'history of this subject, see Tyler on Oaths, 2nd ed., 1835 ; Wigmore, Ev. s. 1815 ; and a valuable article on Oaths in Judicial Proceedings,, by Prof. White, 42 Am. Law Eegister, N".S. p. 373 (1903)]. Believers. When it appears that a witness has a religious belief he must either be sworn (in the usual way, or, if he object, in some other that he declares to be binding upon him, see inf.. Form of Oath) ; or if he objects to be sworn, and states as the ground of such objection that the taking of an oath is contrary to his religious belief, he will be allowed to affirm (Oaths Act, 1888, s. 1). It is the duty of the judge, however, to see that the statutory conditions are strictly complied with before permitting an affirmation {R. v. Moore, 61 L.J.M.G. 80; Nash v. AK Khan,, 8 T.L.R. 444) ; and if the witness objects on grounds other than the above, or, though not objecting to an oath, considers it not binding upon him, and will not state what form is binding, he cannot affirm {Nash v. Ali Khan, sup.) ; nor can he, it is presumed, if he be too young to object. Jf, however, he has been sworn without objection in the usualform, no subsequent objection can be taken to his testimony, on the ground that being of a different faith, the oath is not in a form affecting his conscience {Sells v. Hoare, 3 Brod. & Bing. 232; B. v. Simons, 117 C.C.C. Sess. Pap. pp. •562-3; Tay. s. 1388 and note); or that some other form is more binding {The Queen's Case, 2 Brod. & Bing. 284). Atheists. The testimony of an Atheist is receivable (1) if he has been sworn withoiet objection (Oaths Act, 1888, s. 3; the words of the section are, " Where an oath has been duly administered and taken, the fact that the person to whom the same was administered had, at the time of taking such oath, no religious belief shall not for any purpose affect the validity of such oath ") . (2.) If he objects to be sworn, and states as the ground of such objection that he has no religious belief, — in which case he will be allowed to affirm {id. s. 1). Before the Ev. Act of 1869 {ante, 451), the testimony of atheists was •wholly inadmissible, the test of competency being belief in a God who would punish for false swearing {Omichund v. Barker, Willes, 538; Miller v. Salo- ■ mans, 8 Ex. 778 ;Maden v. Catanach, 7 H. & N. 360). rorms of Oath or Affirmation. Oaths are binding which are administered in the statutory form given below; or in such other form and with such ceremonies as the witness may declare to be binding (1 & 2 Vict. c. 105, s. 1), and in order to ascertain what other form is so binding the judge should inquire from the witness himself before he is sworn (Tay. s. 1388). _ Usual Form. By the Oaths Act, 1909 (9 Ed. VII. c. 39) s. 2, it is pro- vided as follows: (1) Any oath may be administered and taken in the form and manner following :— The person taking the oath shall hold the Few Testament, or, in the case of a Jew, the Old Testament, in his uplifted hand, and shall say or repeat after the officer administering the oath, the words "I swear by Almighty God that . . .," followed by the words of the oath prescribed by law. [These latter words are : " The evidence that I shall give to the Court " (or in jury trials "and jury") " touching the matter in question shall be the Digitized by Microsoft® CHAP. XXXIX,] OATHS AND AFPIEMATIO >v' S. 459 truth, the whole truth, and nothing but the truth." While in criminal cases, instead of the words italicised, are substituted, " sworn between our Sovereign Lord the King and the prisoner at the bar" (or "defendant," where the accused is not in custody). The old ending " so help me God" has been held unnecessary and no part of the oath (Stringer, Oaths, 3rd ed., p. 136 n)]. (2) The officer shall (unless the person about to take the oath voluntarily objects thereto^- or is physically incapable of so taking the oath) administer the oath in the form and manner aforesaid without question : Provided that, in the case of a person who is neither a Christian nor a Jew, the oath shall be administered in any manner which is now lawful. Kissing the Booh. If a witness voluntarily objects to the above form and requests to be sworn, as formerly, by kissing the book, he may still do so, and may use his own testament (Rahey v. Birch, 72 J.P. 106; 47 Ir L.T. Jo. 92, per Holmes, L.J.) [see 4th ed, of this work, p. 428; -and as to the history of this subject, an article by Judge Parry in the Contemporary Eev. Ap. 1909, and an answer thereto in 54 Sol. Jo. 78] . Scotch Form. If a witness " desires to swear with uplifted hand in the form and manner in which an oath is usually administered in Scotland," he shall be permitted to do so, without further question (Oaths Act, 1888, s. 5; see R. V. Mildrone, 1 Lea. 412). In this case the witness stands, and holding up his right hand, repeats after' the officer, no book being used, — "I swear by Almighty God [as I shall answer to God at the Great Day of Judgment] that I will speak the truth, the whole truth, and nothing but the truth." This is the full form in use in Scotland, but not the manner, for there the presiding judge, who administers the oath, himself stands with uplifted hand: and uttering each clause pauses till the witness repeats it audibly after Jhim. Sometimes, however, the judges omit the words in brackets (Stringer, on Oaths, 3rd ed., 85-8; 1906, Times, Aug. 31; R. y. Mildrone, 1786, 1 Lea. 413, where almost the same form is given; and see the Home Office Circular, 37 Sol. Jo. 542). This form is said to be as old as Abraham, who, when he swore that he would take nothing from the King of Sodom, "lifted up his hand to the most High God." Other Forms. In Ireland, Roman Catholics are sworn upon the New Testament, with a crucifix or cross upon it (McNally, Ev. 97). A Methodist on objecting to be sworn on the New Testament, was allowed to.be sworn on . the Old {Edmonds v. Rowe, R. & M. 77). Jews are sworn in the usual form on the Old Testament (Oaths Act, 1909, s. 2), with head covered or uncovered (Willes, 543; Stringer, 3rd ed., 82, 135; and see further, 41 L. Jo. 600). Quakers and Moravians may affirm either under the Oaths Act, 1888, s. 2, or if they so claim, under their special Acts which are still unrepealed (Stringer, 3rd ed., 102-3. 105-6). A member of the Greeh Church has been allowed to swear by pointing two fingers of his left hand upwards and calling on Heaven to witness his statements (Times, Jan. 26, 1918, p. 3). With regard to Heathen forms, our whole system of heathen judicial oaths is founded on the assumption that such oaths are in ordinary use in their own native courts. But this is generally a mistake, and in many cases, notably that of Chinese witnesses, the forms adopted are really exotics of European origin (3 Jur. Soc. Pap. 371-99). On this assumption Moham- medans are sworn on the Koran {R. v. Morgan, 1 Lea. 54), the witness Digitized by Microsoft® 460 THE LAW OF EVIDENCE. [bookii. plaqing his right hand flat upon the book, putting his left upon his forehead, and bringing his head down to the book; the officer then asks if he is bound by this ceremony to speak the truth, and the witness replies that he is. It is, however, very doubtful if Mohammedans should be sworn ; and in India, both Hindus and Mohammedans are allowed to affirm (Stringer, 3rd ed., 106-7, 139-140). Perhaps the better course is to adopt the provisions of the Oaths Act, 1888, s. 2; but if they have a religious belief, and have no objec- tion to being sworn, and yet cannot indicate any form binding on their conscience, their evidence cannot be received (B. v. Moore, and Nash v. Ali Khan, ante, 458). Hindus are sworn (if indeed an oath be appropriate at all, 3 Jur. Soc. Pap. 377) on the Vedas, or other sacred books (but see sup.) ; Par sees on the Zenda vesta (see, for the forms of oath to these, Stringer, 3rd ed., 140-1 ; a member of a sect which objects to the ceremony of kissing, was sworn without it, Mee v. Reid, Peake, E. 23) ; Sikhs, in India, on a book called the Gruntham {R. v. Moore, sup.). The Chinese are usually sworn by the ceremony of breaking a saucer, with the admonition : — " You shall tell the truth and the whole truth; the saucer is cracked, and if you do not tell the truth your soul will be cracked like the saucer " {R. v. Entreham, Car. & M. 348: The Orianada, 1907, 122 L.T. Jo. 531, per Deane, J.). Another form is for the witness to write sacred characters upon paper, which he burns, praying that his soul may be similarly burnt if he swears falsely (in British Columbia the established form is to burn a paper with the witness' name thereon, R. v. Lai Ping, 1904, 11 Br. Col. 102), while the inost binding of all is said to consist in the witness cutting off a cock's head with a like invocation. It is to be observed, however, that in the Chinese native Courts testimonial oaths are unknown; and that the last two forms appear to be oaths not of testimony but of ordeal, while the saucer may have affinity to the ancient Eoman custom whereby the witness holding a flint stone in his right ' hand dropped it with the words : — " Si sciens f alio, turn me Diespiter, salv^ urbe arceque, bonis ejiciat, ut ego hunc lapidem" (3 Jur. Soc. Pap. 379-91; Tay. s. 1388 n) . In one case, a Chinese elected to be sworn in the Scotch fashion {T^e Globe newspaper, 35 Aug. 1913). As to Buddhists, Mr. Stringer gives a form of oath (3rd ed. p. 139) ; but in native courts their evidence is unsworn, and a Japanese Buddhist, objecting to an oath, was allowed to sign the words : — " The statement I shall make before the Court shall be in the whole nothing but the truth,^ according to the custom, religion and belief of this country and my own " (3 Jur. Soc. Pap. 375 ; cp. 38 Ir. L.T. Jo. 108) ; while another, unable to say what form was binding, as oaths were unknown in Japan, was directed to snuff a lighted candle, declaring that, if speaking falsely, his soul would be extinguished like the flame [45 L. Jo. 581; 139 L.T. Jo. 432 (1910)]. Affirmation. The form of oral affirmation provided by the Oaths Act, 1888, s. 3, is as follows: — "I, A.B., do solemnly, sincerely, and truly declare and affirm that the evidence I shall give to the Court. &c., shall be the truth, the whole truth, and nothing but the truth " ; any words of imprecation, or calling to witness, being omitted. Who may administer Oaths. In England, "every Court, judge, justice, officer, commissioner, arbitrator, or other person now or hereafter having by law or by consent of parties, authority to hear, receive, and examine, evidence. Digitized by Microsoft® CHAP. XXXIX.] OATHS AND AFFIRMATIONS. 461 is hereby empowered to administer an oath to all such witnesses as are legally called before them respectively" (14 & 15 Vict., c. 99, s. 16; Tay. s. 1386; Steph. art. 134) ; and by the Commissioners of Oaths Act, 1889, s. 2, "every person who being an officer of, or performing duties in relation to, any Court is for the time being so authorised by a judge, or by any rules or orders regulating the procedure of the Court, and every person so directed to take an examination in any cause or matter in the Supreme Court, may administer an oath," for the purposes for which they are so empowered (see R. V. McDoncAd, 21 Cox, 70). These and other statutory provisions or Rules include Examiners (0. 37, r. 19) ; Chief Clerks (now Masters) in Chancery (0. 55, rr. 16, 17) ; Taxing Masters (0. 65, r. 27 (25)) ; Masters, and first or second class Clerks in the Filing and Record Department (0. 61, r. 5) j first and second class Clerks in the Crown Office Depart. (Cr. Off. R.R. 1906, r. 7); District Registrars (Jud. Act, 1873, s. 62; 0. 38, r. 4); Official Receivers in Bankruptcy (Bpy. Act, 1914, s. 72) ; and Trustees in relation to proofs {id. Sched. II. r. 27) ; but not Justices at a merely informal licens- ing meeting {R. v. Shaw, 104 L.T. 112). And a person authorised to admin- ister oath may do so to himself {Wilson v. Be Coulon, 22 Ch. D. 841; Pitcher V. Bourn, 10 T.L.R. 245). In general, a solicitor's commission only, lasts so long as he continues to practise; but in certain cases it continues until revoked. When the latter is the case, he may administer an oath, although struck off the rolls (Ward v. Gamgee, 65 L.T. 610). Under the Commissioners for Oaths Act, 1889, s. 1 (3), however, a commissioner may not act in any proceeding in which he is (or is the clerk of) the solicitor to any of the parties, or in which he is interested (Re Bagley, 1911, 1 K.B. 317) ; and 0. 38^ rr. 16, 17, further pro- vide that no affidavit is sufficient, if sworn before the party using it, or his solicitor, or the latter's agent, correspondent, clerk, or partner. These pro- visions extend to declarations in non-contentious matters arising in the com- missioner's own affairs (35 Sol. Jo. 689). And an affidavit taken before the solicitor to the grantee of a bill of sale will invalidate the registration {Baker V. Amirose, 65 L.J.Q.B. 589). A defendant may, however, be criminally liable for false declarations even though the commissioner be interested' {R. X. Willmott, 120 C.C.C. Sess. Pap. pp. 1149-50). Out of England. "With respects to affidavits, &c., sworn out of England, but required for use therein, oaths may be administered by any person having authority to administer an oath in that place (CO. Act, 1889, s. 3, sub-s. 1) ; and where such authority is conferred otherwise than by the law of a foreign country, judicial notice will be taken of the seal or signature of the persons so authorized (s. 3, sub-s. 2 ; see ante, 22-4) . Such last-mentioned persons are — in Scotland, Ireland, the Channel Islands and Colonies — any judge, Court, notary public or other person lawfully authorised for the purpose (0. 38, T. 6) ; and in foreign countries — the various British diplomatic and consular agents therein {id.; CO. Act, 1889, s. 1; CO. Act, 1891, s. 2). In Ireland, an affidavit sworn before an English commissioner, but not one sworn before an English J.P., has been held sufficient (120 Ir. L.T. Jo. 239). As to affidavits, &c., sworn in foreign countries before foreign officials, see ante, 24, and post, 563. Witnesses who need not Swear or Affirm. (1) Children. In proceedings for any offence under the Children Act, 1908, Part II. ; or under &e Offences Digitized by Microsoft® 462 THE LAW OF EVIDENCE. [book ii. Against the Person Act, 1861 (24 and 25 Vict. c. 100), ss. 27, 55, 56; or for any offence against a child or young person under ss. 5, 42, 43, 52, or 62, of that Act, or under the Criminal Law Amendment Act, 1885; or for any offence under the Dangerous Performances Acts, 1879 and 1897; or any other offence involving bodily injury to a child or young person ; — where the child in respect of whom the offence is charged to have been committed, or any other child of tender years who is tendered a witness, does not in the opinion of the Court understand the nature of an oath, its evidence may be received, though not given upon oath, if in the opinion of the Court the child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth. (Children Act, 1908, s. 30; extended generally to other offences by the Or. Just. Admn. Act, 1914, s. 28 (2) ; as to the unsworn Depositions of children under the former Act, see, fully, post, 511). Such testimony, however, must be "corro- borated by some other material evidence in support thereof . implicating the accused," and is punishable if false (Children Act, 1908, s. 30; as to evidence inadmissible in corroboration, see R. v. Christie, post, 494) ; and the judge should so direct the jury, though possibly, if there were no such direction but aniple corroboration, a conviction might not be quashed {R. v. Davies, 85 L.J.K.B. 208; R. t. Murray, 30 L.T.E. 196; as to the extent of the child's understanding in such eases, see R. T. Derot, 71 J.P. Eep. 511). Where such evidence was received in support of a charge under s. 4 of the Cr. Law Am. Act, 1885, of unlawfully and carnally knowing a girl under thirteen, and the prisoner was acquitted of that charge, but under the provisions of s. 9 was convicted in the alternative of an indecent assault, the conviction was upheld, , although such evidence would have been inadmissible upon the latter charge per se (R. v. Wealand, 20 Q.B.D. 827; and see R. v. Owen, id. 829). Where, h,owever, a prisoner was charged in one count with an attempt to commit the felony specified in s. 4, and in a separate count with an indecent assault — and being acquitted of the former, was found guilty of the latter upon unsworn evidence — the conviction was quashed upon the ground that the jury had no power under the former court to convict alternatively of an indecent assault, and therefore that the reception of evidence which was inadmissible under the latter per se was fatal (R. v. Paul, 25 Q.B.D. 302). (Z) Witness merely Producing Documents. A witness called merely for the purpose of producing a document need not be sworn (Perry v. Oibson. 1 A. & E. 48; Tay. s. 1429). (3) Counsel and Judges. The evidence of counsel, when merely required to explain a case^in which they have acted as such, but not otherwise, may be given from their places and without oath (Hickman V. Berena, 1895, 2 Ch. 638; Kempshall v. Holland, 14 E. 336) ; though they may waive their privilege and be sworn, examined, and cross-examined either in their places (Wilding^ y. Sanderson, 76 L.T. 346), or in the witness-box (Oxley V. Pitts, 1904, Times, Dec. 1). The same rule applies to Judges (40 L. Jo. 415). (4) In a non-contentious probate proceeding, the unsworn declaration of a German, resident in Germany, who objected to be sworn as contrary to the law of his country, was received, the E.S.C. not applying to such proceeding (Re Caspari, 75 L.T. 663 ; cp. Re Vaughan, and Re Lambert, post, 501-2): (5) Licensing Cases, etc. On applications for new lieonses, un- sworn evidence may be received ; so, also, on objections to renewals, though Digitized by Microsoft® CHAP. xxxix.J OATHS AA'D AFFIRMATIONS. 463 the justices have a discretion to refuse such evidence {R. v. Sharman, 1898, 1 Q.B. 578). But Monopoly Value must be determined on sworn evidence, not on the report of a Valuer {R. v. Jackson, 71 J.P. Eep. 25) ; and so also when a Compensation Authority is acting in a judicial capacity {Colchester Brewery Go. v. Tendring J J., 1916, 2 K.B. 12G; post, 689). (6) The Sovereign. The evidence of the Sovereign is, probably, also admissible, though imsworn [see discussion in Berkeley Peerage, cited ante, 449; and cp. Mighell v. Johore (Sultan), cited ante, 364, and R. v. Mylius, Times, Feb. 3, 1911; .contra, 2 Eoll. Abr. 686. ed. 1688; Omichund r. Barker, WiUes, p. 550; Best, s. 183; Tay., 10th ed., s. 1381; and cp. 26 L. Jo. 443-4]. A foreign Sover- eign must, however, give discovery on oath {Prioleau v. UM.A., L.E. 2 Eq. at 663-664; cp. Costa Rica Republic v. Erlanger, 1 Ch. D. 171). TTnsworii Evidence by Mistake. Re-swearing Witnesses. Where a wit- ness before a magistrate had, by mistake, not been sworn, and the case was accordingly re-heard on sworn testimony the same day, the second hearing was held justified as the first was a nullity and never placed the defendant in peril {Re Marsham, 1912, 2 K.B. 362). So, where the Lord Lieutenant in Ireland had given evidence on his attestation of honour as a peer, without oath, this was held illegal, but as the losing party who had called him had acquiesced, no new trial was granted [Birch v. Somerville, 2 Ir. C.L.R. 253 (1852) ; see Richards v. Hough, 51 L.J.Q.B. 361]. As to re-swearing wit- nesses before a fresh judge, jury, or jurors, see ante, 42. Digitized by Microsoft® ( 464 ) CHAPTEE XL. EVIDENCE TAKEN AT THE TEIAL. EXAMINATION, CKOSS- EXAMINATION, EE-EXAMINATION. NUMBEE OF WIT- NESSES. COEEOBOEATION. Witnesses at the trial of any action, assessment of damages, or oriminal charge, must, subject to the exceptions mentioned in chap, xli., be examined viva voce and in open court ; and the case must be heard throughout before tlie same tribunal. , S'huSj in criminal trials, where the witnesses are capable of being called, their previous depositions are inadmissible ; and if these have been relied on to prove any material fact, the conviction will be quashed (B. v. Ei^es, 28 T.L.E. 409 ; R. v. Metz, 84 L.J.K.B. 1462, where the fact was only a formal one and the objection not having been taken at the trial, was held too late on appeal; B. v. Ouerin, 58 L.J.M.C. 43). So, a decision by one magistrate, based partly on evidence taken before another, cannot stand, the proper course being to re-swear the witnesses and read over their evidence again {B. V. Guerin, sup.; ante, 42). Similarly, on new trials, or re-hearings, the case must be proved de novo, and the evidence, verdict, and judgment at the first trial, are inadmissible (Roe v. Naylor and O'Connor v. Malone, cited post, 501). As to hearing a second case before deciding the first, see ante, 29. Hearings in Camera, or in the Absence of the Prisoner. Apart from statute, (e.g. the Children Act, 1908, s. 114; the Incest Act, 1908, s. 5), there is no jurisdiction to hear cases in camera, except (1) those afEecting lunatics and wards of Court; (3) those where publicity would defeat the object of the action, e.g. proceedings to restrain disclosure of confidential communications (Mellor V. Thomson, 31 Ch. D. 55), or actions involving a secret process (Badische v. Levinstein, 34 Ch. D. 156 ; Andrews v. Baeburn, 9 Ch. App. 522) ; or (3) those where publicity would, in some other way, prevent justice being done [Scott v. 8., 1913, A.C. 417]. Under the last named head, witnesses in divorce cases who could not give their evidence properly in public, have been heard in camera (Moosebrugger v. M., 29 T.L.E. 658 ; CleUnd v. C, 109 L.T. 744) ; and so, also, as to cases where publicity would imperil the public safety {Norman v. Mathews, 33 T.L.E. 369, C.A. ; B. v. Gov. of Lewes Prison. W.N. 1917, p. 91). As to hearing criminal cases in the absence of the prisoner, see R. V. Loettun, 1916, 1 K.B. 337; R. v. Browne, 70 J.P. Eep. 472, Exclusion and Separation of TJne/xamined Witnesses. The practice of separating witnesses dates back to the biblical example of Susanna and the Elders. But it was also freely employed in the earlier modes of trial preced- ing the jury, and was afterwards continued in the State Trials and other cases down to the present day (Wigmore, Ev., s. 1837). When required in the interests of justice, therefore, the unexamined witnesses on both sides may Digitized by Microsoft® CHAP. XL.J DEAF AND FOKEIGX WITNESSES, &c. 465 (except during the reading of aifidavit evidence, Penniman v. HUl, 24 W. E. 245), be ordered out of Court by the judge, both in civil and criminal cases, and either on his own motion, or at the instance of either party, who, however, cannot demand it as of right (Selfe y. Isaacson, 1 P. & F. 194; Tay. s. 1400). In Probate, Admiralty, and Divorce cases, the unexamined witnesses are excluded under a standing rule (Savage v. 8., 43 L. Jo. 167). When excluded they must not be communicated with as to the proceedings of the case; and those already examined should remain in Court till the others have testified (Best, s. 636; Streeten v. Black, cited id.; 1877, W.F. 297, mem. per M.R.). The exclusion has been held to embrace the parties to an action, since these are now competent as witnesses lOutram v. 0., 1877, W.N. 75, per C.A.; Usher v. Henwood, 26 Sol. Jo. 598 ; Tay. s. 1400 ; contra, Selfe v. Isaacson, sup.; Char- nock V. Dewings, 3 C. & K. 378 ; Rmsell v. Pihon, 28 L. Jo. 810, where Wills and Wright, J J., considered that the judge had no power to exclude "the par- ties, the question being one not of competency, but of natural justice] ; the prosecutor in a criminal case, if he is to be called as a witness, but not other- wise (R. v. Newman, 3 C. & K. 352, 260) ; the solicitors on the record, unless their presence is stated by counsel to be necessary for the proper conduct of the case {Everett v. Lowdham, 5 C. & P. 91 ; Pomeroy v. Baddeley, Ry.' & M. 430 ; B. V. Wei}), id. 431 n) ; and experts, who, however, are generally permitted to remain, at least until the expert evidence is reached (Tay. s. 1400 ; Eos. Cr. Bt. 119). If a witness remain in Court after being ordered to withdraw, he may be fined and imprisoned for contempt; but his evidence, although open to strong observation, cannot be rejected (Chandler v. Home, 2 M. & E. 423; Coibett V. Hudson, 1 E. & B. 11), except in Eevenue cases (Thomas v. David, 7C. &P. 350). . Deaf or Foreign Witnesses. Intefpreters. Deaf-mutes, if literate, may testify either in writing, or by signs (Bartholomew y. George, cited Best, s. 148, per Ld. Campbell, not following Morrison v. Lennard, 3 C. & P. 127, where writing was considered essential) ; but the testimony of a witness deaf from childhood, and unable to understand, or express herself intelligibly, has been rejected (R. v. Imrie, 12 Cr. App. E. 282; ante, 449). Foreign witnesses, or British ones where different languages prevail, e.g., Irish or Welsh, may testify in whatever tongue they are most accustomed to (108 L.T. Jo. 531; cp. R, V. Burke, post, 481) . Where the accused, whether defended or 'not, is a for- eigner, the evidence must be translated, unless his counsel waives the point and the judge permits (R. v. Lee Kun, 1916, 1 K.B. 337). Confrontation. Prof. Wigmore remarks that when ex parte depositions were still used against a party, the latter frequently protested, demanding to be publicly confronted with the vidtnesses against him. The final establish- ment of the Hearsay rule in the early 1700's meant the allowance or require- ment of this. The process has two purposes : a main one to secure the oppor- tpnity of cross-examination, and a minor one to enable the Court and parties to observe the demeanour of the witnesses (ss. 1395-9). Bentham's reasons are different. The operation, he says, has two professed objects: one to establish the identity of the defendant as the person of whom the witnesses are speaking, the other to enable him to extract from them undisclosed facts favourable to himself (Bk. III. ch. xix.). Mr. Taylor deals with another LE. — 30 Digitized by Microsoft® 466 THE LAW OF EVIDENCE. [bookii. aspect of this subject, remarking that formerly, when the evidence of witnesses on opposite sides directly conflicted, the Court would often order the witnesses to be confronted; and on one occasion no less than four were for this purpose placed together in the box {Annesley v. Anghsea, 17 How. St. Tr. 1350; Tay. 8th ed., s. 1478). This practice, which has now fallen into disuse at Nid Prius, still obtains in the Ecclesiastical Courts and in the Divorce Court, in those eases in which the ecclesiastical procedure is by statute directed to be fpUowed (see the Matrimonial Causes Act, 1857, s. 22) ; thus, in suits for nullity {Enticknap v. Bice, 4 Sw. & Tr. 136), but not, it has been held in those, for dissolution {Hoolce v. H., id. 336), decrees of confrontation may still be made. Even in suits of dissolution, however, there is power to order a petitioner to attend for identification (s. 43; Lloyd v. L., L.E. 1 P. & D. 222), and in spite, apparently, of Hoolce v. H., sup., confrontation has also been ordered m the cases both of respondents and co-respondents (Hindmarsh v. E., L.E. 1 P. & D. 24; Sylces \. S., 38 L.J.P. 12). In Farulli v. F., 1917, P. 28, however, where a respondent, who had entered no appearance, had been subpoenaed to attend for identification and was requested to stand up for this purpose, Shearman, J., forbade it, saying it was not humane nor proper and he was not the first judge who had so acted, though others had allowed it. He added that it was a well understood practice for a witness to be confronted with a person in Court, and that was quite right if by the latter's consent, but otherwise it was an abuse of the subpoena. Confrontation still, also, prevails in the County Courts (Tay., 8th ed., s. 1478). The production of opposing witnesses simultaneously, instead of merely successively, is, in Mr. Taylor's opinion, an excellent means of contrasting demeanour and testing credit, while it also provides an opportunity of explaining apparent contradictions, or of rectifying mistakes where both witnesses have intended to state nothing but the truth (id.). EXAMINATION IN CHIEP. Object and Scope. After the witness has been sworn or has afiirmed, it is the province of the party by whom he is called to examine him in chief, sometimes called the direct examination, the object of which is to elicit from the witnesses all the facts he can prove in support of such party's case. These may embrace facts in issue {ante, 56, 65) ; facts relevant to the issue (provided they are not excluded by public policy or privilege) ; in certain cases heavsay and opinions, as to such facts (infra) ; and any facts which affect the admissibility or weight of the evidence tendered (ante, 193). Thus, facts showing any special means of knowledge, oppor- tunities of observation, reasons for recollection or belief, or other circumstances increasing the witness's competency to speak of the particular case, may be elicited in chief, as well as impugned in cross-examination (post, 477) . Personal Knowledge — Direct Testimony. The facts testified to by such witness must, however, only be those which have occurred within his own personal knowledge, i.e., which he has himself seen, heard, or otherwise perceived. This rule, which dates back to modes of trial long preceding the jury (ante, 223), and has been said to have no exceptions whatever (Steph. Note xxvii.), must be distinguished from the hearsay rule, which is of later growth and has many. Each rule, however, to some extent implies the require- ments of the other; though it must be remembered that, even where hearsay is admissible, it must still be proved under the present rule by a witness who Digitized by Microsoft® UHAP.SL.J EXAMliNATIOiN I.\ CHIEF. i67 actually heard it and so has personal knowledge of the fact that the statement was made, though he may have none of the facts to which it relates. Not only are assertions made out of Court, i.e., hearsay in its ordinary sense, excluded, but also facts which, though purporting to be directly attested by the witness, really rest on a hearsay basis, e. jr., the date or place of his own birth, or the fact of his illegitimacy. [R. v. Rishworth, 3 Q.B. 476 ; and cp. R. v. Trowbridge, 7 B. & C. 252; in Staben v. Freeman, 1906, Standard, Aug. 17, Judge Lumley Smith, and in Blackmore v. Huxley, 1908, Daily Telegraph, Mar. 5, Judge Woodfall rejected the testimony of a minor in proof of his infancy, and the late Commissioner Kerr several times ruled to the same effect; see also 50 Sol. Jo. 798. It is said, however, that at Chelmsford Assizes, Nov. 1893, Coleridge, C.J., in a criminal case, allowed a child, in the absence of the mother through ilhiess, to prove its own age (Hall, Law of Children, 3rd ed., 155 n; in America the cases are conflicting, 19 Harv. L. Eev. 303; Wigmore, Ev. s. 667; and in non-contentious proceedings a witness has been allowed to identify his own certificate of baptism, ante, 343]. As to a witness's competency on the question of his own sanity, see ante, 400, and as to competent knowledge in the case of experts, see ante, 386, and of witnesses to handwriting, ante, 399. [Gilbert, Ev., 1st ed., 153 ; R. v. Bushell, Vaughan, 143 ; Steph. art. 63, and note xxvii.; Tay. ss. 567, 1406, 1414; Gulson, ss. 346-8; Chamberlayne, ss. 2707-11]. Closely allied also to the present topic, is the rule that witnesses must in general speak only to facts, and not to their inferences, opinions, or beliefs. Mr. Gulson remarks that the witness's knowledge " must not only have been gained by his own personal observation, but it must also have reached his perceptive faculties directly, i.e., he must 'not have inferred the fact from what he has observed, for it is the function of the jury to draw inferences and not of the witnesses. A witness would not be allowed, for instance, to state that he saw that a horse had just fallen down, where he really inferred that fact from seeing that his knees were cut and bleeding; he must depose only to what he actually saw, viz., the state of the horse's knees, leaving the jury, if they choose, to draw the conclusion that the horse had just fallen down" [s. 347; ante, 56, 65; and see fully. Opinion evidence, ante, chap, xxxv.] Documents. Witnesses may, in general, testify to the execution and identity of unattested documents, but not, in the first instance, to their contents ; and may prove facts to interpret, but not usually to contradict or vary their terms (post, 476-7 ; 533 ; chaps, xlii-vi) . A witness called to explain a series of documents produced in court has also been allowed, in order to save time, to state their result, subject to cross-examination as to particulars {Rowe v. Brenton, 3 Man. & Ey. p. 212). So, a witness has been allowed to state what was the general balance of voluminous accounts which were not produced (Roberts v. Doxon, Pea. N.P.C. 83; but production must be given if required, Johnson V. Kershaw, 1 De G. & S. 260) ; or whether a party's books showed his in- solvency or the reverse (Meyer v. Sefton, 2 Stark. E. 374) ; or, in what man- ner bills have invariably been drawn (Spencer v. Billing, 3 Camp. 310) ; he will not, however, be allowed to give his impressions derived from unprodueed documents, for these are matters of inference or construction which belong to the tribunal (Topham v. McGregor. 1 C. & K. 320). [See Tay. s. 462; Stark. Ev., 4th ed., 179, 645; Steph. art. 71 (h).] Digitized by Microsoft® 468 THE LAW OF EVIDENCE. [book ii- Suppression of Witness's Name, &c. AVhere the interests of justice require it. Courts have a discretion, which it not subject to review, to suppress the name or address of a witness {R. v. Gordon. 8 Or. App. E. 237; 57 Sol. Jo. 240, quoting stateinent of law officers in the H. of Commons; cp. ante, 205, 207.). Leading Questions. Generally a party may not, either in direct or re-exam- ination, elicit the facts of his case by means of leading questions — i.e. ques- tions which suggest the desired answer, or which put disputed matters to the witness in a form permitting of the simple reply of " yes " or " no." Thus, a witness called to prove that A. stole a watch from -B.'s shop, must not be asked, "Did you see A. enter B.'s shop and take a watch?" The proper inquiry is, what he saw A. do at the time and place in question (anie, 65, 391, 401). [Tay. ss. 1404, 1405; Best, ss. 641, 643; Eos. JST.P., 18th ed., 166-167; Eos. Cr. Ev., 13th ed., 116-117; Steph. art. 128. As to leading questions in cross-examination, see post, 476]. Grounds of Exclusion. The reasons of the rule are that the witness is presumed to be favourable to the party calling him, who, knowing exactly what the former can prove, might prompt him to give only the advantageous answers. Such evidence would obviously be open to suspicion, as being rather the pre-arranged version of the party than the spontaiieous narrative of the witness (Best, s. 641; Stark. Ev. 166). Exceptions. As the rule is merely intended to prevent the examination from being conducted unfairly, the judge has a discretion, which is not open to review, to relax it whenever he considers it necessary in the interests .of justice {Exp. Bottomley, 1909, 2 K.B. 14, 16; Lawder v. L.. 5 Ir. C. L. E. 27), and it is always relaxed in thfe following cases; — (1) Introductory or undisputed Matter. To shorten proceedings, and bring the witness as quickly as possible to the material points of the case, it is not only permissible, but proper, to lead him as to matters which are intro- ductory, or not really in dispute. (2) Identification. So, for the purpose of identifying persons or tilings, his attention may be directly pointed to them. Thus, a witness has been allowed to be asked if the prisoner in the dock is the person he has referred to {R. V. Watson, 2 Stark. 116, 128). Still, identification so prompted is often worthless, and a conviction founded thereon is liable to be quashed {ante, 399; Best. s. 643). The proper question is, *Do you see the person referred to in Court?' (Powell, Ev. 9th ed. 528-9). (3) Assisting Memory. A question which merely directs the attention of the witness to a particular topic, without suggesting the answer required, is not objectionable. Thus, to prove a slander imputing ihat "A. was a bankrupt whose name was in the Bankruptcy List, and would appear in the next Gazette," a witness who had only proved the first two statements was allowed to be asked, "Was anything said about the Gazette?" {NichoUs v. Dowding, 1 Stark. 81). So, where a witness stated that he could not remember the names of the members of a firm so as to repeat them without suggestion, but thought that he might recognise them if read to him, this was allowed to be done {Acerro v. Petroni, 1 Stark. 100). (4) Contradiction. Where one witness is called to contradict another as to expressions used by the latter, the former may be asked not merely what Digitized by Microsoft® CHAP. XL.J RBFEESHING MEMOEY OP WITNESS. 469 was said, but whether the particular expressions were used, since otherwise a contradiction might never be arrived at {Edmonds v. Walter, 3 Stark. 7; Courteen v. Touse, 1 Camp. 43). Where, however, the conversation is not proved merely for the purpose of contradiction, the latter question is improper {Hallet V. Gousens, 2 M. & E. 238). (5) Adverse or Hostile Witness. If a witness by his conduct shows that he is hostile to the party calling him, the latter may, in the discretion of the judge which, save in very exceptional circumstances, is not open to appeal {Rice v. Howard, 16 Q.B.D. 681; B. v. Williams, 39 T.L.E. 128), be allowed to lead, or rather cross-examine him {Coles v. Coles, L.E 1 P & D. 70) ; but the matter is wholly for the Court, and a party, though called by his opponent, cannot as of right be treated as hostile {Price v. Manning, 42 Oh.D. 372, C.A., overruling Clarice v. Saffery, Ey. & M. 126; as to discrediting a party's own witness, when hostile, see post, 471-3). Refreshing Memory. A witness may refresh his memory by reference to any writing made or verified by himself concerning, and contemporaneously with, the facts to which he testifies; but such documents are no evidence per se of the matters contained. If the witness has become blind, the paper may be read over to him {Catt. v. Howard, 3 Stark. E. 3; Vaughan v. Martin, 1 Esp. 440). An expert may also, irrespective of the present rule, refer to professional works to refresh his memory, or correct or confirm his opinion, although they were hot written by himself or made contem- poraneously {ante, 392-3) . As to refreshing the memory of the judge, see ante, 26.- [Tay. ss. 1408-1413; Eos. N.P. 178-179; Eos. Cr. Ev., 12th ed. 126- 127; Steph. art. 136; Whart. ss. 516-526.] Principle. The reason of the rule has been said to be, that a witness should not suffer from a mistake, and may explain an inconsistency {Halliday V. Holgate, 17 L.T. 18, per Montague Smith, J.). • (1) By whom Document may be written. The writing may have been made either by the witness himself, or by others, providing in the latter case that it was read by him when the facts were fresh in his memory, and he knew the statement to be correct (Tay. s. 1410; Steph. art. 136). Thus, a solicitor may refer to his diary {B. v. Dexter, 19 Cox, 360) ; or an ordinary witness to a newspaper report read by him when the facts were fresh in his mind {Dyer v. Best, 4 H. & C. 189) ; or an official shorthand writer to his notes at trial, even though copies of these may be privileged from production to a non-party who has subpoenaed him {James v. J., ex rel. May 31, 1919, per Eoche, J.). And a workman's time-book may be used to refresh the memory of the cashier, who read it every fortnight, when paying the wages in accordance therewith {B. v. Langton, 2 Q.B.D. 296) ; or a log-book kept by the mate, and inspected by the captain a week afterwards, to refresh the memory of; either {Anderson v. Whalley, 3 C. & K. 54; Bwrough v. Martin, 2 Camp. 112). So, depositions taken before a magistrate o^ coroner may be referred to at the trial, either by the witness who signed {B. V. Williams, 6 Cox, 343; Wood v. Cooper, 1 C. & K. 645), or the clerk who wrote them {R. v. Mann, 49 J.P. 743; post, 508). And a shorthand writer has been allowed to prove a speech from a partial note thereof taken by him {B. v. O'Connell, Arm. & Tr. 165-167). Digitized by Microsoft® 470 THE LAW OF EVIDENCE. [bookii. On the other hand, a witness will not be allowed to refer to proceedings in a former trial to refresh his memory as to what he stated thereat (Halliday V. Holgate, sup.) ; nor, under the old law, having denied on cross-examination the imputation of imprisonment, could a copy of the conviction be produced to refresh his memory {Meagoe v. Simmons, 3 C. & P. 75; see now post, 482) ; and some old eases, in which the witnesses were allowed to refer to the brief notes of counsel taken at the former trial, seem not to be law (Tay. s. 1410). (2) Contemporaneousness. The document must have been written either at the time of the transaction, or so shortly afterwards that the facts were probably fresh in his memory (Burrough v. Martin, 2 Camp. 112 ; Whitfield V. Aland, 3 C. & K. 1015; Talhot v. Gusack, 17 Ir. C.L.E. 213). A delay of a fortnight will not be fatal {R. v. Langton, 2 Q.B.D. 296) ; but an interval of several weeks {R. v. Kinloch, 35 How. St. Tr. 934-937), or six months {Jones V. Stroud, 2 C. & P. 196; Whitfield v. Aland, sup.; Steinlceller v. Newton, 9 C. & P. 315), has been held to exclude [cp. ante, 288]. The documents, however, must not have been written post litem motam (Difsart Peerage, 6 App. Cas. 489, 497). (3) Independent Recollection. It is not essential that the witness should have any independent recollection of the facts. Thus, an attesting witness, from seeing his own signature to a deed, may say he is sure that the party has executed it (Maugham v. Huhbard, 8 B. & C. 14) ; so, a barrister may refer to notes on his brief, though he has no recollection of the case (R. v. Guinea, Ir. Cir. E. 167) ; or an agent who had made a memorandum of the terms of a lease, but forgotten the transaction, may swear from seeing the memoran- dum he has no doubt the lease was granted (R. v. St. Martin's, 2 A. & E. 210; Tay. s. 1412). And, as we shall see, a journalist may refer to the copy of an article written by him, though he has forgotten the facts najrrated (Topham v. McGregor, 1 C. & K. 330). (4) Originals and Copies. As to the admissibility of copies of the original writing, the result of the cases seems to be as follows: (a) Where the copy was made or verified by the witness while the facts were fresh in his recollection, it will be admissible, on the footing of a duplicate or a quasi- original. Thus, a sale was allowed to be proved by a clerk who refreshed his memory from a ledger, copied under his supervision from a waste-book kept by himself {Burton v. Plummer, 2 A. & E. 341) ; and a surveyor has been allowed to refer to a printed copy of a written report made by him to his employers, which report was substantially but not literally transcribed from rough notes taken by him at the time {Home v. Mackenzie, 6 C. & P. 628 ; contra, Murray v.Mahon, 18 Ir. T.L.E. 8). (6) Where the original is in existence, and the witness has no recollection of the facts otherwise than from it, a copy is inadmissible, and the original must be produced {Doe v. Perkins, 3 T.E. 749; Tanner v. Taylor, id. p. 754; R. v. St. Martin's, 2 A. & E. 210; R. v. Harvey, 11 Cox, 546, where, to identify the number, of a bank note paid in by a customer, a bank clerk who had entered the number in one of the books of the bank at the time, was not allowed to refer to a memo, copied from the ■book; infra, 471). (c) Where the original has been lost or destroyed, a cnnv proved to be correct either by the witness or same third person, may be used. Thus, a journalist has been allowed to refresh his memory by a Digitized by Microsoft® cuAi". XL. J DISCREDITIXG PARTY'S OWN WITNESS. 471 copy of the paper fourteen years old, although he had no recollection of the facts, proof being given by the editor that the MS. was lost, and that the paper was a copy of it, and by the witness, that he had no doubt the facts stated therein were true {Topham v. McGregor, sup.; Burton v. Plummer, stip., per Patteson, J,; Talhot v. Cusacl, 17 Ir. C.L.R. 213. In Jones v. Stroud, 3 C. & P. 196, discussed in Talbot v. Gusach, sup., however, the Court rejected a copy made six months after an original, which was produced, but was illegible), {d) Where the copy is either not proved to be correct {Alcock V. Roy. Ex. Assur., 13 Q.B. 292 ; Talhot v. Gusach, sup.) ; or consists of an imperfect extract made by the witness {Doe v. PerTcins^ sup., explained by Patteson, J., in R. v. St. Martin's, sup.), or has been revised and tran- scribed with the help of the solicitor to the case {Anon., cited by Lord Kenyon in Doe v. Perhins, sup.), it cannot be used to refresh memory, whether the original^ is in existence or not. (5) Inadmissible Documents may be used. The document need not be admissible in evidence per se. Thus, an invalid lease {Bolton y. Tomlin, 5 A. & E. 836), or an irregular deposition {R. v. Mann, 49 J.P. 743), or an^ unstamped document {Bircliall v. Bullough, 1896, 1 Q.B. 325; post, 531), may be referred to; and user for this purpose does not make it evidence in the case {Alcoch v. Roy. Ex. Assur., sup.; Payne v. Ibbotson, 27 L.J. Ex. 341). (6) Production. Inspection. Gross-examination. Where the witness has no independent recollection of the facts, the document used to refresh his memory must be produced {Howard v. Ganfield, 5 Dowl. 417; Beech v. Jones, 5 C.B. 696; sup. 470) ; and even where he has such recollection this course should be adopted, in order that the opponent may have the benefit of cross-exam- ination and of the witness refreshing his memory by every part {id.; Tay. s. 1413). The shorthand notes of an interview cannot, however, be put in en bloc, though specific questions and answers may be referred to {R. v. Veltheim, 148 C.C.C. Sess. Pap. 583, per Phillimore, J.). If produced, the opponent has a right to inspect those parts only which refer to the subject- matter of the case {Burgess v. Bennett, 20 W.E. 720; though in Betts v. B., 33 T.L.R. 200, Low, J., allowed a general inspection), and also, of course, to cross-examine thereon. But cross-examination on the portions referred to by the witness does not make the document evidence against the cross- examiner {Gregory v. Tavernor, 6 C. & P. 280, 281; Payne v. Ibbotson, 27 L.J. Ex. 341), though it is otherwise with cross-examination upon independent parts {Gregory v. Tavernor, sup.; Stephen^ v. Foster, 6 C. & P. 289). And if the document fails to refresh the witness's memory, or if it is used not to refresh memory but merely to prove the handwriting, the opposite party is not entitled to see it further than to enable him to re- examine about the writing or recognise the document if afterwards put in {PecTc V. Peck, 21 L.T. N.S. 670; R. v. Duncombe, 8 C. & P.. 369; Tay. s. 1413; post, 477) ; and if he does more, or comment on the contents, he may be required to put it in as his own evidence {Palmer v. Maclear, 1 S. & T. 149). Alterations or corrections in the document will affect its weight, but not exclude it {Slaney v. Wade, 1 Myl. & Cr. p. 355). Siscreditin^ or Contradicting Party's own Witness. Since the fact of calling a witness is supposed to represent him to the Court as worthy of credit, it has been provided that — " A party producing a witness shall not be Digitized by Microsoft® 472 THE LAW OF EVIDENCE. [bookii. allowed to impeach his credit by general evidence of bad character (post, 483) ; but he may, in case the witness shall in the opinion of the judge prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given the circum- stances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement" (38 & 39 Vict. c. 18, s. 3, extending C.L.Pr. Act, 1854, ss. 33-3, which are now repealed by the St. L. Eev. Act. 1893; post, 480). [Tay. ss. 1426-1427; Eos. N.P. 176-177; Eos. Cr. Ev. !)^!I8; Steph. art. 131; Whart. s. 549.] When the Witness is adverse., i.e. hostile. Opponents. Attesting Witnesses. Debtors. A witness is considered adverse only when, in the opinion of the judge, (which is final, ante, 469), he bears a hostile animus to the party calling him and so does not give his evidence fairly and with a desire to tell the truth to the Court; he is not adverse in the statutory sense when his testimony merely contradicts his proof [Greenough v. JEccles, 5 C.B. N.S. 786; Coles v. C, L.E. 1 P. & D. 70; Seed v. King, 30 L.T. 390; R. v. Smith, 3 Cr. App. E. 86, 106, per Jelf, J., disapproving the decision of Cole- ridge, J., at the trial; Tay. s. 1436; Steph. art. 131; contra, Faulkner v. Brine, 1 F. & F. 355; Dear v. Knight, id. 433; Pound v. Wilson, 4 F. & F. 301; Anstell V. Alexander, 16 L.T. 830; R. v. Little, 15 Cox, 319; R. v. Williams, 29 T.L.E. 138, where 'adverse ' was considered to include the latter condition as well] . It is now settled that a party when called by his opponent cannot as of right be treated as hostile, the matter being solely in the discretion of the Court {Price v. Manning, 43 Ch.D. 373, C.A.). With regard to attest- ing witnesses, the old rule was that these, being necessary witnesses whom it was compulsory to call, and who might therefore be considered rather the witnesses of the Court than of the party, could be cross-examined and discredited by their own side {Bowman v. B., 3 M. & E. 501; Jackson v. Thomason, 1 B. & S. 745, and Coles v. C, sup.), and this has Vecently been confirmed {Jones v. J., 34 T.L.E. 839, per Barnes, P.) ; though in the earlier pase of Phillips v. Davis, 1907, Times, Dec. 13, per Deane, J., leave of the judge so to treat them was assumed to be now necessary, and the case of Price V. Manning, sup., seems to favour the latter rather than the former view. In Bankruptcy, a party calling the debtor may as of right elicit from him any previous contradictory statement (Se Cunningham, 80 L.T. 503). Contradicting Witness when not adverse. Although by the above statutes both the opinion of the judge that the witness is adverse, and the former's previous leave, are conditions precedent to the proof of contradictory state- ments by the witness : yet, in spite of these statutes, a party may, as of right, without obtaining such opinion or leave, contradict his own witness, whether adverse in the above sense or not, by other evidence relevant to the issue, and thus indirectly discredit him — e.g. where an attesting witness denies his own signature. Mr. Justice Stephen remarks that "the words 'he may in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidencfe,' suggest that he cannot do so unless the judge is of that opinion. This is not, and never was, the law" (Dig. note xlvii.; and see Greenough v. Eccles, sup.; Eos. IST.P. 173, 174). Where, however, two Digitized by Microsoft® CHAP. XL.J PUTTING IN DOCUMENTS. CEOSS-EXAMINATION. 473 equally credible witnesses called by the same party contradict each other, the party may not accredit one and discredit the other by contradicting him on vital points: though aliter, if such testimony be unexpected, or relate merely to matters of detail {Sumner v. Brown, 25 T.L.E. 745, per Hamilton, J.). Putting-in Documents. In Chancery, it has been held that no document, even though included in the admissions, is evidence unless formally put in and marked by the registrar {Watson v. Bodwell, 33 Ch. D. p. 153, per James L.J.) ; though this, it seems, applies only to documents produced to a witness, or whose admissibility is in question (38 Sol. Jo. 739, per C.A.). In jury trials, however, any document which has been read to the jury, even though not formally put in, is treated as evidence; while if neither read, 'nor put in, it cannot be referred to, even if admitted by the parties {AUone v. Delmeanny, 15 L.T. 317, per Blackburn, J., and cp. B. v. Rimes, ante, 464). As to what dealing with documents will give a right to reply, see ante, 43, 44. Documents which have not been inspected by one side cannot, however, be put in en bloc by the other, and the producing witness examined seriatim upon them ; though the hearing may be adjourned to select those that are material {re Maplin Sands, 71 L.T. 594, C.A.). As to written reports by the witness to his priucipal, see ante, 194, 309, 346; or by a constable to his superintendent, see post, 479, and 65 J.P. 209; and as to privileged documents generally, ante, 194-317. As to schedules of evidence used at trials and required for appeal, see 0. 63, E. 14c-d. CROSS-EXAMINATION. Liability to. When a witness has been inten- tionally called and sworn by either party, the opposite party has a right, if the examination in chief is waived {R. v. Broohe, 3 Stark. E. 473; Phillips V. Earner, 1 Esp. p. 357) ; or if the counsel changes his mind and asks no questions (88 L.T. Jo. 340, per Stephen, J.) ; or if the examination is closed, to cross-examine him. So, a deponent, whether party or stranger, who has filed an affidavit for the purpose of being used at the trial, is liable to cross-examination thereon, though the affidavit has been withdrawn {Re Quartz Co., Exp. Young, 31 Ch.D. 642; 0. 38, r. 28, aliter in bankruptcy, where an affidavit, though filed, can only be cross-examined on if read, Exp. Child, Re Ottoway, 20 Ch.D. 126) ; on motions, however, the matter is discre- tionary with the judge, post, 500. In Criminal cases, although the prosecution is not in strictness bound to call every vsdtness named on the back of the indictment, it is usual to do so in order to afford the prisoner's coimsel an opportunity to cross-examine them; and if the prosecution will not call them, the judge in his discretion may {R. v. Simmonds, 1 C. & P. 84; R. v. Bull, 9 C. & P. 33). So, on charges of homicide, and perhaps in other serious eases, witnesses, who, though not so named, were present at the transaction, are sometimes called by the judge for the furtherance of justice {id.; R. v. Holden, 8 C. & P. 606; R. V. Stroner, 1 C. & K. 650; R. v. Chapman, 8 C. & P. 558; R. v. Orchard, i^. p. 559 n; post, 484). If this has been done at the instance of the prisoner, and no question is put to, them by the prosecution, they become so far the prisoners' witnesses, that, though he may cross-examine, he cannot contradict them {R. v. Bodle, 6 C. & P. 186) ; and the prosecution can only re-examine as to matters arising out of the cross-examination {R. v. Beezley, 4 C. & P. Digitized by Microsoft® 414 THE LAW OF EVIDENCE. [book ii. 220), and perhaps, if there has been a refusal to call the witness, not even as to these {R. v. Harris, 7 C. & P. 581). Accused. As to cross-examination of the accused, and their wives or husbands, &c., see ante, 454-7. Party's own Witness. A party cannot, in general, cross-examine his own witness, though he may contradict him by independent evidence (ante, 4G9, 472). But when such witness proves adverse {ante, 469, 472), he may not only (1) cross-examine him {ante, 469) ; but (2) by leave of the judge, prove that he has previously made statements inconsistent with his present testimony {ante, 471-2). So, (3) when an expert advanced an extraordinary theory, he was allowed to be cross-examined by his own side {R. v. Cook, 147 C.C.C. Sess. Pap. p. 466, per Darling, J.). (4) Whether the right to cross-examine survives if the cross-examiner afterwards calls his opponent's witness to prove his own ease, seems doubtful ; but the better opinion is that it does not ; and that the witness cannot be asked leading questions on his second examination,^ while he may afterwards be cross-examined by the party who originally called him {Malone v. Spillessy, Ir. Cir. Eep. 504; Lord v. Colvin, 3 Drew. 232; Re Woodfine, 26 W.E. 678 ; contra, Dickinson v. Shee, 4 Bsp. 67, is doubted in Tay. s. 1433). As to cross-examination of attesting witnesses, see ante. 47"?. Co-defendants. A defendant may cross-examine a co-defendant or any other witness who has given evidence against him, and reply on such evidence, though there is no issue Joined between them {Lord v. Colvin, 3 Drew, 222 ; Allen V. A., 1894, P. 248, C.A.; Re Wagstaff, 96 L.T. 605). And the same right exists between respondent and co-respondent in divorce cases {Allen V. A., sup.), provided either is hostile to the other, for if friendly, e.g. where both deny the adultery, each can only be examined as the other's witness and not cross-examined {Dunhill v. D., 29 L.Jo. 368). So, where several prisoners are tried on the same indictment and separately defended, any witness, whether a co-defendant or not, called by one may be cross- examined by the others against whom they have given incriminatory evidence, or by the Crown to elicit such evidence; and the parties against whom such evidence is given have a right to reply thereon {R. v. Hawden, 1902, 1 K.B. 882 : R. Y.Paul, 1920, W.N". 121 ; ante, 457). Exemptions. (1) A witness called merely to produce a document under a subpoena duces tecum, need not be sworn if the document either requires no proof, or is to be proved by other means; and if not sworn {Summers v. Moseley, 2 Cr. & M. 477; Perry v. Gibson, 1 A. & E. 48), or unnecessarily sworn {Rush v. Smith, 1 Cr. M. & E. 94), he cannot be cross-examinSd. (2) A witness sworn by mistake either of the counsel or officer of the Court, and whose examination has not substantially begun, is not liable to cross-examin- ation {Wood V. Machmson, 2 Moo. & Eob. 273; Clifford v. Hunter, 3 C. & P- 16; Reed v. James, 1 Stark. 132). But the mistake must arise from his inability to speak to the transaction, and not from the imprudence of having him called {Wood v. Machinson, sup.) ; so, where the witness can speak to the transaction, but the counsel changes his mind, and after the witness is sworn, asks no questions, the right to cross-examine remains (88 L.T.Jo. 340, per Stephen, J.). (3) A witness whose examination has been stopped by the judge before any material question has been put, is not liable to cross- examination {Creevy v. Can; 7 C. & P. 64). (4) A witness called by the judge can only be cross-examined by leave {post, 484). (5) A witness who Digitized by Microsoft® ciiAr. XL.] CEOSS-EXAMINATIOX. 475 has given no evidence in chief, may not be cross-examined as to credit {Brace- girdle V. Bailey, 1 F. & F. 536). (6) The Court may disallow cross-examin- ation used simply to oppress and not for the purposes of justice {Re Mundell, Fenton y. Camberlege, 48 L.T. 776, where an aiBdavit witness was not allowed to be subpoenaed for cross-examinatioUj the object of the cross-examination being to injure her for having employed a particular solicitor). (7) Witnesses to character, though liable to be, are in fact rarely, cross-examined {ante, 188). Death, &c., before Cross-examination. When the witness dies or falls ill before cross-examination, his evidence in chief is admissible though its weight may be slight {R. v. Boolin, Jebb, CO. 133; People v. Cole, 43 IS.Y. 508). So, the affidavit of a witness who could not.be produced for cross- examination by reason of death {Abadom v. A., 34 Beav. 243; Morley v. M., 5 DeG.M. & G. 610; Dawes v. Otty, 13 W.E. 484; Elias v. Griffith, 46 L.J.Ch. 806; Tanswell v. Scurrah, 11 L.T. 761), insanity {Ridley v. R., 34 Beav. 339), or paralysis {Braithwaite v. Kearns, 34 Beav. 303), has .been received. But absence from the country {Bingley v. Marshall, 6 L.T. 683 ; Dunne v. English, 18 Eq. 534), or temporary illness {Nason v. Clamp, 13 W.E. 973), has been held insuiBcient, the proper course being to adjourn the trial or issue a commission; though Farwell, J., rejected in toto the evidence of a plaintiff who fainted and was unable to be cross-examined (45 Sol. Jo. 569; sed qu.). So, the Court has refused to act on the affidavit of a witness who had absconded before cross-examination {8hea v. Oreen, 3 T. L. E. 533; and see The Parisian, 13 P.D. 16; though it is not wholly inadmissible). \_Gp. post, 497.] Object and Scope of. The object of cross-examination is two-fold — to weaken, qualify, or destroy the case of the opponent; and to establish the party's own case by means of his opponent's witnesses. It is not confined to matters proved in chief; the slightest direct examination", even for, formal proof, opens up the whole of the cross-examiner's case {Berwiclc v. Murray. 19 L.J. Ch. 381, 386; Morgan v. Brydges, 3 Stark. E. 314; R. v. Murphy,! Arm. M. & 0. 306; Tay. s. 1433). In Re Woodfine, 36 W.E. 678, where the issues on a claim and counter-claim were distinct and separately tried. Fry, J., without laying down any general rule, directed for convenience that cross-examination on the claim should not include the subject-matter of the counter-claim; and in a suit for nullity, where there was no plea of want of sincerity, though there was a cross-action for dissolution on the ground of petitioner's adultery, cross-examination as to the latter fact, as showing want of sincerity, was disallowed {8. v. S., 33 T.L.E. 460). With the above view, the witness may be asked not only as to facts in issue, or directly relevant, thereto, but all questions which, though otherwise irrelevant, tend to impeach his credit in the manner provided, post, 477-83. - Notice to witness. Omission to cross-examine. As a rule a party should put to each of his opponent's witnesses in turn so much of his own case as concerns that particular witness, or in which he bad a share, e.g. if the witness has deposed to a conversation, the opposing counsel should indicate how much he accepts of such version, or suggest to the witness a different one. If he asks no questions he will in England, though not perhaps in Ireland, generally be taken to accept the witness's account {Flanagan v. Fahy, 1918, 3 I.E. 361, 388-9, C.A.; Browne v. Dunn, 6 E., 67, 76-7; H.L. ; Odgers, Pleading, 6th ed. 304.) Digitized by Microsoft® 476 . THE LAW OF BV-IDENCE. [bookii. Moreover where it is intended to suggest that the witness is not speak- ing the truth upon a particular point his attention must first be directed to the fact by cross-examination, so that he may liave an opportunity of explanation {Browne v. Dunn, sup.) ; and this probably applies to all eases in which it is proposed to impeach the witness's credit (Tay. s. 1451; post, 479-80). Such questions are, indeed, rendered by statute a condition precedent to proof of a previous contradictory statement by the witness {post, 479-81). Failure to cross-examine, however, will not always amount to an acceptance of the witness's testimony, e.g. if the witness has had notice to the contrary beforehand, or the story is itself of an incredible or romancing character {Browne v. Dunn, sup.), or the abstention arises from mere motives of delicacy, as where young children are called as witnesses for their parents in divorce eases. And where several witnesses are called to the same point it is not always necessary to cross-examine them all. What Cross-examination lets in. On the other hand, an incautious cross- examination may let in matter which would be inadmissible in chief, e.g. the independent portions of a document used to refresh the witness's memory {ante, 471; post, 477). So, questions as to the contents of a document, put to a witness called merely to prove handwriting, let in the whole against tlie cross-examiner {id.) ; and if a plaintiff's witness be asked in cross-examin- ation, "Didn't you meet A., and didn't he tell you so-and-so?" the plaintiff in re-examination may ask what A. really did say, although he could not do so in chief because the defendant was not present (Odgers, sup.). If it is imputed in cross-examination that the witness has recently fabricated his story, this will, in rebuttal, let in proof that he told the same story at an earlier date {Flanagan v. Fahy, 1918, 2 I.E. 361, 374, 388, C.A.; {post. 488). Where, however in an action for libel the plaintiff had not pleaded loss of particular customers by way of special damage and such evidence was consequently rejected in chief, it was held by Manisty, J., that cross-examin- ing one of such customers (called upon a different point) as to his rf.'a.sou for ceasing to employ the plaintiff, did not let in general evidence of such loss {Bluch V. Lovering, ex rel., reported on other points, 1 T.L.E. 497). Leading Questions. Though leading questions may be put in cross-exam- ination, whether the witness be favoujable to the cross-examiner or not {Parhin v. Moon, 7 0. & P.; Steph. art. 138), yet where a vehement desire is betrayed to serve the interrogator, it is certainly improper, and greatly lessens the value of the evidence, to put the very words into the mouth of the witness which he is expected to echo back {R. v. Hardy, 24 How. St. Tr. p. 755; Tay. s. .1431). Cross-examination as to Documents. Execution and Contents. A witness, whether a party or not, cannot be asked, nor compelled on cross-examination, to admit the execution of documents required by law to be attested {Whyman V. Oa/rth, 8 Ex. 803 ; post, 519, 533-3). Nor can he be cross-examined upon a document inadmissible for want of a stamp {Baker \. Dale, 1 F. & E. 371 ; cp. Interleaf Publishing Co. v. Phillips, 1 Cab. and Ell., 315 ; post, 480, 531) . For can a witness, if not a party, be asked as to the contents of unproduced docu- ments (other than previous inconsistent statements in writing made by him- self, post, 479-80), without a foundation for secondarv evidence first being laid {Darly v. Ouseley, 1 H. & N. 1, 5; Henman v. Lester, 13 C.B. N.S. 776- Digitized by Microsoft® ciiAP-SL.] DISCREDITING OPPONENT'S WITNESSES. 477 Macdonnell v. Evans, 11 C.B. 930; cp. B. v. Banks, 12 Cr. App. E. 74; Eos. N.P. 18th ed. 179-80). And although, if jiie witness be a party, his admis- sions out of court are primary evidence against him of the contents of unproduced documents, and he may also be asked ia the box as to such contents {Farrow v. Blomfield, 1 F. & P. 653), yet he cannot be compelUd to answer the question {Henman v. Lester, Darby v. Ouseley, R. v. Banks, sup J Tay., 8th ed. s. 1462; Eos. N.P. 180). The existence of a transaction, however, being separable from the contents of the record, may, it seems, be inquired into {Henman v. Lester, sup.). Documents produced, or referred to, iy Witness. When a party calls for a document which he has given his opponent notice to produce, and the latter does not produce it, he may not afterwards give the document in evidence without the former's consent {Edmonds v. Challis, 7 C.B. 413; Doe v. Hodgson, 12 A. & B. 135). If he docs produce the document and the party calling inspects it, the latter is bound to give it in evidence if it is material and the former so requires {Calvert v. Flower, 7 C. & P. 386; Wilson v. Bowie, 1 C. & P. 8; Wharam V. Boutledge, 5 Esp. 235). [Tay. ss. 1817-1818; Steph. arts. 138-139. As to production under subpcena or order, see ante, 442-3.] If the cross-examiner, after putting a paper in the witness's hands, merely questions him as to its general nature or identity, this does not make it evidence {Collier v. Nohcs, 2 C. & K. 1012), and his adversary has no right to see the document, though if he does, he may be required to put it in evidence {Palmer v. Maclear, 1 S. & T. 149). But if the paper be used to refresh memory, or questions are put as to its handvsrriting or contents, inspection may be demanded, though it cannot be read through or commented on till actually put in by the evoss- examiner [Tay. s. 1452 ; ante, 471, 476] . If a joint affidavit has been made, by the witness and another, only the part sworn to by the former and relating to the cross-examining party may be cross-examiaed upon {R. v. Bond, 9 C. P. 189; cp. Dawhins v. Rokeby, 4 P. & F. 806, 817). Where a witness based a theory as to the identity of a mining reef partly upon his own knowledge and partly on records and reports made by others connected with the mine, these were allowed to be read to him and the witness to be asked how he reconciled them with his theory {Amalgamated Properties v. Glohe & Phoenix Co., Times, 3 Nov. 1915). CREIHT. The credibility of a witness is compounded of his knowledge of the facts — ^his disinterestedness — ^his integrity — ^his veracity. Proportioned to these is the degree of credit his testimonv deserves from the Court or Jury (Archb., Cr. P., 23rd. ed. 403). Knowledge, Observation, Memory. Amongst the more obvious matter affecting the weight of a witness's evidence may be classed, his means of knowledge — opportunities of observation — reasons for recollection or ■ belief — ^powers of memory and perception, and any special circumstances affecting his competency to speak to the particular case — all of which may be inquired into either in direct examination to enhance {ante, 466), or in cross-examin- ation to impeach, the value of his testimony. Errors, Omissions, &e. So, all questions may be asked in cross-examination which tend to expose the errors, omissions, inconsistencies, exaggerations, or improbabilities of the witness's testimony. Digitized by Microsoft® 478 THE LAW OF EVIDENCE. [book ii. Antecedents, Associations, Character, &c. MatLerx Admissible. In addi- tion to the above facts, and subject to the qualifications mentioned below, a witness may, upon cross-examination, be asked any question concerning his antecedents, associations, or mode of life, M-liich, although irreUvant to the issue, would be likely to discredit his testimony or degrade his character; but he cannot always be compelled to answer, and his answers cannot, unless otherwise relevant to the issue, be contradicted {post, 479-82). Thus, in cases of rape, the prosecutrix may be cross-examined as to her connection not only with the prisoner, but with other men {ante, 190) ; and in an action for an indecent assault, the defendant, as to alleged improprieties with other females {Tolman v. Johnstone, 2 F. & F. 66). So, where a partnership is denied by one of the alleged partners, instances of their partnership in other matters are admissible on cross-examination to discredit such denial {Ken- nedy V. Dodson, ante, 166) ; and in an action for damages for false repre- sentation, the defendant was allowed to be asked, as testing his credit, whether a verdict had not been obtained against htm for a previous similar repre- sentation, although this fact was matter of record {Henman v. Lester, ante, 477), though where the similar facts do not affect the credit of the witness, he may not even be asked about them, must less discredited by mere contra- diction {Spenceey v. De Willott, 7 East. 108; Tenrmnt v. Hamilton, 7 C. & F. 122; ante, chaps, xi.-xii.). So, as to the fact of his bankruptcy, though this, too,. is matter of record (Tay. s. 1462; Henman t. Lester, sup.). And to test the credit of a prosecutor, he may be cross-examined as to the truth of a libel, though no justification is pleaded {B. v. Ferryman, 112 C.C.C. Sess. Pap. 655-6; ante, 191); so, of a witness for the defence as to whether the prisoner, his brother, was not rumoured to have been connected with a prior robbery, they both being concerned in the case under trial {B. t. Spitzell, 114 id. p. 1097). Matters not Admissible. " The judge may in all cases disallow any ques- tions put in cross-examination of any party or other witness which may appear to him to be vexatious and not relevant to any matter proper to be inquired into in the cause or matter " (0. 36, s. 38) ; e.g. probably questions as to alleged improprieties of remote date, or of such a nature as not seri- ously to affect present credibility (Tay. s. 1460; 36 Sol. Jo. 158; Steph., General View, 2nd ed., 27). So, witnesses cannot be asked to draw inferences of fact discreditable to themselves {e.g. whether a reporter, who had attended a meeting, went there " as a spy," B. v. Bernard, 1 F. & F. 240) ; nor are in- quiries as to their religious belief admissible to discredit them {Darby v. Ouseley, IH. & N. 1; formerly a witness could not be compelled to answer whether he was a Eoman Catholic, as this might subject him to penalties, B. V. Ld. Gordon, 1781, 3 Doug. 590, 592) ; nor questions as to disparaging comments made by the Court on their conduct or testimony in other trials {Seaman v. Netherclift, 2 C.P.D. 53, per Bramwell and Amphlett, JJ.A • B. V. Bottomley, 1893, Times, Feb. 7, per Hawkins, J.; though such ques- tions are often put without objection) ; nor can a defendant be asked in cross-examination whether he relies on a supposedly discreditable defence. e.g. infancy, the Statute of Limitations, or the Gaming Act, for he is entitled to rely on anything pleaded by his counsel {Lister v. McKenzie, 190] Times Aug. 13) ; nor a plaintiff what are the particnilar terms of a contract" that he Digitized by Microsoft® CHAP.XL.J COMPULSlOiX TO ANSWEll. UO^TEADIUTIOA'. 479 complains have been broken, for this also is for his counsel to say {Strachan V. Universal Stk. Exge., 1895, Ap. 24, per Cave, J., ex rel.) ; nor can a wit- ness be told what others have said on a subject and then be asked if he con- tradicts them {North Aiistrdliaii Co. v. Goldsborough, 1893, 3 Ch. 381, (J.A.) ; nor is it allowable for counsel to mislead a witness by making assuniptious contrary to fact, or to entrap him by misstatements (Eos. N.P. 179) ; and, where the issue was whether A. had passed oil his goods as those of B.> B. was not allowed to be asked on cross-examination whether he had advertised the goods in question as patented without having any patent {Lever v. Goodwin, 1887, W.N. 107, C.A.). So, where A. sued B. for damages for injury by B.'s motor-car, it was held most irregular and improper for B. to be asked on cross-examination whether he was insured {Wright v. Eearson, W.N. 1916, 216) . And, where the sole object of a female plaintiff's cross-examination was to injure her for having employed a particular solicitor, it was disallowed {Re Mundell, 48 L.T. 776). In Ireland it seems that questions under this head are only admissible if they directly impeach credit; thus, in a libel action where the defence alleged that ftie libel was published, not by the defendan!;, but by a third person, called at the trial as a witness for the plaintiff, this person was not allowed to be cross-examined as to his use of other words against the plaintiff, entirely different f^om those in the libel {Massey v. M., 31 Ir. L.T. Jo. 184, per O'Brien, J.) ; so, in another libel case, the same judge disallowed a question put in cross-examination to a riiedical witness called by the plain- tiff, as to whether the witness had not been summoned at Petty Sessions for an alleged assault and threatening language {Daly y. Cork Herald, id.) ; and questions as to the professional ideas entertained by one doctor about another, as well as those imputing that the witness's diagnosis has been challenged in other cases, have also been disallowed {B. t. Hennessy, 31 Ir. L.T. Jo. 165) ; nor was a constable allowed to be cross-examined as to what passed between himself and his superintendent in reference to a criminal charge {R. v. Herlihy. 32 mZ. 38). Compulsion to answer. A witness is compellable to answer every question put to him in cross-examination which is relevant to the issue, unless pro- tected by ptiblic policy {ante, 194-9), or privilege {ante, 200-217, 454-5) ; or unless the case is one in which oral evidence is excluded iy documentary {ante, 476-7; post, chaps xliv.-vi.). He is also, in general, compellable to answer questions relevant merely as affecting credit; but tiie judge has a discretion to excuse an answer when the truth of the matter suggested would not, in his opinion, affect the credibility of the witness as to the subject- matter of his testimony [supra; Steph. art. 129, and note xlvi. ; Tay. s. 1460; 36 Sol. Jo. 158]. Contradiction on Relevant Matters. After a proper foundation has been laid in cross-examination {Browne v. Dunne, ante, 476), a party may con- tradict his opponent's witnesses by independent evidence on all matters relevant to the issue, and in particular as to their Previous Contradictory Statements. Every witness upon cross-examination in any civil or criminal proceeding may be asked whether he has made a former statement (or, in cases in which opinion evidence is admissible, expressed a former opinion: Tay. s. 1445) relative to the subject-matter of the case and inconsistent with his present testimony, and if he " does not distinctly admit that he has made such state- Digitized by Microsoft® 480 THE LAW OF EVIDENCE. [bookii. ment, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to desig- nate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement " [28 & 29 Vict. c. 18, s. 4 (extending C.L. Pr. Act, 1854, s. 23, which was repealed by the St. L. Rev. Act, 1892)]. If the inconsistent statement is in writing, it need not (as was formerly the case, see Rules of the Judges, 1836, Tay. ss. 1449-50 n; Best, early editions, ss. 473-8; Gulson, ss. 379-85; Ros. Cr. Bv., 12th ed., 57; post J 504, 508), be shown to the witness, nor proved in the first instance, nor can the witness demand this before answering {North Australian &c., Co., v. Ooldshorough Co., 1893, 2 Ch. 381, 385-6, Sladden v. Sergeant, 1 E. & F. 322) ; but where the intention is to contradict him by the writing his atten- tion must first be called to the parts that are to be used for that purpose; provided always that it shall be competent for the judge, at any time during the trial, to require the production of the virriting for his inspection, and he may thereupon make such use of it for the purpose of the trial as he shall think fit (28 & 29 Vict. c. 18, s. 5, extending €.L. Pr. Act, 1854, s. 24, which was repealed by St. L. Rev. Act, 1892; as to the old rule by which the cross-examining party had to produce the docxmient as his own evidence and have it read, before founding any question to the witness upon it, a practice which was fatal to effective cross-examination, see post, 504, 508) . This provsio applies equally before and after the witness is asked, and the judge may have it read before he answers (R. v. Hughes, cited Ros. Cr. Ev., 13th ed. 118). In civil cases, however, an unstamped document is not admissible 4ot this pur- pose (Interleaf Publishing Co. v. Phillips, C. & E. 315 ; Baker v. Dale, 1 F. & F. 271; ante 476). The contradictory statement is, however, no evidence of its own truth (Wright v. Beckett, 1 M. & Rob. 414, per Ld. Denman; Ewer V. Ambrose, 3 B. & C. 746; R. v. Dibble, 72 J. P. Rep.. i98; North Australian &c., Co. V. GoMsborough, sup.; cp. B. v. Williams, 8 Cr. App. R.-133, where it was held that when a witness at the trial varied the date of an event from that given in her deposition, the jury may be directed that it was clear the event happened on one of the two dates and though they must not take the deposition as true, they could, on the whole of the evidence at the trial, decide between the two dates). Where, also, contradictory statements are proved, witnesses may be called to disprove them (B. v. Whelan, 14 Cox, 595), though ' not generally to prove previous consistent ones (post, 488). Where a witness had made a statement to the defendant's solicitor inconsistent with an affidavit filed by him on behalf of the plaintiff, an affidavit in reply by the solicitor setting out such statement was rejected on the ground that the evidence was only admissible on cross-examination to discredit the witness (Hemming v. Maddick, 7 Ch. App. 395). If the witness admits the contradictory state- ment, the document may still be proved, either at the instance of the parties or the jury, at any time before verdict is given (R. v. Garner, 54 J.P. 424, C.C. R.; Ros. ISr.P. 18th ed. 180; see, however. North Australian &c., Co. v. Golds- borough Co., post, 504, 508) . And where the writing is lost, destroyed, or filed in another Court, secondary evidence will be admissible and may be inter- posed out of turn; so, also, proof may be given that it is in the hands of the opponent, who has had notice to produce it but has refused [Tay. ss. 1447-1448; Ros. N.P. 180]. A party's own witness may, by leave of the Digitized by Microsoft® CHAP. XL.J BIAS. PEEVIOUS CONVICTION, ETC. 481 judge, be similarly contradicted when in the opinion of the judge the witness proves adverse {ante, 471-3). Although, however, a witness, whether a party or not, may be cross-examined as to previous inconsistent statements made by himself, he may not be told what third persons have said or sworn and asked if he contradicts them {North Australian &c., Co. v. Goldsborough Co., ante, 479). No Contradiction on Irrelevant Matters: Two Exceptions. A party may not, in general, impeach the credit of his opponent's witnesses by calling witnesses to contradict him on irrelevant matters, and his answers thereon wiU be conclusive. Thus, where an Irish witness, who gave his evidence through an interpreter, denied on cross-examination that he had spoken English to two persons in court, it was held that his answer could not be contradicted by calling those persons {R. v. Burlce, 8 Cox, 44). And, on a petition to revoke a patent by reason of an act of prior user, a witness who proved such act having stated on cross-examination that there were also others, was not allowed to be contradicted, such other acts being irrelevant {Re Haggeiv- macher's Patents, 1898, 2 Ch. 280). So, though a female witness, who had denied on cross-examination that she was the kept-mistress of the party calling her, was allowed to be contradicted, yet it would have been otherwise had the question been whether she was a common prostitute, since the former fact went to show bias, while the latter was merely collateral {Thomas v. David, 7 C. & P. 350). Similarly, the denials of a prosecutrix in a case of rape as to her connection with men other than the prisoner cannot be contra- dicted {ante, 190; though aliter in affiliation cases when such connection may affect paternity, ante. 139) ; nor those of a defendant in an action for indecent assault as to improprieties with other females {Tolman v. Johnstone, 2 P. & P. 66). And a witness's denial on cross-examination, that he had ever expressed his opinion that the party calling him had no case, cannot be contradicted {Elton v. Larhins, 5 C. & P. 385,- 390; Lane v. Bryant, ante, 72). Nor can a witness be contradicted by inadmissible documents; thus, where a female witness had ndade statements in chief as to her life abroad, and the opposite counsel cross-examined her from a document which he did not put in and which was inadmissible but which he suggested to the jury was a foreign police report detrimental to the witness's character, this course was held highly improper. What he should have done was to say to the witness, "Look at this paper: do you still adhere to your answer?" {R. v. Seham Yotisry, 11 Cr. App. R. 13, 18; as to the admissibility of police reports, see R. V. Ldbouchere, ante, 133, 262). Where contradictory matter affecting credit, merely, has come to light since the trial, leave to cross-examine the witness thereon may be given on appeal, even though, had it been known, witnesses could not have been called at the trial to prove it {R. v. Hamilton, 13 Cr. App. E. 32 ; qu. whether such witnesses could be called on appeal) . In the case of iias or previous conviction, however, a witness may be con- tradicted, though these facts are irrelevant to the issue: (1) Bias or Partialiti/. Facts showing that the witness is biased or partial in relation to the parties or the cause may be elicited on cross-examin- ation; or, if denied, independently proved {A.-C. v. Hitchcock, 1 Ex.E. 91; Eos. N.P. 185, Steph. art. 130; Bos. Cr. Ev. 90; and see Tay ss. 1440-1444) ; I.E.— 31 Digitized by Microsoft® 482 THE LAW OF EVIDENCE. [bookii. e.g. that a female witness is the kept mistress of the party calling her (Thomas V. David, sup.), or that the witness had suborned false witnesses against the opposite party (Queen's Case, 2 Brod. & Bing. pp. 311-15; A.-G. v. Hitchcock, sup.), or has had quarrels with, or expressed hostility towards, him {R. v. Shaw, 16 Cox, 503.) So, the fact that the witness has accepted a bribe to testify may, if denied, be proved {A.-O. v. Hitchcock, sup.), though a previous admission by the witness that he had been offered a bribe cannot (id.). (3) Previous Conviction. A witness (other than a defendant in a criminal case, as to whom see ante, 454) may be cross-examined as to whether he has been convicted of any felony or misdemeanour ; and if he either denies or does not admit the fact, or refuses to answer, the cross-examining party may prove such conviction [28 & 29 Vict. c. 18, s. 6 (extending G.L.P. Act, 1854, s. 25, repealed by St. L. Eev. Act^ 1892)], together with the circumstances under which it took place (see R. v. Baker, 1895, 1 Q.B. 797, 800), although the fact of such conviction may itself be wholly irrelevant to the issue (Ward V. Sinfield, 49 L.J.C.P. 696). As to proof of the conviction for this purpose, and by certificate, merely, see ante 367; and generally, post, 557-9. Reputation for Tlntruthfulness. Independent evidence may also be given that an adversary's witness (but not a party's own, ante, 472) bears such a general reputation for untruthfulness (or, perhaps, for moral turpitude generally: Tay. s. 1471) that he is unworthy of credit upon his oath. In theory, it seems, such evidence should relate to general reputation only, and not express the mere opinion of the impeaching witness; but in practice the question may be shortened thus :" From your knowledge of the witness, would you believe him on his oath?" (R. v. Brown, L.R. 1 C.C. 70; Stehlings v. L. & N W. Ry., 68 J.P. 138). The impeaching witness cannot, in direct examination, give particular instances of the other's falsehood or dishonesty, since no man is supposed to come prepared to defend all the acts of his life. But, upon cross-examination he may be asked as to his means of knowledge of the other witness, his feelings of hostility towards him, or whether, in spite of bad character in other respects, the impeached witness has not preserved his reputation for truth; and the answers to these questions cannot be contradicted (Tay. s. 1471; Steph. art. 133). The impeaching witness should come from the locality of the other, and not be a stranger sent expressly to learn the latter's reputation (Mawson v. Heartsink, 4 Esp. 103). Re-establishing Credit. Where a witness's general reputation for veracity has been attacked, his character may be sustained either, as we have seen, by cross-examining the impeaching witnesses as to their means of knowledge, grounds of opinion, hostile feelings towards the other, and the like; or by independent general evidence that the impeached witness is worthy of credit (Tay. s. 1473; Steph. art. 133). It seems doubtful how far independent evidence of the latter description is admissible where merely particular discrediting facts have been elicited in cross-examination or proved against a witness. Such evidence has, indeed, been received in reply to proof both of subornation (Annesley v. AngUsea, 17 How. St. Tr. 1348; see also Durham V. Beaumont, 1 Camp. 207) ; and of previous conviction of crime (R. v. Clarke, 2 Stark. 241) ; but in a later cage, where the character of a witness had been impeached on cross-examination, general evidence of this kind, tendered in rebuttal, was rejected (Doe v. Hariis, 7 C. & P. 330, per Coleridge, J. ; the Digitized by Microsoft® CHAP. XL.] EE-EXAMINATION. QUESTIONS BY JUDGE. 483 American decisions are conflicting: Whart. s. 569). In any case, mere contradiction among witnesses will not let in such evidence {Durham v. Beaumont, sup.), nor, as will be seen, -will proof of previous inconsistent statements let in, in general, contrary proof of previous consistent ones {post 488), although the inconsistent statements themselves may be dis- proved {R. V. Whelan, 14 Cox, 595). [Tay. ss. 1473-1476; Whart. ss. 569- 571.] Recrimination. An impeaching witness may, in his turn, be a,ttacked either in cross-examination or by independent general evidence that he is unworthy of credit, but no further recrimination than this seems allowable. [Tay. s. 1473; R. v. Whelan, sup.; ante, 41]. RE-EXAMINATION. The right to re-examine exists only when there has been cross-examination, and must be confined to the explanation of matters arising thereon [Queen's Case, 3 B. & B. p. 297; R. v. St. George, 9 C. & P. 483; Tay. ss. 1494-1495; Eos. N.P. 186; Eos. Cr. Ev. 125-136]. Thus, if the witness has admitted making a former inconsistent statement, he may in re-examination explain his motives for so doing {R. v. Woods, 1 Craw. & D. 439; Queen^s Case, 2 B. & P. p. 294). So, where on a criminal trial a witness in chief swore to a certain fact, and in cross-examination admitted he had not mentioned it in his sworn information, he was allowed on re-examinatioji to state that he had included it in an earlier information {R. v. Coll, post, 494). And upon a charge of rape on a child, the prisoner's counsel having elicited on cross-examination of the child that the act had not caused her any pain, the prosecution was allowed to ask, in explanation, whether the prisoner had done the same to her on former occasions {R. v. Chambers, 3 Cox, 93). Even if inadmissible matters are introduced in cross-examination, the right to re- examine thereon remains {Blewett v. Tregonnmg, 3 A. & B. 554; but cp. R. V. Cargill, cited ante, 41). Matters not properly explanatory, or new facts, cannot, however, be introduced in this way. Thus, where a certain conversa- tion had been admitted in cross-examination, distinct matters occurring in the same conversation were not allowed to be proved in re-examination {PHfice v. Samo, ante, 236; cp. Shaw v. Roberts, 2 Stark. 455) ; and an accomplice, having admitted on cross-examination by the prisoner's counsel' that he had committed two other robberies on the night in question, was not allowed to be asked on re-examination in whose company he was, in order to criminate the prisoner, tiie question not arising out of the cross-examination (K. v. Fletcher, 1 Lew. C.C. 111). New facts may, however, by leave of the judge, who usually puts the question himself, be elicited in re-examinsition ; and the opponent may then cross-examine thereon, [cp. Evidence in Eeply and Eebuttal, ante, 40-1]. EXAJfflNATION BY JUDGE AND JURY. RE-CArUNG WITNESS. A judge may put all such questions to a witness as the interests of justice require {R. v. Hopper, 1915, 2 K.B. 431; R. v. Remnant, Eus & Ey. 136; i?>v. Watson, 6 C. & P. 653; R. v. Jameson, 1896, Times, July 24; Bes^ s. 86) ; and these questions may be based, not only on matters arising in the case, but on his own local or scientific knowledge {R. v, Antrim,, 1895, 2 I.E. 603; cp. Shortt v. Robinson, 63 J.P. 295). So, the jury may ask admissible, though not inadmissible, questions {R. v. Lillyman, 1896, 2 Q. B. 167, 177). Digitized by Microsoft® 484 THE LAW OF EVIDENCE. [bookii. It has also been held that the judge may, for the disco\x'ry of truth, both in civil and criminal cases, call and examine any witness himself, especially where the jury desire it; and though such witnesses may not, as of right, be cross-examined by the parties, yet where material evidence is given against either, leave should be given to that party to cross-examine {Coulsoii v. DisborougK 1894, 2 Q.B. 316, C.A.; B. v. Clihurn., 62 J.P. 232; The Cardiff. 78 L.J.P. 110; E. v. Davis, 149 C.C.C. Sess. Pap. 167, 175, per Grantham, J.; B. v. iSimmons, and E. v. Bull, ante, 473). More recently, however, it was held tliat such witnesses could, in a civil case, only be called with the consent of all parties, and Coulson v. Disborough, sup., was disap- proved {Be JSnoch, 1910, 1 K.B. 327 .C.A.). In addition to the above, a judge himself may, in criminal cases, call witnesses, after a conviction, in aggravation or mitigation of punishment {B. v. Bright, 1916, 2 K.B. 441) ; and such evidence is material and punishable if false {B. v. Wheeler, 1917, 1 K.B. 283, cited ante, 453). So, the judge may at any stage of the trial, either at his own instance or that of a party, recall a witness (including the prisoner, B. v. Seigley, 6 Cr. App. R. 106), for further examination or cross-examination; though, after a party's case is closed, this will only be allowed under special circum- stances (Tay. s. 1477; Eos. Cr. Ev. 120; ante, 41). Where, after the summing-up, a witness is allowed to be re-called and interrogated, the opponent has a right to cross-examine and give evidence in rebuttal {B. v. HowaHh, 13 Cr. App. E._99). NUMBER or WITNESSES. COREiOiBORATION. As a general rule. Courts may act on the testimony of a single witness, even though uncorroborated ; or upon duly proved documentary evidence without such testimony at all {Wright v. Tatham, 5 C. & E. 592-3; Best, s. 596). And where such testi- mony is unimpeached they should act on it {Morrow v. M., 1914, 2 I.E. 183), and need not leave its credit to the jury {Davis v. Hardy, 2 B. & C. 225). But whenever there are circumstances of suspicion, or the testi- mony of a witness is challenged by cross-examination or otherwise, corro- boration thereof is allowed; and in the several cases mentioned below corro- boration is required either by law or well established rule of practice. On the other hand, the Courts have inherent power to check an undue multi- plicity of witnesses (Best, ss. 47-8; Wigmore, s. 1906), as well as to prevent their oppression in various respects {ante, 447-8, 478). History. Under the Eoman and Canon Law, the effect of evidence was gov- erned strictly by the numerical system. Testimony was counted not weighed, one oath being in no case sufficient ; and since circumstantial evidence was regard- ed as inferior to direct, three presumptions were only deemed equivalent to two oaths (Wills, Circ. Ev. 6th ed. 34). Biblical authority is to the same effect. So, in Anglo-Saxon and Norman times, proof was, according to the import- ance of the case, made six-handed, twelve-handed, &c. ; he who had the greater number of witnesses prevailing. Attempts were not lacking to import this system into the common law ; but though various statutes were passed requiring two or more witnesses in particular cases the attempts failed, and from about the middle of the sixteenth century onward the present rule began to be more or less effectively recognised (1551, Binger v. Fogossa, Plowd. 1, Digitized by Microsoft® CHAP. XL.] COEEOBOEATION, WHEN REQUIKED. 485 8, 13; 1605, ArticuU Glen, 2 How. St. Tr. 131 143-4; 1662, R. v. Tong, 6 id. '22b ; 1800, B. v. Btisby, 2 Peake N.P.C. p. 193). [Wigmore, s. 2032 ; Thayer, Pr. Tr. Ev. 179; id. Cas. Ev., 3nd ed., 1067-8; Best, ss. 66, 69]. Exceptions. On the general rule that a single witness, unconfirmed, is sufficient, the following exceptions have heen engrafted either by statute or by rule of practice at common law, there being this distinction that when corroboration is required by statute and is not forthcoming, the case must be withdrawn from the jury, whereas when it is merely required by the com- mon law, the case must be left to the jury {R. v. Basherville, 1916, 2 K.B. 658; B. V. BMherwick, 6 Cr. App. R. 281). (1) Treason. In trials for high treason, or misprision of treason (other than compassing the Sovereign's death), two witnesses are' essential, either both to the same Overt act, or one to one, and another to another overt act of the same treason, unless the accused shall willingly without violence, confess the same [Treason Act, 1695, ss. 2, 4, extended to Ireland by 1 and 2 Geo. IV. c. 24 ; Tay. ss. 952-958 ; Best, ss. 619-20; Steph. art. 122]. (2) Perjury. A person shall not be liable to be convicted of any offence against this Act, or of any offence declared by any oilier Act to be perjury or subornation of perjury, or to be pxmishable as perjury, solely upon the evidence of one witness as to the falsity of any state- ment alleged to be false [Perjury Act, 1911, s. 13; the common law rule was to the same effect, calling for the oaths of two opposing witnesses, or of one corroborated by some material and independent circumstance (Tay. ss. 959-963; Best, ss. 603-40), except where the perjury was a mere contradiction of his own prior testimony {B. v. Knill, 5 B. & Aid. 929 n)]. (3) Personation at Elections must be proved by the testimony of two credible witnesses (6 & 7 Vict. c. 18, s. 88; 35 and 36 Viet. c. 33. ss. 24, 37). So, in cases of (4) Breach of Promise, the testimony of the plaintiff must be corroborated by " some other material evidence in support of such promise " (32 & 33 Vict. c. 68, s. 2; post 489-90) ; and (5) in Bastardy that of the mother must be corroborated "in some material particular by other testimony to the satis- faction of the justices" (8 & 9 Vict. c. 10, s. 6; 35 & 36 Vict. c. 65, s. 4; Tay. s. 964; post 490). And a similar rule applies to (6) Orders of removal (39 & 40 Vict. c. 61, s. 34; R. v. Abergavenny Union, 6 Q.B.D. 31) ; to (7) offences under the Criminal Law Amendment Act, 1885, ss. 3-4; and (8) to offences referred to in the Children Act, 1908, s. 30, where the proof of such offences rests on the unsworn testimony of children, a provision which is now, by the Cr. Justice Administration Act, 1914, s. 28 (2), extended gener- ally to all offences on the trial of which such testimony is tendered. The judge should therefore direct the jury not to convict unless there is corroboration by other material evidence implicating the accused, and in default of such direc- tion, or of other ample and clear evidence, the conviction will be quashed {B. V. Davies, 85 L.J.K.B. 208). (9) It is also a rule of practice, as distinguished from one of law, that Courts will not act upon the uncorroborated testimony of Claimants to the property of deceased persons, unless convinced that such testimony is true [Bawlinson v. Scholes, 79 L.T. 350, following Be Hodgson, BecJcett v. Bamsdale, 31 Ch.D. 177, 183, and disapproving the more stringent statement of the rule in Finch v. F., 23 id. 267; see also Be Oamett, 31 id. 1; Re Harnett, 17 L.E.Ir. 543; Mahalm v. M'Ctaiagh, 27 id. 431, affd. 29 id. 496; contra, 27 Law Mag. (1901) 51.] Moreover (10) under the Motor Car Digitized by Microsoft® 486 THE LAW OF EVIDENCE. [bookii. Act, 1903, s. 9, a defendant may not be convicted merely on the opinion of one witness as to the rate of speed. But testimony of a constable as to the time marked by his watch relates to fact and not opinion, and one such witness is sufficient {Plancq. v. Marks, ante, 162-3, 171). (11) Accomplices. Although the uncorroborated evidence of an accomplice is strictly admissible, it is a rule of practice, though not of law, that the judge should warn the jury that it is dangerous to convict on such evidence alone, and in his discretion he may advise them not to do so, although he should point out that they have this right. The jury may disregard the caution and convict in spite of it; but (1) if no caution has been given; or (2) if, though a caution were given, the Court, on appeal, consider that on the facts, the verdict is unreasonable, or cannot be supported, the conviction will be quashed [B. v. BasTcerville, 1916, 2 K.B. 658, reviewing all the cases, some of which are conflicting; R. T. Tate, 1908, 2 K.B. 680, qualifying Re Meunier, 1894, 2 Q.B. 415, 418 ; for the old law respecting approvers, see R. v. Budd, Cowp. 331, 335.] As to the nature and extent of the corroboration required, it is now settled that, whether required by Statute or Common Law, (i) there must be corro- boration both as to the commission of the crime {i.e of some one or more, but not of all, the material circumstances, otherwise the evidence of the accomplice would be superfluous), and the connection of the accused therewith (R. V. Basherville, sup., following R. v. Stuiis, 25 L.J.M.C. 16) ; (ii) that where there are several prisoners there must be corroboration as to all, and the jury should be advised to acquit those against whom there is none (id.) ; (iii) tlaat the corroboration must be by some evidence other than that of another accomplice {R. y. Baskerville, sup.; R. v Noahes, 5 C. & P. 326; B. y. Gay, 2 Cr. App. E. 327). Testimony by the wife of an accomplice who has himself given evidence, is admissible, but requires a caution similar to that needed in the case of the accomplice; while if the accomplice has not himself given evidence, the testimony of his wife against her husband's co- defendants does not require any caution on the present ground, but is to be treated as that of an independent witness (R. v. Payne, 8 Cr. App. R. 171, and B v. Willis, 1916, 1 K.B. 933, both explaining B. v. Neal, 7 C. & P. 168, contra). An accomplice who is separately indicted, or who, if jointly indicted, has either pleaded guilty, been acquitted, or had his trial postponed, is a competent witness against his fellows ; but one who is jointly indicted and jointly tried is, as we have seen, altogether incompetent for the prosecution {ante, 453, 457). In the latter case, therefore, it is usual, when the accom- plice is to be called for the prosecution, to apply, before opening the case, to have him acquitted. A prisoner Jointly indicted and jointly tried, used also to be incompetent for his co-prisoners (B. v. Payne, L.R. 1 C.C. 349 ; B. v. Bradlaugh, 16 Cox, 217; Eos. Cr. Ev., 12th ed., 514); but see now, ante, 453, 457. The. rule requiring the corroboration of accomplices does not apply to two classes of accomplices: (a) Informers — i.e. persons who have joined in, or even provoked, the crime as police-spies {B. v. Bichley, 73 J.P. Eep. 239 ; or the police, who have assented thereto, B. v. Heuser, 6 Cr. App. E. 76) ; and (6) Co-defendants, where the offence is of a technical rather than a moral character, e.g. non-repair of a highway (Tay. s. 968), presence as spectators at a prize-fight {B. v. Coney, 8 Q.B.D. 534), or actions for penalties {M'Chry V. Wright, 10 Ir. C.L.E. 514; Magee v. Mark, 11 Ir. C.L.E. 449). Nor does Digitized by Microsoft® CHAP. XL.] CORROBOEATION, PACTS ADMISSIBLE IN. 487 it apply where the witness is not an accomplice in the particular crime with which the prisoner is charged, e.g. in the case of thief and receiver {R. v. Haslam, 1 Lea, C.C. 418) ; suborner and perjurer (B. v. Applegate, 28 L.Jo. 759) ; or living on the earnings of prostitution, where the female witness is guilty of the offence of solicitation, though here, on general grounds (see infra), the judge would be justified in warning the jury against accepting, without corroboration, the evidence of a female leading such a life {R. v. King, 111 L.T. 80). As to charges of incest, where the female's consent makes her an accomplice, and the eviden'ee admissible or sufficient for this purpose, see R. y. Bloodworth, 9 Or. App. R. 80 ; i?. v Dimes, 7 id. 43 ; R. v. Stone, 6 id. 89, and R. v. Brown, id. 24. Other Cases. In defended divorce cases, the Court may act on the uncor- roborated testimony of the parties if satisfied of its truth [Curtis v. C, 21 T.L.E. 676; so, in Ireland, in a husband's action for crim. con., the Court has acted on the unsupported testimony of the wife in proof of her own adultery though denied on oath by the defendant. Morrow v. M., 1914, 2 I.E. 183 ; but in Joseph v. J., 84 L.J.P. 104, the Div. Ct., in a desertion case, refused to act upon the uncorroborated testimony of the wife as to resumption of cohabita- tion, where this fact was denied by the husband]. And even in undefended cases, corroboration, though always advisable, is only essential where there are circumstances of suspicion {ante, 233; Ginger v. 0., L.R. 1 P. & D. 37; Weinberg v. W., 27 T.L.E. 9 ; Riches v. R., 35 id. 141 ; Dixon v. D., 28 L. Jo. 322, not following Harris v. H., 39 L.J. P. & D. 86, contra) ; and the same rule applies where the case is sought to be proved not by the direct testimony of the parties, but by their admissions or confessions out of Court (ante, 233-4) . Where the parties are poor the corroborative evidence may be given by affidavit {Gills v. G., 1898, Times, Nov. 8; Pollastrini ¥. P., 1900, id. Jan. 17; post, 497). So, an unwritten retainer, denied on oath by the client, was held not to be proved by an uncorroborated oath of the solicitor {Bird V. Harris, 43 L.T. 434 ; cp. Crossley v Growther, 9 Hare, 328 ; and Beddy v. Smith, 8 Ir. Eq. E. 667). Apart, also, from any specific rule of law, or practice, the judge should, in general, caution the jury of the danger of acting on the imcorroborated testimony of very young children {R. v. Pitts, 8 Cr. App. R. 126; R. v. Dossi, 13 id. 158), of the prosecutrix on sexual {R. V. Graham, 4 id. 218), or abortion {R. v. BicMey, 73 J.P. 239) charges, and of disreputable witnesses {R. v. Brown, 6 id. 24; R. v. Ellsom, 7 id. 4; R. V. Greenway, 10 id. 241; R. v. King, sup), and a conviction may be set aside if the jury have not been so warned {R. v. Brown, sup.). Facts Admissible in Corroboration. Facts which tend to render more prob- able the truth of a witness's testimony on any material point, are admissible in corroboration thereof, although otherwise irrelevant to the issue, ahd although happening before the date of the fact to be corroborated {Wilcox V. Gotfrey, 26 L.T.N.S. 481; Cole v. Manning, 2 Q.B.D. 611). But, facts which are equally consistent with the truth of such testimony, or the reverse, are inadmissible for this purpose {Fimch v. F., 23 Ch. D. 267, 272; Wiede- mann V. Walpole, irvf.; Harries v. Thomas, 86 L.J.K.B. 812; R. v. Rogers, 10 Cr. App. R. 276, 278; R. v. Watson, 8 id. 249; R. v. Monks, ante, 259). The question of the admissibility of such evidence is one of law for the judge, and not one of fact for the jury {Bessela v. Stern, 2 C.P.D. p. 267 ; Wiede- mann v. Walpole, 1891, 2 Q.'b. pp. 537, 539; R. v. Christie, 1914, A.C. 545; Digitized by Microsoft® 488 THE LAW OF EVIDENCE. [bookii. B. V. Bovy, 12 Cr. App. K. 15; B. v. Feigmlaum; 1919, 1 K.B. 431; the semhle to the contrary in B. v. Gray, 68 J.P. Eep, 337 C.C.E., per Ld. Alverstone^ L.C.J., apparently acquiesced in by four other judges, and the doubt iu Hensen v. Dixon, 96 L.T. 33, seem unsupportable). Similar Facts. Pacts similar to the main fact, although inadmissible under chaps vi., zi.-xii., ante, may be received for the present purpose [B. v. Kennaway, 1917, 1 K.B. 35; B. v. Ghitson, 1909, 3 K.B. 945; Perkins v. Jeffery, 1915, 3 K.B. 703; i?. v. Pearce, Pea. 75; E. v. Barnard, 19 How. St. Tr. 835-6; B. v. Egerton, R. & E. 375; though see Thompson v. B., 1918, A.C. 331, 333, per Lord Sumner.] Non-denial of Charge. Non-denial by a defendant of an incriminating statement made in his presence is evidence against him, not only as an admis- sion by conduct {ante, 355-7), but also to corroborate the testimony of an accomplice {B. v. Feigenbaum, 1919, 1 K.B. 431). Self-corroloration. Witness's Previous Conduct and Statements. It is often said that a witness cannot corroborate himself (B. v. Christie, 1914, A.C. 545, 557; Owen v. Molerly, 64 J.P. 88; Hodds v. Palfrey, 56 Sol. Jo. 173) ; and, where corroboration is legally required, some material evidence, independent of the witness's own testimony, is undoubtedly necessary. But where a person's conduct or statements, whether he is called as a witness or not, are evidence per se, e.g., as part of the res gesta, or as relevant under chaps, viii.-x., ante, they may, of course, be used either to confirm or contradict his subsequent testimony in the box, and in this sense a witness may eorro borate himself (see Milne v. Leisler, ante, 74; B.\. FowTces, ante, 80; O'Gor- mte, 517; and for definitions of public, judicial and private documents, amte. 514. fSteph. art. 1: Best, s. 215; Chamberlavne's Best, s. 285; Wigmore. s. 1182]. Digitized by Microsoft® 534 THE LAW OF EVIDENCE. [bookii. Principle. The general rule requiring primary evidence of litigated docu- ments, is commonly said to be based on the " best evidence " principle, and to be supported by the so-called presumption that if inferior evidence is pro- duced where better might be given, the latter would tell against the withholder. The rule, however, existed long before that principle was formulated, being, in fact, a survival of very ancient practices; and the above presumption has little, if any, application in the present day {ante, 46). History. The above rule appears to have had three disttact, 'though some- times overlapping, stages: (1) Trial by carta or document. In this stage, disputed dociiments were tried by the judge, with the help of deed-witnesses, and not by the jury. Afterwards the aid of the latter was invoked, the witnesses, however, not at first testifying in open court, but being summoned with, and giving evidence privately to, the jury {ante, 232-3; cp. Best, s. 330). (2) Profert in Pleading. The second stage is that of profert. Originally, as we have seen {ante, 232-3), the jury might go upon their own extra-judicial knowledge of facts and sometimes even of documents, e.g. in 1340 they find the existence of a record, unproduced, merely upon the faith of local repute (Y.B. 14 Ed. III. 25; and cp. Newis v. Lark, 1571,, 2 Plowd, 403 410, a) . But the rule afterwards grew up of requiring profert of all formal documents, so that the Court and opponent might test their genuineness and validity; as well as, perhaps, in deference to the ancient rule which required all affirmative pleading to be supported by the offer of some mode of proof (Steph. PL, 1st ed., 441). In the days of oral pleading this meant an actual simultaneous production in Court; but later, when pleadings were written, it meant a mere allegation of profert, satisfied by private inspection before trial. Strictly, however, profert belonged to the stage of pleading, not of trial; and was confined to civil cases, and to deeds and records that were pleaded. Profert was abolished by the Common Law Procedure Act, 1852, 8. 55. (3) Production in Evidence. When pleading and production were simultaneous, profert was tantamount to a rule of evidence; and even later, when the two stages became distinct, the rule of evidence at the trial appears to have followed the rule of pleading. Finally, from about the end of the seventeenth century, the same analogy led to a general rule requiring actual production at the trial of all documents, whether covered by the pro- fert rule or not. The earliest traces of this rule appear in civil cases in 1571 {Newis V. Lark, sup.), and in criminal ones in 1640 {R. v. Strafford, 3 How. St. Tr. 1427, 1433-4). As to the gradual allowance of secondary evidence when the document itself was not forthcoming, see ante, 48. [Wigmore, s. 1177; Steph. Plead., 1st ed., 86-9, 439-42; Thayer, Pr. Tr. Ev. 12 9V112' 503-5.] ' Scope of Rule. The present rule applies only to proof of the contents of documents and not to cases involving their existence or identity, e.g. proceed- ings for conversion, detention, negligent loss or theft, for here there is no distinction between a document and other articles (ante, 47, 496), and the plaintiff is not bound to put it in, even though the defendant may be willing to produce it (Tay. ss. 407-8; Bucher t. Jarrett, 3 B. & P. 148.) Cases of forgery, however, stand upon a somewhat special footing, since among other reasons a minute examination of the instrument and its contents is often vital (Tay. s. 408; cp. post 545). Digitized by Microsoft® CHAP. XLiii.] PEIMAEY BYIDENCE OF DOCUMEN.TS. 535 PEIMARY EVIBENCE. Forms of. Primary evidence of the contents of a docTiment may be given by Production of the original ; by Admission • or by Copy made under public authority. (1) Production of the Original Document. History and Present Practice. The rule requiring original documents to be produced in Court, has, as we have just seen, been traced through three stages, which may be further ampli- fied here, viz : (1) as a form of trial (by carta, or document) ; (2) as a require- ment of pleading (profert and oyer) ; (3) as a rule of evidence. In the first stage, disputed documents were tried by record, Doomsday Book, certificate and the like, production was essential, deeds being tried by their attesting wit- nesses eiliier before the judges, or later before juries, with whom such wit- nesses were joined. In the second stage, when pleadings were oral, production was also essential, allegation and profert being simultaneous; afterwards, when pleadings were written, profert though still necessary, was deferred until oyer was demanded, the deed being then produced to the opponent and a copy given. If, however, it were not pleaded, it could not be put in evidence unless required by the jury; while if neither pleaded nor put in, no verdict could in general be founded thereon. But although the doctrine of profert (abolished in 1853) had always implied a corresponding production of the original writing, there had grown up during its currency a quite distinct and much wider rule of evidence, not covered by the profert rule, which latter was strictly confined to civil cases, and to deeds or records in issue therein. During the 16th and 17th centuries there appears indeed to have been only a fluctuating enforcement of production in the case of other original docu- ments, whether in civil or criminal trials; but from that date onward the modern rule began to emerge by which, in the case of private writings of all kinds, _ and subject to certain exceptions, production of - such originals is essential, both in civil and criminal proceedings. [Wigmore, Ev. ss. 1177-86 ; Thayer, Pr. Tr. Ev. 105-112, 503-5; Stephen, Pleading, 1st ed. (1824), 86-9, 4:39-42; ante, 47-8]. So, in proving handwriting by comparison, both the disputed and the genuine writings must be produced {ante, 108). As to the production of original documents used to refresh memory, or to contradict a witness, see ante, 470, 480. The rule requiring originals has, however, been largely modified in the case of public and judicial documents, since here removal from their proper place of deposit, at the call of individuals, entails so much inconvenience and risk that proof of such documents by secondary evidence has long been allowed and sometimes compelled, though the original may be actually in Court {post, 543, 560; Tay. 8th ed. ss. 438, 1598; Best, s. 486; Marsh v. Colnett, 2 Esp. 665). Thus, it has been held that, even in criminal cases, production of the originals of parish registers, books of the Bank of England, books of Customs and Excise, land-tax assessments and answers in chancery, cannot, if refused by their custodians, be enforced {Sayer v. Glossop, 2 Ex. 409 ; Mortimer v. M'Callan, 6 E. & B. 58 ; R. v. King, 1782, 2 T. E. 234; Atherford v. Beard, id. 610, 615), though it is said to be otherwise with rate-books {R. v. Llanfaethly, 3 E. & B. 940; post, 537). So, bankers'-books generally {ante, 375-6), and records of the Supreme Court {post, 556), are now only producible for special cause and by order of a judge. In Peerage claims, however, it is still the practice in English, but not in Scotch or Irish, cases, to require the originals of. parish registers. Digitized by Microsoft® 536 . THE LAW OF EVIDENCE. [bookii. inquisitions post mortem, and the like, to be produced (Hubb. Ev. of Succ. 535, 590, 608, 643, 677-9, 691) ; although since the Public Eecord Office Act, 1838, copies of these documents are at all events admissible (Fitzwalter Peer- age, Hubb. 608; Saye and Sele Peerage, 1 H. & C. 507; post, 552, 554). With regard to judicial documents, Mr. Taylor states that the production of the original record is still also compulsory on pleas of nul tiel record, and (unless the document be lost, destroyed or in possession of the prisoner) on charges of forgery of a record, or perjury in an affidavit (s. 1535). Sir J. Stephen, however, remarks that the authorities seem hardly to bear out either statement : " they show that production in such cases is the usual course, but not, I think, that it is necessary " (Dig. note xxx. ; post, 556) . What are Originals. Duplicates and Counterparts (Discrepancies, indorse- ments, <&c.). Bought and Bold Notes. Policies and Slips. Telegrams. Printed Works. It is not always easy, however, to determine what is the original document so as to constitute primary evidence in this sense; and sometimes the same document is primary for one purpose and secondary for another. Where there are duplicate originals, i.e. two documents both fully executed by each party — both are considered primary evidence; in the case of counterparts — i.e. where each document is fully executed by one party only — they are primary evidence against the executing party and his privies (post, 545), but secondary evidence only against the non-executing party or his privies, except in cases of ancient possession {ante, 112). Where there are discrepancies between a lease by deed and its counterpart, the former will in the absence of evidence be presumed correct {Burcliell v. Olarh, 2 f'.P.D. 88; past, 613) ; but a patent ambiguity therein may be corrected by the latter {Matthews v. Smallwood, 1910, 1 Ch. 777) ; and where they differ, and are not by deed, a signed draft may be looked at to ascertain- the true contract {Inglety v. Slack, 6 T.L.E. 284; as to evidence to decipher or supply obliter- ated words, cp. ante, 394, 520). With respect to the stamp, the counterpart sealed'by the lessor or grantor is deemed the original (Tay. s. 426; Stamp Act, 1891, s. 72). Endorsements on deeds, bearing the same date but proved to have been written before execution, are considered as part of the same instrument and admissible to qualify its terms {Keele v. Wheeler, 8 Scott, N.E. 323; Be Howlan, 34 Ir. L.T.E. 109). As to memorials of deeds, see post, 541, 547. In the case of broker's contracts, the bought and sold notes are generally considered primary evidence of the contract; but if there are none, or if they disagree, the original signed entry in the broker's book may be looked at; while if there be no such entry, and the notes disagree, there is no contract, unless the difEerenccs can be reconciled, or shown to be only apparent, by proof of mercantile usage {Bold v. Rayner. 1 ]\r. & AV. 343; Kempson v. Boyle, 3 H. & C. 763 ; cp. Moore v. Campbell, 10 Ex. 323, 330- 331). In the case of Fire insurance, the broker's Slip has been held a binding contract, and where no policy existed has been itself enforced {Thompson v. Adams, 23 Q.B.D. 361; cp. post, 612, 633). Whether, in cases of Marine In- siirance, on refusal to execute a policy, the slip can be stamped after subscrip- tion, either as a policy, or as a contract to execute one, seems doubtful ifMarine Ins. Act, 1906, s. 23; Stamp Act, 1891, ss. 91, 93, 95, 97; and see an article by Arthur Cohoii, K.C., 30 L.Q. E,ev. 31; Arnould, Mar. Ins., 9th c(l.. s. 34-8, 103 ; Chalmers, M.I. Act, 3nd cd., ss. 35-6, 140]. By s. 31 of- the Digitized by Microsoft® CHAP. XLiii.] PEIMARY EVIDENCE OP DOCUMENTS. 537 M.I. Act, 1906, however, the slip is admissible though unstamped, to show when the proposal was accepted; and imder s. 89 for other customary purposes, e.g. to correct an error in the name of the ship {lonides v. Pacific Co., L.E. 6 Q.B. p. 685), to show when the assured's knowledge ceases to bo "material" {Carry v. Patton, L.R. 7 Q.B. TO-i), to identify documents referred to {Lower Rhine Assn. v. Sedgwick, 1899, 1 Q.B. 179), or to rectify the policy for mutual mistake {Empress Assce. Corp. v. Powering, 11 Com. Gas. 107, 114). Where rectification is not involved and the slip and policy differ, the former was in one case held to prevail {Western Assce. Corp. v. Poole, 8 Com. Cas. 108, 118), and the latter in another {Pritish, &c., Co. v. Sturge, 2 id. 24:4:), As to the effect of two slips, see Scottish Natl. Ins. Co. V. Poole, 18 id. 9. In a criminal case, an Office Sidings-book, made up from a Sidings-book kept at the Sidings tliemselves, has been held sufficiently original to be admitted without accounting for the absence of the latter {B. v. Albutt, 6 Cr. App. R. 55). [Tay. ss. 430-423; Ros. N.P. 531-533.] The original of a telegram is the one sent, not the one delivered {Henhel v. Pape, L.R. 6 Ex. 7; Godwin v. Francis, L. R. 5 C.P. 395) ; and this must be pro- duced from the post office, or else proof of its destruction given, when a copy will be admissible {B. v. Began, 16 Cox, 203). So, if the copy of a letter be the document sent, this, and not the letter, will be the original {per Judge Woodfall, Westminster Cy. Ct., Time^, A\\ 2:, 1912, p. 4; Stoire v. Querner, inf.). As to notarial protests, probates, &c., see infra, (3). Where a number of documents are made by a uniform process, as printing, lithography, or photography, each is primary evidence of the contents of the rest {B. T. Watson, 3 Stark, p. 139), but only secondary evidence of the common original {Nodin V. Murray, 3 Camp. 238). [Steph." art. 64; post, 540.] Production of Original, how Obtained. ■ Identification. When a party desires to obtain an original document which is in the hands of : ( 1 ) /( is opponent, the latter may be served either with a notice to produce, under which production is optional, or with a subpoena duces tecum., under which it is compulsory {ante, 443); when it is in the hands of (2) (( stranger, a subpoena is the proper process {ante, 442), except in the case of certain documents {e.g. parish registers, whose production cannot be compelled on subpoena, Sayer v. Glossop, ante, 535 ; though this does not extend to Rate- books whoso production may be so compelled, B. v. Llanfaethhj, 2 E. & B. 940), or judicial documents {post, 543) or banker's books {ante, 375-6); or when the production is required not at the trial but only on motions, d-c. {ante, 442), when a judge's order is necessary. In criminal cases, however, the prosecutor, not being strictly a party, must be subpoenaed to produce any necessary documents in his possession ; while in the case of the prisoner, the proper process is a notice to produce, and not a subpoena (Archb., Cr. PL, 24th ed., 375; B. v. Ehtorthy, L.R. 1 C.C, p. 103). When an original docu- ment is produced it must, unless it has been admitted, or is a public document receivable on its mere production, be identified on oath as being what it pur- ports to be. (2) Admissions. Admissions of the contents of a document made either orally, in writing, or by conduct, are primary evidence thereof against a party, without notice to produce or accounting for the absence of the original, such proof not being open to the same objections as is parol evidence from other Digitized by Microsoft® 538. THE LAW OF EVIDENCE. [bookii. sources (Slatterie v. Pooley, 6 M. & W. 664; ante, 234). Thus, to prove that a certain debt was included in a composition deed, inadmissible because not duly stamped, the defendant's admission to that effect was received {id.; cp. Haughton v. Ewehank, ante, 96). So, Recitals in a deed are, between the parties thereto, primary evidence of so much of the prior document as is actually recited ; the other part must, however, be proved in the ordinary way {Gillett V. AUott, 7 A. & E. 783; post, 684); and the Memorial of a deed, executed by the grantor, is primary evidence against his successor, both of its contents (Wollaston v. Hakewill, 3 M. & G. 297; Millers. Wheat- ley, 28 L.E.I. 144), and, even though the original be produced, of the date of interlineations therein {Brown v. Armstrong, I.E. 7 C.L. 130), or that an endorsement on a produced deed was part of the deed {Be Hqwlan, 34 Ir. L.T.E. 109) ; and where tendered as primary evidence against a party or his successors, proof of search for the original deed is not necessary {Sinnot V. Kehoe, 1 Ir. L.T. Jo. 5). As to Abstracts, see Pritchard v. Bagshawe, 11 C.B. 459. The tender of the engrossment of a deed for execution, though not an estoppel, is also an admission under this head {Bulley v. B., L.E. 9 Ch. 739) ; and the same rule holds where Copies of documents have been delivered by a party {Stowe v. Querner, L.E. 5 Ex. 155, 159 ; Boulter v. Peplow, 9 C.B. 493; R. Y. Hunt, 3 B. & Aid. 566), or knowingly used by him as true in a previous trial {ante, 257, 261). So, where the admission has been made by a party's predecessor in title, or others in privity with him [Price V. Wood- hotise, 3 Ex. 616, cited ante, 261, in which a copy of a judgment that had heen dealt with by such predecessor was held primary evidence against the successor, though another copy of which was merely found deposited among his papers was only received as secondary evidence after proof of the existence and loss of the original]. (3) Copies made under Public Authority. In a few cases, copies of an original document made under public authority are receivable as primary evidence thereof. Thus, probate of a will of personalty is primary evidence of the will and its contents, the original will not being even admissible, though it may be looked at for purposes of construction {Pinney v. Hunt, 6 Ch. B. 98 ; Re Harrison, 30 Ch. D. 390 ; Be Battie-Wrightson, 1920, 2 Ch. 330) ; and where proof is required of a declaration of a deceased person con- tained in a will, the will itself is primary evidence and the probate secondary only {ante, 311) . So the Act Book, or register, containing an entry of the pro- bate, or even a certificate or examined copy of either, is primary evidence, and receivable without accounting for the non-production of the probate {Cox v. Allingham, Jacob, 514; Dorrett v. Meu^, 15 C.B. 142; 14 & 15 Vict. c. 99, s. 14; post, 528-9). The same rule has been held to apply to Notarial instruments, a duplicate made at any time from the original or protocol in the notarial book being considered equivalent to an original drawn up at the time of the entry {Oeralopulo T. Wieler, 10 C.B. 690; Tay. s. 424; cp. post, 548 ; but see as to notarial copies of other instruments. Permanent Trustee Co. v. Pels, 1918, A.C. 879, ante, 366, post, 548, 560). So, also, copies of public registers made under the authority of statute or common law are themselves sometimes regarded as original documents, and provable by copies {ante, 346) ; and the same view has been taken of a copy, similarly made, of an ancient statutory siirvey {Poole v. Griffith, cited ante, 357) ; and of enrolment and Digitized by Microsoft® CHAP. XLiii.] SECONDAEY BVIDEHCE OF DOCUMENTS. 539 memorials of Grown leases, which are themselves primary evidence and prov- able by authenticated copies {Rowe v. Brenton, 3 M. & Ry. p. 318). SECOMDARY EVIDENCE. FORMS OF. Secondary evidence of the contents of docximents must be legitimate and trustworthy evidence, inferior to prim- ary solely 4n respect of its derivative character, and 'must not consist of conjectural or illegal matters (Best, ss. 483, 485 ; Gulson on Proof, s. 393 ; ante, p. 6). Its chief admissible forms are Copies; Oral Testimony; Admissions; Circumstantial or Presumptive Evidence; and Declarations, made either in Public Documents, or by Deceased Persons. (A) Copies may be: (1) Government Printer's Copies — i.e. copies printed by tiie King's printer, or the Government printer, or under the authority of his Majesty's Stationery Office (Documentary Evidence Act, 1882, s. 3) ; or that of the Legislature of any British colony or possession (31 & 33 Vict. c. 37, ss. 2, 3). (3) Government Gazette Copies {ante, 337-8). (3) Copies sealed by foreign States, Courts, Officials, and Notaries — i.e. copies sealed with the seal of any foreign or colonial State or court of justice (14 & 15 Vict. c. 99, s. 7), e.g. copies authenticated by a foreign court of an original will in its possession either for probate or for mere custody {Re Brown, 80 L.T. 360; post, 548, 560). So, a copy under the hand and seal of a Persian religious official has been received {Re Dost Aly Khan, 6 P.D. 6). As to Notarial copies, see sup. 538, and post, 548. (4) Exemplifications. An exemplification (a medium of proof now practically obsolete) is a copy of the whole of a record set out either under the Great Seal, or under the seal of the Court in which the record is preserved. Both species of exemplifications are provable by mere production, their seals being judicially noticed {ante, 23), and they are of higher credit than ordinary examined copies, being presumed to have undergone a more careful comparison. The records now, however, are never made up {post, 550; Odgers, PL, 6th ed., 292). [Tay. ss. 1536-1537; Ros. N.P. 96; Steph. art. 77.] (5) Examined Copies. An examined copy is a copy sworn to be a true copy by a witness who has himself examined it line by line with the original {Reid v. Margison, 1 Camp. 469) ; or, which is necessary only in peerage cases, who has alternately with such person read and examined both {Crawford Peerage, 2 H.L.C., p. 544; Slane Peerage, 5 C. & F. 23, 42). The original must be in characters and a language which the witness understands {Crawford Peerage, sup.) ; and the copy must not contain abbreviations not appearing in the original {R. v. Christian, Car. & M. 388). A copy examined merely with a completed draft which latter had not itself been examined ' with the original ; or one which is " practically accurate," or sets out only "the material parts" of the original, has been rejected {Re Halifax Co., 79 L.T. 183, 536) ; as, also, a paper, kept in the same muniment room as a lost deed, purporting to be an attested copy thereof, and to have been examined with the original, but no evidence of such examina- tion being forthcoming, though the death and handwriting of the witnesses, who attested both and appeared to be the same persons, were proved {Brind- ley X. Woodhouse. 1 C. & K. 647). It may also be necessary to show that the original was in proper custody {Adamthwaite v. Synge, 1 Stark. 183). Examined copies are, at Common Law, the original and legitimate means of proving, as secondary evidence, every species of document, public, judicial Digitized by Microsoft® 540 THE LAW OP EVIDENCE. [bookii. or private, but are not now usually employed where office or certified copies are available. (6) Office Copies are copies made in an office of the High Court, and authenticated by an officer who has the custody of the original document, and is empowered to furnish copies either by law, or by a rule of Court; and they are admitted upon the credit of such officer, without proof of examination with such originals. Office copies of all writs, records, plead- ings, and other documents filed in the High Court are admissible therein to the same extent as the originals (0. 37, r. 4) ; but copies made by officers authorised not by law, but merely by a rule of Court, are only admissible in the same Court and cause. All copies, certificates, and other documents appearing to be sealed with the seal of the Central Office, are now presumed to be office copies, or certificates, or other documents issued from the Central Office, and, if duly stamped, may be received in evidence, and no signature or other formality, except the sealing with the seal of the Central Office, shall be required for the authentication of any such copy, certificate, or other document (0. 61, r. 7). Office copies are the usual means of proving judicial documents (except in the Probate and Divorce Division, where examined copies are required, Div. E.R. 118-20), and such private documents as are required to be registered or enrolled, e.g. Bills of Sale, acknowledgments by Married Women, &e. {post, 564-5). Office copies should be checked and initialled by two clerks, and not by one mejely {Coleman v. C, 40 L. Jo. 789). [Tay. ss. 1538-1547; Eos. N.P. 98; Steph. art. 78.] (7) Certified Copies. A certified copy is a copy signed and certi- fied as true by the officer to whose custody the original is entrusted; and it is admitted, in the same way, upon the credit of such officer without examination with the original. Unless, however, otherwise .provided by statute, a certified extract or a certificate of the result or effect of a document is not admissible {Finlay v. F., 31 L.J. Mat. 149 ; B. v. Newman, Dears. C.C. 85, as to which case see Eos. N.P., 17th ed., 211; ante, 363). If certificates purport to be verified in the manner provided by the statutes which render them admissible, they may be given in evidence without proof of the seal, signature, or official character of the party verifying them (Evidence Act, 1845, s. 1). Certified copies are the usual means of proof of such public non- judicial documents as registers and the like.; and they are also sometimes used in the case of judicial documents. [Tay. ss. 1599-1659; Ross. N.P. 99- ]03; Steph. art. 79,] Under the Children Act, 1908, s. 124, proof of wages may be given by a copy of an entry in the employer's wages book or where there is no wages book by a statement signed by the employer or any respon- sible person in his employ. (8) Machine, Print, and Photographic Copies. A copy made by a copying machine is regarded only as secondary evidence of the original {Nodin v. Murray, 3 Camp. 228). And printed, lithographed, and photographed copies — though, as we have seen, primary evidence of each other's contents — are merely secondary evidence of the common original {niite, 537). In Re Stephens, L.E. 9 C.P. 187, photographs of non-remov- able records were received; but the accuracy of a photographic copy, par- ticularly of external objects, must, like that of a map or plan, be established on oath, to the satisfa'ction of the judge, either by the photographer or some one who can speak to its correctness {Hindson v. Ashby, 1896, 2 Ch. 21-22). Where the photograph is tendered merely as a .ueneral representation of Digitized by Microsoft® CHAP. xLiii.] SECONDARY EVIDENCE OF DOCUMENTS. 541 physical objects, slighter proof will be required than when matters of detail are all-important, as in cases of disputed handwriting. In a criminal case, a photograph has been held admissible to show the permanent and material structure of a house, but not the interior disposition of the furniture, &c., which was required to be proved by witnesses {R. v. Lawton, 30 Ir. L.T. Jo. 4; cp. ante, 398-9). (9) Counterparts, Drafts, Minutes, Abstracts, Recitals, Memorials. Coimterparts, though primary evidence against the parties .executing them, are, .as we have seen {ante, 536), only secondary evi- dence against the non-executing party. So, a facsimile or " coimterpart original " of a notice under the Public Health Act, 1875, has been held admis- sible as secondary evidence if proper steps have been taken to excuse production of the original {Andrews v. Wirral, B. G. 1916, 1 K.B. 816; post, 545). And drafts from which, by their indorsements, the deeds appear to have been engrossed, are secondary evidence of the deeds even against strangers {Waldy v. Gray, L.E. 20 Bq. 238, 250; B. v. HuntO; 4 C. & P. 128; ante, 292; as to drafts of wills, see Sugden v. St. Leonards, ante, 331); but drafts cannot be read unless it be shown that the original was copied from them, and even then the engrossment may have been altered before execution without the corresponding alterations being made in the draft (Powell, Ev., 9th ed., 366). And minutes of a judgment are receivable as secondary evi- dence of the judgment {Neill v. Devonshire, 8 App. Cas. p. 188). An abstract compared with a deed of feoffment has been held good secondary evidence of the latter, no proof being given on either side of the existence of a copy {Doe v. Wainwright, 5 A. & E. 520 ; Moulton v. Edmonds, 29 L.J. Oh. 181; Doe v. Wittcomb, cited ante, 291); but an abstract not produced from proper custody or supported by proof of execution of the original deed has been rejected {Devonshire v. Neill, 2 L.R.I. p. 166). And recitals, though generally speaking only evidence between the parties to the deed {ante, 112, 234), are on questions of title receivable as secondary evidence of missing deeds even between strangers {Moulton v. Edmonds, sup.). So, memorials, executed either fully, or by the grantor or grantee alone, and in accordance with which possession has for a long time gone, or even examined copies of the register, have been received not only as primary evidence against the parties to the deeds {ante, 538), but, after proof of search for the originals, as secondary evidence thereof even against third persons {Sadlier v. Biggs, 4 H.L.C. 435; Scully v. 8., 10 Ir. Eq. E. 557; Smith v. S., 1 L.R.I. 206; Moffett V. Gough, id. 331; Miller v. Wheatley, 28 L.R.I. 144; Chism v. Lip- sett, 1905, 1 Ch. 60; cp. Be Attlay, post, 564). (B) Oral Testimony and Admissions. In addition to testimony as to exaipined copies {ante, 539), the contents of private (but not generally of public or judicial) documents may be proved as secondary evidence by any witness who has in fact read them. A party cannot, however, be compelled by his opponent to admit the conteats of documents unproduced in the witness- box {ante, 476), although his admissions out of court afford primary, or some- times secondary, evidence of such contents against himself {ante, 537-8). (C) Circumstantial or Presumptive Evidence. In some cases the contents of a lost document may be proved presumptively, e g. by the parties having acted in accordance with its supposed terms {B. v. Pordinglridge, ante, 128 ; and for evidence inadmissible under this head, see Smith v. S., ante, 128). Digitized by Microsoft® 542 THE LAW OF EVIDENCE. [bookii. (D) Entries in Public Registers. In a few cases entries in public registers have been received as secondary evidence of lost documents (see Humble v. Hunt, Coombs v. Coether, Bidder v. Bridges, cited ante, 347; Irish Society V. Derry, cited ante, 359; A.-G. v. Horner (No. 2), 1913, 2 Ch. 140, 157-8; and cp. ante, 538). (E) Statements by Deceased Persons., Statements or entries made by deceased persons under circumstances entitling them to admission as excep- tions to the hearsay rule, may be tendered as secondary evidence of the con- tents of documents. Thus, an entry against interest made in a rent-book by a deceased landlord has been received as secondary evidence of a lost lease (ante, 283). So, copies in the handwriting of deceased clerks made w the course of duty to their employers, if conforming to the necessary require- ments, but not otherwise, are admissible as secondary evidence of documents {ante, 291-2). And declarations by testators, and drafts authenticated by them, have been received as secondary evidence of a lost will, ante, 331. As to the admissibility of copies and abstracts of deeds, &e., on questions of pvilic and general interest, see, however. Doe v. Wittcomb, ante, 296, 302. Inadmissibk Forms. Copies of Copies, &c. Among inadmissible forms of secondary evidence are copies of copies, which will, in general, be excluded: [R. V. Hains, (1695), Comberb. 337 (copy of probate as evidence of the will) ; Liebman v. Pooley, 1 Stark, 167; Everingham v. Roundell, 2 M. & E. 138; McCullough v. Munn, 1908, 2 I.E. 194, 205, C.A.; Re Halifax Co., 79 L.T. 183, 536, where the copy was sworn to have been examined with a " complete draft " of the deed, but there was no proof that the draft had been compared with the deed] ; though it is otherwise if the second copy is proved to have been compared with the first, and the first with the original {Lafone T. Griffin, 25 T.L.E. 308; Re Halifax Co., sup.; Eos. Cr. Ev. 12) ; and copies of copies have been held copies of the original under the Copyright Act, 1862 (Davis V. Baird, 38 Ir. T.L.E. 23; Johnson v. Hudson, 7 A. & B. 233 n; and cp. Newmarh v. National Co., 51 Sol. Jo. 412). Shorthand notes of the reading out of a deed by an officer of the Court, or by one of the counsel in a former action, are inadmissible under this head, where the parties to the second action are not the same, and even, perhaps, where they are so (Doe v. Ross, 7 M. & W. 102, 122-3). Nor can the contents of a document be proved by a witness who has merely heard it read (Nichols v. Kingdom Co., 56 N.Y. 618). Nor are certified extracts from, or certificates of the effect of, docu- ments admissible (ante, 363). As to notarial copies, see ante, 366; post 548, 560. No Degrees of Secondary Evidence. The general rule is that there are no degrees in secondary evidence; and that a party is at liberty (subject to com- ment if more satisfactory proof is withheld) to adduce any admissible descrip- tion he may choose (Brown v. Woodman, 6 C. & P. 206 ; Doe v. Ross, 7 M. & W. 102; Hall v. Ball, 3 M. & G. 242; Tay^ ss. 550-553; Best, s. 483). The reason assigned is the inconvenience of requiring evidence to be strictly marshalled according to weight; and of compelling a party, before tendering inferior evidence, to account for the absence of all which is of superior value, but the very existence of which he may have no means of ascertaining (Doe V. Ross, sup.; Tay. s. 551; formerly, however, the Best Evidence principle was apphed, secondary evidence being marshalled strictly according to degree, ante, 48). Exceptions. There are, however, exceptions to the rule. Thus', Digitized by Microsoft® CHAP, xiiii.] SECONDARY EVIDENCE, WHEN ADMISSIBLE. 543 when the originals are not required, as to which see ante, 535, (1) the con- tents of Puilic Documents are provable by copies properly authenticated, and not by oral evidence {Breton v. Cope, 1 Peake, 43 ; Marsh v. Collnett, 2 Bsp. 665; Best, s. 485), and only when tiie originals are lost and copies are not obtainable will such evidence be admitted {Thurston v. Slatford, 1 Salk. 284; Macdougai T. Young, Ey. & M. 392) ; though aliter as to mere proof of handwriting therein {ante, 400). So, documents from the Eecord Office must, in the absence of the originals, be proved by certified copies (Public Record Office Act, 1838, ss. 12-13; post, 524; Tay., 8th ed., s. 1600, note 10) ; and though in criminal cases Non-parochial registers must be produced {ante, 535), in civil cases they are provable by certified and not by other copies (Re Woodward, 1913, 1 Ch. 392; ante, 400). And generally (2) Judicial Documents are provable by office, certified, or examined copies and not by oral evidence [B. v. Bourdon, 2 C. & K. 366 ; ; Hartley v. Hindmarsh, L.R. 1 C.P. 553, 556; Mash v. Darley, 1914, 3 K.B. 1226, C.A.; post, 556-63; Mr. Best remarks that in few, if any, instances is oral evidence receivable to prove the contents of a record, or public book, which is in existence (s-485) ; post, 556-63] ; and in the case of Depositions, parol testimony, or a copy of the deposition, can only be given when the original is lost, destroyed, in the possession of the opposite party who refuses to produce it after notice {R. v. Wylde, 6 C. & P. 380; but cp. Tod v. Wiru;helsea, post, 569-70), or inadmissible because not complying with the statute {R. v. Erdheim, 1896, 2 Q.B. 260; ante, 215). Cases in which Secondary Evidence is Admissible. Secondary evi- dence of the contents of documents, may, provided the originals would them- selves be admissible, be given in the following cases : (1) When the Original is a Public or Judicial I>ocument, or a Private one required by law to be enrolled, or registered. By reason of the great incon- venience and risk which would attend the removal of documents of publie concernment at the call of private individuals, the contents of public docu- ments, whether judicial or non-judicial, are generally allowed and sometimes required to be proved by secondary evidence, and without notice to produce the originals {ante, 535; Tay. 8th ed., ss. 439, 1598; Best, s. 485). Indeed, no affidavit or record of the Court can, without the order of a judge or master, be taken out of the Central Office; nor can a subpoena for the production of such document in any case be issued (0. 61, r. 28). So, no banker or officer of a bank, is, in any legal proceedings to which the bank is not a party, com- pellable to produce tiie bank books, or to appear as a witness to prove their contents, unless by order of a judge for special cause (Bankers' Books Evi- dence Act, 1879, s. 6; ante, 375, 442, 537). And where documents, even of a private nature, require to be enrolled or registered, secondary evidence thereof is generally admissible {ante, 530; post, 563-5). (2) When the Original is in the Possession of the Adversary. "When a document is in the possession of the adverse party or of some one bound to give up possession thereof to him [e.g. his solicitor {Irwin v. Lever, 2 F. & F. 296 : R. v. Hunter, 4 C. & P. 128) ; banker {Partridge v. Ooates, Ry & M. 156) ; deputy {Taplin v. Atty, 3 Bing. 164) ; agent or servant {Baldney v. Ritchie, 1 Stark. 338 ; contra, R. v. Pearce, Peake, N.P. 75) ; but not a stake- holder {Parry v. May, 1 M. & R. 279; assignee {Knight v. Martin, Gow. R. Digitized by Microsoft® 544 THE LAW OF EVIDENCE. [bookii. 103) ; nor person under whom the adversary justifies in an action of trespass {Evans v. Sweet, Ey. & M. 83)], and such party refuses to produce it either after notice, or when notice is excused, the other party may, in civil cases, provided that it was duly stamped (ante, 531), give secondary evidence of its contents. If the adversary has not appeared, this rule is said still to hold, unless he is abroad, or his address is unknown {Oase v. G., 2 L.T. 391, per Willes, J.). The possession may be proved by showing that the document was last seen in the adversary's hands; or by calling his solicitor, who may be compelled to testify to its possession {ante, 206) ; or by the admission of his counsel {Buncombe v. Baniell, 8 C. & P. 223) ; or, presumptively, by showing that it belongs exclusively to him, or would in the ordinary course of business be in his custody {Henry v. Leigh, 3 Camp. p. 503; Roibi v. Starkey, 2 C. & K. 143; Tay s. 440.) The adversary may, on the other hand, interpose evidence to disprove the possession; but he cannot escape the effect of the notice by voluntarily parting with the document after the notice, or even perhaps before, imless he discloses the name of the transferee {Knight V. Martin, sup.; Sinclair v. Stevenson, 1 C. & P. 582), Notice to Produce. The object of a notice to produce is to enable the adversary to have the document in court, and if he does not, to enable his opponent to give secondary evidence thereof, so as to exclude the argument that the latter has not taken all reasonable means to procure the original {Dwyer v. Collins, 1 Ex. 639, 647). It must, in civil cases (0. 31; r. 16; 0. 33, r. 8; 0. 66, r. 1), but not in criminal {Smith v. Young, 1 Camp. 439), be in writing, and be served either on the party or his solicitor; but it is sufficient to leave it with a servant at the residence of the former, or with a clerk at the office of the latter {Evans v. Sweet, Ey. & M. 83; Boe v. Martin, 1 M. & Eob. 342). The service on ordinary days should be before 6 p.m., and on Saturdays before 2 p.m., (0. 64, r. 11). The sufficiency of the service, however, is for the judge, who must be satisfied that it was such that the recipient might, by using reasonable diligence, have complied with the notice {Lloyd v. Mostyn, 10 M. & W. 478). Proof of the fact and time of service may be given by affidavit of the solicitor or his clerk (0. 33, s. 8) ; and fresh notices are not necessary on a new trial {Hope v. Beadon, 17 Q. B. 509). The form of notice may, unlike that of a subpoena duces tecum {ante, 442), be general — e.g. to produce " all accounts relating to the matters in question in this cause " {Rogers y. Custance, 2 Moo. & Eob. 179) ; or " all letters written by the plaintiff to the defendant relating to the matters in dispute in the action " {Jacob v. Lee, 2 M. & Eob. 33 ; Morris v, Hauser, id. 393). And a notice to produce "a letter purporting to enclose an account " will let in secondary evidence of the account {Engall v. Bruce, 9 W.E. 536) . But a notice to produce " all letters'" {Gardner v. Wright, 15 L.T. 335, per Blackburn, J.), or " letters and copies of letters, and all books relating to the cause" {Jones v. Edwards, M.'Cl. & Y. 139), has been reld too vague to admit secondary evidence of a letter ; as also has a notice to produce " all plaintiff's books of accounts containing entries of dealings between him and defendant for Sept. 1896; and all letters from defendant or others to plaintiff relating to relevant matters" (44 Sol. Jo. 95, per Kekewich, J.). The proper way is for a party to refer to the specific description given in his opponents' affidavit of documents {id.). Inaccuracies, however, will not Digitized by Microsoft® OHAP. SLiii.] SECONDAEY EVIDENCE, AVHEN ADMISSIBLE. 545 vitiate a notice unless the recipient has been misled thereby {Lawrence v. Clarice, 14 M. & W. 250). If the document when produced is inspected or used by the party calling for it, he thereby makes it his evidence ; but it is otherwise when, though produced, he declines to inspect or use it (Sayer V. Kitchen, 1 Esp. 210; ante, 477) ; and when it is not produced, the non- producing party cannot afterwards give it in evidence {ante, 477). When Notice to Produce is unnecessary. Notice to produce the original is not necessary — (a) when the document tendered is a duplicate original, or a counterpart executed by the opponent {ante, 536), since here the evidence is primary and not secondary {Houghton v. Eoenig, 18 C.B. 235; Tay. s. 449. A.; Eos. N.P. 3); (b) when the document to be proved is itself a notice which has been served on the adversary {Re Turner, 1910, 1 K.B. 346; though not on a third person, Eoiinson v. Brown, 3 C.B. 754; Andrews v. Win-al B.C. 1916, 1 K.B. 863, ante, 541 — e.g. a notice to produce, or to quit, or of action, or of the dishonour of a biU when the action is brought upon the bill (Tay. ss. 450-451), or of intention to remove a building, pursuant to a by-law under the Public Health Act, 1875 {Andrews v. Wirral B. C. sup.), or of an intention to add a charge of habitual criminality to an indieiment {B. v. Turner, sup.) ; (c) where, from the nature of the case, the adversary, must know that he will be charged with the possession of the instrument {ante, 523) — e.g. in trover for a bond {Scott v. Jones, 4 Taunt, 865 ; Bucher v. Jarrett, 3 B. & P. 143) ; or on a charge of theft of the document (B. v. AicMes, 1 Lea. pp. 297 n, 300 n, approved in B. v. Elworthy, L.K. 1 C.C. 103 ; contra, B. V. Farr, ante, 533, where on a charge of burglary the prosecutor, though allowed to state that there was an inscription on the stolen ring and otherwise identify it, was not allowed to state the contents of the inscription, no notice having been given ; sed qu) ; or on an indictment for administering an unlawful oath, which was read out from a certain paper {B. v. Moors, 6 East, 421ny ante, 533, post, 572) ; or as to motor licenses, on charges of driving at excessive speed {Marshall v. Ford, 72 J.P.Eep. 480; Martin v. White, 74 id. 106) ; though where the matter is collateral, notice to produce must be given before secondary evidence is admissible — e.g. on a charge of perjury in falsely swearing that a certain draft did not exist {B. v. Elworthy, L.E. 1 C.C. 103) ; or on a charge of forgery {B. v. Eaworth, 4 C. & P. 254), or uttering [B. r. Fitzsimons, Ir.E. 4 C.L. 1; in i?. v. Barris, 112 C.C.C. Sess. Pap. 822, however, it was held that though not absolutely necessary to produce a forged document, yet a notice to produce laid no foundation for secondary evidence, since it compelled the judge to decide the prisoner's identity, which was for the jury; but cp. ante, 11-12, 193, and in a later charge of larceny of the same document, the evidence was received, 112 C.C.C. Sess Pap. 836] ; or of arson in setting fire to a house to obtain the moneys secured by a policy {B. v. ElKcomhe, 5 C. & P. 522 ; B. v. Eitson, Dears. C.C. 187) ; so, in an action on a cheque, where the defendant admits the making, but pleads in avoidance, he cannot call upon the plaintiff to produce the cheque without notice {Goodered v. Armorer, 3 Q.B. 956). (d) Where the adversary or his solicitor has admitted the loss of the document [B. v. Eaworth, sup.; Tay. s. 455; a party cannot, however, prove the destruction of a document traced to his opponent's possession, and then tender secondary L.E. — 35 Digitized by Microsoft® 546 THE LAW OF EVIDENCE. [book it evidence thereof unless he has first given notice to produce, for the adversary may dispute the destruction. Doe v. Morris, 3 A. & E. 46]. (e) Where the adversary or his solicitor has the document in court (Dwyer v. Collins, 7 Ex. 639; Tay. s. 456). (f) Where the adversary has obtained possession of the document by fraud or force {Leeds v. Cook, 4 Esp. 256; Tay. s. 453). (g) Merchant seamen are allowed to give secondary evidence of the contents of' their agreements with the masters of their ships without giving notice to produce the originals (Merchant Shipping Act, 1894, s. 123; see Bowman v. Manzelman, 2 Camp. 315, ante, 523). [Tay. ss. 440-456 n; Eos. F.P. 7-14; Steph. art. 72.] (3) When the Original is in the Possession of a Stranger. When the stranger is compellable by law to produce, on subpoena, an original document in his possession (see ante, 442-3, 537), but fails to do so, secondary evidence of its contents cannot be given, although the witness will be punishable for disobedience {B. v. Llanfaethley, 2 B. & B. 940). When, however, he is not compellable by law to produce it, and refuses to produce it either when summoned as a witness with a subpoena duces tecum {Doe v. Ross, 7 M. & W. 102; Marston v. Downes, 1 A. & E. 31; Mills v. Oddy, 6 C. & P. 728; ante, 442-3), or when sworn as a witness without a subpobna but admitting that he has the document in court {Doe v. Clifford, 2 C. & K. 448; Newton v. Chaplin, 10 C. B. 356), secondary evidence of its contents may be given. Mere refusal to produce the document will not, therefore, let in secondary evidence thereof; the witness must be justified in his refusal, for otherwise the party has no remedy except as against him {Jesus Coll. v. Gibbs, 1 Y. & C. Ex. E. 145, 156; R. v. Llanfaethly, 2 E. & B. 940), and even a justified refusal will not let in secondary evidence of certain documents protected by public policy {ante, 195). The witness may be justified in such refusal where the document is, e.g. one on which he has a lien for money lent {Doe V. Ross, sup.), or is a title-deed, or an incriminating document, or one which he holds as trustee, solicitor, or mortgagee for another, and which that other would himself be justified in withholding {ante, chap. xvi. ; 442-3). Where he holds for another, as solicitor for client, it will probably be necessary (unless he can swear to a distinct authority from the client to produce or withhold the document, Phelps v. Prew, 3 E. & B. 430), to subpoena the latter to determine the matter {Doe v. Ross, and Newton v. Chaplin, sup.; Re Cameron's Co., 25 Beav. 1). In criminal cases, however, the document must be given up, notwithstanding any instructions from the depositor {R. v. Daye, 1908, 2 K.B. 333; ante, 443). When a document is in the possession of a stranger within the jurisdiction who has not been subpoenaed to produce it, s^ondary evidence of its contents cannot be given {Andrews v. Wirral, 1916, 1 K.B. 863). As to when the document is in the hands of a stranger abroad who refuses to produce it, see inf. (5). [Eos. N.P. 157-160; Tay. ss. 457-460; 918-919; Steph. arts. 118-119]. (4) When the Original has been lost or destroyed (Tay. ss. 429-437). The party tendering secondary evidence must prove the existence and execu- tion of the document directly, if possible {ante, 514-25), or presumptively, where not, e.g. an assignment of a patent has been proved by a long course of dealing between the parties chiefly consistent therewith {Dennison v. Ash- down, 13 T.L.E. 226) ; and a lost grant by long possession (Eos. N.P. 30- 41) ; so, the existence, execution, and contents of a lost indenture of Digitized by Microsoft® CHAP. xMii.J SECONDARY EVIDENCE, WHEN ADMISSIBLE. 547 apprenticeship may be presumed from the parties having acted in that- capacity {B. V. Fordingbridge, ante, 138) ; though where the question was •whether a lost deed contained a certain limitation, which did not appear in the memorial, the subsequent conduct of the parties to the deed was held inadmis- sible, being equally consistent with that and several other limitations {Smith V. S.J ante, 138). In civil cases, stamping must also be shown (anie, 531-2). The tendering party must then prove its destruction, positively or presumptively, or establish its loss, either by the admission of the adversary or his solicitor {R. v. Haworth, 4 C. & P. 354), or by proof that it cannot be foimd after diligent search. Where a witness swore that he had last seen the document, a forged note, in an old purse which he had eventually given to his clerk who he believed had burnt it as valueless, this was held insufficient evidence of loss without calling the clerk {B. v. Hall, 13 Cox, 159). In the case of loss of Bills and Notes, special rules obtain, the holder having a right, on indemnity, to a duplicate, and the Court power to order that on indemnity, the loss shaU not be set up. (Bills of Exchange Act, 1883, ss. 69, 70). Search. The sufficiency of the search necessary to let in secondary evidence is a preliminary question for the judge, and will vary with the importance of the document and the circumstances of the case. Thus, if the document were an envelope in which a letter had been received and the witness said I have searched for it among my papers and cannot find it, this would be sufficient; and where a libel was published in a, sectarian newspaper, a copy of which had been left at an institution gratuitously and the person testified that he had searched for it without success and supposed it had been taken away by someone, this was held sufficient; while if he had said that A. had taken it, then he should have gone to A. to get it restored {Gatherscole v. Miall, 15 M. & W. 319). It is enough if the party has in good faith exhausted all the sources and means which the nature of the case suggested, and which were reasonably accessible to him {B. v. Saffron Hill, 33 L.J.M.C. 33). It is not necessary that the search should be recent, or made for the purposes of the trial {Fitz v. Babbits, 3 M. & Rob. 60) ; and the answers given by persons likely to have had the document in their custody are admissible not to prove the facts stated, but to show the reasonableness of the search (B. v. Braintree, 1 E. & E. 51 ; B. v. Eenilworth, 7 Q.B. 643 ; Smith v. S., 10 Ir. Rep. Eq. 373; ante, 218, 235). Where there is one person chiefly interested in a document, inquiry should be made of him; where two persons have an equal title to its custody — e.g. master and apprentice, or lessor and lessee — inquiry should be made of both; though this strictness is not perhaps legally necessary for in the former case search among the papers of the apprentice (B. v. Hinckley, 3 B. & S. 885), and in the latter among those of the lessor (Brewster v. Sewell, 3 B. & Aid. 296), has been deemed sufficient. Where, however, inquiry was only made of one out of three persons likely' to have the document, this was held insufficient (Hawher v. King, 108 L.T. Jo. 540 ; and cp. B. v. Hall, supra) . (5) When Production of th« Original is physically impossible or highly inconvenient — e.g. inscriptions on walls, tombstones, and the like (Bruce v. Nicohpulo, 11 Ex. 129, 133 ; B. v. O'Connell, 5 St. Tr. N.S. 244-45 ; if there are circimistanees of suspicion, the tombstone itself may have to be produced, Tracy Peerage, 10 C. & E. 154; Boosey v. Davidson, 13 Q.B. p. 365), though Digitized by Microsoft® 548 THE LAW OF EYIDEXCE. [bookii. aliter with inscriptions on coffin-plates or rings {R. v. Edge,- 1842, Wills Giro. Ev., eth ed. 309; aide, 533). AVliere a notice was merely suspended to a wall by a nail, it was' held necessary to produce it at the trial {Jones v. Tarlefon, 9 M. & W. 675); but where the notice though movable was one required by statute and under a penalty to be kept constantly affixed, it was held, on grounds of convenience, that secondary evidence thereof might be given without notice to produce the original {Owner v. Beehive Spinning Co., 1914, 1 K.B. 105, following Moriimer t. M'Callm, 6 M. & W. 58, where handwriting in books of t^e Bank of England, was equally allowed to be proved without production of the books, as also that in public registers, Sayer v. Glossop, ante, 400; and see now Bankers' Books Ev. Act, 1876, s. 6, ante, 375). Inscriptions on flags and banners have been regarded rather as speeches or acts done than as documents, and so provable by oral testimony without reference to the present rule {R. v. Hunt, 3 B. & Aid. 566; R. V. O'Gonnell, sup.; ante, 533) ; so, with resolutions read at public meetings, and perhaps labels on parcels or decanters {ante, 533, post, 572). And in eases of copyright, the similarity of the contents of the two works may be shown without the production of either {ante, 47; post, 573). The rule applies equally where a private document is in the hands of a person resident abroad who refuses to produce it {Boyle v. Wisfiman, 10 Ex. 647; 11 Ex. 360; Kilgour v. Owen, 88 L.T.Jo. 7-8) ; or is filed in a foreign court {Crispin v. DogKoni, 32 L.J. P. & M. 109, where though the actual custodian, i.e. secretary of the Court, refused production, it was not shown that the legal custodian, i.e. the Court itself, had been applied to, as it should have been, and refused). A notaiial copy of a foreign will is admissible on proof by experts that the original is not allowed to be removed, and that the local courts regard such copies as equivalent to the original {Re Von Linden, 1896, P. 148; i?e Lemme, 1892, P. 89; cp. Brain v. Preece, 11 M. & W. 773, 775) ; though it. has been held that even where the will is in possession of a foreign Court only for custody, and not for probate, a notarial copy is inadmissible here, the original will, or a copy authenticated by a foreign court, being required {Re Brown, 80 L.T. 360; see however, Quihampton v. Going, 24 W.E. 817) ; and the notarial copy of a marriage settlement similarly deposited has also been rejected {Permanent Trustee Co. v. Pels, 1918, A.C., 879 ; cp. ante, 366, 538; post, 560). Foreign public documents, e.g. registers, may be proved by copies under this rule {Burnaby v. BaiUie, 42 Ch.D. 282), as well as under (1), sup. Where, however, a document was in S. Africa and the question was merely one of delay, secondary evidence was rejected {Ward v. Murray, 1900, Times, Mar. 5). (6) When leave of Court has been obtained, i.c. by previous summons for directions under 0. 30, r. 7 {ante, 499). (7). In interlocutory proceedings, secondary evidence may be given of documents without accounting for the absence of the originals, in analogy to the practice which .allows deponents in such cases to speak to the informa- tion and belief {Spencer v. Bailey, 93 L.T.Jo. 223; ante, 499). (8) Other Cases. The rules allowing testimony of the result of unproduced documents, and of acting in a public Office without production of the tcritten appointment, have been considered to constitute further instances of secondary evidence ; but in the former case the testimony is equally admissible when Digitized by Microsoft® CHAP. XLiii.] CONTENTS OF PUBLIC STATUTES, &c. 549 the documents are produced {ante, 467), and in the latter it can only be tendered in proof of the fact, and not of the terms, of the appointment {post,' 5112). PUBLIC DOCUMENTS. Statutes: British, Colonial, and Foreign.— Sriiis/t. Public Acts, which term now includes ever}' Act passed after the year 1850, are judicially noticed as such, unless the contrary is expressly provided by the Act (53 & 53 Vict. c. 63, s. 9; 22. v. Sutton, 4 M. & S. 542; Tay. s. 5; Steph. art. 58; ante, 30). No evidence of their contents is therefore necessary, tliough for certainty of recollection reference is had to printed copies (not necessarily examined copies or copies published by the King's printer) or, where the accuracy of these is questioned, to the Parliament Roll itself {Price v. Hollis, 1 M. & S. 105). In cases other than the above the Acts may be proved by copies purporting to be printed either by the King's printer or under the authority of H. M. Stationery Office (8 & 9 Vict, c. 113, s. 3; 45 & 46 Vict. c. 9, s. 3; Be Yarmouth By., 1871, W.N. 336) ; or, where there are no such copies, by an examined copy shown on oath to have been compared with the Eoll. Colonial statutes may be proved by copies certified by the clerk of the Colonial Legislature (38 & 39 Vict. c. 63, s. 6; B. V. Brixton, 21 Cox, 387) ; or by copies purporting to be printed by the Government printer of the colony [Evidence (Colonial Statutes) Act, 1907 (7 Edw. VII. c. 16)]. As to Foreign statutes, &e., the old rule was that foreign written law must be proved by an examined copy; though a printed copy of the French Codes, produced by the French consul here and vouched by him, was in one case admitted though unexamined {Lacon V. Biggins, Dowl. & Ey. N. P. 38; 3 Stark. 178; but cp. Bichardson.r. Ander- son, post, 550). See now, however, as to foreign law whether written or unwritten, ante, 388; and foreign treaties, &c., infra. [Tjiy. ss. 1523-1534; Eos. N.P. 105-106; Steph. arts. 58, «1; Hardcastle" on Statutes, 40-3.] Statutory Rules. Statutory Eules are provable by production of the Annual Vol. of Statutory Eules and Orders, published by authoritj', or by copies issued by the King's Printer (Archb. Cr. PI. 35th ed. 393; see Eules Publication Act, 1893, s. 3 (3) and Eegulations 1894]. Treaties, Charters, Letters-Patent, &c. Treaties, charters, letters-patent. Crown grants, pardons, a,nd commissions are records and provable at Common Law, by production of the original, bj' exemplifications, or by examined copies (Tay. s. 1536; Palmer, Peerage Law, 335; Eos. N.P. 106, 107.) Thus, the Patent of a Peerage is provable either by production of the original, or when this is lost, &c., by entries in the Journals of the House of Lords, or examined copy of the record of the patent {Barony of Saye and Sele, 1 H. L.C. 507). Letters-patent for inventions, being now sealed with the seal of the Patent' Office, are judicially noticed without proof (Patents Act, 1907, s. 64) ; and certified and sealed copies of patents, specifications, and other • documents, and books, are admissible without the production of the originals (s. 79). , _ Colonial and Foreign Treaties, Proclamations, Judgments, &c. All proclamations, treaties, and other acts of state of any foreign state or of any British colony, and all judgments, decrees, orders, and other judicial proceedings of any court of Justice in any foreign state or in any British Digitized by Microsoft® 650 THE LAW OP EVIDENCE. [bookii. Colony, and all affidavits, pleadings and other legal documents, filed or deposited in any such Court, may be proved in any Court of justice or before any person having by law or by consent of parties authority to hear, receive and examine evidence, either by examined copies or by copies authenticated as hereinafter mentioned; that is to say, if the document sought to be proved be a proclamation, treaty or other act of State, the 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 an a.ffidavit, pleading, or other legal document filed or deposited in any such Court, the authenti- cated copy to be admissible in evidence must purport either to be sealed with the seal of the foregn or colonial 'Court to which the original document belongs or in the event of such court having no seal, to be signed by the judge, or if there be more than one judge, by any one of the judges of the said Court; and such judge shall attach to his signature, a statement in writing on the said copy that the Court where he is a judge had no seal; but if any of the aforesaid authenticated copies shall purport to be sealed or signed as herein- before 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 (14 & 15, Viet. c. 99, ss. 3, 7). A sealed copy of a foreign marriage settlement deposited in a foreign 'Court and not removable therefrom has been held to be covered by similar words in the Ev. Act. 1898 of JST.S.W. {Permanent Trmtee Co. v. Fels, 1918, A.C. 879). And a book purporting to contain the Ae,ts of the Legislative Council in India, and produced by a clerk from the India Office, has been held sufficient evidence of those Acts {Gardner v. Wright, 15 L.T. 325; cp. Eegisters, post, 554). Prior to the above Act, a book pur- porting to be a collection of treaties concluded by America, and to have been published by authority there as a regular copy of the archives, and acted on and vouched by the American minister here, but not examined with these archives, was rejected {Richardson v. Anderson, 1 Camp. 65 n ; but cp. Lacon V. Higgins, ante, 549). Proclamations and Orders in Council. Eoyal proclamations, and orders and regulations issued by the Government, may be proved, like other public docu- ments, by the production of the originals or by examined copies thereof ; or, in the case of proclamations, by copies purporting to be printed by the printers to the Crown, or by the printers to either House of Parliament (8 & 9 Viet. c. 113, s. 3.) In addition to these methods of proof, it is enacted by the Documentary Evidence Act, 1868 (31 & 32 Vict. c. 37), s. 2, that prima facie evidence "of any proclamation, order, or regulation issued before or after the passing of this Act, by or under the authority in the first column of the schedule hereto, may Be given in all courts of justice and in all legal proceedings whatsoever, in all or any of the modes hereinafter mentioned ; that is to say: " (1) By the production of a, copy of the Gazette purporting to contain such proclamation, order, or regulation (see ante, 337). Digitized by Microsoft® CHAP. XLiii.] CONTENTS OF GOVERNMENT OEDERS, &c. 551 " i^2) By the production of a copy of such proclamation, order, or regulation, purporting to be printed by the Government printer, or, where the question arises in a court in any British colon^ or possession, of a copy purporting to be printed under the authority of the legislature of such British colony or possession. [The Documentary Evidence Act, 1882 (45 & 46 "Vict. c. 9), ss. 2, 4, has extended this provision to copies purporting to be printed by a printer to his Majesty in Ireland, or by any printer in England or Ireland acting under the superintendence or authority of his Majesty's Stationery Office. The production of such copies is also prima facie evidence of the publication of the order {HugginsY. TFarci, L.E. 8 Q.B. 521)]. " (3) By the production, in the case of any proclamation, order, or regulation issued by his Majesty or by the Privy Council, of a copy or extract purporting to be certified to be true by the Clerk of the Privy Council, or by any one of the Lords or others of the Privy Council, and, in the case of any proclamation, order, or regulation issued by or under the authority of any of the said departments or officers, by the production of a copy or extract purporting to be certified to be true by the person or persons specified in the second column of the said schedule in connection with such department or officer. " Any copy or extract made in pursuance of this Act may be in print or in writing, or partly in print and partly in writing. "No proof shall be required of the handwriting or official person certifying, in pursuance of this Act, to the truth of any copy of or extract from any proclamation, order, or regulation." By s. 6 the provisions of the above Act are to be deemed in addition to, and not in derogation of, any existing statutory or common law powers of proving documents. SCHEDULE AS AMENDED BY SUBSEQUENT ACTS. Column I. Column II. (Name of Department or Officer.) (Names of Certifying Officers.) The Commissioners of the Treasury. Any Commissioner, Secretary, or As- sistant Secretary of the Treasury. The Commissioners for executing the Any of the Commissioners for executing office of Lord High Admiral. the office of Lord High Admiral, or either of the Secretaries to the said Commis- sioners. Secretaries of State. Any Secretary or Under-Secretary of >i State. Committee of Privy Council for Trade. Any member of the Commlittee of Privy Council for Trade, or any Secretary or Assistant Secretary of the said Commis- sioners. The Poor Law Board (now absolished; Any Commissioner of the Poor Law see Local Government Board, infra). Board, or any Secretary or Assistant Sec- retary of the said Board. The Local Government Board (see L. Any member of the Local Government G. B. Act 1871, s. 5 ; and also Public Board, or any Secretary or Assistant Health Act 1S75, ss. 130, 135, 297, sub-s. Secretary of that Board. 7; and P. H. (Jr.) Act 1S78, s. 265) . Board of Education (see B. B. Act 1899, Any Member of the Education Depart- s. 83). ment or any Secretary or Assistant Secre- Digitized by Microsoft® 552 THE LAW OF EVIDENCE. [iiooK ii. Column I. Column II. (Name of Department or Officer.) (Kumes of Certifying Officers.) tary of that Department, or tUe liuard, or a Secretary or person autliorfseil by the President or some member of tlie Board to act on behalf of a Secretiiry. The Postmaster-General (see Post oflBce Any Secretary or Assistant Stcretiuy Act, 1908). of the Post Office. A Secretary of State acting under the Any of his Majesty's Principal Secre- Artillery and Rifle Ranges Act, 1885, s. taries of State. 6; and DiliU Grounds Act 1886. The Board of Agriculture & Fisheries The President, Secretary, or any mem- [see Documentary Evidence Act, 1895. s. ber of the Board, or any person author- 1)]. ised by the I'resident to act on behalf of the Secretary. The Local Government Board for Ire- A Commissioner of the Local Govern- land [the Ev. (Amendment) Act 1915, ment Board for Ir., or a Secretary or s. 5]. Assistant Secretary of the said P>oard. The Minister of Pensions (The Min- The Minister, Secretary of the 3Iinisti-.\-, istry of Pensions Act 1916. s. 6). or person authorized by former to act for latter. The Ministers of Labour, Food, Ship- The Minister, Secretary of the Ministry ping and National Service and the Presi- or person authorised by former to act for dent of the Air Board [The New Min- latter. istries and Secretaries Act 1916. s, 11 ; The Ministry of National Service Act 1917. s. 2]. The Air Council [Air Force (Constitu- The President or Secretary of the Coun- tion) Act, 1917, s. 10.] cil, or person authorised by former to act on behalf of the Council. Parliamentary Journals, signed by the Speaker, are provable either at Com- mon Law by production of the originals or examined copies {R. v. Ld. Gordon, Dong. 590, 593; 31 St. Tr. 543; iJ. v. Ld. Melville, 29 St. Tr. 683-5; Barony of Saye & Sele, 1848, 1 H.L.C. 507 ; tlie dictum to the contrary as to copies in Mortimer v. M'Callan, 6 M. & W. 58, G7, seems erroneous), or under Statute by copies purporting to be printed )iy the printers to the Crown or, by the printers to either House of Parliament (8"& 9 Vict. c. 113, s. 3) ; or perhaps by authority of H. M. Stationery Office (45 & 46 Vict. c. 9. s. 2.). Hansard's Debates are not admissible as Parliamentary Journals under these Acts (McCarthy v. Kennedy, 1905, Times, Mar. 4). As to admis- sibility of these Journals, of the Text Eoll, Eeturn Book and Division Regis- ters, as evidence of the facts stated therein, see ante, 335-6. Tbe General Records -of the Eealm in the custody of the Master of the - Rolls are provable by copies certified by the deputy keeper of the records, or one of the assistant record keepers, and purporting to be sealed or stamped with the seal of the Record OiRce; and when so authenticated they are receivable before all Courts of Justice, and before all legal tribunals, and before either House of Parliament, or any committee of either House, without any further or other proof thereof, in every case in which the original record could be received (The Public Record Office Act, 1838, 1 & 2 Viet. c. 94, ss. 12, 13; see also the Pub. Rec. Ir. Acts, 1867, 1875; Tay. 8th ed. ss. 1485, 1533). Where the record is lost, proof may be given by a certified copy of the entry in the judgment book in the same custody {Re Tollemache, Exp. Anderson, 14 Q.B.D. 606). Tlie Records, both public and judicial, deposited in the above custody, include inter alia all the Digitized by Microsoft® CHAP. xLiii.J CONTENTS OF PUBLIC DOCUMENTS. 553 records of the superior courts of common law, equity and admiralty which are more than twenty years old; the records formerly in the custody of the Queen's Eemembrancej ; the records of the Land Eevenue Eecord Office, the Lord Chamberlain's Office, and the Augmentation Office; the log-books of the Navy; various records of forfeited estates; duplicates of land and assessed taxes; the records of the Court of Wards and Liveries; and those of first fruits and tenths; Domesday Book; Parliament, statute, patent and closed rolls; some of tlie Crown land surveys; and the lieger books and chartularies of the dissolved monasteries (Tay. s. 1845). All records and documents of the old Common Law side of the Court of Chancery filed or deposited in the Petty Bag Office may be proved by office copy (13 & 13 Vict. c. 109' s. 13; as to other documents of a public nature which are deposited in particular courts or offices, see Tay. s. 1486). General Provisions as to proof of the authenticity and Contents of Public Documents. (1) Documents admissible if "purporting" to be duly signed, &c. It is provided by many statutes that various certificates, official and public documents, documents and proceedings of corporations and of Joint-stock and other companies, and certified copies of documents, bj'-laws, entries in registers and otiier books, shall be receivable in evidence of certain particulars in courts of justice, provided they are respectively authenticated in the manner prescribed by such statutes. ' Whenever by any Act now or hereafter in force any such certificate, &c., shall be so receivable, it is admissible if it purports to be authenticated in the manner prescribed, and no proof need be given of the stamp, seal, or signature, or of the official character of the person appearing to have signed the same (8 & 9 Tict. c. 113, s. 1 ; see as to this Act, Tay. s, 7; Eos..N.P. 101; Steph. art. 79). Where proof of signature is given, that of the de facto custodian of a record is sufficient, though he be not the officer de jure {R. v. Parsons, L.E. 1 C.C. 24; R. v. Jones, 2 C. & K. 524)". (2) Documents of a public natvre provable by examined or certified copies. The removal of books of general concernment from their proper place of deposit, at the call of individuals, involves, however, so much inconvenience and risk, that it has long been a rule of the Common Law that whenever a document is of a public, which here includes judicial, nature, and would be evidence if produced, an examined copy thereof is also evidence, without production of the original, or accounting for its absence {ante, 535, 543), e.g. copies of church registers, of corporation-books, of ]\[anor-books, of proceed- ings in the Ecclesiastical and Admiralty Courts, of notes of judgments in inferior Courts, though not entered upon record, or probates of wills of , personalty (though not of realty over which Ecclesiastical Courts had no jurisdiction, post, 565), of Bargains and Sales, of Deeds inrolled, and the like; but where the document is of a private nature, e.g. a rent-roll, the original must be produced unlesss lost or destroyed, when copies will be admitted [Lynch v. ClerU (1697), 3 Salk. 154, per Holt, C.J.: R. v. Ld. Gordon (1781) Doug. 590, 593; R. v. Eains. 1695, Comb. 337; Hoe v. Nathorp (1697) 1 Ld. Eay. 154; Tay. 8th ed. s. 1598]. This rule has since been confirmed as to examined, and extended to certified, copies by stat- ute, it being enacted that: Whenever any book or other document is of such a- public nature as to be admissible in evidence on its mere production Digitized by Microsoft® 554 THE LAW OF EVIDENCE. [bookii. from the proper custody, and no statute exists which renders its contents provable by means of a copy, any copy thereof or extract therefrom shall be admissible provided it be proved, to be an examined copy or extract, or pur- port to be signed and certiiied as a true copy or extract by the officer to whose custody the original is entrusted (14 & 15 Vict. c. 99, s. 14). Wliere the copy is signed and certified as the section provides it is admissible on its mere production in court without calling a witness to verify it or prove the custody {R. V. Weaver, L.E. 2 C.C. 85) ;. where it is informally certified and therefore inadmissible, it jnay be proved to be an examined copy, the provi- sions of the section being cumulative {R. v. Mainwaring, 36 L.J.M.C. 10, 14). This Act virtually supersedes 8 & 9 Vict. c. 113, so far as it refers to public documents, but the two Acts are construed cumulatively and the earlier one extends to certain private documents as well (Powell, Ev., 9th ed., 350 n-). Their effect, as applied to the various classes of public and judicial documents^ commonly met with in practice, is set out below: — Registers: British, Colonial and Foreign. The statutory registers, ante, chap. XXX., are provable either by production of the originals (which, though it may be allowed, cannot even in criminal cases, be enforced, avie, 535) ; or by certified copies under the various Acts rendering them admissible, it being now sufficient if such copies merely purport to be duly certified (8 & 9 Vict, c. 113, s. 1, sup.; Re Hall, 33 L.J. Ch. Vtt ; Re Porter, 35 id. 688) ; or by examined copies {Sayer v. Glossop, 3 Ex. 409). And oral evidence of the identity of signatures therein is admissible without production of the register {Sayer v. Glossop, sup.; Mortimer v. M'Callan, 6 M. & W. 58; ante, 400). Public registers, admissible as such by common law, may also be proved either by production, or by examined or certified copy under 14 & 15 Vict. c. 99, s. 14, sup. Non-parochial registers deposited with the Registrar-General must in criminal cases be proved by production and not by copy (3 & 4 Vict, c. 93, s. 17; 31 & 33 Vict. c. 35, s. 3). So, in peerage cases, the original registers must in all cases be produced if English, but not perhaps if Irish or Scotch [Hubb., Ev. of Succ, 97, 98 ; Roscommon Peerage, 6 C. & F. 97, 105; Barony of Saye and Sele, 1 H.L.C. 507, where the marriage register being lost, the copy of an entry in the Prerogative office in Ireland of the grant of a dispensation to solemnize the marriage, was admitted to supply its place; ante, 535-6]. And the same rule holds where registers inadmissible as public documents are received on other grounds {R. v. Gwyn, 1 Stra. 401). Indian registers of baptism (Queen's Proctor v. Fry, 4 P.D. 330) and mar- riage, whether before 14 & 15 Viet. c. 40 (Ratclife v. B., 1 S. & T. 467), or since (Reganr. R., 67 L.T. 730; Westmacott v. W., 1899, P. 18S; Braid v. B., 35 T.L.R. 646), are provable either by production of the registers, or of the copies thereof transmitted to, and now deposited at, the Indian Office (ante, 346; cp. Gardner v. Wright, ante, 550) ; or by examined or certified copies of the original registers (Regan v. R., sup.; 14 & 15 Vic. c. 99, s. 14, sup.), or now more usually by production of the certificates from the Indian Office (West- macott V. W., 1899, P. 183; Braid v. B., 35 T.L.R. 646.; De Gruyther v. DeG., 1900, Times, Nov. 3). A copy of a Nova Scotia parish register has been admitted on proof that the witness examined it with the original register, that it was in the handwriting of the rector, and that the register was required to be kept by the local law (Evans v. Ball, 38 L.T. 141). Foreign registers are Digitized by Microsoft® CHAP. xLiii.] CONTENTS OP CORPOEATION BOOKS, &o. 555 provable by examined copy, the originals in general not being allowed to be removed {Abbott v. A.; 29 L.J.P.M. & A. 57; Burnaby v. Baillie. 43 Ch. D. 383), or by certified copies of extracts {Lyell v. Kennedy, 14 App. Cas. 437, the case of a Scotch register). Fublic Inquisitions, Maps, Surveys, Extents,, and Reports (see ante, chap. xxxi.) seem, notwithstanding 14 & 15 Vict. c. 99, s. 14, sup., to be provable by production of the original from proper custody and not generally by copies, unless the originals have been lost or destroyed. Where the inquisition is taken ex officio under a general commission, or under a special commission relating to a matter of general concernment, or where the inquisition is ancient, the return may be read without producing, or accounting for the absence of, the commission under which it was taken. But in other cases the commission must be produced or accounted for, to show that the inquisi- tion was taken under proper authority. [Tay., 8th ed., ss. 1583, 1585 ; Eos. N.P., 17th ed., 113; Hubb. Ev. of Succ. 584-606]. Ordnance maps may be proved under 14 & 15 Vict. c. 99, s. 14, sup., by copies certified to be correct by the Government officials who made them; and copies produced from, and stamped by, the Board of Agriculture, have also been received {North Staff. Ry. V. Hanley Corp., 1909, 8 L.G.E. 375, 378-80)., Assessments of land-tax, poor-law valuations in Ireland, and poor-rate books are provable eitlier by the production of the original books containing the rate of assessment, or by examined or certified copy under 14 & 15 Vict. c. 99, s. 14 (Tay. s. 1600; Jtistice v. Elstob, 1 F. & F. 356; post, 573). As to proof of Irish Census Eeturns, see Dublin Corp. v. Bray, 1900, 3 I.E. 88. Corporation and Bankers' Books. At common law, entries in corporation books which are of a public nature are provable either by the production of the original books or by examined copies {Brocas v. London {Ld. Mayor), 1 Stra. 307), or now, probably, by certified copies under 14 & 15 Vict. c. 99, sup. Entries of a pnvate nature must be proved by production of the origi- nals, and copies though long preserved among the corporate mimiments are not admissible {R. v. Gwyn, 1 Stra. 401). Minute books and registers kept as authorised b}' the Companies Clauses Consolidation Act, 1845, the Com- panies Act, 1908, the Municipal Corporations Act, 1883, and similar statutes, are in general provable by production of the original and not by copies {ante, 373-4.) A resolution by a District Council is provable by a minute thereof duly authenticated ; and not by oral evidence of its passing, or a letter to that effect by the Clerk {A.-O. v. Barlcer, 44 Sol. Jo. 603; 83 L.T. 245). As to proof of Bankers' Books, see ante, 375-7, 543. [Tay. s. 596 ; Eos. N.P. 123, 134]. By-laws. The proof of by-laws varies according to the language of the statutes authorising them. Under the Companies Clauses Consolidation Act, 1845, s. 137, the by-laws of companies regulated by that Act are provable by \vritten or printed copies purporting to be sealed with the common seal of the company, which are sufficient evidence thereof in all prosecutions under the same. So, imder the Municipal Corporations Act, 1882 (incorporated with the Local Government Act, 1888), s. 34, the production of a written copy of any by-law under that Act is, " if authenticated by the corporate seal," suffi- cient evidence, until the contrary is proved, that the by-law was duly made and all conditions precedent to its validity complied with {Robinson v. Ore- Digitized by Microsoft® d56 THE LAW OF EVIDEISrCE. [booku. gory, 1905, 1 K.B. 534), though aliter as to mere production without proof of such authentication {Drew v. Harlow, 39 J.P. 430). On the other hand, the by-laws of Eailway Companies in order to affect strangers must be proved to have been duly published, and the originals, or examined or certified copies, must be produced {Motteram v. Eastern Counties Ry.,t C.B.N. S. 58), and see as to proof of by-laws under the Towns Improvement (Ir.) Act, 1854, Kingstown Council v. Carson, 40 Ir. L.T.Jo. 287. The validity of by-laws may, however, sometimes be presumed from their long user {R. v. Powell, 3 E. & B. 377; and cp. Johnson \. Barnes, L.E. 8 C.P. 52«). [Tay. ss. 1654 A-1659; 69 J.P. 481.] As to proof of service of notice under by-laws, sf c Andrews v. Wirrall B.C., cited ante, 545. Certificates are admissible in evidence if they purport to be verified as directed by statute, without proof of the seal, signature, or official character of the party certifying (8 & 9 Vict. c. 113, s. 1; ante, 553). Manor-Books. Court-rolls are provable either by production of the originals or by examined copies duly stamped (Eos. N.P., 18th ed., 119-120; ante, 112, 297-8, 354; Stamp Act, 1891, s. 65). As to their proper custody, see ante, 525. Military and Naval Records and Documents. The Articles of War, and Eules of Procedure superseding them under the Army Act, 1881, ss. 69-70, are judicially noticed without other proof, but not the Eegulations as to the Territorial Force, which are provable by Government Printer's Copy {ante, 20). As to military registers and records. Muster EoUs, Pay Lists and Medi- cal Sheets, see ante, 350-2; Army and Navy Lists, 353; Certificates of Military or Naval Service, 371; Log and Muster books, &c., 351-2. Notarial Protests. A formal protest from a Foreign Notary's books is primary evidence and admissible as such, though it has been doubted whether secondary evidence thereof is so {Geralopulo v. ^y^e'ler, 10 C.B. 690; cp. ante, 366, 538, 548; jposi, 560). JUDICIAL DOCUMENTS. Superior Courts. Eecords in the Supreme Court are provable: (1) By production of the originals. But no affidavit or record of the Court shall be taken out of the Central Office without the order of a judge or master, and no subpoena for the production of any such document shall be issued {0. 61, r. 28; so, as to district registries, 0. 35, r. 22). When the document is not in the Central Office, but is one of the general records of the realm in the custody of the Master of the Eolls, it must be proved by certified copy {ante, 543, 553), though in cases of importance, in the H.L. or elsewhere, permission may be given to one of the assistant-keepers to pro- duce the original record (Tay. s. 1533). Actual production of the original is said to be essential on a plea of nul tiel record, in the Court to which the record belongs; or, (unless the document be lost, destroyed, or in possession of the prisoner) on a charge of forging the record, or of perjury in an affidavit or deposition (Tay. s. 1535; Eos. N.P., 17th ed., 115; but see Steph. note xxx., and Eos. Cr. Ey., 13th ed., 141; ante, 536). In R. v. Hochham, 119 C.C.C. Sess. Pap. 59, it was held, on a charge of perjury at the hearing of a sum- mons in a Civil Court, that the summons must be produced to show that the matter was properly before the Court. (2) By exemplification under the Great Seal, or seal of the Court to which the record belongs, a method of proof now practically obsolete {niite, 539). (3) By examined copy (Tay. s. 1533). (4) By office copy (0. 37, r. 4, which provides that office copies of all writs, Digitized by Microsoft® CHAP. XLiii.] CONTENTS OF JUDICIAL DOCUMENTS. 557 records, pleadings and documents filed in the High Court shall be admissible in evidence in all causes and matters, and between all persons and parties, to the same extent as the original would be admissible, ante, 540). Moreover, by 0. 61, r. 7, '• All copies, certificates, and other documents appearing to be sealed with a seal of the Central Office shall be presumed to be office copies or certificates or other documents issued from the Central Office, and if duly stamped may be received in evidence, and no signature or other formality, except the sealing with a seal of the Central Office, shall be required for the authentication of any such copy, certificate, or other document." And by Jud. Act, 1873, s. 61, all writs and documents issued out of, or filed in, a district registry and purporting to be sealed with the seal of such registry shall, in all parts of the United Kingdom, be received in evidence without further proof thereof [see ante, 23.] As to proof of criminal convictions and proceedings, see infra.; and for forms of secondary evidence inadmissible to prove judgments, &c., see Mash'Y. Da/rley, &c., ante, 543; post, 569 ; and Bridge's V. IfigJiton and Renshaw v. Dixon, cited ante, 348. In addition to the above provisions, office copies of certain of the records of the Supreme Court and of the Central Office are by statute rendered admissible in all Courts, e.g. office copies of bills of sale and of acknowledgments of deeds by married women {post, 564-5). Judgments of the House of Lords are proved either by an examined copy of the minutes, which latter constitute the judgments, or by printed copies of the journals in which they- are entered {Jones V. Randall, 1 Cowp. 17; Tay. s. 1570; ante, 552). In Irish Divorce Bills, Irish judgments are provable by certified copy {Oalway Divorce Bill, 51 Sol. Jo. 306). Where ancient judicial records have been lest or destroyed, their existence and contents have been allowed to be proved less forma!lly, e.g. by oral evidence (Eos. N.P., 18th ed., 109), or by a copy, which has long accompanied possession of the land affected {Green v. Proude, 1 Mod. 117; Permanent Trustee Co. v. Pels, 1918, A.C. p. 885), or by the parties having acted thereon {Macdougal v. Young, Ey. & M. 392, cited ante, 129). Criminal Proceedings. The trial and conviction or acquittal of any person charged with an indictable offence, must, at common law, have been proved by production of the record, or an examined copy thereof {R. v. Smith, 8 B. & C. 341; Hartley v. Hindmarsh, L.R. 1 C.P. 133), and the sentence of an Assize Court was provable in the same manner and not by oral evidence of a witness who heard it, or by tlie calendar signed by the Clerk of Assize {R. v. Bourdon, 2 C. & K. 366). By the Evidence Act, 1851 (14 & 15 Vict. c. 99), s. 13, however, the trial, &c., of indictable offences may, without producing the record or a copy thereof, be proved in any proceeding whatever by the certificate (or a document purporting to be such) of the clerk or other officer of the Court having the custody of the records, or the deputy of either, which certificate shall contain a copy of the record omitting the formal parts thereof. And on charges of perjury or subornation committed on trials for felony or misdemeanour the fact of the former trial is provable by a similar certificate, without proof of the signature or official character of the clerk, &c., appearing to have signed, &e. (Perjury Act, 1911, s. 14). A previous conviction may also, when required to discredit a witness, be proved by a certificate, signed as above, of the s-abstance and effect only of the indictment and conviction {ante, 367, 482) ;or for any purpose, by production of a record or extract of such con- Digitized by Microsoft® :.58 THE LAW OF EVIDENCE. [bookii. viction, with proof of identity, such record or extract to consist, in the case of indictable offences, of a certificate containing the substance and effect only (omitting the formal parts of the indictment and conviction) and purporting to be signed by the Clerk of the Court, or other officer, having the custody of the records, or his deputy; or in the case of siimmary offences, of a copy of the conviction purporting to be signed by any justice of the peace having jurisdiction over the offence, or to be signed by the proper officer of the Con- victing Court, or by the clerk or other officer of any Court to which the con- viction was returned (Prevention of Crimes Act, 1871, s. 18). As to proof under the Prevention of Crimes Act, 1908, of previous convictions, see ante, 47. A conviction oannot, however, where the record is in existence, be proved orally by a witness who merely heard it pronounced (Mash v. Darley, 1914, 3 K. B. 1236, 1 C. A.; B. v. Bourdon, sup.). In actions for Malicunis Prosecution, it is said to be essential for the plaintiff, in addition to proving the acquittal, to put in as part of his case the depositions before the magistrate, to show absence of reasonable and probable cause, since the burden of that issue is upon him, and this can, it is said, only be established thereby [Lea v. Chairington, 5 T.L.E. 318; Walker v. S. E. Ry., L.E. 5 C.P. 640; Foss v. G.E. By., 105 L.T. Jo. 221; Shinner v. Hunt, 66 J.P. 425]. Orders of Quarter Sessions may be proved by production of the record, or an examined copy thereof (Tay. s. 1546) ; or in other than indictable offences, as to which see supra, and where no other record is kept, by the sessions book, or a copy thereof, in which they are entered, if this sufficiently discloses the jurisdiction {R. v. Yeoveley, 8 A. & E. 818; Giles T. Siney, 13 "W. E. 92) ; or, in the case of appeals from justices where the decisions of the latter are not confirmed, by a copy of the memo, of the Q. S. Decision direeted-to be added to the copy or certificate of the original decision, by the Summary Jurisd. Act, 1879, s. 31 (6). By the Summary Jurisd. Act, 1879, s. 22, the register of the minutes or memorandum of convictions, orders and proceedings directed to be kept by courts of summary jurisdiction and also any extract from such register certi- fied by the Clerk of the Court keeping the same, are prima facie evidence of the matters entered therein for the purpose of informing a Court of sum- mary jurisdiction acting for tlie same county, borough, or place as the Court whose convictions, &c., are entered in the register [but nothing in this section shall dispense with the legal proof of a previous conviction for an offence when required to be proved against a person charged with another offence]. Under this Act it has been held that the use of the register for the purpose of proving a previous conviction was confined to the Court in which the previous conviction took place (Commr. of Police v. Donovan, 1903, 1 K.B. 495; cp. London School Board y. Harvey, 4 Q.B.D. 451) ; but the Cr. Just. Admn. Act, 1914, which repeals the clause in brackets, sup., provides in s. 28, that the record or extract by which a conviction may be proved under the Preveiition of Crimes Act, 1871, s. 18, sup., may in the case of a sum- mary conviction consist of a copy of the minute or memo, of the conviction entered in the register required to be kept under the Summary Jurisd. Act 1879, 8. 23. Orders by Justices as to Highway matters are provable by copieH thereof certified by the clerk of the peace (37 & 38 Vict c 101 s 12) Digitized by Microsoft® CHAP. XLiii.J CONTENTS OF JUDICIAL DOCUMENTS. 559 Where a Court consists of two justices its orders must be signeil by both {Wing V. Epsom Council, 68 J.P. Eep. 259). As to proof of the dismissal of charges at Petty Sessions, see ante, 367-8. As to proof of .the fiats of a judge, law officer, or public prosecutor, which are presumed to have been obtained, unless challenged, and of the various formalities on charges of being an habitual criminal under the Prevention of Crimes Act, 1908, see ante, 189. By the Army Act (1881), s. 164, amended by the Army Act, 1913, s. t, whenever any person subject to military law has been tried by any Civil Court, the clerk or other officer having the custody of the records of such Court, shall if required by the commanding or other officer of such person, transmit to him a certificate setting forth the offence for which he was tried, togetlier with the judgment or order of the Court thereon, or if he was acquitted, the acquittal. And any such certificate shall be sufficient evidence of the convic- tion and sentence, or of the order of the Court, or of the acquittal of the prisoner, as the ease may be. Complete Record when necessary. When a judgment was tendered as evidence of the facts decided, it used to be necessary that the record should be complete, unless completion was impracticable, as where a motion for a new trial was pending. Thus, a judgment in the High Court could not be proved by the minutes from which it was to be made up, for, until made up, it was no "record {Godefroy v. Jay, 3 C. & P. 192; B. v. Birch, 3 Q.B. 431). So, also, in the case of a magistrate's conviction, it has been held that though the oral judgment is the conviction and even when drawn up may, on appeal, be amended before being returned to the Sessions, yet before a conviction can be proved the law requires that there should be one properly drawn up {Hartley V. Hindmarsh, 1866, 35 L. J.M.C. 255 ; cp. London School Board v. Harvey, 48 L.J.M.C. 130). But now, the records are never made up, either in civil or criminal cases" (0. 36, rr. 39-42; Holtby v. Hodgson, 24 Q.B.D. 103, 106-7; Archb. Cr. PL, 25th ed., 409-10; Gommr. of Police v. Donovan, 1903, 1 K.B. 897, 904). Where, however, the object was merely to prove the existence of the proceedings, irrespective of the matters decided, the above rule was relaxed. Thus, proof of a former bill, answer and decree, together with the identity of a party, has been allowed to be given by affidavit {^Yhite t. Cox, 2 Ch. D. 387, 397). So, on a charge of perjury, the production of the filed copies of the writ and pleadings, with the order made thereon, was held suffi- cient proof of a former civil action {R. v. Scott, 2 Q.B.D. 415, C.C.R.), and that of the caption, indictment, verdict, sentence, and minutes of trial, sufficient proof, at all events in the same Court, of a former criminal one {R. V-. Newman, 2 Den. C-C. 390), without, in either case, producing the record, or a certifl!cate of the trial as mentioned supra. Where the former proceeding was not in the same Court, it seems doubtful if the completed record, or such certificate, was not requisite, even though the object was merely to prove the existence of the particular proceeding {R. v. Coles, 16 Cox, 165y R. v. Smith, 8 B. & C. 341; though see R. T. Scott, sup.). A conviction, generally speak- ing, comprises both verdict and judgment, so that on appeal from the latter alone, the respondent not appearing, the whole conviction has been quashed {R. V. Surrey, 1892, 2 Q.B. 719). Where, however, the object is to prove a " previous conviction " for evidential purposes, e.g. under the Coinage Offences Act, 1861, ss. 9, 12, the verdict only need be proved {R. v. BMy, 1894, 2 Q.B. Digitized by Microsoft® 560 THE LAW OF EVIDENCE. [bookii. 170; see sit,p.) ; and as to verdicts, see further ante, 433. [Tay. ss. 1570-1575; Eos. N.P. 108-110; Eos. Cr. Ev., 12th ed., 144-148.] Appeals. Chambers. As to proof of proceedings in court on appeals, see 0. 58, rr. 11-13. Proceedings in chambers are provable, on appeal, by the Master's or Eegistrar's notes, and not by the affidavits of witnesses present {Syhes v. S., 1897, P. 306). Probates and Letters of Administration, British, Colonial, Foreign. The primary. modes of proving probate or letters are: (1) by production of the document itself, when the seal will be judicially noticed; or (2) by produc- tion of the Act-book or register, which it seems will be admissible without accounting for the non-production of the probate or letters {Cox v. Ailing- ham, Jacob, 514) ; or (3) by a certified or examined copy of the Act-book or register (14 & 15 Viet. c. 99, s. 14; Barrett v. Meux, 15 C.B. 142; McKenna V. Eager, I.E. 9 C.L. 79 ; ante, 538) ; or (4) when no other record has been kept, by production of the original wiU, bearing the indorsement of the surrogate or deputy-registrar that the executor has proved it and that probate has passed the seal {Doe v. Mew, 7 A. & E. 240; Gorton v. Dyson, 1 B. & B. 219). Since, also, the Court of Probate Act, 1857 (20 & 21 Vict. c. 77), s. 69 provides that an ofiBcial copy of the whole or any part of a will, or an official certificate of the grant of letters of admin, may be obtained from the registry on payment of a fee, Mr. Taylor considers such certificate constitutes a fur- ther method of proof (s. 1590; sed. qu., perhaps, as the Act says nothing as to the effect of such copies or certificates). The original will can under no circumstances be admitted to prove title to personal estate {Pinney v. Pinney, 8 B. & C. 335; Pinney v. Hunt, 6 Ch. D. 98) . It is otherwise, however, when the will is required merely to prove a declaration by the testator {ante, 311), or to construe the will {Re Harrison and Re Beattie-Wrightson, ante, 538), or to correct the translated probate copy of a foreign will {Re Cliffe, 1893, 3 Ch. 329). By 30 & 31 Vict. c. 77, s. 32, all probates, letters of administra- tion, 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. As to devises of real estate, which may now be proved by the probate, or a sealed office copy thereof, see ante, 433-3. By the Colonial Probates Act, 1893, ss. 2, 3, probates of Colonial Courts, or of British Courts in a foreign country,' when sealed by the English Probate Court, have the same effect as if granted in this country {Re Smith, 30 T.L.E. 119; cp. Re Tootah Trusts, 23 Ch.D. 533, and Re Vallance, 34 id. 177). Foreign Pro- hates are provable by copies certified or attested by the notary or other official having custody of the original (Coote, Probate, 14th ed., 50-5; Re Cliff, sup.; Re Callaway, 15 P.D. 147 ; Re Fraser, 1891, P. 385 ; cp. Re Paul, 33 T.L.E. '716, where probate not having yet been obtained, a verified copy of an American will was received), or perhaps by examined or sealed copies under 14 and 15 Vict. c. 99, post, 561. Foreign wills are proved by examined or certified copies, the last named Act not applying thereto {Halkett v. Dudley, 1907, 1 Ch. 590, 604; ante, 548, post, 561). [Tay. ss. 1588, 1590; Eos. N.P. 119-130; cp. ante, 431-3 ; and post, 563-4]. Bankruptcy Proceedings. Eeceiving orders and adjudications may be proved by production of the order under seal of the Court, or by copy of the Digitized by Microsoft® CHAP. xLiii.] CONTENTS OF JUDICIAL DOCUMENTS. 561 Gazette containing them, which are conclusive evidence thereof {B. v. Thomas, 11 Cox, 535 ; ante, 337-8) . So, petitions, orders, certificates, affidavits, and other documents (or copies thereof) used in the course of any bankruptcy or other proceeding under the Act, shall, if they appear to be sealed with the seal of any bankruptcy court, or purport to be signed by the judge, or are certified as true copies by the registrar, be receivable in evidence in all legal proceedings whatever (Bankruptcy Act, 1914, s. 139). And all documents purporting to be orders or certificates made or issued by the Board of Trade and to be sealed with the seal of the Board, or to be signed by a secretary or assistant-secretary of the Board, or any person authorised in that behalf by the President of the Board, shall be received in evidence, and be deemed to be such orders or certificates without further proof unless the contrary is shown (s. 144). So, a minute of proceedings at a meeting of creditors under this Act, signed at the same or ensuing meeting by a person describing himself as, or appearing to be, chairman of the meeting at which the minute is signed, shall be received in evidence without further proof (s. 138; as to the effect of such minutes as evidence of the facts stated, see anie, 349). Frooeediugs in County Courts, Mayor's Court, Sheriff's Courts, Courts Baron, &c. By the County Courts Act, 1888, s. 28, the registrar's book kept under the Act, or copies of entries therein bearing the seal of the Court and purporting to be signed and certified as true copies by him, shall, in all courts and places, whatever, be admitted as evidence of the entries and proceedings referred to and of tiie regularity of such proceedings {e.g. the due appointment of a deputy-judge, B. y. Boberts, 14 Cox, 101), without any further proof. This clause does not seem to dispense with proof of the seal, though perhaps this is cured by 8'& 9 Vict. c. 113, s. 1, or 14 & 15 -Vict. c. 99, s. 14, cited ante, 553-4 (Eos. N.P. 118). Such entries are conclusive, and cannot be contra- dicted even by entries in the judge's own minute book (Dews v. Byley, 30 L.J.C.P. 264; Stonor v. Fvivle, 13 App. Cas. 20), though as to explanation, see post, 576. The proceedings in other inferior civil courts, e.g. Mayors' Courts, Sheriffs' Courts, Courts-baron, like those in inferior Criminal Courts (inf.), may, if it be shown that they are not reduced into more formal shape, be proved by the production of the register, or minute-book ia which they are entered; or by an examined copy thereof; or, if no such book is kept, or no entry has, in fact, been made, then by the officer of the Court or any other competent wit- ness (Tay. s. 1572). Foreign and Colonial Proceedings. All judgments, decrees, orders, and other 'judicial proceedings of any court of justice in any Foreign State or British Colony, and all affidavits, pleadings, and other legal documents, filed or deposited in any such court, may be proved either by examined copies, or copies purporting to be sealed with the seal of the court to which the originals belong, or where there is no seal, to be signed by a judge of such court, who must certify that there is no seal. If these conditions exist, no proof is required of such seal, signature, or certificate, or of the official character of the judge (14 & 15 Vict. s. 99, s. 7; cp. ante, 549-50). This Act does not apply to a Scotch Will, which may be proved by the production of the official extract answering to our probate, and a certified, copy of the original (Halhett v. Dudley, 1907, 1 Ch. 590, 604; as to Foreign Probates generally, see ante, tj:.— 36. Digitized by Microsoft® 562 THE LAW OF EVIDENCE. [bookii. 560). A copy of a Judgment of the Court of Inquisition in Italy, sealed by the Court and by the Secretary of State, and supplemented by expert evidence as to the Italian law on the subject, has been received to prove the existence of such judgment, though not to prove the facts found {R. v. Newman, 3 C. & K. 315), was admitted. Reciprocal Admissibility of Documents in England, Ireland, and the Colonies. Every document which is admissible in England or Wales in proof of any particular, without proof of the seal, stamp, or signature thereof, or of the judicial or oflScial character of the person appearing to have signed the same, is admissible to the same extent and -for the same purpose in Ireland ; and Irish documents are similarly admissible in England and Wales {Re Mahon, 9 Hare, 459). And documents admissible in either are also admis- sible in the Colonies (14 & 15 Vict. c. 99, ss. 9-11). Verdicts and Awards. As to verdicts, see ante, 433. Awards must be proved not only by the production of the award duly executed by all the arbitrators in the presence of each other {Stalworth v. Inns, 13 M. & W. 466; Wright v. Graham, 3 Ex. 131), but by the production of the submission as well, since otherwise the authority of tiie arbitrators does not appear (Ferrer V. Oven, 7 B. & C. 427; Brazier v. Jones, 8 B. & C. 124). Where the sub- mission is by written agreement, execution by all the parties, including those relying on it, must be shown {id.; even though it has been made a rule of court pursuant to one of the terms, Berney v. Read^ 7 Q.B. 79) ; but where the submission is by rule of court or judge's order in an action, production of either respectively is sufficient {Gishorne v. Hart, 5 M. & W. 50; Dresser v. 8tansfield,-14: M. & W. 838). Moreover, where the submission contains any special powers which have been acted on — e.g. to enlarge the time, or to appoint an umpire — the instrument by which such powers have been exercised must be proved in addition to the submission and prior to proof of the award, a mere recital in the award of the exercise of such powers not being sufficient {Still V. Halford, 4 Camp. 19; Davis v. Vass, 15 East, 97). The maxim omnia prcesum.untur rite esse acta "will not dispense with strict proof of the above particulars in the case of private arbitrators, although it is otherwise in the case of awards by public officers {R. v. Haslingfield, 2 M. & S. 558 ; Doe V. Mostyn, 12 C.B. 268). Thus, under several of the Inclosure Acts, the commissioners' awards are made conclusive evidence of the observance of the statutory formalities. In many instances these and other awards are also provable, under statute, by certified copy (Tay. s. 1607). [Tay. ss 1583- 1584.] Fines and Recoveries. As to proof of these, see Eos. N.P. 110. A fine levied by a married woman of lands by descent is valid even before entry, though made without proelamations, nor need her separate examination be shown {Miller v. Wheatley, 28 L.E.I. 144) . Affidavits, Depositions, Pleadings, Writs. Except in cases of perjury, when the original must, if obtainable, be produced {ante, 556), affidavits, in common with writs, pleadings, and documpnts,, filed in the High Court, may, as we have seen, be proved by office copy (0. 37, r. 4; 0. 38, r. 15; 0. 65, r.'27. regs. 53, 54: Eos. N.P. 114-116; ante, 540). As to proof of testimony given in former trials, see ante, 436 ; and depositions before examiners therein may be proved either by office copy (0. 66, r. 7 (/) ; 0. 61, r. 7), or by examined or Digitized by Microsoft® CHAP. xLiii.J CONTENTS OP EEGISTEEED DOCUMENTS. 563 certified copy (Tay. ss. 1577, 1580). As to proof of depositions in earlier stages of the same criminal case, or before coroners, and of the examination of the prisoner, see ante, 102-13. Affidavits sworn in any Colony or foreign country before any person authorised to administer oaths otherwise than by a law of a foreign country may be proved by mere production, their seals, &c., being judicially noticed {ante, 34) ; in the case of affidavits, &c., sworn in foreign countries before foreign officials, the authority of the lattejs must be verified by the certificate, either of a British Consul {Re London Asphalte Co., 23 T.L.E. 406; Brittlehank v. Smith, 50 L.T. 491), or of the local courts {ante, 366; Stringer on Oaths, 3rd ed., pp. 46-9), or of a notary public {ante, 366), or of a consul of such country accredited to this country {Warren v. Swinburne, 9 Jur. 510), but not of a non-British Consul accredited to such foreign, country {Re De Salazar, 21 W.E. 776) [see ante, 24, 461]; and even if sworn before a notary his authority must also be verified {Sharps V. Jackson, 39 L.Jo. 400; Re London Asphalte Co., sup.). As to proof of the swearing, &c„ of affidavits in trials for perjury, see R. v. Barnes, 10 Cox, 539; R. V. Benson, 2 Camp. 508; R. v. Howard, 1 M. & Eob. 187; R. v. Macdonald, 21 Cox, 70; Eos. Cr. Ev., 13th ed., 141, 678-82). And as to the admissibility of, and errors in, affidavits, see ante, 495-9. Where the affidavit is by an ignorant person, proof must be given that it was read over to him before swearing {R. v. Petrieus, 138 C.G.C. Sess. Pap. 886). Writs and warrants before they are returned must be proved by actual production; after return they become matters of record, and may be proved either by production oi, as above, by office copy {R. v. Scott, 2 Q.B.D. 415; Eos. N.P. 111). It must be remembered in this and other cases that a copy served by a party on his opponent is always considered primary evidence of the document as against the former {ante, 538). PRIVATE DOCUMENTS, WHEN REGISTERED, ENROLIED, &c. As to proof of the fact of registration, enrolment, or acknowledgment, see ante, 530. The contents of private documents must generally, as we have seen, be proved by the production of the originals, secondary evidence not being admissible until the absence of the original is explained {ante, 533, 539-49). Where, however, the document is required to be registered or enrolled, this rule does not always hold, and secondary evidence is sometimes the appropriate medium of proof {ante, 530,543). Wills. Probate is obtained either in Common Form, without citation of the parties interested, in which case if the attestation form be sufficient, probate will be granted on the affidavit of the executor alone, otherwise an affidavit by at least one subscribing witness is necessary (WilKams, Exors. 10th ed. 3, 3, 9 ; Pr. Eules, 1862, r. 4) ; or in Solemn Form, after citation of such parties, when usually one only of the subscribing witnesses need be called {BeTbin v. Sheats, 1 S. & T. 148), though one must be called {id.; Bovtman v. Hodgson, L.E. 1 P. & D. 362; Coles v. C, id. 70), except possibly in undefenVied suits {ante, 522). [Williams, Exors, 10th ed. 228-50]. As to when the attesting witness denies or forgets the execution, or is incapable of being called, or the will is lost, &c., see fully ante, 520-3. "When probate has been obtained, wills of personalty are ordinarily provable by prodiiction of the probate, which is a public document constituting primary Digitized by Microsoft® 564 THE LAW OF EVIDEXCE. [bookii. evidence of the validity and contents of the will, except when the latter is merely tendered as evidence of the declaration of the testator or in aid of con- struction or to correct the translation of a foreign will {ante, 311, 431-3, 560). Wills of realty are now also generally provable by probate {ante, 432) ; but the will itself must, where the testator died before January 1, 1898, or the lands are copyhold, or customary freehold, be produced. In such cases, and against the heir, all the attesting witnesses capable of being called should be calleid; though in an action against the devisee by the heir, all need not be {Tatham v. Wright, 2 Euss. & Myl. 1). On an application by next-of-kin, the memorial of registration and affidavit filed therewith were admitted as secon- dary evidence of a lost will, to show that the latter related only to realty, and that there was an intestacy as to the personal estate {Re Attlay, 67 L.T. 502). Where the testator died after January 1, 1898, his real estatCj with the above exceptions, vests in his executor (Land Transfer Act. 1897, ss. 1, 2, 25), and the probate is consequently the only admissible evidence of the will. [Tay. ss 1759-1761, 1856; Eos. N.P. 18th ed. 144-151]. Wills 30 years old in general prove themselves {ante, 523-5). As to Foreign and Colonial Wills and Pro- bates, see ante, 548, 560. Bills of Sale. The Bills of Sale Act, 1878, s. 16, provides that "any copy of a registered bill of sale, and affidavit purporting to be an office copy thereof, shall in all Courts and before all arbitrators or other persons, be admitted as prima facie evidence thereof, and of the fact and date of registration as shown thereon." A certificate of registration under this Act has been held no evidence that the required affidavit has been filed or that the filed copy of the bill is a correct copy thereof, where these points were not stated in the certificate {Turner v. Gulpdn, 36 W.E. 278.) So, under the Act of 1854, a certificate stating merely iiiat "a document purporting to be an office copy of a bill of sale was registered," was held no evidence that the affidavit required by the Act had not also been filed, on the ground apparently that the section did not direct the officer not to file the bill without the affidavit {Masovi V. Wood, 1 C.P.D. 63; cp. ante, 122, 370). And in another case a certificate which stated that "an affidavit and copy bill of sale" indorsed with the names of the grantor and claimant were filed as required, was held insufficient without producing an office copy of the bill of sale to show it was the same as that executed {Emmott v. Marchant, 3 Q.B.D. 555). In this case, Lush, J., said the certificate was evidence that a document purporting to be a bill of sale had been delivered to the officer, together with an affidavit which was correct in form — i.e. as stating the residence and occupation of the grantor — and therefore he thought it was not necessary to produce an office copy of the ' affidavit, but only of the bill of sale. Having regard to these cases, it will, in proving registration, be prudent to produce office copies both of the bill of sale and affidavit, as mentioned in s. 16, sup. (Eos. N.P. 1198). Where the filed copy omits the date of execution, or signatures of grantee and witnes- ses, these may be cured by the affidavit {Thomas v. Roberts, 1898, 1 Q.B. 657; Ooates V. Moore, 1903, 2 K.B. 140). The affidavit must, however, state not only the name and address, but the description, of the attesting witness {Sims V. Trollope, 1897, 1 Q.B. 24) ; though not necessarily the description of the . commissioner {Exp. Johnson, 36 Ch.D. 338; see ante, 496), but it must not be sworn before the grantor's solicitor {ante, 461). As to what misdescrip- tions vdll invalidate, see Jackson v. Oaton, 39 Jr. T.L.E. 41. Digitized by Microsoft® CHAP. XLiii.] CONTENTS OF EEGISTERED DOCUMENTS. 565 Deeds of Arrangsment, Under the Deeds of Arrangement Act, 1887 (50 & 51 Vict. c. 57), deeds to which the Act applies naust be registered within seven days of execution, by the filing of a copy thereof, together with affidavits verifying tlie date of execution, &c. (ss. 5, 6). Under s. 7, a register of such deeds is kept at the central ofiice; and under s. 11, an office copy of, or extract from, such deeds is prima fade evidence thereof, and of the fact and date of their registration. Under this Act execution by creditors after registration has been held not to invalidate the deed or registration (Be Batten, Exp. Milne, 23 Q.B.D. 685, C.A.). Other Documents. In addition to the above, the following private docu- ments, amongst others, are either required or permitted by various statutes to be enrolled or registered — Bargains and Sales, Conveyances in Mortmain or under the- 'Charitable Trusts Amendment Act, 1855; Disentailing or Annuity Deeds, Deeds relating to land in Yorkshire or Middlesex {ante, 349, 370, 530), Deeds of Relinquishment by persons under the Clerical Disabilities Act, 1870, and Articles of Clerkship (Tay. s. 1646) ; and such documents are then provable by office copies of the instrument, the copies being usually evidence both of the fact of enrolment, &c., and of the contents of the docu- ment enrolled ; while the certificate or memorandum of enrolment or registra- tion endorsed on tlie original instrument returned to the party, is also generally evidence of the fact and date of enrolment or registration, without proof of the signature or official character of the person signing it [Tay. ss. 1117-1137, 1646-1654 ; anie, 530-1, 54B.] Acting on the document, by those bound by it,- has also been received as secondary evidence of enrolment (Mac- dougal v. Young, ante, 129). Acknowledgments of deeds by married women, made before 1883, are provable by office copy of the filed certificate of acknowledgment (3 & 4 Will. IV. c. 74, ss. 84, 88; 4 & 5 id. c. 92, s. 79 (Ir.) ; Conveyancing Act, 1882, 45 & 46 Vict. c. 39, s. 7) ; those since 1882, by the memorandum of acknowledgment made on the deed by the official authorized to take it (Conveyancing Act, 1882, sup.). By 51 & 52 Viet. e. 43, s. 184, judges of County Courts are now empowered to take such acknowledgments. Digitized by Microsoft® ( 566 ) CHAPTER XLIV. EXCLUSION OP EXTRINSIC EVIDENCE IN SUBSTITUTION OP DOCUMENTS. When a transaction has been reduced to, or recorded in, writing either by requirement of law, or agreement of the parties, the writing becomes, in general, the exclusive memorial thereof, and no evidence may be given to prove the terms of the transaction except the document itself or secondary evidence of its comments as stated in chap xliii. [Tay. ss. 399-408; Ros. N.P. 1-4; Ros. Cr. Ev. 2-4; Steph. arts. 90, 92. The present rule, which deals with the exclusiveness of documentary evidence, and that in the next chapter relating to its conclusweness, are often loosely referred to as the " fwrol evidence " rule. In Sir J. Stephen's Digest they are dealt with under one head (art. 90) ; in the Indian Evidence Act they are treated as separate rales (ss. 91-2), and since neither the excluding principles nor the exceptions to the rules are quite identical this seems the preferable course. As to the meaning, and forms, of 'pa/rol evidence, as used in the present connection, see "post, 575.] The question whether a contract was reduced into writing and what were its terms, is one of fact. Thus, where A. bought goods orally from B. and B. afterwards sent A. a sold note contain- ing an additional term to which A. had not assented, the contract was held to be an oral and not a written one {Uoe v. Naylor, 87 L.J.K.B. 958, 964-5, C.A.). And if the identity of the document containing the contract is disputed, evidence is admissible to determine the point {Froude v. Hohhs, 1 P. & P. 612, cited ante, 523). History. The history of the parol-evidence rule, both in its exclusive and conclusive aspect, has, like that of most other evidential topics, been a gradual reversal of primitive doctrines. Its evolution has been traced through four more or less clearly defined stages. (1) In origin it dates back to early Germanic procedure, when writing being unfamiliar, a legal system of formal oral transactions prevailed. The carta, when first employed, was partly symbolic and partly testimonial ; but it was neither exclusive nor conclusive in effect. Thus, if the transiaction were disputed, its terms might, according to an elaborate and well-settled procedure, be established by the attendant witnesses regardless of the existence or contradiction of the writing. (2) The rise of the seal, however, marked a new era for documents, for it not only supplied a convenient method of authentication, but by introducing the principle of estoppel, tended to supersede the functions both of transaction- witnesses and compurgators. At first it was the king only who had a Digitized by Microsoft® CHAP. XLiv.j EXCLUSION OF EVIDENCE IN SUBSTITUTION. 567 seal; then the superior courts, counts, and bishops; till, by the end of the thirteenth century, the " free and lawful man " either had a seal of his own, or could get his charters sealed by a sheriff or noble. The king's seal was indisputable; and the analogy working downward, the sealed writing tended to become no longer merely testimonial, but dispositive, the contractual act itself. (3) Evidence now began to be classed according to grade, matter of record being higher than writing (i.e. deed), and both than matter of aver- ment. Coincidently the doctrine appears, probably as a borrowing from the Roman law, that each can only be dissolved by matter of equal or higher, but not of inferior degree (Y.B. 33 & 35 Ed. I. 127, 330-1, 547; cp. Doctor and Student, 1, 13). This principle had a double bearing, shutting out inferior evidence when offered either in substitution of, or in opposition to, superior. Thus, the decrees of Courts of Record were not only the exclusive evidence of their own existence, admitting of no alternative proof ("A thing which can be averred by the judgment and record of the Court is not to be tried by an inquest," Y.B. 35 Ed. I. 528) ; but also conclusive, admitting of no contra- diction (Recordationem Curim Regis negare licet. Laws of Hen. I. c. 31 ; cp. Beams' Grlanville, Bk. 8, ch. 8). On the other hand, the decrees of inferior courts, which were not " of record," might be contradicted by witnesses. With regard to Deeds, the same principles were partially, though not universally, taking effect, the tendency being perhaps most marked in transactions trace- able to a Roman source. Thus, as an example of exclusiveness, where a bond (an instrument introduced by the Lombard bankers) existed, the creditor might not prove his debt by parol, the reason given being sometimes that the contract and obligations were two different undertakings of which the greater discharged the less (Y.B. 1 Hen. VI. 7, 31), and sometimes that the production and cancellation of the deed were necessary for the protection of the debtor (Y.B. 17 Ed. III. 24, pi. 11) ; while, as to conclusiveness, it was early laid down that a deed could not be annulled or altered except by deed, otherwise averment would prevail over specialty (Y.B. 30 & 21 Ed. I. 64; 32 & 33 id. 80, 136; 1604, Countess of Rutland's Case, 5 Co. Rep. 25). So, parties were estopped by their admissions of fact in a deed (Y.B. 21 & 22 Ed. I. 436; 41 Ed. III. 10, 6; 39 Hen. VI. 34, 46) ; and in the same way a release under seal, like the Roman acceptilatio, operated to discharge the obligation whether there had been performance or not, while a mere oral payment did not, since that would have made matter of vn-iting of no greater authority than matter of fact (1542, Waberley v. Cockerel, Dyer, 51). On the other hand, there were important instances in which primitive ideas had never been dis- lodged. Thus, in 1323, in a case of power assensu patris, the plaintiff, while tendering a deed testifying the assent, was ready to aver the consent by those who were present; whereupon the Court remarked "We have nothing to do with the witnesses named in the deed, for it is not denied, but we will cause those to come whom you name as present when you were endowed, together with a jury " (Y.B. Ed. II. 507'>. So, in transactions affecting land, it was the livery of seisin (the ancient Gothic conveyance), not the charter of feoffment which raised the estoppel, the charter being, for long, testi- monial merely, not dispositive, i.e. not "I hereby give," but "know ye that I have given," the question being whether A. made the gift, not whether he made a charter attesting it (Poll. & Mait. Hist. Eng. Law, 82, 84 n, 626). Digitized by Microsoft® 568 THE LAW OF EVIDENCE. [bookii. Indeed, a charter was said by some to be void if it testified that a gift had been made, while in fact there had been no livery of seisin, or if the deed was to one tifect and the words of livery to another; at all events it gave no ;tis ad rem, nor could it be read as an agreement to give {id. 83). Similarly, a deed of feoffment, though absolute on its face, might be shown by parol to have been merely conditional (Y.B. 20 & 21 Ed; I. 430.) There were other cases, also, in which the new principles did not obtain; thus, in a contract of loan by deed indented, the plaintiff might count either on the contract or the indenture (Y.B. 30 Hen. VI. 34, 46) ; and, generally, where the action was based not solely on the deed, but also on matter in pais, there the latter was admissible in answer. (4) The last stage in transition to the modern idea is marked by the Statute of Frauds, which, by abolishing the power of creating freehold estates by oral livery of seisin merely, emphasized the dispositive as opposed to the testimonial character of the written instru- ment, and by permitting leases to be made without seal, extended that character to unsealed documents as well. Two further influences had greatly helped towards this advance; first, the increasing vogue of mer- cantile instruments, which already enjoyed an indisputability based on the analogy of the Eoman law; and secondly, the general spread of letters, which not only emphasised the trustworthiness of writing as compared with " the uncertain testimony of slippery memory," but also fostered the substitution of manual signature for the seal as a mode of authentication. By 1709, it had thus became possible to lay down the rule, alike for sealed and unsealed documents, that " if an agreement made by parol to do anything be afterwards reduced into writing, the parol agreement is thereby discharged ; and if an action be brought for non-performance of the agreement, it must be brought upon the agreement reduced into writing and not upon the parol agreement, for both cannot stand together, because it appears to be but one agreement, and that shall be taken which is later and reduced to the greater certainty of writing " (Viner's Abridg. Oontr. G. 18). This is the exclusive aspect of the rule. With regard to the conclusive, the old rule that matter of deed could not be controlled by matter of averment {sup.; 1604, Countess of Rutland's Case, 5 Co. Rep. 35), began now to be extended to unsealed writings, which henceforth, and save in exceptional cases, might neither be varied nor supplemented by oral testimony (1771, Meres v. Ansell, 3 Wils, 275). [Wigmore, s. 2426; Thayer, Pr. Tr. Ev. 17- 34, 97-113; Holmes, Common Law, 255-77; Salmond, 6 Law Quart. Eev. 75- 85 ; 2 Poll. & Mait. Hist. Eng. Law, 83, 105, 305, 333, 598-9 635-6.] Principle. The present rule Is commonly said to be founded on the " best evidence" principle {ante, 45); but, like other alleged applications of that principle, it is, as has been shown &bove, historically much older. Prof. Thayer considers it to be merely "a doctrine of the substantive law of the subjects to. which it is applied, e.g. in the case of written contract that all preceding and contemporaneous oral expressions of the thing are merged in the writing or displaced by it; and in the case of wills, that the written form is essential to the thing itself " (Pr. Tr. Ev. 398; Wigmore, s. 2400). Burd«n of proving the Existence and due Stamping of the Document: on whom rests. The party whose witnesses show that the transaction was reduced to -writing must produce, or explain the absence of, the instrument; and the Digitized by Microsoft® CHAP. XLiv.J EXCLUSION OP EVIDENCE IN SUBSTITUTION. 569 opponent, in order to ascertain the fact, may either interpose in chief {ante, 41) or reserve the question for cross-examination, and where it is denied may at once prove the existence of the writing. If, however, the plaintiff can establish a prima facie case without betraying the document, he will not be prejudiced by the defendant proving its existence, for the burden will then be shifted, and if the latter rely on the document he must produce it (with the usual liability as to stamping, ante, 531) as part of his own case, even though he had served notice to produce on the plaintiff (Magnay v. Knight, 2 Scott, N.E. 64; Tay. s. 404). Moreover, a vague admission by the plaintiff's witnesses that there was an agreement relating to the matter is not sufficient, there must have been a binding contract between the parties at the date of the trial; npr will a solicitor's admission, made in mere conversation, that there was a written agreement on the subject, suffice {Watson v. King, 3 C.B. 608, cited ante, 249). Judicial Documents. Extrinsic evidence is, in general, inadmissible in sub- stitution of judicial documents. Thus, the record, or a copy thereof, is the proper legal evidence of a proceeding in the High Court ^{ante, 556-63 ; Thomas V. Ansley, 6 Esp. 80; R. v. Bourden, 3 C. & K. 366). Parol evidence has even been rejected to prove the date on which a cause came on for trial {R. v. Page, 6 Esp. 83) ; but as adjournments during sittings are not noticed on the record, such evidence may often afford the only proof of the actual day of trial (Whitaher^Y. Wisbey, 13 C.B. p. 53; and, in the Tichlorne Case, the testi- mony of the officer of the court was stated to be receivable to prove tha date on which the charge was made, depositions tendered for that purpose being rejected, vol. i. p. 193) ;■ see also infra as to the existence, as distinct from the terms, of a judgment; and as to parol evidence to explain the grounds of a judgment, see ante, 415, and post, 476. The same rule applies to the memorials of county courts, which are the proper evidence of proceedings therein {R. v. Rowland, 1 F. & F. 73). And on a charge of perjury commit- ted before justices, the proceedings taken before the latter must be proved liy the summons, or charge-book {R. v. Hurrell, 3 F. & F. 371 ; R. v. Hockham, 119 C.C.C. Sess. Pap. 59) ; or the written information if there be one {R. v. Dillon, 14 Cox, 4) , though, if these be destroyed, secondary evidence thereof may be given {id.) So, the date of a prisoner's apprehension must be proved by the warrant and not by parol {R. v. Phillips, Rus. & Ry. 369)'. Where, however, no memorials are kept, a judgment may of necessity be proved by witnesses {Earmer v. Bean, 3. C. & K. 307; Tay. s. 1572). In like manner, the statutory deposition of a witness in a civil or criminal proceeding, or the statutory examination of a prisoner, is the only proof receivable of what either has stated {Leach v. Simpson, 5 M. & W. 309; R. V. Coll, 34 L.R.I. 533; Tay. s. 399; Ros. Cr. Ev. 57-58; ante, 543). If, however, no deposition, or an informal one, has been returned, parol evidence of what was said by the witness may be given (Tay. ss. 400, 416; Ros. Cr. Ev. 58) ; so, also, with the examination of the prisoner {R. v. Erdheim, ante, 315, 509 ; R. v. Thomas, 13 Cox, 77 ; Tay. ss. 400, 894) . And the same result has followed where, although a formal deposition had been taken, the witness testified to what he had stated before the magistrate, no objection by the opposite side having been raised at the trial, or reserved {R. v. Coll, ante, 494) . While, where a witness, since deceased, had signed a written deposition, and Digitized by Microsoft® 570 THE LAW OF EVIDENCE. [bookii. afterwards testified orally, parol evidence of either was held admissible at the option of the party {Tod v. ^Y^nchelsea, 3 C. & P. 387). Private Formal Documents. Where a private transaction is required by law to be in writing {e.g. a will, contract under the Statute of Frauds, bill of sale, or policy of marine insurance), or where a contract, grant, or other disposition of property, though pot so required, is reduced to writing by agreement of the parties and intended by them to be complete and operative as such, — no extrinsic evidence is admissible to supersede the document, or to prove the terms of the transaction independently. Thus, where a contract of agency had been orally made between the parties, but had subsequently been put into writing and signed by them, it was held that the document was the only admissible evidence of the agreement {Morris v. Delobbel-Flipo, 1892, 2 Ch. 352). So, where the secretary of a society sued the committee for salary, and it appeared he had been appointed by a resolution in the book of the committee, of which book he had had the care, it was held that though he was no party to the resolution, which was passed before his appointment, yet as he accepted the situation and benefit in pursuance of it, he was bound by it, and that the terms could only be proved by the book ( Whitford v. Tutin, 10 Bing, 395 ; see Rennie v. Clarice, &c., ante, 69 ; R. v. Stacey, <£c., ante, 110-1, 128). The above rule holds even though the real term had been acted on before reduction into writing, and, although the document itself would, if produced, be inadmissible, e.g. a bill of sale void for want of registra- tion or stamp {Exp. Parsons, Re Townsend, 16 Q.B.D. 532, 543; Yorlce V. Smith, 21 L.J. Q.B. 53; Gharlesworth v. Mills, 1892, A.C. 231, 239; cp. post, 572). On the other hand where there is an oral agreement, and a mere informal note or memorandum, which cannot be deemed to be a reduction of the agreement into writing, is afterwards given, the parol agreement will prevail (see infra, Private Informal Documents). Where A.'s traveller showed B. a specification of goods on sale, with their prices, and B. marked those he wanted and was told he could have them, and the next day A. sent B. a sold note setting out the above but adding the additional term "subject to being in stock," in obscure print, which B. did not notice nor accept;- — -in an action by B. for non-delivery, it was held by the County Court judge and the Div. Court, that the contract was contained in the sold note (omitting the obscure term), but on appeal that it was an oral one on which B. might sue, irrespective of the note {Roe v. Naylor, 87 L.J.K.B. 958, C.A.; cp. Passenger's Tickets, ante, 147). So, where an agreement is partly oral and partly written, and the oral terms o'nly are sued on, the document need not be produced {Eay v. Moorhouse, 6 Bing, N.C. 52) ; but where the written terms are sued on, it must be {Fulmouth v. Roberts, 9 M. & W. 469, cited ante, 528). Even between strangers, indeed, the terms of the transaction can only be shown by the production of the document itself, and not by oral testimony. Thus, in an action by an execution creditor against the sheriff for wrong- fully withdrawing an execution, the defence being that a distress was in for rent, the sheriff was not allowed to ask the landlord, whom he called as a witness, the amount of rent due, it appearing that there was a lease which might have been produced {Augustein v. GhaUis, 1 Ex. 279). So, in a settle- ment case, the applicants having proved that a pauper occupied a tenement Digitized by Microsoft® CHAP. XLiv.J. EXCLUSION OF EVIDENCE IN SUBSTITUTION. 571 of £10 a year and paid the rent and taxes, the respondent attempted to prove by parol that the letting was to the pauper and two others, but on cross- examination, as it appeared that the letting was by writing, it was held necessary to produce it (J2. v. Ra/wden, 8 B. & C. 708; Fenn. v. Griffith, 6 Bing. 533). And, in another settlement case, where a hiring agreement had been executed by the servant but not by the master, who, however, had accepted the agreement, it was held that the terms of the hiring could only be proved by the document {R. v. Houghton Le Spring, 2 B. & Aid. 375) ; while there the terms of the agreement had been written down by a third person in the presence of both parties but the document had not afterwards been seen nor recognized by them, it was held that the terms of the hiring might be proved by parol (R. v. Wrangle, 6 Bing, N.C. 52). So, where A. let land to B., on which C. had wrongfully cut down timber, thereby injuring A.'s reversion, in an action by A. against C. it was held B. could not prove A.'s reversion by parol, but must produce the lease {Cotterill v. Hobby, 4 B. & C. 465; in Strother V. Barr, 2 M. & P. 207, the judges appear to have been equally divided on the point.) EXCEPTIONS. To the rule as above stated are three classes of exceptions : (1) Public Documents are, in general, given no exclusive (nor conclusive, post, 577, 588) authority by law as instruments of evidence. Thus, an entry of marriage {Evans v. Morgan, 2 C. & J. 453; R. v. Wilson, 3 F. & F. 119), or of the nationality of a ship {R. v. Seberg, L.E. 1 CO. 264) in a public register; or the certificate of the registration of a company, even when by statute rendered " conclusive evidence " {Agricultural Catth Com- pany T. Fitzgerald, 16 Q.B. 432; B. v. Langton, 2 Q.B.D. 296; areie, 109, 369), will not exclude independent proof of those facts. So, the Gazette, though "conclusive evidence" of an adjudication {ante, 338, 560-1), or of the aban- donment of a tramway {A.-G. v. Bournemouth, 1902, 3 Oh. 714, disapproving Re Dudley Tramways, 42 W.E. 126, contra), is not exclusive evidence thereof. And where the proceedings of directors, commissioners, public trustees, and the like, are directed by statute to be entered in minute-books, extrinsic evidence of such proceedings is nevertheless receivable {Miles v. Bough, 3 Q.B. 845, 872; Inglis v. Great Northern Ry., 1 Macq. H.L. 112, 118). Nor will recitals in statutes, gazettes, and other official documents exclude independent evidence of the facts recited (Stark. Ev., 4th ed. 718). So, where a written order by a public officer was held privileged as a public document, no second- ary evidence being allowed, the effect was held to be the same as if it were not in existence, and proof was allowed, not of the contents of the document, but that the act was done by order of the officer {Cooke v. Maxwell, 2 Stark. 1%Z; ante, 181). As to the exclusionary effect of a statutory certificate of the value of lands, see M'Knight v. Gardner, 83 Ir.T.L.E. 108. Foreign written law is, indeed, as we have seen, exclusively provable by the oral testimony of experts {ante, 388-9) ; but it is otherwise as to domestic written law {ante, 20; 549). (2) Private Documents when Collateral or Informal. Extrinsic evidence is admissible in substitution of any document intended by the parties to operate merely as a collateral or informal memorandum of a transaction, and not as a contract or other binding legal instrument. Thus, payment of a debt Digitized by Microsoft® 572 THE LAW OF EYIDEXCE. [book n. may be proved orally, although a cheque was given and a receipt taken, the latter of which was produced (Carmarthen Ry. v. Manchester By., ante, 66; and cp. infra (3)). So, an order for goods, insufiScient under the Statute of Frauds, will not exclude parol evidence {Lockett v. Nkklin, 2 Ex. 93). And Avhere possession of goods was taken on a certain understanding, althouo'h a receipt and inventory were also signed {Newlove v. Shrewsbury, 21 Q.B.Dr41; Charlesworth v. Mills, 1892, A.C. 231; Origg y. National Co., 1891, 3 Ch. 206; and cp. Harris v. Rickett, post, 591), or where a loan was secured collaterally by a promissory note (Birchall v. Bullough, 1896, IQ.B. 325), oral evidence of the former was admitted. The opposed results are well shown in cases of merger : thus, where a loan is secured by a covenant to pay, the loan being merged can only be proved thereby ; while, if secured by a mort- gage without such covenant, there is no merger, and the loan may be proved independently (Eos. X.P., 17th ed. 594; post, 580). So, if during employment under a written contract, a distinct verbal order is given for wholly separate work, the document need not be produced '{Reid v. Batte, M. & M. 413 ; Tay. s. 405) ; but it is otherwise if these points are not clearly shown, for, in that case, the document might furnish evidence both as to the inclusion of, and remuneration for, the alleged extra items {Vince7it v. Cole, M. & ]\I. 357; Bmion v. Cornish, 12 M. & W. 426; Edie v. Kingsford, 23 L.J.C.P. 123; Tay. s. 402; and see Cooper v. Ipswich, 73 J.P.Jo. 312, where to show that inclusion was intended, proof was admitted that both works were of the same character and so probably contemplated by the parties). Where, also, there is merely an unaccepted proposal in writing, oral evidence of the contract is admissible (Stones v. Dowler, 29 L.J. Ex. 132). And parol evi- dence of a hiring was admitted where, although the terms had been written down, they had not been signed nor otherwise treated as an agreement (R. v. ^Yrangle, 2 A. & E 514; Trewhitt v. Lambert, 10 A. & E. 470). Again, where an auctioneer sold an article described in an unsigned catalogue as silver for £6., but publicly stated at the sale that it was only plated, evidence of this statement was received, since the contract was really an oral one (Eden v. Blake, 13 M. & W. 614) ; and where lands were let by auction, and a paper of the terms of letting was delivered by the auctioneer to the bidder, which paper was not signed by the latter or either of the parties, parol evidence of the terms was received (Ramsbottom v. Tunbndge, 2 M. & S. 434 ; though aliter where the paper had been signed by the auctioneer, Rams- bottom V. Mortley, id. 445 ; see also Hawkins v. Warre, 3 B. & C. 697, where the same distinction between signed and unsigned papers was taken) [cp. post, 597]. So, where a resolution, proposed at a public meeting, was read out from a paper, it was held that the paper need not be produced, for the ques- tion was not what the paper contained, but what the speaker proposed (R. V. Sheridan, 31 How. St. Tr. 673-4; cp. R. v. Moors, ante, 533, 545, where an unlawful oath was similarly read out). (3) Existence as distinct from Terms of Transaction. Extrinsic evidence is sometimes admissible to prove the existence as distinguished from the terms of some transaction or relationship which has been reduced into writing. Thus, the existence of a partnership may be shown without producing the deed (Alderson v. Clay, 1 Stark. R. 405) ; acting in a public oifice (ante. no), or the oral testimony of the official that he holds it (Ross v. Helm, 1913, 3 K.B. 463), is prima facie evidence of due appointment, without Digitized by Microsoft® CHAP.XLiv.] EXCLUSIOX OF EYIDEXCE IX SUBSTITUTIOX. 573 producing tlie written instrument; and the fact of the recovery of judgment, as distinguished from its contents, may be proved without the record [Hen- man V. Lester, cited ante, 477) ; so, also, the fact of bankruptcy (id.) ; or conviction for crime (ante, 483, 557) ; and oral evidence is receivable to show that A. agreed to sell goods on commission for B., though the terms of the transaction had been committed to writing (Whitfield v. Brand, 16 M. & W. 282). So, the fact that a husband and wife are living apart voluntarily may be shown without production of the separation agreement (Fengl v. F., 1914, P. 274, where the document was inadmissible for want of a stamp). Again, the fact of occupation of land, irrespective of the details of the ten- ancy, may be proved without producing the lease — e.g. by evidence that the tenant has been seen in occupation, or has paid rent {R. v. Holy Trinity, 7 B. & C. 611 ; Doe v. Harvey, 8 Bing. 239, 242 ; see, however, Strother v. Barr, 5 Bing, 136; Twyman v. Knowles, 13 C.B. 222); and the mere relation of landlord and tenant (Augustien v. Challis, 1 Ex. 280, per Alderson, B.), or the date when possession had been {Re Lander, 1892, 3 Ch. 41), but not was to le {Biggs v. Brennan, 41 Ir. L.T.E. 60), taken, may be proved by parol, though it has been held that the actual party under whom the tenant came into possession {Doe v. Harvey, sup.), or to whom a demise has been made {B. V. Bawden, 8 B. & C. 708), or tiie payment of the rent reserved {R. v. Merthyr TydvU, 1 B. & Ad. 29; Augustein v. Challis, sup,), cannot be so shown. On the other hand, strict proof of a transaction by the production of the document is sometimes required, though the terms thereof may not be in dispute.' Thus, on a charge of perjury committed in proceedings before justices for refusing to leave licensed premises, the license must be produced, and oral testimony by the proprietor that he is licensed is inadmissible {B. V. Evans, 17 Cox, 37; R. v. Lewis, 12 id. 163; B. v. Willis, 12 id. 164). So, in prosecutions for bigamy, a Jewish marriage must be established by produc- tion of the written contract with proof of its execution, and not by a mere witness of the marriage ceremony {B. v. Althausen, 17 Cox, 630; Horn v. Noel, 1 Camp, 61; ante, 344, 384). Again, the fact that a person is rated to the relief of the poor can only be proved by the rate-book, or secondary evidence thereof, and not by parol {Justice v. Elstob, 1 F. & P. 256; ante 555). And the proper evidence of an Insurance is the policy, or secondary evidence thereof {B. v. Doran, 1 Esp. 127; B. v. Eitson, 1 Dears, C.C. 187 ; cp. B. v. Gil- son, Eus. & Ey. 138) . Similarly, the taking of an oath under the Toleration Act (1 W. & M. c. 18), being matter of record in the court where sworn, could not be proved by parol {B. v. Hvhe, 1 Peake, N.P.C. 132). And on a ques- tion of infringement, where the identity of the contents of two rival operas was in dispute, the best evidence of the prior publication of one was held to be the production of the printed music ; and oral testimony that the witness had seen such opera in print in a foreign country several years before, or heard it played in society there, was rejected {Boosey v. Davidson, 13 Q.B. 257 ; this case, however, was not approved in Geralopulo v. Wider, 10 C.B. 690, 696, and though cited in, appears to be inconsistent with, Lucas v. Williams, 1892, 2 Q.B. 113, C.A., where the infringement of a picture by an engraving was allowed to be proved, without production of the former, by oral testimony of a comparison made out of court; ante, 47). Digitized by Microsoft® ( 574 ) CHAPTEE XLV. EXCLUSION OF EXTEINSIC EVIDENCE TO CONTEADICT, VAEY, OE ADD TO DOCUMENTS. # Whek a transaction has been reduced to, or recorded in, writing either by requirement of law, or agreement of the parties, extrinsic evidence is, in general, inadmissible to contradict, vary, add to or subtract from, the terms of the document. [Tay. ss. 1133-57; Best, s. 36; Eos. N.P. 15-39; Steph. art. 90; Gulson, ss. 446-55 ; Norton on Deeds, 124-39 ; Thayer, Pr. Tr. Ev. 390-410 ; "Wigmore, ss. 3435-54. In Equity, the rule that a written contract could not be varied by parol, was prima facie the same as at Common Law {Woolam v. Ream, 7 Ves. 311; Hill v. Wilson, 8 €h. App. 888; Flight v. Gray, 3 C.B.N.S. 320). But in equity there were the special exceptions that an extraneous parol agreement might form a ground for refusing specific performance, and that mistakes in documents might be rectified; while at Common Law there was the peculiarity that a collateral parol agreement might be enforced by separate action or counterclaim {Henry v. Smith, 39 Sol. Jo. 559, per Wright, J-iDriiiff v. Parher, L.E. 5 Eq. 131, cited post, 586)]. Principle. The grounds .of exclusion commonly given are: (1) that to admit inferior evidence when the law requires superior would be to nullify the law; and (2) that when the parties have deliberately put their agree- ment into writing, it is conclusively presumed between themselves and their privies that they intended the writing to form a full and final state- ment of their intentions, and one which should be placed beyond the reach of future controversy, bad faith, or treacherous memory. The rule, however, is sometimes thought to be based on the "best evidence" principle (Guard- house V. Blackburn, L.E. 1 P. & D. 117; Davis y. Symonds, 1 Cox, Ch. 403) ; sometimes on the doctrine of estoppel, for "in each the party is precluded by his acknowledgment in writing from disputing what is so acknowledged —in estoppel, however, it is matter of fact, here it is the terms of an agreement" (Salmond, 6 Law Quart. Eev. 81; Stephen, Pleading, 7th ed. 183-3 ; post, chap, xlviii.) ; and sometimes on the substantive law purely [Leake, Contracts, 5th ed. 118; Elphinstone, Deeds, 1-2; Mr. Gulson remarks th9,t the rule is one of substantive law directed not against parol evidence as an improper mode of proving the contract, &c., but (1) against such evidence as an improper mode of making it (ss. 448-9) ; and (3) against extrinsic facts (however proved) being received to affect the meaning of the written instrument (ss. 450-54). Prof. Thayer also regards the rule and its exceptions as doctrines of substantive law disguised in terms of evidence, observing of the rule that, "it is the use of such matter, not the proving Digitized by Microsoft® CHAP. XLV.J EXCLUSION OF EVIDENCE TO VARY, &c. 575 of it, which is objectionable; the averment of it in pleading, the having an issue on it, the going to the jury with it, that is forbidden " (Pr. Tr. Ev. 401) ; and of the exceptions that " the true inquiry is whether certain claims or defences are allowable. If relief can be had in such cases the law of evidence has nothing to say as to any kind of evidence, . good under the generar rules, which may be offered^ to prove these things. In so far as extrinsic facts are a legal basis of claim or defence, extrinsic evidence is good to prove them" {id. 409). So, Prof. Wigmore, s. 2435: "It is a rule of substantive law, because it deals with the question in what sources and materials are to be found the terms of a legal act, and not a rule of evidence dealing with the value of one fact as probative of another"; and see 17 Harv. L. Rev. 340, where the rule is considered one of substantive law because it rejects the fact offered as irrelevant, and does not merely forbid the proving of it in a particular way.] For the history of the rule, see ante, 566-8. Forms of Extrinsic or Parol Evidence. The evidence excluded under the present rule is often called parol evidence, a term which, though sometimes applied to written matter as opposed to instruments under seal, and some- times to oral testimony or statements as opposed to written, is in the present connection used to describe all evidence extraneous to the document itself. Such evidence is generally inadmissible whether it consists of (1) direct oral testimony by the parties; (3) their admissions, declarations of intent, or conversations out of court {Doe v. Webster, 13 A. & E. 443; Tay. s. 1133; ante, 334; post, 633) ; ,(3) their statements against interest, &c., tendered after death {Lalor v. L., ante, 385) ; or (4) of facts and events not in the nature of declarations, whether happening before, at, or after the date of the instru- ment, e.g. their previous course of dealing tendered to supplement a com- plete, though aliter an incomplete, contract {Pontifex v. Hartley, cited post, 590), or to contradict the instrument {Ford v. Yates, post, 591) ; for examples of course of dealing admissible, or not, to affect the construction of documents, see post, 560, 564. So, (5) all documents and correspondence other than those constituting the transaction in. issue, or incorporated therewith by reference {ante, 535-8; post, 613), e.g. drafts, deleted clauses or prior informal agreements, are in general excluded, beiag deemed to be merged in and superseded by the final agreement {Halhead v. . Young, 35 L. J.Q.B. 390, 393; Inglis v. Buttery, 3 App. €as. 553; Leggott y. Barrett, 15 Ch.D. 306; National Bank v. Fallcihgham, 1903, A.C. 585, 591; as to the admissi- bility of such documents in aid of interpretation, see post, 616, 633-9) . On the other hand, when extrinsic evidence is admitted by exception, all forms are not necessarily receivable. Thus, though the due execution of a deed may be impeached by parol, declarations by a deceased subscribing witness are not admissible for that purpose {Stohart v. Dry den, ante, 377). So, though declarations of intention by a testator are receivable as original evidence to invalidate his wUl, his mere hearsay assertions are not {umte, 335 ; Provis v. Reed, ante, 330). And it has been held that a joint tenancy under a docu- ment may be proved to be a tenancy in common by the conduct, but not by the declarations of intention, of the parties {Harrison v. Barton, post, 581). As to the exclusion of declarations of intention when tendered to affect construc- tion, see ante, 335-6, and post, 611, 613. Digitized by Microsoft® 576 THE LAW OP EVIDENCE. [bookii. Judicial Documents. Extrinsic evidence is in general inadmissible to con- tradict or vary judicial documents (post, 584-6). Thus, a County Court judgment cannot be varied by the judge's notes {Dews v. Byley, 30 L.J.C.P. 364), still less by the informal memoranda or letters of the registrar (Stonor V. Fowle, 13 App. Cas. 30, 37-8). And the note or certificate of his judg- ment supplied by a County Court judge for appeal is conclusive, and cannot be varied by affidavit* or shorthand notes {Euddleston v. Fumess By., 15 T.L.E. 338, C.A.). So, where out of five justices, one only was recorded as dissenting, the K.B.D. was held bound by the record and evidence to show that a decision was not that of the majority was rejected [B. v. Tyrone, JJ., 1917, 3 I.E. 437, Campbell, L.C. remarked, " In recent cases the Court has gone very far in allowing affidavits contradicting matters which appear regular on the face of the record. We are not inclined to extend that practice."] And an award speaks for itself, and no evidence to contradict, vary, or add to it is receivable (ante, 196). As to where a justice's sum- mons and the order and certificate of the order vary inter se, see Doherty V. Miles, 40 Ir.L.T.E. 39. Parol evidence has, however, been received to explain the ground on which a former order was quashed {B. v. Wheelock, 5 B. & C. 511; though see B. v. Enaptoft, 2 id. 883) ; and such evidence is constantly resorted to, on pleas of res judicata, to ascertain the identity, or non-identity of the issues upon which the former judgment was given {ante, 315). So, a Counly Court judge has been allowed to explain, by correspond- ence with the parties, the meaning of an ambiguous phrase in his judgment, e.g. that by " plaintiff was a trespasser " he meant " plaintiff was not there by right" {Lowery v. Walker, 37 T.L.K. 83, H.L.) As to the. explanation of Awards, see ante, 196. Depositions. The same rule applies to the statutory deposition of a witness in a civil or criminal proceeding, and the statutory examination of a prisoner, neither of which can be contradicted, or varied by extrinsic evidence. As to additions to the depositions, it has been considered that since such documents are now required by statute to contain the whole statement of the deponent, and not merely so much as the justice deems material, all parol additions should be excluded (Tay. s. 893; Eos. Cr. Ev. 58, where, however, it is suggested that though additions should not be allowed when the deposition is used as substantive evidence, t.e. to supply the testimony of an absent witness, yet they may be when it is used merely to contradict a witness, sed qu. as to this distinction) ; but since the statute has been held to be satisfied if so much only of the testimony as the justice deems material is included {ante, 506), there seems no valid reason why parol additions should not now (as formerly, see Leach v. Simpson, 5 M. & W. 309) be admitted. Private formal Documents. Where private documents are required by law td be in writing — e.g. wills, contracts within the Statute of Frauds, bills of exchange, marine policies, and the like, extrinsic evidence is generally inadmissible to contradict, vary, or supplement their terms. And the same rule holds with regard to contracts, grants, and dispositions of property which, though not required! by law to be in writing, have been reduced thereto hy agreement of the parties; though here it is in some respects less stringently applied {post, 577-8, 587-8). This rule has sometimes been extended to less formal unilateral writings, e.g. entries by deceased persons in the course of Digitized by Microsoft® CHAP. XLV.J EXCLUSION OF EVIDENXiE TO VARY, &c. 577 duty, which cannot be contradicted by their declarations at other times {Stapylton v. Clough, ante, 276-7, 293) ; and see R. v. Pembridge, infra. EXCEPTIONS TO THE RULE. To the rvde as above stated there are several exceptions, some of which might, perhaps, be treated as falling out- side its scope altogether. (1) Public Documents are in general only prima facie, and not conclusive, evidence of the facts therein contained. Thus, unless otherwise provided by statute an entry in a public register may be contradicted by parol (The Becepta, 14 P.D. 131; Kemp y. Elisha, 1918, 1 K.B. 228, C.A.). Evidence has, however, been rejected to supplement an entry in a vestry-book (B. v. Pembi-idge, Car. & M. 157). (2) Private Documents when (a) informal, or (&) inter alios, (a) Informal: Evidence is, in general, admissible to contradict or vary any docu- ment intended by the parties to operate merely as a collateral or informal memorandum of a transaction, and not as a contract or other binding legal instrument. Thus, a receipt wiU not, even between the parties, unless amounting to an estoppel, exclude extrinsic evidence to contradict the writing {Lee V. Lane. & Yorks. By. L.R. 6 Ch. 527; Prosser v. Lancashire Co., 6 T.L.R. 285; Ellen v. G. N. By., 17 T.L.E. 453; Oliver v. Nautilus Co., 1903, 2 K.B. 639 ; Nathan v. Ogdens, 94 L.T. 126, C.A. ; Eos. N.P. 66) ; and in actions between owners and consignees or indorsees, a receipt in a bill of lading is, unless expressed to be conclusive {Crossfield v. Kyle Co., 1916, 2 K.B. 885, C.A.), usually only prima facie evidence of the shipment or description of the goods {Smith v. Bedouin Co., 1896, A.C. 70; Bennett v. Bacon, 2 Com. Cas. 102; Eime v. Free, id. 149; Cox v. Bruce, 18 Q.B.D. 147; Parsons v. N. Zealand Co., 1901, 1 K.B. 548; New Chinese Co. v. Ocean Co., 1917, 2 K.B. 664. C.A.; cp. Compania Naviera v. Churchill, 1906, 1 K.B. 237; Eos. N.P. 468, 474; 104 L.T.Jo. 199; 120 id. 171). A broker's receipt for premium on a policy of marine insurance is, in the absence of fraud, con- clusive between insurer and assured, but not between insurer and broker (Mar. Ins. Act, 1906, s. 54). As to receipts in deeds, see post, 586-7. So, where A. sold B. a horse, signing and giving B. a paper as follows : — " Bought of A. a horse for £7 2s 6d.," this was held not to preclude B. from proving that A. had verbally warranted the animal quiet in harness {Alien v. Pink, 4 M. & W. 140) ; nor, where A. hired a horse frpm B., did a paper signed by B., "six weeks at 2 guineas," preclude A. from proving an oral agreement that B. was to be liable for accidents caused by shying {Jeffery v. Walton, 1 Stark. 267) ; and though it was said in the latter case that the written terms could not be contradicted, yet this was doubted by Willes, J., ia Maipas V. L. & 8. W. By., L.E. 1 C.P. 336, since they did not purport to be an agreement {post, 589). (6) Inter alios. Where a transaction has been reduced iato writing merely by. agreement of the parties, extrinsic evidence to contradict or vary the writing is excluded only in proceedings, between such parties, or their privies and not in those between strangers, or a party and a stranger ; since strangers cannot be precluded from proving the truth by the ignorance, carelessness, or fraud of the parties {B. v. Gheadle, 3 B. & Ad. 833) ; nor; in proceedings between a party and a stranger, will the former be estopped, since there would I..E.— 37 Digitized by Microsoft® 678 THE LAW OF EVIDENCE, [bookii. be no mutuaHty, Thus, in settlement cases, a conveyance of land to the pauper may be Contradicted both as to the consideration and the description (B. V. Cheadle, sup.; B. v. Scammonden, 3 T.E. 474; B. v. Langunnor, 2 B. & Ad. 616; B. v. Wickham, 2 A. & B. 517; this would now, however, apply also between parties to the deed, post, 586). [Tay. ss. 1149-1150; Stark. Ev.,4th ed. 725-728 ; Steph. art. 92, and note xxxiv; Whart. s. 923; Browne, Parol Ev. 31-40.] So, in criminal cases (iJ. v. Adamson, 2 Moody, 286 ; Steph. art. 92) . On the other hand, in actions by creditors against sureties an oral reserv- ation of the former's rights against the latter cannot, at law, be superadded to a written release of the debtor {Mercantile Bank of Sydney v. Taylor, 1893, A.C. 317; Cocks v. Nash, 9 Bing. 341, 346, where Tindal, C.J., denied the above distinction as to parties and strangers; as to the equity rule, however, see post, 582). Mr. Browne remarks that the oral variation of written con- tracts by strangers must be limited to rights independent of the instrument, and that, as to those which originate in the relations established thereby, the ordinary rule must prevail (Parol Ev. p. 40, citing Wodock v. Boiinson, 24 Atl. Eep. 73, post, 589). Moreover, the exception does not apply to proof of the contents of documents (ante, 533) ; nor to the substitution of oral for documentary evidence in the case . of instruments executed by strangers ^{Auguslien v. Challis, ante, 573). - (3) Private formal Documents: Terms of Transaction. Additional Terms. Where a contract, not required by law to be in writing, purports to bo contained in a document which the Court infers was not intended to express the whole agreemerd between the parties, proof may be given of any omitted or supplemental oral term, expressly or impliedly agreed between them before or at the time of executing the document, if it be n6t inconsistent with the documentary terms (Steph. art. 90; Eos. N.P. 17; as to subsequent terms and agreements, se^ post, 587). The inference that the writing was, or was not, intended to contain the full agreement may be drawn not only from the document itself, but from extrinsic circumstances (Mercantile Bank of Sydney v. Taylor, 1893, A.C. 317, 321) ; it is a question of fact for the Jury {Imperial Press v. Johnston, 1899, Times, May 5; cp. Ellen v. G.N. By., post, 588) ; and the burden of proof is upon the party alleging non-com- pleteness (Tucker v. Bennett, 38 Ch.D. 1, 9.) Bills and notes, though required by law to be in writing, may however be varied by contemporaneous written (but not oral) agreement, provided it is made between the same parties and is parcel of the transaction, i.e. that the bill and writing together • form one contract {Maillard v. Page, L.R. 5 Ex. 312; Young jr. Austent L.R. 4 CP. 533, 556-7 ; Brown v. Langley, 4 M. & G. 466, 470, per Tindal, C.J. ; Salmon v. Webb, 3 H.L.C. 510; Byles on Bills, 17,th ed. 120-1). If it is not parcel of the contract, but merely collateral, it will only be available by cross- action or ciounter-claim and not defence {Maillard v. Page, sup.; Henry v. Smith, 39 Sol. Jo. 359), and if supported by valuable consideration {Salmon V. Webb, sup.; so, also, in this respect with subsequent written agreements, McManus v. Bark, L.E. 5 Ex. 65 ; post, 587). Collateral Agreements and Warranties. Moreover, although there exists a contract purporting to be fully expressed in writing, whether required by law to be so or not, proof may be given of a prior or contemporaneous oral agreement or warrantyj not inconsistent with the document, and which forms Digitized by Microsoft® CHAP. XLV.J EXCLUSION OF EVIDENCE TO VAEY, &c. 579 part of the consideration for the main contract {Heilbut v. Buchleton, 1913 A.C. 30, 4:7-51; Newman t. Gatti 24 T.L.R. 18 C.A.; De Lassalle v. Guild- ford, 1901, 2 K.B. 215; Morgan v. Griffith, L.E. 6 Ex. 70; Steph art. 90). The questions of what matters are collateral, and what representations amount to a warranty, have given rise to some conflict. In Newman v. Gatti, sup. Williams, L.J., remarked " Sometimes one had a collateral contract, the consideration for which was the entering into the principal contract, as where one party says he won't enter into the latter unless the other enters into the former." In Heilbut v. Buchleton, sup., Ld. Moulton stated "It was clear there might be a contract the consideration tor which was the making of some other contract. The effect was to increase the consideration of the main contract, and the natural and usual way would be to modify the terms of the latter and not to execute a concurrent collateral contract, which is viewed with suspicion because its sole efEect is to vary or add to the main contract. Both the terms of the collateral agreement and animus contrahendi of the parties thereto, must, therefore, be strictly proved. An affirmation at the time of the contract is a warranty if it be so intended; but this intention can only be deduced from the totality of the evidence and there -is no ' decisive test' as stated by Smitti, M.E., in De Lassalle v. Guildford, sup." If the collateral oral agreement included parties other than those to the original contract, it wUl be inadmissible {Hollinshed y. Devane, 49 Ir. L.T.E. 87 ; cp. Salmon y. Webb, &c., sup.) So where the alleged collateral agreement is really a material term of a contract required by law to be in writing, it will be inadmissible on that ground {Bailey y. Woolstone, 1907, 42 L.Jo. 457, C.A.) ; but where it is on an independent matter, this does not apply {Anffell v. Duke, L.E. 10 Q.B. 174, cited post, 594). Terms annexed by Usage or Law. Usage is, as we have seen, admissible to annex unexpressed incidents, not inconsistent with those expressed, to written contracts, grants, and- wiUs, the presumption being that the whole terms were not intended to be expressed in the document, but that the customs of the market or place were tacitly adopted {ante, 105). Indeed, a collateral oral agreement to annex a term different from the customary term has been held inadmissible on the groxmd that the latter has the same effect as if it were expressed in the document {per Blackburn, J., in Fawlces V. Lamb, 31 L.J.Q.B. 98, and MoJiett y. Robinson, L.E. 7C.P. p. 103; sed qu and see inf. and Whart. s. 958). As to evidence of usage in aid of inter- pretation see post, 629. Terms implied by law being judicially noticed are not provable by parol; although they may in some cases be contradicted, or varied thereby. Thus, in contracts under the Sale of Goods Act, 1893,' such terms may be negatived or varied by express agreement, or by the course of dealing between the parties or by a usage which binds them both (s. 55 ; Cointat v. Mayham, 110 L.T. 749, C.A.) So, also, terms implied by law in contracts outside the Act may be excluded by oral agreement collateral to the written contract {Pearson v. P., 27 Ch.D. 145, 148-149 ; MacdonaUd v. Whit- field, 8 App. €as. 733, cited post, 599 ; Burgess y. Wichham, 33 L.J.Q.B. 17, per Cockburn, C.J., diss. Blackburn, J.). [Tay. ss. 1170-1186.] (4) True Nature of Transaction, and Relationship of Parties. Extrinsic evidence (including, in some cases, direct declarations of intention) is admis- sible to show the true nature of the transaction, or the legal relationship of Digitized by Microsoft® 580 THE LAW OF EVIDENCE. [book ii. the parties, although such evidence may vary or add to the written instru- ment. (Cp. arete, 325-6, 517). Sale or Mortgage. Merger. Thus a sale, absolute on its face, may be proved by extrinsic evidence to be a loan on security {Maas v. Pepper 1905, A.C. 102; Johnson v. Bees, 84 L.J.K.B. 1276) ; a conveyance, merely a mort- gage {Lincoln v. Wright, 4 De G. & J. 16; Barton v. Bank of N.S.W., 15 App. Gas. 379; Be Marlborough, 1894, 3 Gh. 133); an assignment of income, merely an acknowledgment of de^bt (Be Bhewwrd, 1893, 3 Ch. 502) ; or a mortgage for a specific sum, a security only for a sum to be afterwards ascertained {Trench' v. Doran, 20 LJR.I. 338). So, parol evidence is admis- sible to show intent in cases of merger, e.g. of an equity of redemption and intervening charge {Thome v. Gann, 1895, A.C. 11; Tyrwhitt v. T., 33 Beav. 244; Astley v. Mills, 1 Sim. p. 324-7; posi, 671) ; or of a lease and the fee {Capital & 0. Bank v. Bhodes, 1903, 1 Ch. 631; Lea v. Thursby, 1904, 2 Gh. 57; Be Fletcher, 1917, 1 Ch. 339, C.A., cited ante, 85). Trust or Beneficial Interest. The acceptance {James v. Frearson, 1 Y. & C. Ch. 370), or disclaimer {Be Birchall, 40 Ch. D. 43,6), of a written trust may be proved by parol; as also, apart from the question of construction, may the position of the writer, the circumstances by which to his knowledge he was surrounded, and the degree of weight and credit to be attached to the letters creating a trust {Morton v. Tewart, 2 Y. & C. Ch. 67, 77). (a) Express Trusts. Where a trustee is expressly constituted such by a written document, parol evidence is not receivable to contradict the writing or show that he was intended to take beneficially {Be Hu^taMe, post; Croome v. C, 59 L.T. 582 ; Barrs T. Fewkes, 13 W.R. 987 ; Irvine V. Sullivan, 8 Eq. 673, 677). Where, however, no trust appears on the face of instrument, which often happens for the mere sake of convenience, as where trustees lend on mortgage (see for the effect of this Carritt v. Beal, &c., Co., 42 Ch. D. 363; Be Harman, 34 id. 730), extrinsic evidence may generally be given to engraft one, even though, in some cases, the document expressly negatives a trust {Strode v. Winchester, ante, 386; Be Spencer's Will, 57 L.T. 519; Bow- lotham V. Dunnett, 8 Ch.D. 430). Thus a conveyance, absolute on its face, may be proved to be subject to a parol trust, express or inferential, for the grantor {Booth v. Turle, L.E. 16 Eq. 183; Gladding v. Yapp, 5 Mad. 56; Bochefoucauld v. Boustead, 1897, 1 Ch. 196). And although trusts relating to land (other than resulting trusts, inf.) must by the St. of Frauds, s. 7, be evidenced by writing signed by the declarant, yet this section will not avail where the grantee or his^ assigns seeks to retain the land in fraud of the trust {id.; Be Marlborough, 1894, 3 Ch. 133). So, notwithstanding the Wills Act, a bequest absolute in terms may be proved to be subject to a Secret Trust, declared orally or in writing either before or after the execution of the will, provided the trust was communicated to and accepted by the trustee before the testator's death {Be Boyes, 26 Ch.D. 531 ; Be King, 31 L.R.I. 373 ; French v. F., 1903, 1 I.E. 173, H.L.). This rule, though nominally aimed against fraud, operates even where the donee himself seeks to enforce the trust (id.; Be Spencer's Will, sup.; O'Brien v. Tyssen, 38 Ch.D. 373; Be Marchant, 1893, P. 364; Be Fleetwood, 15 Ch.D. 594; Scott v. Brownrigg, 9 L.R.I. 346). As to the effect of a devise to joint-tenants, when the trust is only communicated to one, see Be Stead, l^OQ, 1 Ch. 337, and cp. Be Gardom, Digitized by Microsoft® CHAP. XLV.] EXCLUSION OF EVIDENCE TO VARY, &c. 581 1914, 1 Ch. 662, C.A.. Neither the existence of the trust, however {Turner Y. A.-G., ante, 286), nor its communication to the trustee (i?« Downing, ante, 32^), can be proved by hearsay evidence. (6) Resulting Trusts. Where a resulting trust arises by construction of a written instrument, no extrinsic evidence is admissible to contradict it or show the real intention of the parties (Barrs v. Fewkes, 13 W.E. 987 ; Croome v. C, 59 L.T. 582 ; Be Bacon, 31 Ch.D. 460; Re West, 1900, 1 Ch. 84; Irvine v. Sullivan, ante, 580) ; where, however, it arises merely by presumption of law, such evidence may be given both to rebut find in reply to support the presumption {id.; post, 665, 669, 674) . Examples of the former occur where an express trust fails to exhaust the property, but the words negative a beneficial interest in the trustee; or, in the case of an executor's right to the residue, where a legacy is given to him " for his trouble." Examples of the latter occur on the purchase of property in the name of a stranger; or, in the case of an executor's right to the residue; where a legacy is given to him simpliciter {post, 669-70). Joints Common, or Several Interest. A contract, joint on its face, may be proved by the prior or subsequent conduct of the parties, though not, it has been held, by their direct declarations, to have been intended to be in common, or vice versa {Harrison v. Barton, 30 L.J.Ch. 213; Be Trimmer, 91 L.T. 26; cp. Steeds v. S., 22 Q.B.D. 537). And this applies to advances made by joint purchasers or mortgagees, whether in equal or unequal shares {Edwards V. Fashion, Prec. Chan; 332 ; Bolinson v. Preston, 4 K. & J. 505 ; Be Scott, 97 L.T. 537; Be Wray, 122 L.T. Jo. 463), and even though it is expressly recited that the advance was on joint account {Be Jackson, 34 Ch.D. 732). The same rule obtains, also, where land is purchased out of partnership profits and used for trading purposes, the course of dealing by the parties being admissible to show that a tenancy in common was intended {Jackson V. J., 9 Ves. 591). Princip^al or Agent. As to the effect of signatures qualified by words on the face of the document, see ante, 516-7, and post, 592. Where, however, it is doubtful whether A. signs a document as agent for B., or as charging himself as well, extrinsic evidence, e.g. his declarations at the time, may be given, such evidence going really to the factum of the instrument {Young v. Schuler, ante, 75; McCollin v. Gilpin, 29 W.E. 408, reported less fully, 6 Q.B.D. 516; cp. ante, 326-7). Extrinsic evidence may, indeed, generally be given to add a new party to a contract, e.g. where A. signs in his own name, evidence may be given to charge, or give the benefit of the contract to, B. as the real principal {Higgins v. Senior, 8 M. & W. 834; but cp. Robinson v. Rudkins, 26 L.J. Ex. 66), though not to discharge an apparent one (see, however. Clever V. Eirkman, post, 583), unless such discharge formed the express considetation for his signing {Wake v. Harrop, 30 L.J.Ex. 273, affd. 31 id. 451; Cowie V. Witt, 23 W.E. 76; Eos. N.P., 17th ed. 366-367, 412-413), or unless it is apparent from other portions of the contract that he did not intend to bind himself personally. In Cowie v. Witt, sup., it was held that mere unilateral declarations by A. that he intended to sign only as agent were insufficient, unless assented to by the opposite party; contra. Young v. Schuler, sup., where, however, the effect was to add, and not to discharge, a party. Where A. signed a charter-party as " charterer," evidence was admitted that he was only agent for B., the real principal who was entitled to sue on the contract Digitized by Microsoft® 582 THE LAW OF EVIDENCE. [bookii. (Drughorn v. Rederiahtiebolaget, 1919, A.C. 303; Beigate v. Union, &c., Co., 1918, 1 K.B. 592). But where A. was described in, and signed a charter- party as, " owner," proof was rejected to enable B., as real principal, to sue thjereon {Humble v. Hunter, 1,2 Q.B. 310),; and whjere he signed as "Proprietor," parol evidence that he was only an agent was excluded [Formby v. F., 102 L.T. 116, iC.A. following Humble v. Hunter, sup., and disapproving the doubt as to that case expressed in Eilliclc v. Price, 12 T.L. E. 263 ; see comments on Humble v. Hunter, in Drughorh's Case, sup.] On the other hand, where A. signs as "director" {McCollin v. Gilpin, sup.; •Landes v. Marcus, 25 T.L.E. 478; contra. Chapman v. Smethurat, id. 383, C.A.), or as "agent" or "broker" {Hutcheson v. Eaton, 13 Q.B.D. 861; 1^00?/ V. Home, 2 Q.B.D. 355; Beigtheil v. Stewart, 16 T.L.R. 177), he is not necessarily exonerated from liability, though he cannot ordinarily sue on such a contract as principal {Fairlie v. Fenton, L.E. 5 Ex. 169 ; Sharman v. Brandt, L.E. 6 Q.B. 'i'20), unless the name of his principal was not disclosed (Schmaltz v. Avery, 16 Q.B. 655; Harper y. Vigors, 1909, 2 K.B. 549), or unless he be an auctioneer {Davis v. Artingstall, 49 L.J. Ch. 609; Wood v. Baxter, 49 L.T. 4:5;Manley v. Berkett, 1912, 2 K.B. 329, 333). [2 Smith L. C, 12th ed. 365-402; Eos. N.P. 18th ed. 17-18, 92-93; and see as to the admis- sibility of usage to charge or discharge the parties, ante, 123-5.] Where an agent buys property for his principal, though in his own name and with his own money, evidence of the agency is admissible to fix him with the trust {Roche- foucauld V. Boustead, 1897, 1 Ch. 196, C.A.) Principal or Surety. A party signing a document without qualification could always in equity, and may now at law, prove that he signed merely as surety and not as principal debtor [Reynolds v. Wheeler, 10 C.B. N.S. 561 ; Overend v. Oriental Corp., L.E. 7 H.L., 348 ; Macdonald v. Whitfield, 8 App. Cas. 733; Goodsell v. Lloyd, 27 T.L.E. 383. As to sureties in the case of bills or notes, see further infra ' Parties to Bills ' ; and- as to oral agreements by sureties qualifying the terms of bills, see Abrey v. Crux, &c., post, 593, 603; and cp. Glenie v. Bruce Smith, post, 586, 602]. Where the principal debtor has been released by the creditor under a vsrritten contract, any reservation of the creditor's rights against the surety to which the latter is not a party must, at law, appear on the face of the document and cannot be proved by parol {Cocks v. Nash, ante, 578; Exp. Glendinning, Burk, 517; Mercantile Bank of Sydney r. Taylor, 1893, A.C. 317) ; in equity, however, this rule is not always followed {Wyke v. Rogers, 21 L. J. Ch. 611; Exp. Harvey, 23 L.J. Bky. 26; Eowlatt, Sureties, 260; Byles on Bills, 16th ed. 332). As to extrinsic evidence to construe guarantees, see post, 617, 636. Parties to Bills. Joint or Successive Liability. Similarly, the whole facts as to the making, issue, and transfer of a bill or note may be proved in order to ascertain the true relation to each other of those signing as makers or indorsers; and inferences of fact may be drawn to alter, qualify, or invert their relative liabilities according to the law merchant {Macdonald v. Whitfield, sup.; Oastrique v. Buttigieg, 10 Moo. P.O. 94) . Thus, the indorsees of a bill may be shown to be co-sureties and so jointly and not suiccessively liable {id.); or the drawer by mistake to have signed as indorser {Glenie v. Bruce Srnith, supra). As to extrinsic evidence to impeach the considera- tion of bills, &c., see post, 587; to vary or qualify the terms of payment, Digitized by Microsoft® CHAP. XLV.J EXCLUSION OF EVIDENCE TO VARY, &c. 583 poii, 592; to prove that the bill was delivered as an escrow, infra, and post, 599-600 ; and to discharge the bill, post, 588. Penalty or Liquidated Damages. So, extrinsic evidence is admissible to show that a sum, stated to be liquidated damages, was intended merely as a penalty [Pye v. British Syndicate, 1905, 1 K.B. 425; Diestal v. Stevenson, 1906, 3 K.B, 345; see generally as to the tests applicable to this question, Dunlop Co. V. New Garage Co., 83 L.J.K.B. 1574, H.L.] (5) Invalid or Conditional Documents. Escrows. Fraud. Mistake. Want of Consideration, &c. Extrinsic evidence is admissible to prove any matter which by substantive law affects the validity of a document, or entitles a party to any relief in respect thereof, notwithstanding that such evidence tends to vary, add to, or, in some cases, contradict the' writing — e.g. defective or conditional execution, contractual incapacity, fraud, forgery, duress, undue influence, illegality of subject-matter, mistake, or want or failure of consideration. Inoperative, Duplicate, or Conditional Instruments. Extrinsic evidence {e.g. a party's declarations of intention at the time of signing a deed or will) may, apart from fraud, be given to impeach or support the validity of its execution {ante, 326-7, 517). So, where A. and B. signed written terms for the sale of A.'s business to B., the latter was allowed to prove that it was not intended he should purchase the business himself, but merely act as A.'s agent for its sale to another {CUver v. Kirhmam, 24 W.R. 159; cp. Higgins v. Senior, ante, 581) ; or, though intended to be a contract, that the parties were not really ad idem, e.g. where by a written contract, A. sold goods to B. to " arrive ex Peerless, from Bombay," and there proved to be two ships of that name, each party intending a different one {Raffles v. Wichel- haus, 2 H. & C. 906; cp. Preston v. Luclc, 27 Ch.D. 497). In the same way, a will or codicil may be proved to have been executed with some collateral object and not animo testandij or two identical codicils as duplicates and not distinct instruments {ante, 326-7). Escrows. So, evidence may be given to show that a deed was delivered, or a contract signed, by both {Pym v. Campbell, 6 E. & B. 370), or one {Pattle v. Hornibrooh, 1897 1 Ch. 25), of the parties, merely as an escrow and subject to a condition through the non- fulfilment, or suspended fulfilment, of which no contract has ever arisen {post, 599-601). It is not necessary that the restrictive delivery should be express, all the circumstances of the case may be considered {Murray v. Stair, 2 B. & C. 82 ; Gudgen v. Besset, 6 E. & B. 986 ; London Freehold Co. v. Suf- field, 1897, 2 ,Ch. 608); nor made to a third person, for delivery may.be conditional though the document is retained by the grantor {Xenos v. Wick- ham, L.E. 2 H.L. 296, 323), or even handed to the grantee {Bell v. Ingestre, 12 Q.B. 317; Watkins v. Nash, 20 Eq. p. 266; London Freehold Co. v. Suf- field, sup.; Johnson v. Clark, 1908, 1 Ch. 303, 319; Equitable Office v. Ching, post, 600). But where A. in executing a deed of appointment, told his soli- citor that, to avoid publicity, it was not to be registered or become operative till further orders, this was held an absolute and not a conditional delivery {Gore-Booth v. G.-B., 1902, Times, May 6, C.A.). And a deed cannot be delivered as an escrow subject to an over-riding power to recall it altogether, or to be considered as complete in case of the grantor's death, for in the latter case it is a will and not a deed {Foundling Hospital v. Crane, 1911, 2 K.B. Digitized by Microsoft® 584 THE LAW OF EVIDENCE. [book ii. 367). Where delivery as an escrow depends on facts proved by oral evidence, the question is for the jury; but where the facts are in writing, e.g. a letter accompanying a deed, stating that the latter is only signed on certain condi- tions, the question is for the judge alone (Furness v. Meeh, 37 L.J. Ex. 34; anie, 15) . The same doctrine applies to Bills and Notes which, between imme- diate parties or holders not in due course, may be shown to have been delivered conditionally, or for a special purpose only, and not for the purpose of transferring the property in the bill [Bills of Ex. Act, 1882, s. 21, sub-s. 2 (6) ; Deasy v. Donoghue, 36 Ir. L.T. Jo. 221; and cp. cases post, 592-3]. It is doubtful, however, whether a Will can be proved conditional merely by extrinsic evidence (ante, 327) ; though if its own language is capable of that meaning, the surrounding circumstances, as well, perhaps, as the declarations of the testator, may be resorted to, -to aid such a construction {id. ) . So, evidence may be given to show whether an attesting witness signed animo attestandi, or otherwise {ante, 326), or to impeach the validity of the signa- ture in other respects {Re Maddock, L.E. 3 P. & D. 169; Re Leverington, 11 P.D. 80) ; though subsequent declarations by a deceased witness impugning his attestation are inadmissible {ante, 277). Fraud. Illegality. Fraud vitiates all instruments, however solemji. Thus, judgments may, as we have seen, ,be impeached upon this ground, as well as upon others peculiar to that class of documents {ante, 406). So, with a will; and in such cases of declarations of intention by the. testa tor, though not his hearsay assertions, are admissible to prove the fraud {ante, 327). And proof that a party's signature was obtained by fraudulent misrepresenta- tion as to- the nature of the document is a defence, even against a bona fide holder for value of a bill or note {Foster v. Mackinnon, L.E. 4 C.P. 704; Lewis v. Clay, 67 L.J.Q.B. 224; Carlisle, &c., Co. v. Bragg, 1911, 1 K.B. 489, C.A.) ; though as to misrepresentation, merely of the contents of the docu- ment, see Eowatson v. Weil, 1908, 1 Ch. 1, C.A. Extrinsic evidence is also admissible to establish any other defence, e.g. that the object of an agree- ment is unlawful (Pollock on Contracts, chap, vii.) Mistake will in some, but not in all, cases let in extrinsic evidence. Thus, the Records of Courts of Justice, being presumed to be correct, cannot gener- ally be rectified by parol, the proper .course being to apply to amend the record, either under the inherent jurisdiction of the Court {Re Swire, 30 Ch. D. 239, C.A.; Ration v. Harris, 1892, A.C. 547; Wilding v. Sanderson, 1897, 2 Ch. 534; see Leonard's Case, 46 Ir. L. T. E. 51, C.A.) ; or in the case of a clerical mistake, or an accidental slip or omission, under 0. 28, r. 11. As to am'endment of mistakes in drawing up orders of County Courts, see Re Beard, Exp. Lewis, 10 Morr. 178; of the City of London Court, The Recepta, 9 T.L.E. 535 ; and of convictions by magistrates, R. v. Slade, 18 Cox, 153 ; R. V. Mackenzie, 1892, 2 Q.B. 519; E. v. Bradley, 70 L.T. 379. An arbiti;^tor cannot even correct a manifest clerical error in his award after signing it, but should apply to the Court {Mordue v. Palmer, L.E. 6 Ch. 22) ; nor can the registrar of a County Court correct his own error in drawing up, the proper course being to apply to the judge {Re Beard, sup.) So, where a verdict and judgment were tendered as evidence of a public way, proof that the verdict was erroneously entered by the officer was rejected {Reed v. Jackson. 1 East, 355). But where a verdict awarding damages was entered generally, Digitized by Microsoft® CHAP. XLV.l EXCLUSION OF EVIDENCE TO VARY, &c. 585 oral evidence was admitted to show that it was recovered on one count only {Preston v. Peehe, 27 L.J.Q.B. 434; contra, however^ in the case of a general award, O'Rourke v. Commrs. for Railways, cited ante, 196) ; and as to parol proof of the actual date of a trial, see ante, 569; and of tlie precise issues upon which judgment was given, ante, 415. Evidence has also been allowed to show that an order of justices was in fact signed three days after its apparent date {R. v. Flintshire, 3 Dowl. & L; 537), and where a judgment roll, which had been erroneously made up after the commencement of a second action between the same parties, did not accurately represent the ver- dict given in the first, the Court refused to grant an injunction to enforce the judgment, and admitted parol evidence of the actual finding of the jury {Want V. Moss, 70 L.T. 178, P.O.). [Tay. s. 85; Eos. N.P. 21.] With regard to Deeds and Contracts, recitals and descriptions of formal matters, as distinguished from the expression of the intention of the parties, may, when not operating by way of estoppel, often be corrected by extrinsic evidence, for these are not generally matters of agreement at all, and may well be presumed to have been stated without careful precision (Tay. s. 1150; Eos. N.P. 21). Thus, the date of execution of a deed {Exp. Slater, 76 L.T. 529 ; Jayne v. Hughes, 10 Ex. 430 ; Steele v. Mart, 4 B. & C. 273 ; Re Maher, 1910, 1 I.E. 167), or charter-party {Hall v. Cazenove, 4 East, 477; Cooper V. Rolinson, 10 M. & W. 694), may be contradicted, or, if omitted, supplied {Lohb v._^anley, 5 Q.B. 574; ante, 515; post, 681). So, in cases of mis- description, which are more usually treated under the head of construction, parol evidence, other than direct declarations of intention, is admissible to identify the persons or property referred to, although they have been erron- eously designated in the document {post, 624-6). Where the mistake is one of substance, relief may be had in several ways; and parol evidence which at common law was wholly inadmissible, may now usually be given to prove the error, whether it be held sufficient to entitle the party to a remedy or not. Thus, it may be shown, as we ^ave seen, that, by a mistake, the parties were never really ad idem, and so did not validly contract at all {Raffles v. Wichelhaus, ante, 583) . So, a plaintiff may, where the mistake is unilateral, bring an action for rescission ;• or where it is mutual (but not where it is unilateral. Fowler v. Sugden, 85 L.J.K.B. 1090), for rectification {Paget v. Marshall, 28 Ch.D. 255 ; Wilding v. Sanderson, 1897, 2 Ch. 534, C.A. ; Cowen v. Truefitt, 1899, 2 Ch. 309, C.A. ; Beale v. Kyte, 1907, 1 Ch. 560; Lovell v. Wall, 104 L.T. 85, C.A. ; Williams V. & P. 2nd ed., 780-804; but see May v. Piatt, 1900, 1 Ch. 616, followed but not approved in Thompson y. Hichman, 1907, 1 Ch. 550). He may also, contrary to the former rule', prove mistake in the written contract by parol evidence, and in the same action obtain specific performance of the contract so varied {OUey V. Fisher, 34 Ch.D. 367; Shrewsbury Co. v. Shaw, 89 L.T. Jo. 274; Fry on Specific Performance, 4th ed., 353 ; Williams, V. & P. 788-93 ; contra. May v. Piatt, sup., sed. qu.) ; and this even where the Statute of Frauds is pleaded {Johnson v. Bragge, 1900, 1 Ch, 28 ; Williams, V. & P., sup.) ; or he may abandon his construction of the contract, and obtain specific performance to the extent admitted by the defendant {Preston v. -Luck, 27 Ch. D. 497). So, the defendant may, by way of defence to specific performance, prove by parol a mistake or any other ground of equitable relief -(Tay. s. 1140) ; and in Digitized by Microsoft® 586 THE LAW OF EVIDENCE. [book ii. some cases mistake may be relied on as a defence to an action at law, even though the defendant does not counterclaim for rectification (Eos. N.P., 17th ed., 31). In the case of Bills and Notes, the old rule was that, at Common Law, a party suing on an instrument was not allowed to adduce evidence that it did not correctly represent the contract entered into, but in Equity there was an established jurisdiction to correct mistakes in documents {Druiff V. Parker, L.R. 5 Eq. 131, where a plaintiff's name inserted by mistake as drawer, was struck out). Even at Common-Law, however, extrinsic evidence was sometimes admitted to aid in the correction of mistakes, e.g. to rectify an erroneous date (Fitch v. Jones, 5 E. & B. 238; post, 602), or an endorse- ment made by mistake by the drawer (Matthews v. Bloxsome, 33 L.J.Q.B. 209). In Steele v. M'Kinley, 1S?,Q, 5 App. Cas. 754, Ld. Blackburn, who was a party to the last named ease, while expressing some doubt about it, remarked that " it can only be an authority for considering a bill as if it were amended so as to be what it was intended to be, when the evidence is clear what the intention was, and that the bill was drawn up in its 'actual form by a blimder." The last two cases were followed in Glenie v. Bruce-Smith, 1907, 2 K.B. 507, 512, affd. 1908, 1 K.B. 263, 'C.A. ; post, 602. With regard to Wills, extrinsic evidence is, as we have seen, admissible to show that they were executed or revoked under a mistake; or that words were by inadver- tence introduced without the knowledge of the testator (ante, 327-8) ; or that the date of execution is erroneous, e.g. that a will dated 1855 was really executed in 1865, and so revoked a prior one executed in 1858 (Reffel v. B., L.R. 1 P. & D. 139; so, also, as to codicils. Re May, id. 575; Be Ince, 2 P.D, 111; Be Anderson, 39 L.J.P. 55; Theobald, 6th ed., 64-6). And extrinsic evidence, other than direct declarations by the testator, is admissible to identify "persons or things misdescribed in the will (ante, 327-8; post, 624-5). In some cases, however, the inistake will be conclusive; thus, an erroneous recital of the amount of advances made to a legatee cannot be contradicted by the latter, unless a contrary intention appears (Re Eelsey, 1905, 2 Ch. 465, and cases cited, post, 603 ; and cp. Ademption, post, 669, 671-2) . As to legacies given on mistaken assumptions of fact see post, 619. Consideration. Want or failure of consideration may, under proper plead- ings, always be proved to impeach a written agreement not under seal, even though, as in the case of bills and notes, the words " for value received "' are inserted. So, words importing a past consideration may be shown by extrin- sic evidence to relate to a contemporaneous or future one ( Ooldshede v. Swan, 1 Ex. 154; Morrellr. Cowan, 7 Ch. D. 151; Eos. K.P. 19). And though a deed imports a consideration, yet where this fact comes in question it is generally allowable to inquire into it, notwithstanding any written aver- ment (Eos. N.P., 17th ed., 19; Norton, Deeds, 201, 205; Barton v. Bank of N.S.W., 15 App. Cas. 379; but cp. Frith v. F., inf.). Thus, where no con- sideration, or a nominal or good consideration only, is expressed, a valuable one may be proved (Townend v. Toher, 1 Ch. App. 446 ; Re Holland. 1902, 2 Ch. p. 388) ; or where a valuable consideration is expressed, an additional one may be shown (Re Barnstaple, 50 L.T. 424; Frith v. F., 94 id. 383, P.O.; and see Newman v. Gaili, and UeUhut v. Bvchleton, ante, 579). Moreover, since the Jud. Act, the equity rule prevails, and as between the parties to a deed, the receipt for the consideration in the body of the deed, or even that Digitized by Microsoft® CHAP. XLT.] EXCLUSION OF EVIDENCE TO VARY, &c. 587 indorsed, may always (unless the facts amount to a waiver or an estoppel, Roberts v. Security Co., post, 600; Powell v. Browne, 97 L.T. 854), be con- tradicted {Equitable Ofiice V. Ching, cited post, 600; Battemcm v. Hunt, 1904, 2 K.B. 530; Bickerton v. Walker, 31 Ch. D. p. 153); though diter against transferees taking without notice and in reliance on such receipt {Bickerton v. Walker, and Bateman v. Hunt, sup.; French v. Eope, 56 L.J. Ch. 363; Saunders v. Kent, 1885, W.N. 147). By the Conveyancing Act, 1881, s. 54, it is now provided that a receipt for the consideration contained in the body of the deed is a sufficient discharge to the person paying it, with- out an indorsed receipt; and by s. 55 either is sufficient in favour of a subse- quent purchaser who has no notice of the non-payment. Under the former of these sections the receipt is only prima facie evidence, under the latter it is conclusive, provided the acknowledgment be distinct (Benner y, Tolley, 68 L.T. 815; King y. Smith, 1900, 2 Ch. 425 ;.Bimmer v. Webster, 1902, 2 Ch. 163). Similarly, the "consideration expressed in a bill of sale may be shown by extrinsic evidence not to be the true one, so as to render the instru- ment void against trustees in bankruptcy and execution creditors {Exp. Carter, 12 Ch. D. 908; Cochrane v. Moore, 25 Q.B.D. 57, 73). (6) Subsequent Rescission or Variation of the Transaction. Where an agreement, not required by law to be in writing, has been reduced thereto, it is competent to the parties, at any time before breach of it, by a new con- tract not in writing, either (1) altogether to annul the former agreement; or (2) in any manner to add to, subtract from, vary, or qualify the terms of it, and thus to make a new contract, which is to be proved partly by the written agreement, and partly by the subsequent oral terms engrafted upon what will thus be left of the written agreement {Goss y. Nugent, 5 B. & Ad. 58, 65). And an agreement by conduct, or an equity arising from the circum- stances though not amounting to an agreement, will have the same effect {Hughes v. Metropolitan By., 2 App. Cas. 439; Bruner v. Moore, 1904, 1 Ch. 305, 312; Morrell Y. Studd, 1913, 2 Ch. 648). {Tay. ss. 1141-1146; Eos. N.P. 28-29 ; Steph. art. 90] . A contract required by law to be in writing, may, whether before or after breach, be wholly rescinded by an oral agreement, even though the latter be not itself enforceable [Morris v. Baron, 1918 A.C. I (disapproving Williams Y. Moss's Empwes, 1915, 3 K.B. 242) ; Goss v. Nugent, sup.; Noble y. Ward, L.E. 2 Ex. 135] ; but it cannot be partially abandoned or varied thereby {id.; Stead Y. Dawber, 10 A. & E. 57; Sanderson y. Graves, -L.E. 10 Ex. 234; Vezey v. Rashleigh, 1904, 1 Ch. 634), and although this be attempted, the original contract will remain valid and subsisting {Noble v. Ward, sup.; Stow ell Y. Robinson, 3 Bing. N.C. 928 ; Vezey v.. Rashleigh, sup., approved in Morris Y. Baron, sup.; Cutts y. Taltal Ry., 62 S.J. 423). The question of rescission or variation is one not of law, but of fact, to be determined^by the intention of the parties, which may be either express, or implied, e.g. from the substantial inconsistency of the old and the new terms {Morris v. Baron, sup.). But the mere acceptance of a substituted mode of performance {Leather Co. v. Hieronimus, L.E. 10 Q.B. 140), or a voluntary postponement of performance at the request of the other party {OgU v. Vane, L.E. 3 Q.B. 272; Hickman v. Haynes, L.E. 10 C.P. 598; Plevins v. Downing, 1 C.P.D. 220), will not amount to a new contract rescinding the old. Digitized by Microsoft® 588 THE LAW OF EVIDENCE. [book II. At common law contracts by deed could neither be rescinded nor varied by parol {West v. Bldkeway, 2 M. & Gr. 739, 751-3; Steeds v. S., 22 Q.B.D. p. 539). Xow, however (following the equitable rule, Webh v. Hewitt, 3 K. & J. 438), deeds, though they cannot technically be released, maybe wholly discharged by parol {Cort v. Ambergate By., 17 Q. B. 127, 145; Exp. Morgan, Re Simpson, 2 Ch.D. 72; Williams v. Stern, 5 Q.B.D. 409; Parker v. Briggs, 37 Sol. J. 452). Whether they can also be varied seems still to be doubtful. In Leake, Contracts, 5th ed. 570, it is stated on the authority of Steeds V. 8., sup., that since the Judicature Act, 1873, the equity rule prevails by which a valid parol agreement may be pleaded in answer to any proceeding upon the original deed. On the other hand, it has been held by Walton, J., that an oral variation of a contract under seal is bad (Kellett v. Stockport, 70 J.P.Rep. 154, where, however, these two authorities were not cited). Variations which are contemplated by the deed itself, 'may, however, be proved {Williams v. Barmouth Council, 77 L.T'. 383; Whitehouse v. Hugh, 22 T.L.E. 679). As to the discharge of Bills and Notes, which must now, unless the biU be delivered up, be in writing, see Bills of Exchange Act, 1882, ss. 62, 89, Re George, 44 Ch.D. 627, and Edwards v. Walters, 1896, 2 Ch. 157; and as to the parol revocation of Wills, see Wills Act, 1837, ss. 19, 20, and ante, 328, 333. EXAMPLES. (1) P«6Kc Documents. Admissible. Inadmissible. A., a sMpowner, brings an action for limitation of liability against ' B. and proves the ship's tonnage b.v the register. B. may call surveyors to show that the registered tonnage is incorrect (The Re- cepta. 14 P.D. 131 : cp. Merchant Ship- ping Act, 1894, s. 82). So, the register kept under the London Hackney Carriage Act, 1843, is not conclusive, and evidence is admis^ble to show that the registered proprietor is not the owner (Kemp v. EUsha, 1918, 1 K.B. 228, C.A.) As to the effect of misnomers, &c. in notices to the registrar and in marriage registers, see Re Rutter, 1907, 2 Ch. 592. A resolution of a vestry meeting pur- ported to aJlow llr. D. " the sum of £50 " — Held, that evidence of what was said by persons present at the meeting was in- admissible to explain the resolution, since any additional terms should have been in- cluded therein (R. v. PembHdge, C. & M. 157; but see Re Pyle Works, post, 592, where a resolution recorded in a company's books, was allowed to be supplemented by proof of a contemporaneous oral agree- ment). Under some statutes registers are conclusive, see e.g. ante, 363-4. (2) Private Doouments: Infoitnal, or Inter Alios. Jiiformal. A. having been injured in a railway acdident. compromises with the company and signs the following docu- ment : " Received of the G. N. By. Co. £190 in full discharge of all claims and legal and medical charges in respect of injurlies sustained by me on Jlarch 16, 1899." Held: if the jury found that this was only Intended to be a receipt, and not an agreement, it only applied to the facts then known and understood by the parties ; and that in a subsequent action ngaiinst the company A. could prove that he had sustained further injuries which neither he nor his doctors knew, or had reasonable Informal. On the facts opposite, if the jury found that the receipt was intended to be. an agreement, whereby A., in con- sideration of a sum of money paid by the Co. gave up ail claims for past or future injuries sustained by him in respect of the accident ; then, in a subsequent action agaiinst the company A. could not prove that he had sustained injuries not capable of being discovered at the time of the compromise (Ellen v. (7. A". Ry., 17 T.L.R. 4.">.'!. semble. per C.A.K Digitized by Microsoft® CHAP. XLV.J EXCLUSION OF EVIDENCE TO A'ARY, &c. 589 Admissible. grounds for suspecting, at the time. [EUen V. G. iV. Ry., n T.L.R. 453, O.A. ; Lee V. L. d Y. Ry., 6 Ch. 527; cp. Piosser v. Lan»aihiie Co., 6 T.L.R. 285; Oliver v. Nautilus Co., 1903, 2 K.B., 639; Htickle V. L.a.C, 27 T.L.R. 112, C.A.] A., the indorsee of a bill of lading, sues B., the owner of the ship, tor short delivery. B. may prove that though the master of the ship signed Uie receipt for the goods, yet in fact they were never shiipped thereby (Bennett v. Bacon, 2 Com. Cas. 102; Smith v. Bedouin Co., 1896, A.C. 70; Parsons v. N. Z. Co., 1901, 1 K.B. 548.) Inter Alios. The question being whe- ther A, a pauper, was settled in the parish of Cheadle, and a deed purporting to con- vey land to A. for valuable consideration and to whlich A. was a party, being pro- duced; — the parish appealing against the order was allowed to call A. as witness to prove that no consideration passed {R. V. Cheadle, 3 B. & Ad. 833) . A. leaves a fund in trust to pay the in- come to B. until he should assign it, and then to O. Afterwards B. signs a docu- ment purporting to assign the income to D. In an action between the trustees and B. ; — ^held, extrinsic evidence (Bnclud- ing facts, letters and expressions of in- tent) was admissible to show that as be- tween B. and D. the document, r.Ithough on its face an assignment, was not in- tended as such and that it would have been a fraud by D. to ha>e last 25 tons. A., in defence, relies on this arrangement as a parol contract to enlarge the time. Held, that there was no agreement, but only a postponement for the convenience of A. who had broken the original contract by failure to take delivery at the end of the last month, and that A. was liable (Hickman v. Haynes, L.R. 10 C.P. 598) . A. having in Sept., 1914, agreed in writ- ing to sell, and B. to buy, 500 piieees of cldth, sues B. for £888, the price of 223 pieces delivered. B. admits the claim, but counterclaims for non-delivery of the bal- ance. A previous action had been com- menced by A. for the same cause which was orally compromised ou the terms of the following letter sent by B. to A. in April, 1915 : " Both to withdraw legal pro- ceedings and each to pay own costs. You to allow £30 incurred through not fulfilling orders. Account to be left over for 3 months to give us opportunity of selling the goods. We to have option to take balance." Held, that the substantial inconsistency of the old and the new terms showed an intention by the parties to rescind and not merely to vary the original contract, and that the oral agreement though itself unenforceable, was valid for that purpose [J/ojtis v. A., on the 16th. May, agrees in writing to buy and B. to sell, goods over the value of £10 to he delivered by B. on 20th to 22nd May. On the 17th May they orally agree to extend the time of delivery till 24th May. In an action by A. for non- delivery on 24th May. Held, the oral agree- ment was inadmissible to vary'tiie written contract [Stead v. Dawber, 10 A. E. 57. In THohle v. Ward, L.R. 1 Ex. 117, 122, Bramwell, B., remarked : " The cases of Goss V. Nugent, Stead v. Daiober, &c., only show that the new contract cannot be enforced, not that the old one is gone. I think it was not."]. So, where the goods were to be delivered by a certain ship on her first arrival and this was varied by parol to a subsequent arrival (Marshall V. Lynn, 6 M. & W. 117). A. agrees in writing to sell B. several lots of land and to make a good title there- to, and B. pays a deposit. Afterwards A. finds he cannot make a good title to one of the lots, whereupon B. verbally agrees to waive such defect and accepts a convey- ance of the whole. Held, in an action by A. for the balance of purcljase-money, to which B.'s defence was the objection to the title, that proof of the parol waiver was inadmissible under the Statute of Frauds, s. 4 ; and as A. was suing on a new contract, consisting partly of writing and partly of parol, the action failed [Goss V. Nugent, 5 B. & Ad. 58 ; aliter if writ- ing had not been required by law]. A. agrees in writing on Aug. 121 to sell B. certain goods and deliver them by a Digitized by Microsoft® 604 THE LAW OF EVIDENCE. [book II. Admissible. Baron, 1918, A.C. 1. Some of the Lords thought that, apart from rescission, there was a good accord and satisfaction, after breach of the material causes of action]. A. agrees in wniting to employ B. as his manager for five years at a progressive salary. Afterwards, A. sells his business to a company of which he becomes man- aging director, and thereupon B. oially agrees with A. to continue as manager at half his original salary until the company's profits reach a certain amount and then to accept a proportionate rise. Held, distinguishing Nohle v. Ward, opposite, that as the oral agreement was inconsist- ent with the original written one, it oper- ated as a rescission of the latter, although not itself enforceable [Maopherson v. Warner, 9 T.L.R. 397; affirmed C.A., see 9 Law Quart. Rev. 370; also Todd v John- son, cited id.~\. A., a debtor, gives B., a creditor, a bill of sale containing a covenant to pay the debt in two instalments in 3 and 6 months. Afterwards they orally agree that A. shall pay the debt in instalments of 10s. a week and malie his business purchases exclusive- ly from B. In an action by A. for a decla- ration that the bill of sale was void be- cause the oral agreement was a defeasance which should have been embodied in the document under the Bills of Sale Act, 1878, s. 10 ; — Held, that the oral agreement be- ing subsequent to, and not contemporane- ous with, the bill, was not a defeasance under s. 10 which avoided it ; and that as the oralagreement had not bpen fulfilled the instalments under the bill ''were due {Les- ter V. Hickling, 1916, 2 K.B. 302). Iiiadmissihle. specified date. On August 18, A. agrees in writing to sell B. certain other goods and deliver same at a later date. After- wards A. orally agrees with B. (1) to rescind the first contract, and (2) to ex- tend the time for delivery under the sec- ond by a fortnight. In an action by A. for non-acceptance of the goods under the second contract, to which B.'s defence was rescission by the third contract. Held : That the third contract being unwritten was by the St. Frauds, s. 17, not enforce- able per sej that it was also inoperative to vary the second contract; that although A. and B. might validly have agreed by parol wholly to rescind the second con- tract, as they had the first, yet as their intention clearly was merely to vary and not to rescind it, the third contract did not operate as a rescission and the second remained in force [Nolle v. Ward, L.R. 1 Ex. 117 ; affd. L.R. 2 Es. 135, explained in Morris v. Baron, sup.; Vezey v. Rash- leigh, 1904, 1 Ch. 634.] A., a workman, agrees with B., a Ry. Co., to work at certain wages for 3 years for 54 hours a week of 6 days. War super- vening, the men rather than be discharged orally agreed to reduce their hours to 48 per week of 5 days. A', having worked the 3 years, sues B. for the difference be- tween the time worked and the time con- tracted. The County Court judge decided for A. on the grounds (1) tiiat he never agreed to accept the reduction except under protest, and (2) that there was no consideration) for it. Held, following Morris v. Baron, sup., that as it was only intended to vary, and not to rescind the original contract, the parol variation was inoperative ; that there was no accord and satisfaction as A. only accepted the reduc- tion under protest; and that B. was en- titled to the original terms [Cutis v. Taltal Ry. (1918) 62 Sol. Jo. 423. As to seamen's contracts for wages under the Mer- chant Shipping Act 1894, ss. 113-4, see Thompson v. Nelson, 82 L.J. K.B. 657]. A. lends B. money on a bill of sale, to be repaid by instalments. B. being unable to pay one of tlie instalments, A. orally agrees to give Mm a week's grace, but on the tnird day seizes and sells the goods. In an action by B. for wrongful seizure. Held, tliat the verbal agreement, being without consideration, was inoperative to waive the default, and that B. was liable on the original contract [WiUiams v. Stern, 5 Q.B.D. 409. C.A. ; disapproving Albert v Ch-osvenor Co.. L.R. 3 Q.B. 123. Aliter if the verbal agreement had been made for valuable consideration]. Digitized by IVIicrosoft® ( G05 ) CHAPTER XLVI. ADMISSION OF EXTEINSIC EVIDENCE IN AID OF INTERPEETATION. Where the language of a document is clear and applies, •without difficulty to the facts of the case, extrinsic evidence is not admis- sible to affect its interpretation; but where the language ia peculiar, or its application to the facts is ambiguous or inaccurate, extrinsic evidence may, subject to the qualifications hereinafter stated, be given in explanation. [Shore v. Wilson^ 9 C. & F. 355, 565 ; Eiggins v. Dmson, 1902, A.C. 1 ; Charrington v. Wooder, 1914, A.C. 71, 77; G. W. By. v. Bristol Corp., 87 L.J.Ch. (H.L.), 414. Tay. ss. 1158-1231; Eos. N.P. 27-33; Steph. art. 91; Norton, Deeds, chaps. 3, 4, 6; Wigram, Extrinsic Evidence in aid of Wills; Jarman, Wills, 6ih ed. 484-53. Hawkins, Wills, 9-13 ; Underliill and Strahan, Interpn. of Wills 1-40; Hawkins, 2 Jud. Soc. Pap. 298; Nichols, id. 351, Elphinstone, Introd. to Conveyg. 7th ed. 19-40; id. 3 Jud. Soc. Pap. 253; Thayer Pr. Tr. Ev. 410-483; Wigmore, Ev. ss. 2458-78; Graves, 28 Am. L. Eev. 321 ; and see a detailed examination of this topic by the present writer in 20 Law Quart. Eev. 245-271.] Definition. By Interpretation is meant ascertaining the meaning of the language of a document, or its applieafion to the facts of the case. The terms Interpretation and Construction are in practice often used interchangeably (Steph. art. 91; Leake, Contracts, 5th ed^ 142; Thayer Pr. Tr. Ev. 411); sometimes, however. Interpretation is considered to refer to the sense in which words have been used, and Construqtion to the application of the rules of law to the instrument after that sense has been ascertained (Tay. s. 1201) ; and sometimes the former word is included in the latter {Ghatenay v. Braziliam. Co., 1891, 1 Q.B. 79, 85, where Lindley, L.J., remarked that " construction " included first the meaning of the words, and secondly their legal effect, the former being a question of fact and tiie latter a question of law). As to the functions of judge and jury on this subject, see ante, 14-15 ; and as to the distinction between rules of construction and rules of presumption, post, 666. (1) Interpretation, — a question of Substantive law, Evidence, or logic? — Prof. Wigmore considers- that all rules of interpretationr belong, without exception, to the substantive law (Evid. s. 5; Greenleaf, 16th ed. p. 458 n). Prof. Thayer takes the same view (Pr. Tr. Ev. 504-5), allowing, however, one, but only one, exception, i.e. the rule which excludes direct statements of intention in cases other than equivocation, — since though, in talking generally of the use of intention in aid of construction, we are talking of a question Digitized by Microsoft® 606 THE LAW OP EVIDENCE. [book ii, of eonstmction and not of evidence, yet when we talk of direct statements of intention, we are talking of a particular kind of evidence of intention, and so of an excluding rule of evidence and of a special exception to that rule {id. 414, 444^5) Both these views, however, appear too narrow. At all events, liough the admission of extrinsic facts in the present connection is determined to some extent by rules of substantive law and construction, it is determined to a much greater extent by rules of evidence pure and simple. Thus, in addition to (1) the rule as to direct statements of intention mentioned above, with its exception in cases of equivocation; (3) the rules regulating what facts are material as surrounding circumstances are also rules of evidence, being determinable in general solely by relevancy in its legal sense (Wigram, Prop V. s. 98; ante, 49-53). So, (3) the various special rules admitting or excluding reputation, opinion, usage, contemporaneous exposi- tion, course of dealing, and expert testimony in the interpretation of docu- ments belong to the same category, since they all satisfy Prof. Thayer's test of dealing with a " particular kind of evidence." It is these three classes of rules, however, that form the bulk of the rules regulating interpretative evidence. On the other hand, taking a somewhat broader view. Sir H.. Elphinstone maintains that rules of interpretation belong neither to Substantive Law, nor Evidence, but to Logic exclusively. Being, he argues, based on the principle of causality, such rules have an existence altogether independent of jurisprudence, so that while rules of law may vary in difEerent countries, true rules of interpretation must everywhere be identi- cal (3 Jur. Soc. Pap. 253, 270; 1 Law Quart. Eev. 466). But to this it may be answered that though true rules of interpretation may everywhere be the same, yet applied rules will probably always difPer, not only in different countries, but even in the same countries at different periods or with respect to different classes of documents ; while, even if " true " rules were anjrwhere to prevail, they would still owe their force to law and not to logic (cp. ante, 52). There remains, therefore, only the original question, attempted to be answered above, whether as legal rules, they belong to the substantive, or to the adjective or evidential, class [20 Law Quart. Eev. 246-7]. (2) Object and limits of Interpretation, — ^the lleaning of the Words, or the Intention of the Writer? — Two opposing theories are maintained as to the object of interpretation. The first and by far the most widely held asserts that the question is, not what the writer meant, but simply what is the meaning of his' words (Wigram, ss. 9, 104, 124; Richman v. Carstairs, 5 B. & Ad. p. 663, per Denman, C.J.; Grey v. Pearson, 6 H.L.C. p. 106, per Ld. Wensleydale; Grant v. G., L.E. 5 CP. p. 734, per Blackburn, J.; G. W. By. V. Bristol Oorp, 87 L.J.Ch. (H.L.) pp. 419, 424, 428; Lovell v. Wall, 104 L.T. 85, C.A.; Holmes, 12 Harv. L. Eev. 417-18). The second regards the intention of the writer as the chief object of concern, and the mere gram- matical and lexicographical meaning of the words as not strictly interpretation at all, since it is only (it is said) after the meaning of the words has been ascertained and has failed to explain the meaning of the writer, that interpretation properly so called begins, — i.e. that the gap left by the partial failure of language to express the intention has to be filled by an inquiry into other indications thereof (Hawkins, 2 Jur. Soc. Pap. 301-310, 330; Thayer, Pr. Tr. Ev. 405). This, in effect, is the old controversy between the Digitized by Microsoft® CHAP. XLvr.] ADMISSION OF EVIDENCE TO INTERPEET. 607 Proculians and the Sabinians, between the logical, inferential, or liberal school of interpreters, and the grammatical or literal ; and, as often happens, the correct view appears to lie between the extremes. Indeed, that the object cannot be to ascertain the meaning of the words, simply, seems reasonably clear, since this may vary with circumstances, the same word being often used in different senses by different people, or by the same person on different occasions, and the same thing being often expressed differently by different people or by the same person at different times; so that, in considering any ' given document, ^what we want to arrive at is the meaning of the language as used by the writer {infra, 609). In Doe v. HiscocTcs, 5 M. & W. 363, the Court remarked : " The object in all cases is to discover the intention of the testator. The first and most obvious mode of doing this is to read his will as he has written it, and collect his intention from his vi^ords. But as his words refer to facts and circumstances respecting his property and his family, and others whom he names or describes in his will, it is evident that the. meaning and application of his words cannot be ascertained without evidence of all those facts and circumstances." Similarly, in River Weir Commrs. v. Adamson, 2 App. Gas. 743, 763, Ld. Blackburn, observed, " In all cases the object is lo see what is the intention expressed by the words used. But, from the imperfection of language, it is impossible to know what that intention is without enquiring farther, and seeing what the circumstances were with reference to which the words were used, and what was the object appearing from these circumstances which the person using them had in view; for the meaning of the words varies according to the circumstances with respect to which they were used." This dictum has been held no authority for the reception of extrinsic evidence in cases where the words are clear and their application unambiguous (ff. W. Ry. t. Bristol Corp., cited ante, 605) ; but it obviously is an authority for a modification of the view that the sole object of interpretation is the meaning of the words irrespective of the meaning of the writer. More generally, however, the exponents of this view claim that, even in cases of ambiguity, we still stop short of any attempt to ascertain the writer's intention, since the true inquiry is "not what this man meant, but merely what these words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used" (Holmes, 12 Harv. L. Rev. 417-418; Homer y. H., 8 Ch.D. 758, 7116, per James, L.J.). But the difficulty with this test is, that though it may often suffice, it will not always do so. Take the not xmcommon case of misnomer in Charter v. C, L.R. 7 H.L. 364, where a testator, having only two sons, WiUiam Forster Charter and Charles Charter, appointed as his executor "my son Forster Charter." To ask what the normal Englishman would mean by such a name, used under such circumstances, is futile; and had this been the • only criterion permissible the will must have failed for uncertainty. But in practice such a result does not happen, for other and more special standards or tests may also be invoked. Thus, in the case referred to, the Court admitted evidence not only (1.) of the testator's individual standards or habits of speech, i.e. that he usually called the first son "William" or "Willie," and not "Forster"; but also (2) of his individ- ual treatment of, and relations with, each son respectively, i.e. that William had quarrelled with his father and left the house, while Charles had continued Digitized by Microsoft® 608 THE LAW" OF EVIDENCE. [book ii. to live amicably at home and help the testator in his business, the Court finding in the result that by " Forster " the testator meant " Charles." But habits of speech and treatment have invariably been held by the Courts to constitute evidence of intention XP^st, GlOn), so that, judged by the facts actually receivable in such cases, the inquiry is by no means limited to what the normal speaker would mean.* As Sir J. Stephen remarks "If the question is, what did the testator say " (i.e., what is the meaning of his mere words), "why should the Court look at the circumstances that he lived with Charles and was on bad terms with William ? How can any amount of evidence that he intended to write Charles, show that what he did write mmns Charles?" On the other hand, "If the question is, what did the testator wish " (i.e. intend), why should the Court refuse to look at his declarations of intention?" [Dig. Note xxxiii.]. The latter question had also exercised Ld. Selborne: Why, he enquires, these declarations should be admitted in cases of equivocation, but excluded in those of misdescription, " I am not sure that I clearly understand; but it has been conclusively so settled by a series of authorities to which we are boimd to adhere" {Charter v. (7., sup.). The reasons usually given for their exclusion are (1) that the law, by requiring the instrument to be in writing, in effect makes it the only legitimate evidence of the writer's intent {Doe v. Hiscochs, 5 M. & W. 363, 369; Wigmore, s. 9) ; and (2) that such declarations tend to supersede the document and to make a new deed or will for ithe writer {Doe v. Eulhard, 15 Q.B. 22'!, 241, 243 ; Whitaker v. Tatham, 7 Bing, 637). These reasons, however, are not very helpful, since, as to (1), declarations of intention are equally rejected whether writing be required by law, or voluntarily adopted by the parties; and as to (2), the objection is not really confined to declarations, but has in fact, been applied to exclude circumstantial evidence of intent as well as direct {Higgins v. Dawson, 1902, A.C. 1, 6). It also, however, wholly mistakes the fimction and purpose of such evidence, which is not the competitive one of giving to the oral words some independent or hostile dispositive effect, but the purely subordinate and auxiliary one of giving to the written text some meaning it can properly bear. It is, of course, common ground that one cannot set up an oral will in competition with a written one, nor contradict the latter by parol. But where nothing of the kind is attempted, where the declarations are neither tendered with those objects nor, if admitted, would have those effects, the present objection is wholly inapplicable. We must look elsewhere, therefore, for the true reasons for excluding this particular form of extrinsic evidence as contrasted with all other forms. On principle, it has been well said, such declarations are properly receivable in aid of interpre- tation simply because no evidence logically probative of intention should * Cases of Contract differ, of course, from those of Wills, in tliat with the former it is the joint and not the individual intent that has to be regarded. Hence, when the contract is ambiguous, evidence may be given of the facts and objects in their joint contemplation (Bank of 3V. Zealtmd v. Simpson, 1900, A.C. 182 ; ff. 1^. Ry. v. Bristol Corp., 87 Li.J. Oh. 429-30, H.L. ; post, 616) , and of the sens© in which both, .but not one only, of tJie parties, have acted thereon (post 630). In questions involvine the factum of wills and contracts, however, intent plays a much larger part than in their construction (ante 325-6). In- deedj on an enquiry as to the formation of a contract, and where the document is ambiguous, the Court will not necessarily construe it at all. but places the onus upon the plaintiff of showing that the proposal made by him and accepted by tie defendant was so clear and unambiguous that the latter is estopped from saying that he misunderstood it (Falole V. WilUams, 1900, A.C. 176; Miles v. Baselhurst, 23 T.L.R. 142; Wmgall v. . Bunoiman, 85 L.J.K.B. 1187). Digitized by Microsoft® CHAP. xLvi.] ADMISSION OF EVIDENCE TO INTERPRET. 609 , be shut out. The Roms\ii law in fact received them without scruple ; so, in doubtful cases, did early English Equity Courts; while even down to the present day the preamble of a statute has been admitted in all jurisdictions in aid of its interpretation, whether considered as part of the Act or not (ff. W. By. V. Bristol Corp. 87 L.J.Ch. 414, 418, H.L.). On tlie other hand, 'Common Law Courts, having to deal with juries^ were necessarily stricter in matters of evidence, and so, uniformly rejected parol declarations of intent except in cases of equivocation where, alone, it was said " the averment could stand with the words" {post, 613, 627-9). Later on, the Common Law rule began to prevail more generally, tmtil, about the beginning of the nineteenth century, the use of such declarations had become restricted in all courts to •the one case mentioned. Practical reasons, no doubt, aided this result, for the ease with which such declarations may be fabricated, retracted, or mis- reported, and the aspect of rivalry they seem to bear to the written document, engendered mistrust even in Courts of Equity — a mistrust which was, of course, greatly intensified in jury trials. Parol declarations of intention are excluded then, not because they constitute "evidence of intention," or do not logically aid in elucidating the text, but because certain precaution- ary, but whoUy arbitrary, reasons have caused them gradually and generally to be shut out in all courts alike [20 LaW Quart. Rev. 252-4; Hawkins, 2 Jur. Soc. Pap. 313-7; 320-3; Nichols, 3 id. 358-60; Thayer, Pr. Tr. Ev. 414-44, 480; infra; and see post, 611, 627-9]. The subject of the present heading has been well summarized as follows: " What is it that the judicial expositor seeks to ascertain ; is it the meaning of the words, or the meaning of the writer ? The question is frequently put in this way, as if the disjunction were complete and the answer must be one or the other. We answer, neither. Not the meaning of the words alone, nor the meaning of the writer alone, but the meaning of the words as used by the writer. It is not the meaning of the words in the abstract, for the meaning of the words varies according to the circumstances under which they were used; and not the meaning of tiie writer apart from his words, for the question is one of interpretation, and what he meant to say, but did not, is foreign to the inquiry. We must seek the meaning of the writer, but we must find it in his words; and we must seek the meaning of the words, but they must be his words, the words as he has used them, the meaning which they have in his mouth" (Graves, 28 Am. L. Rev. p. 323; see, also, Blphinstone, Introd. to Conveyancing, 5th ed. 19-25; id. 3 Jurid. Soc. Pap. 256-7 ; id. Interp. of Deeds, 36-8 ; Underbill & Strahan, Interp. of Wills, 1.] With regard to the limits of interpretation, it is to be remembered that the function of the Court is merely declaratory of what is in the document, not speculative as -to what was probably intended to be there (Wigram, s. 6; Biver Weir Commrs. v. Adamson, 2 App. Cas. 743, 764, per Ld. Blackburn; Eiggins v. Dawson, 1902, A.C. 1, 6, per Ld. Halsbury). Moreover, the meaning imputed must be one which the words are reasonably adequate to convey : " All latitude of construction shall submit to this restriction, that t\e words may hear the sense which by construction is put upon them. If we step beyond this line, we no longer construe men's deeds, but make deeds for them" (Gibson v. Minet, 1 H.Bl. 615, per Eyre, C.B.). I..E.— SO Digitized by Microsoft® 610 THE LAW OF EVIDENCE. [bookii. (3) Explanatory Evidence and Evidence of Intention, Adopting the theory that the object of interpretation is to ascertain the meaning of the words and not the intention of the writer, Sir J. Wigram divides extrinsic evidence into two main classes, i.e. (1) Such as is "explanatory of the words themselves," and (2) Such as is "applied to prove intention itself as an inde- pendent fact"; and he lays down "the general rule that the former, i.e. explanatory evidence, is always admissible, but that the latter, i.e. evidence of intention, is never so except in cases of equivocation (Extr. Ev. ss. 9-10, SIS- SIS). Although, however, this Classification and Rule are still very widely accepted {e.g. Higgins v. Dawson, 1903, A.C. p. 10; Be Bayner, 1904, 1 Ch. p. 188; Be Glassington, 1906, 2 Ch. p. 314; Be Ofner, 1909, 1 Ch. p. 67), they are, it is submitted, untenable, as will be seen from the following analysis. Explanatory Evidence. Under this head Wigram includes two classes of facts, — ^those which show the meaning of the words in the abstract, i.e. expert testimony, dictionaries and usage (Prop. IV. ss. 56-9), and those which show, their meaning in the document by tending to identify the persons or things referred to, to determine the quantity of interest given, or otherwise to aid in its right interpretation (Prop. V. ss. 59-60), under which latter class it will be found that he refers to the knowledge and surrounding circum- stances of the writer (ss. 73-4, 79, 103), his treatment of, and dealing with, persons and property (ss. 55, 69), and his habits of speech (s. 65), all of , which facts he considers to be of an intrinsically different nature from evidence of intention and wholly collateral thereto (ss. 9-10, 70, 76, 103, 159). With regard to his Classification, .however, it will be seen not only that Wigram's "explanatory" facts have all repeatedly been held by the Courts , to be "evidence of intention" *but that they are even frequently so referred to by himself in other parts of his treatise (see Evidence of Intention, infra). While, with regard to his Eule, it is not true that explanatory evidence is always admissible, there are several important exceptions {post, 615) ; and, indeed, since the admission of extrinsic facts depends on a variety of different principles, some of which belong to substantive law, some to construction, and some to the law of evidence simply, it would be surprising if any single general rule could be framed to cover all possible eases. Wigram himself found that seven distinct propositions or rules were needed in order to treat the subject successfully; and although these propositions purport merely to illustrate and enforce his main Classification and Eule, a brief examination will show that they can be supported independently of either and frequently conflict with both. On the other hand, subject to the modifications indicated post, 615, 631-2, his Seven Propositions, as distinct from his Classification and * E.g. Knowledge and Surrounding Circumstances were held to be evidence of intention in Doe v. Langton, 2 B. & Aid. 692-3; Maylianh v. Brooks, 1 Bro. C.C. 84; Neale v. N., 70 Iv.T, 629, C,A. ; and Higgins v. Dawson. 1902, A.C. 1, 9-10, where Rigby, L.J. (in C.A.), and Iiord Davey, in rejecting surroundiing circumstances as evidence of intention, I purport scrupulously to adopt Wigram's classificaition, forgetting that the latter had already declared such facts to be strictly explanatory and wliolly unconnected with the Question of Intehtion (s. 103). Treatment and Dealing were held to be evidence of in- tention in Gill v. Shelley, 2 Rus. & Myl. p. 342; Holson v. Blaoklurn. 1 Myl. & K. pv 579 ; Bherratt v. Mountford, 8 Ch. App. 928, 930 ; Homer v. H., 8 Ch.D. 774-5 ; and Re Fish., 1894. 2 Ch. p. 86. Hahits of Speech were held to be evidence of intention in Doe v. Hiscoohs, 5 M. & W. p. 368 ; Re Fish, and Homer v. H., sup. [See 20 Law Quart. Rev. 256-262]. Digitized by Microsoft® CHAP. xLvi.J ADMISSION OF EVIDENCE TO INTERPKET. 611 Eule, still embody the most accurate and exhaustive statement of the law that we possess. Evidence of Intention. When, in the second branch of his General Eule, Wigram lays it down that evidence of intention is never admissible except in cases of equivocation, it is unfortunately not clear what precisely he means by "evidence of intention," for the phrase is nowhere defined in his book. Some writers suppose that he refers only and always to direct declarations of intention (Thayer, Pr. Tr. Ev. 448w.) ; others that he includes circumstantial evidence of intention as well as direct (Hawkins, 2 Jur. Soc. Pap. 317; Graves, 38 Am. L. Rev. 353-4; and cp. Higgins v. Dawson, 1903, A.C. p. 10). The point is of importance, since, if the former interpretation be correct, the difficulty arises that although his Eule would thus, in cases other than equivocation, exclude direct declarations alone, his examples show that, in many cases, circumstantial evidence is also shut out, though he formulates no principle upon which it can be excluded (see e.g., s. 35 n, citing Oartwright v. Vawdry, 5 Ves. 530, and Godfrey v. Davis, 6 id. 43; s. 3^ n, citing Radclife v. Buckley, 10 id. 195; s. 34, citing Doe v. Chichester, 4 Dow, 65; and s. 36, citing Mounsey v. Blamire, M.S. Eep.). While, if the latter meaning be accepted, then, although his Rule would thus, in cases other than equivocation, exclude all circumstantial evidence of intention, yet his examples show that the particular classes of fact shut out happen to be precisely those which he elsewhere {ante, 610) declares to be always admissible as " explanatory evidence " — ^viz., in Godfrey v. Davis, and Rod- cliff e V. Buckley, sup., the testator's knowledge of the legatee's family; and in Oartwright v. Vawdry, Mounsey v. Blamire, and Doe- v. Chichester, sup., the testator's treatment and habits of speech. In other words, the two divisions of " explanatory evidence " and circumstantial " evidence of inten- tion " are not, as Wigram supposes, essentially different, but substantially the same. Summary. To avoid confusion, therefore, Wigram's Classification and General Eule must be wholly discarded, and his Seven Propositions, with certain necessary modifications, mainly relied on as a "guide to the admis- sibility of extrinsic evidence in aid of interpretation. Indeed, the only general rule that can be formulated on this subject is, that while direct statements of intention by the writer are, at all events in the case of wills, never admissible except to solve an equivocation, all relevant facts other than these (whether termed explanatory evidence or circumstantial evidence of intention) may in general be received in explanation of a document, subject to the various qualifications enumerated post, 615-30, Forms of Extrinsic Evidence. General Forms. Declarations of Intention. The following are some of the chief forms in which extrinsic evidence may be tendered for the purpose of interpreting a document: (1) General evidence of Surrounding Circumstances (post, 615-30, 630-41), {2) Treatment of, and Dealings with, persons and property (post, 615, 631, 634), (3) The writer's Habits of Speech (post, 630-4, 641-9). If the words of a document taken in their ordinary sense do not properly apply to the facts, evidence may be given that the writer habitually (or even on a single occasion. Re Ofner, post, 650), used them in a peculiar sense, which explains such words in the same way as if they were written in cypher or a foreign language (Doe Digitized by Microsoft® 613 THE LAW OF EVIDENCE. [book ii. V. Hiscocks, 5 M. & W. 368; Allot v. Massie, 3 Ves. 148; Lee v. Pain, 4 Hare, p. 251; Bicketts v. Turquand, 1 H.L.C. 473; Doe v. Eullard, 15 Q.B. 227). But if the words in their ordinary sense apply propeVly and without difficulty to the facts, evidence that the writer either habitually or upon the particular occasion used them in a different sense is not admissible, since it contradicts the document {Doe y. Chichester, 4 Dow, 65; Bicketts v. Turquand, sup.j per Cottenham, L.C.; Millard v. Bailey, 1 Eq. 378; Be Fish, 1894, 2 Ch. 83, per Kay, L.J.). (4) Usage which is admissible both to explain the meaning of terms and to construe the document {post, 629, 661-4). (5) Course of dealing between the parties {post, 630, 664). (6) Reputation {post, 655-6). Thus, family repute is admissible to identify a legatee {Be Gregory, 34 Beav. 600) , and local repute the subject- matter of a devise or statute {Anstee v. Nehns, 1 H. & N. 35; Be Steel, 1903, 1 Ch. 135; Assheton^Smith v. Owen, 75 L.J.Ch. 181). (7) Opinions both of experts and non-experts are admissible as to the mean- ing of words, but not as to the construction of documents {ante, 387-8, 399 ; post, 630, 665). (8) Dociunents — Similar, Connected, or Incorporated. Thus, prior wills may be received to show a testator's habit of misdescription {Camoys v. Blundell, 1 H.L.C. 778; Be Feltham, 1 K. & J. 528; Be Smith, 20 T.L.E. 287), or his knowledge of, though not his intentions regarding, a particiilar legatee {Be Waller, White v. Scoles, 80 L.T. 701; Flood v. F. 1902, 1 I.E. 538). So, when the words of a libel are aijibiguous, similar libels have been considered admissible to show the sense in which the words were used {Bolton v. O'Brien, ante, 176), and former patents may be referred to to explain the technical terms in, though not the meaning of, the patept in question {Clark T. Adie, 2 App. Cas. pp. 434, 437; post, 620). Prior, but not subsequent, statutes are also sometimes received to interpret a public statute {post, 619). A subsequent deed, not reciting nor referring to a prior deed, has, however, been rejected to explain an ambiguous expression in the latter {Shore v. Wilson, 9 C. & E. 355 ; and cp. Peek v. North Staffordshire By., and Lewis v. G.W. By., citfed, post, 638) ; as also has a prior document to correct a recital thereof in a subsequent deed {Be Carter, I.E. 3 Eq. 495). But where several documents are connected as parts of one transaciion, all must be construed together, and one may be read to explain the others (Norton, Deeds, 78-80; Leake, Contracts, 5th ed. 148); e.g. Lease and Counterpart {Burchell v. Clark, ante, 536, where a clerical mistake in one was corrected by the other; though material variances between two parts of an indenture will avoid the deed, Wynnes' Case, 8 Ch. App. 1002) ; Lease and Eelease {Barker v. Eeat, 2 Mod. p. 252) ; Fine, Eecovery, and Deed to lead the Uses (Norton, Deeds 78) ; Bond and Condition {Coles v. Hulme, 8 B. & C. 568) ; Bill of Sale and Collateral Contract {Edwards v. Marcus, 1894, 1 Q.B. 587; Counsell v. London Co., 19 Q.B.D. 913); Promissory Note and Memo, of Deposit {Hartland v. Jukes, 1 H. & C. 667) ; Policy and Slip {Lower Bhine Assn. v. Sedgwick, 4 Com. Cas. 14; see further ante, 536, and post, 633) ; bill of lading and Charter-party (where these conflicted the former was held to prevail, Crossfield v. Kyle, 1916, 3 K.B. 885, C.A.; Hogarth Co. v. Blythe, 1917, 3 K.B. 534, C.A.; ante, 147; though where the Bill incorporated a statute, a clause in the former which conflicted with the latter was held void, Eordern v. Commonwealth Line, 1917, 2 K.B. 420) ; Digitized by Microsoft® CHAP, xivi.] ADMISSION OF EVIDENCE TO INTERPRET. 613 Will and Codicil {Re EaseUine, 31 Ch.D. 511; Re Venn, 1904, 2 Ch. 52; Re Smith, 1916, 2 Ch. 368, C.A.) ; Will and Probate {Re Harrism, 30 Ch.D. 390; Re Battie-Wrightson, post, 661; Memo, and Articles of Association (Re Capiiai Assocn., 21 id. p. 212 ; Re Anderson, It id. p. 99 ; if these conflict, or are ambiguous, the former prevails. Hill v. Star Theatre, 39 Ir.L.T.Jo. 143) ; but not Prospectus and subsequent circular {Smith v. Chadwick, 20 Ch.D. 27) . (9) Declarations of Intention. There is, as we have seen {ante, 606-9, 611), one class of extrinsic endence which the law, as a general rule, rigidly excludes for purposes of interpretation, i.e. declarations of intention by the writer of the document. The reasons and history of the exclusion have already been indicated {id.) The only exception to this general rule arises in the case of Equivocations, as to whichs see fully, post, 626-9. In cases other than interpretation, such evidence is, however, frequently admissible, e.g. to establish the factum of the instrument {ante, 325-8), or to rebut presumptions affecting its operation {post. Chap, xlvii.). Ambigniities. Blanks. Equivocations. Inaccuracies. Amliguities patent and latent. Lord Bacon classes ambiguities as either patent or latent: a patent ambiguity being '"' that which appears to be ambiguous upon the deed or instrument," a latent "that which seemeth certain and without ambiguity for £inything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed that breedeth the ambiguity." He adds that " amhiguitas patens is never holpen by averment, and the reason is because the law will not mingle matter of specialtj', which is of higher account, with matter of averment, which is of inferior account in law ; for that were to make all deeds hollow and subject to averments, and so, in effect, that to pass without deed which the law appointeth shall not pass but by deed . . . But if it be amhiguitas latens it is ottierwise." In the latter case, therefore, the ambiguity may be holpen by averment, and his maxim Amhiguitas verhorum latens verificatione suppletur; nam quod ex facto oritur verificatione facti tolli- tur accordingly applies [Maxims, Eeg. 23 (in some editions 25]. Bacon's rule as to ambiguities had, it should be noticed, reference merely to pleading, although it was afterwards'erroneously propounded as a rule of evidence by Bathurst in his Theory of Evidence (1761), and has so descended to the present day (Thayer, Pr. Tr. Ev. 422-6; Cas. Ev. 2nd ed. 922-5). This rule cannot, however, be relied on as a test of the admissibility of evidence; for though it is stiU commonly said that parol evidence may not be given to explain a patent ambiguity (Eos. 18th ed. N.P. 32; Powell, 9th ed. 555; Anson, Contracts, 14th ed. 320; Beale on Interpretation, 83, 135), yet this is not generally true {Watcham v. A.-G. 1919, A.C. 533; Be Atlay, cited post, 656). Indeed, the only patent ambiguities that are not open to explanation by extrinsic evidence appear to be those which, in the nature of things, are incapable of explanation {Colpoys v. C, Jacob 451, 463-4; G.W. Ry. v. Bristol Corp. 87 L. J.Ch. H.L. 414, 429 ; Thayer, sup.) ; as, for example, where the name of a legatee is left wholly blank {Baylis v. A.-G. Atk. 239), or a bill names one sum in words and a different one in figures {Saunderson v. Piper, 5 Bing. N.C 425, cited infra, 614). But this does not apply to other patent ambi- guities, e.g., partial blanks {Harrhy v. WaXl.jpost, ^32 ; Re DeRosaz, 2 P.D. 66 ; Re Huhhuck, 1905, P. 129) ; nor to that of a legatee referred to merely by a term of endearment or an initial {Sullivan x. S., I.E. 4 Eq. 457 ; Ahhot \. Digitized by Microsoft® 614 THE LAAV OF EVIDENCE. [bookii. Massie, 3 Ves. 148; though cp. Clayton v. Nugent, 13 M. & W. 200)-; nor where the amount of a legacy is expressed by a cypher (Eell v. Charmer, 33 Beav. 195) ; nor where property is conveyed by inconsistent descriptions (Booth t. Ratie, 15 App. Cas. 188, cited, post, 655; Watcham v. A.-G., sup., where, how- ever, some of the cases referred to as patent ambiguities, appear to be merely latent) ; nor where a document beginning "I, A.," is signed "B." {Summers V. Moorehouse, 13 Q.B.D. 388; R. v. Wooldale, 6 Q.B. 549); nor where a legacy is left to " one of the children of A. by her late husband B.," since it might be proved that A. had, to the knowledge of the testator, only one son by B. (Wigram, s. 79) ; nor, where a gift is made to "my nephew John or Thomas," for the evidence might show that the nephew was known to the testator by both these names (Elphinstone, Deeds, 104.) The supposed rule is sometimes stated thus : " when the ambiguity is patent, all declarations of the writer's intention will be uniformly excluded" (Tay, s. 1313; Sullivan V. S., sup) ; but as such declarations are also uniformly excluded in all cases of ambiguity otheir than equivocation, this statement does not assist. The second branch of Bacon's rule is, however, more helpful than the first; for here in analogy to the old canon of pleading, the law is that, in the case of latent ambiguities, extrinsic evidence having raised the doubt, may also be received to remove it (G. W. By. v. Bristol Corp. sup.). Inaccuracies are strictly speaking, distinguishable from ambiguities, for language may be inaccurate without being ambiguous — e.g. where a testator, having only one house, a leasehold, devises it as his " freehold house " ; or it may be ambiguous without being inaccurate, as in the above case of a legacy to his " niece Jane," where he had two nieces of that name ; or it may be both ambiguous and inaccurate, as where a testator, having only two nephews;, John Smith and James Smith, leaves a legacy to his nephew William 'Smith." The' term latent ambiguity, however, is now generally employed to designate all cases of doubtful meaning raised by extrinsic evidence, whether from the words being so vague or general as to be susceptible of a wide or narrow sense (Eule I.), or from their being inaccurate (Rules II. and III.), or equivocal (Eule TV-), or from their bearing some peculiar signification, whether indivi- dual, local, or foreign (Rules I. and V.) . Where, but only where, ambiguities, whether patent or latent, cannot be cured by evidence, construction, or election, the document will be void for uncertainty (Rule VI.). [Tay. ss. 1313-4; Ros. N.P. 32; Wigram, ss. 80, 196-310; Jarman, Wills, 5th ed. 400-401; Nichols, 3 Jur. Soe. Pap. 378-84; Thayer, sup.; Graves, 28 Am. L. Rev. 348-353] . Print. Writing. Figures. Punctuation. Marginal Notes. Where printed forms are filled in with written words and an ambiguity arises in the meaning, it is a rule of construction that greater eflFect is to be given to the written matter, as being the immediate language selected by the parties, than to the printed, which is intended for general application (Glynn v. Margetson, 1893, A.C. 351 ; The Nifa, 1892, P. 411 ; Scrutton v. CUlds, 36 L.T. 312 ; Hadjipateras v. Weigall, 34 L.T.R. 360). So, as to wills (Re Harrison, 30 Ch.D. 390; Re Spencer, 34 W.R. 537 ; Re Bacon, 31 Ch.D. 460 ; Tay. s. 1130) . And where there is a discrepancy between sums expressed in words and figures- the former will prevail (Bills of Ex. Act, 1882, s. 9, sub-s. 3; Saunderson v. Piper, 5 Bing. N.C. 535; cp. ViUiers v. Shellon, ante, 602). So the punctuation of Digitized by Microsoft® CHAP.XLvi.] EULB I. SUEEOTJNDIN.Ct CIECUMSTANCES. 615 a document may be looked at, to assist in its construction (Houston v. Burns, 1918, A.C. 337), as also the Preamble or Marginal Notes 6f a Statute {ante, 609; :\laxwell, Statutes, 68-83). RULES AS TO EXTRINSIC EVIDENCE. Extrinsic evidence to interpret documents may be given in accordance with the following rules, which, except where otherwise expressed, apply equally to wills and documents inter vivos. [Shore v. WUson, 9 C. & F. 355, 565; G. W. By. v. Bristol Corp. 87 L.J.Ch. (H.L.), 414, 418-9, 425; Tay. s. 1131%]. RULE I. {Surrounding Circumstances to show identity or extent of subject- matter, or meaning of terms.) In order to ascertain the identity or extent of the subjects referred to in a document, or the sense in which particular terms have been used, or to clear up any other doubt that may arise in applying the document' to the ease, evidence not only of the circumstances surrounding the writer, but of -his knowledge, treatment and habits of speech with reference thereto (though not of his direct declarations of intention) may in general be received. Such evidence, however, is not admissible (1) where the words are unambiguous, or the difficulty is. merely a grammatical one {Higgins v. Dawson, 1902, A.C. 1; N. E. By. v. Hastings, 1900, A.C. 360 ; G. T7. By. V. Bristol Corp. 87 L.J.Ch. (H.L.), 418-20, 434, 439); nor (3) where- the language is so vague or imperfect that to admit extrinsic, evidence would be not to interpret the document, but virtually to make a new one {Be De Bosaz, 3 P.D. 66 ; King v. BadeUy, 3 Myl. & K. 417 ; Be Hefley, 1903, 2 Ch. 866) ; nor (3) where the meaning or application sought to be proved would conflict with some rule of law or construction. [Tay. ss. 1194-1200; Steph. art. 91 (4); 30 Law Quart. Eev. 367-8. Wigram's Proposition V. (originally I.) is as follows: — ■ " For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to he given by his will, a Court may inauire into every material fact relating to the person who .claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the cir- cumstances of the testator, and of his family and affairs, for the purpose of enabling the Court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. — The same (it is conceived) is true of every other disputed point, respecting which it can be shown that a knowledge of extrinsic facts can, in any way, be made ancillary to the right inter- pretation of a testator's words." The limitation to material facts, he explains, is imposed by the general law of evidence and not by anything peculiar .to. tha present subject (s. 98; 20 L.Q. Rev. 267-8). Wigram's proposition, however, must be read with the three-fold qualifica- tion indicated above ; and the author's statement that ' Wo fact, as a general proposition, can be material which is not coincident in point of time with the will' is now much too narrow, being generally inapplicable to property and often to persons {post, 517-8; Be Vaughan, post, 651; British Home v. Boyal Hospital, post, 653; Jarman, Wills, 7th ed. 541-3)]. Principle. The principle is that, as most documents refer expressly or impliedly to the circumstances under which they were written, the Court, when called upon to interpret them, should be placed as nearly as possible in the same situation as the writer ( Wigram, Extr. Ev. ss. 76-7, 94, 96 ; Charter Digitized by Microsoft® 616 THE LAW OF EVIDENCE. [book ii. V. C. L.R. 7 H.L. 364, per Ld. Cairns, L.C.; AUgood v. Blake, L.R. 8 Ex. p. 162, per Blackburn, J.)' While, with regard to the degree of particularity required, the maxim is Id certum est quod certum reddi potest {cp. Broom's Legal Maxims, 8th ed. 478). Contracts. Subject, where applicable, to the requirements of the St. Frauds, evidence of surrounding circumstances may be given to ascertain (1) who and what The Parties to a written contract are, and their legal relation to each other. So, to identify (2) The Subject-matter of the contract, the existence of any specific property or thing answering the- written description may, on the same principle, be proved. Thus, evidence of surrounding cir- cumstances has been admitted to identify land sold (Parrott v. Watts, 47 L.J. CP. 79; Plant v. Bourne, 1897, 2 Ch. 281), furniti^re assigned by a deed to which no schedule was attached {England v. Downs, 2 Beav. 522), the amount of a debt left blank in a deed of release {Harrhy v. Wall, 1 B. & Aid. 103), the locality over which an agent had been employed to travel {Mum- ford V. Gethimg, 7 C.B.N.S. 305), or the identity of a document referred to in a written contract {Shortrede v. Cheek, 1 A. & E. 57; Janson v. Poole, 31 T.L.R. 336; but see ante, 525-6). And the extent, as well as the identity, of the ' subject-matter may be similarly shown. Thus, although prior conversations, negotiations, conditions of sale, draft agreements, and deleted clauses cannot be proved directly to enlarge or restrict a concluded contract, since they are presumed to be superseded thereby {Inglis v. Buttery, 3 App. Cas. 552, 577 ; L66 X. Alexander, 8 id. p. 872; National Bank v. Falkingham, 1902, A.C. 585, 591; Wheeldon v. Burrows, 12 Ch. D. 31, 45, 60; Birmingham Co. v. Boss, 38 id. 291, 311; G. W. By. v. Bristol Corp. 87 L. J. Ch. (H.L.) 414, 428; Lovell v. Wall, 104 L.T. 85, C.A.; ante, 574, post, 633-4; for cases in which preliminary contracts are not wholly extinguished by a subsequent conveyance, see ante, 590, post, 633-4), yet where the language of the con- tract is vague or general, the state of facts in the knowledge and contempla- tion of the parties at the time, and about which they were negotiating, may be proved by their conversations or correspondence, as circumstantial evidence, in order to apply the words and to show whether their narrower or wider meaning was intended (Bank of N. Zealand v. Simpson, 1900, A.C. 182; Charrington v. Wooder, 1914, A.C. 71, 77 ; Waterparh v. Fennell, 7 H.L.C. 650, 678; The Curfew, 1891, I. 131). Thus, the knowledge of the parties at the time, has been received to determine the scope of a release {Lyall v. Edwards, and Turner v. T., post, 637-8; cp., however, Ellen v. Q.N.B., ante, 588-9), a carrier's forwarding note .{Lewis v. G. W. Ry., post, 638, 664), a policy of insurance {Youill v. Scott-Rohson, post, 662), a patent licence (Roden v. London Small Arms Co., post, 637), and the implied obligations in a lease {:Lyttleton Times Co. v. Warners, 1907, A.'C, 476, post, 635) ; though it will be rejected to vary the contract {Leduc v. Ward, ante, 590) ; Cato V. Thompson, ante, 591). In the case of a charter-party, however, knowledge is imputed to each contractor of matters within his own province, e.g. to the shipowner as to the state of his ship {Stanton v. Richard- son, 33 L.T. 193, H.L.), and the charterer as to facilities at ports of loading and discharge {Hudson v. Eve, L.E. 2 Q.B. 566) ; and unless he has protected' himself by express words, the contract will be construed against him on these points irrespective of the knowledge of his opponent {Stanton v. Richardson, Digitized by Microsoft® CHAP. XLTi.] RULE I. SUEROUNDINiok, 4 Com. Oas. 14, CA.) ; the slip, plaintiff's books, and defendant's evidence have also been admitted tor the same pur- pose (Janson v. Poole, 31 T.L.R. 336) : and a prior written proposal has been held admissitile to identify the goods cov- ered by a fire-policy {Bordem v. Com- mercial Union, 56 I1.J.O.P. 78). A. sues B. for breach of an agreement " not to travel for any other house over the same ground as A.'s." A., in explana- tion, may prove a prior oral agreement by which B. was to travel for him in the Midland district (Mumford v. Gething, 7 C.B. N.S. 305). Subject-matter (Extent). A. sues B. for trespass. B. produces an agreement whereby A. surrendered to C, B.'s pre- decessor, " aU those brick-works at S., now in possession of A." Held, these words being ambiguous, B. might call C. to prove declarations made by A. at the time of the agreement defining the land B. was to hold therennder. which included the locus in quo (Paddock v. Fradley. 1 Or. & J. 90: Parrott v. Watts, ante, 631; Chamlers v. E-elly, I.R. 7 C.L. 2.S1). So, in ejectment by A. against B., both claim- ing under C„ who had conveyed a plot of " 20 rods m>ore or less " to A.'s pre- decessor and afterwards an adjoining plot of " 15 rods more or less " to B.'s pre- decessor ; — testimony by 0. that " when he sold A.'s plot he (0.) staked out what he sold and what he retained," held, ad- missible to show that the locus in quo was not included in A.'s land (Jervey v. Styr- ing, 29 L.T. 847 : and cp. Henniker v. Wigg, d., post. 636). [Note. The declara- tions of intent in Pai-rott v. Walts, stip. were admitted as part of the res gesta (ante 72). But generally in this connec- tion, direct declarations are inadmissible Inadmissihle. Ill Chiffith V. Fleming, 1909, 1 K.B. 805, 817, C.A., it was stated that prior written proposals were not admissible to construe a policy, though atiter to rectify it. Subject-matter (Extent). A. having conveyed to B. by deed " all that messuage, formerly used as a workhouse, but now in the occupation of C, with the appur- tenances thereto belonging," afterwards brings ejectment against B. for a garden adjoining the messuage, which B. claims is appurtenant to. the workhouse. Held, that (1) although evidence tendered by B. that the garden had always been oc- cupied with the work house, was admis- sible ; yet that evidence tendered by A. (2) that the Conditions of Sale signed by B.. expressly excepted the garden ; and (3) that B. after the sale had admitted that he had not purchased the garden, was inadinissit)Ic as contradicting and not merely applying the document [Doe v. Webster, 12 A. & E. 442. The Conditions of Sale are not ordinarily admissible to show what is included in the subsequent conveyance, Greville v. Hemingway, 87 L.T. 443, post, 633. Nor is the preliminary contract, WiUiams v. Morgan, 15 Q.B. 782. though the Court remarked that it might 'be for collateral purposes, e.g. to show that the reason a leaseholder did not continue to pay rent was that in equity he had Digitized by Microsoft® 634 THE LAW OF EVIDENCE. [book II. Admissible. (Watcham v. A.-Q., 1919, A.C. 533, 540, per Ld. Atkinson). As to usage to show the precise extent of ' more or leas,' or ' ahout ' see post, 663-4]. Where a deed was expressed to pass '' all that was known or reputed parcel " of the premises, the conditions of sale were admitted, not to vary the deed, but to show what was " known or reputed parcel " at the time of sale (Murly v. Mc- Dermott, 8 A. & E. 138). So, if the par- ticulars of sale are referred to in the sub- sequent deed ^East^Dood v. Ashton, 1915 A.G. 900, per Ld. Atkinson). In an action of trespass by A. against B., to show that certain lands demised by an old lease in 1704' by O. to A.'s predeces- sor as " the village of S., containing by estimation 148 acres," included ,an adja- cent mountain of 1700 acres on which the trespass was committed, — ^held, the word "village " not being clear and unambigu- ous, evidence of acts of ownership by A.'s predecessors on other parts of the mountain was admissible iWaterpark Y. Fennell, 7 H.L.C. 650. So, evidence of acts of user even before a grant, have been received to show its identity and extent. Van Die- man's Land Go. v. Table Cape Board, 1906, A.C. 92; ante, 629]. A. grants land to B. in 1872, with all easements now or " heretofore " enjoyed. Under this grant B. claims to use a pri- vate • way over adjoining land belonging to A. — Evidence that though prior to 1852, there had been such a right of way, yet that in that year the then tenant had built a wall blocking it up, held, admissible as surrounding circumstances to rebut the grammatical sense of the word " hereto- fore," and to restrict B.'s right [Roe v. Siddons, 22 Q.B.D. 224, C.A. ; op. Devon- shire v. Pattinson, 20 id. 263, cited post, 675]. A., in 1905, lets premises to B., who covenants to keep them insured against " loss or damage by fire in the X., or other approved, oflBce." B. insures in the Y. ofiSce, with which the X. had been amal- gamated, the policy excepting fire caused by a foreign enemy." iSiis policy A. ac- cepted until 1915, when he required, but B. refused, also to insure against enemy aircraft. In an action by A. for breach of covenant; — Held (1) that the covenant only required B. to obtain the fire policy usual with X., or similar ofBces at the date, or during the currency, of the lease ; and (2) that evidence was admissible that the custom of such oflBces was always to except damage caused by foreign enemies [Upjohn V. mtchens, 1918, 2 K.B. 48 C.A. per Warrington and Scrutton, L.L.J., diss. Pickford, L.J., who held that A. was en- titled to an absolute and not a qualified policy. In the similar case of Bnlayde v. Inadmissible. become entitled to the fee ; see also Leg- gott v. Barrett, 15 Ch.D. 306, O.A., where James, L.J., remarked that the prelimin- ary contract could not, even though re- cited in the final deed, be looked at to enlarge, diminish, or modify the latter, such a recital only having the same ef- fect as a preamble in a statute, i.e. as showing the object of the "parties and what they were about to do, so as to af- ford a guide to the construction of the words. Leggott v. Barrett, sup. was fol- lowed inter alia, in Oreswold-Williams v. Barneby, ante, 595; but cp- ante, 590]. A. sells land to B. without express re- servation of lights, and afterwards sells adjoining land to C. D., B.'s devisee, hav- ing obstructed C.'s lights, and C. having removed the obstruction, in an action by D. against C, — held, evidence tendered by D. that C;, before buying his land, had inquired whether lights were reserved in A.'s, conveyance to B. and 'been told they were not, and that after buying it he had bargained to obtain the right to lights from B., was inadmissible to show that A. intended to reserve the light in his con- veyance to B. (Wheeldon v. Burrows, 12 Ch.D. 31, 45, 60). A. and B. (two railway companies) agree with 0. (the owner of a dock and railway thereon) to pay C. certain charges for " traflBc in any year " going over O.'s railway. Held, that the word " traffic " being unambiguous and naturally mean- ing all traffic over C.'s railway to and from A. and B.'s railways, evidemce of the facts and history of the case and of prior dealings and litigation between the parties, was not admissible to restrict that word to import and export traffic only, exclud- ing traffic to and from warehouses on the dock let to tenants of C. and called lessees traffic (G. W. Ry. v. Bristol Corpn., 87 L.J.Ch. (H.L.) 414). A., a cattle dealer, bought cattle from B., at Buenos Ayres foi' shipment to Dur- ban, B. agreeing to insure them " against all risk." B. obtained an ordinary " all risk " policy, at Lloyd's, which excepted " losses by detention." The cattle were de- tained owing to disease at Durban and slaughtered. Held that the contract was for an absolute, not a qualified, " all risks " policy and evidence of the meaning of and custom respecting such a clause among cattle dealers ■ in Buenos Ayres and in- surance brokers in London, as also that A.'s agent raised no objection to the policy at the time, was not admissible to restrict the contract {Youill v. Robson, 1908, I.K. B. 270, C.A., cited post, 662-3). A. (an urban Council) having invited tenders for certain work, agrees with B. (a contractor) that the latter shall carry out the work. The contract (1) rooitcs Digitized by Microsoft® CHAP. XLvi.j RULE I. SURROUNDING CIRCUMSTANCES. 635 Admissible. Rolerts, 1917, 1 Ch. 109, Sargant, J., construed the words " damage by fire " in their strict, primary, and absolute sense, and rejected evidence of the custom of In- surance offices to show a secondary and qualified meaning, resting the rejection on Wigram's Prop. II., . ante, 621 ; see also Rule v. ante 629, as to the admissibility of usage]. A., a JJondon brewer, lets a public- house to B., a publican, B. covenanting to deal exclusively with A. for beer, pro- vided A. supplied it at " the fair market price." Evidence that the bulk of the London brewers' trade was with tied houses, that beer was supplied by them at standard prices, that tied houses were al- lowed a recognized discount, but that free tenants obtained a higher discount, was admitted as surrounding circumstances to show that in B.'s case the term ' market ' was to be construed according to the tied and not to the free rates (Gharring- ton V. Wooder, 1914, A.C!. 71). A., who owned pripting works, and B., who rented from A. a hotel adjoining them, executed an agreement under which A.'s works were to be extended and B. was to rent the extra rooms over the ex- tension as 'bedrooms. The agreement con- tained no restriction upon A.'s user of his works. In an action by B. to restrain A. from using' these so as to cause noise and vibration to B.'s bedrooms ; — Held (1) that evidence was admissible that both parties believed, and had been assured by the architect, that such joint user could be enjoyed without mutual detriment, that they intended this, but that both were mis- taken ; (2) that the implied obligations of the contract were to be determined by their common intention ; 'but (3) that in the ab- sence of evidence that A.'s premises had been built, or his machinery used, improp- erly, or that either A. or B. had done or asked to do, anything not in their joint con- templation, neither party had any cause of action against the other (Lyttleton Times Co. V. Warners, 1907, A.C. 476) . A. grants a right of way to B., the agreement containing no restrictive words. Evidence of (1) the nature of the road; and (2) the purpose for which it was to be used, is admissible as surrounding cir- cumstances to show whether it is a right of way for all purposes, or only, e.g. for foot passengers {Cannon v. Yillars, 8 Oh. D. 415). A. sues B. on a covenant to repair. Evi- dence of the age, character, and class of house and state of repair it was in when B. entered, is admissible as surrounding circutastances to show the extent of B.'s Vability under the covenant (Proudfoot V. Hart, 25 Q.B.D. 42). Inadmissible. the tender, specification and drawings ; (2) expressly incorporates the specifica- tion and drawings ; and (3) provides that the work shall be executed " agreeably to the specification and drawings." In an action by B. for work outside tiie speci- fication and drawings, but included in the tender ; — Held, that the contract be- ing unambiguous and the tender though recited, not being incorporated, therein, it could not be referred to to show the extent of the work contemplated [Kinlen V. Ennis V.D. Council, 1916, 2 I.E. 299, H.L.]. Digitized by Microsoft® 636 THE LAW OF EVIDENCE. [book II. Admissible. A., a cattle-dealer, sues B. on the fol- lowing guarantee : — " £50. I will be answerable for £50 that C, butcher, may buy of A.'' A. tenders evidence that, be- ing in negotiation with C. to sell him stock worth £91, and not caring to trust him so largely, he had said to B., O.'s uncle, " If you will give me your guaran- tee for £50 I will keep supplying C. as I did his father " ; that B. consented ; that afterwards C. paid the £91, but, being sup- plied on credit, got into fresh debt with A. Held, the guarantee being ambiguous, that these facts were admissible as sur- rounding circumstances to show that B.'s guarantee was not confined to the £91, but was continuing and covered C.'s fresh debts lEeffleld v. Meadows, L.R. 4 C.P. 595 ; Montague Smith, J., remarked, " if it had contained anything so specific as to show it was intended to apply to a single transaction, we could not have ex- tended it by reference to the surrounding circumstances." Gp. Henniker v. Wigg, 4 Q.B. 792, Op. Grahame v. (?., 19 L.R.I. 249 and Ulster Bank v Synnott, T.R. 5 Eq. 595, where correspondence, interviews, and subsequent dealings and admissions were given in evidence for the same purpose ; and see Bpencer ' v. Lotx, 32 T.L.R. 373, where surrounding circumstances were admitted to show that the guarantee was to be confined to the town where the principal debtor then traded and not to be extended to others to which he afterwards removed]. A. sues B. for non^cceptance of wool, under a contract signed by B. to take " your wool at 16s. a stone." B.'s de- fence is that A. tendered wool partly from other farmers. Held, that a letter from A. to B.'s agent offering to sell a quantity of wool partly of his own clip and partly that of other farmers, and a later letter (both before the contract) stating that A. had sold part of his own clip, but was promised other wool which would go with his own, were admissible to show that "your wool" included both classes {Mac- donald V. Longhottom, 1 E. & E. 977). A., a railway engineer, sued B., a bank, on a contract for the construction of a new line, by which A. was to receive extra commission " on the estimate of £35,000 if he succeeded in reducing the total cost of the works below £30,000." A. succeeded in reducing the total cost of the tvorks but not of both works and land tosether, below £30,000. Held, that prior conver- sations and letters between A. and B. be- fore the contract, and a circular issued by B. to the public and shown to A. inviting capital on the basis of " the estimatpil cost of the line being f.'?5,000," were admis- sible, not to vary tlip contract, but to show that the cost of the land wns to be Inadmiasihle. A., a leather-factor, sues B., the wife of C, on the following guarantee : — " In consideration of you. A., having at my request agreed to supply goods to C, bootmaker, I guarantee ^ou £500, to con- tinue an force for six years only." Held, that the guarantee being ambiguous proof of surrounding circumstances was admis- sible; but that though evidence (1) of who and what the parties were, and (2) of the subject-matter of the guarantee (i.e. the application of C. to A. for fur- ther goods, A.'s refusal unless secured, and B.'s guarantee), was receivable under this head ; yet that further evidence, viz. that at the date of the guarantee A. held a dishonoured bill of £176 of C.'s, that an- - other of £170 was just coming due, and that, on C. applying for further goods, A. refused unless guaranteed by B., who thereupon signed the document, verbally agreeing that it should cover C.'s past debts, — ^was inadmissiible [MorreU v. Cowan, 7 Ch.D. 151, C.A., approved in Brunning v. Odhains, infra. In Laurie v. Scholefield, L.R. 4 C.P. 622, Byles, J.. remarked, " in construing the guarantee, we may look at the position of the parties, but not what was said at the time of giv- ing it " ; so. in Wood v. Priestner, L.R. 2 Ex. 66, 282, Kelly, O.B., at p. 68, said that the Court " could not cons.:der state- . mcnts by either party as to what he meant by the words used"]. A. being owed money by B. for print- ing a certain periodical, declines to bring out the next number unless with C.'s guarantee. C. thereupon signs and gives A. the following document : — " If you will bring out the present number, I will re- peat my guarantee to see you paid in full." Held, that though the relationship of the parties and the existence of B.'s indebted- ness might be proved as surrounding cir- cumstances, A. could not under this head prove that C. had previously given him an oral guarantee for the whole of B.'s debt, and that the written guarantee was given in substitution for the oral one [Brunning v. Odhams, 75 L.T. 602, H.L. ; cp. Mer- cantile Banl; of Sydney v. Taylor, post, 637]. A corporation, having passed a resolu- tion in Nov., 1S61, to enlarge a reservoir, agree with B., a stone merchant, that they shall take "all the stone they may require for the enlargement of the old G. reservoir for £175." In .Tuly, 1S62, the corporation pass a resolution further to enlarge the reservoir. In an action by B. tor the stone taken in the second enlargement, which the corporation contended came within the asreompnt. B. tenders evidence of (1) the minntos of the two resolutions of the corporation; and (2) a conversa- t'on between the manager of the corpora- Digitized by Microsoft® CHAP.xLvi.] EULEI. SUEEOUNDIXGCIKCU.M STANCES. ()3r included in tlie £30,000 [Bank of N. Zea- land -v. Simpson, 1900, AC. 182; direct testimony by the parties as to their inten- tions was in fact also received, though the decision in terms excludes it]. A. sues B. for royalties ou rifles made by B. for the Governmeut. A. had granted B. a general license to use his patent in making rifles on B. paying a royalty on every rifle manufactured " ^i^nder the pdiiKis hereby granted." Evidence by B. (1) of letters between them prior to the license showing that both parties believea (though erroneously) that the Govern- ment could use all patents free of charge; (2) that for some time before the license B. had made rifles for tlie Government under A.'s patent, paying no royalties to A. ; and (3) that A. had obtained a bonus from the Government for such gratuitous user of his patent ; — held, admissible to show that the deed did not apply to royal- ties on rifles made for the Government (Roden v. Land. Sm. Arm^ Co., 46 L.J. Q.B. 213; cp. Lyttelton Times Co. v. WnrnefS, ante, G35). In an action on a marine policy with a proviso " Warranted no 8t. Laierence October to April," evidence of the geogra- phical position and physical characteristics of the gulf and river of that name, and that they were almost equally dangerous between those dates, held, admissible to show that the words excluded both (Bir- reU T. Dryer, ante, 22 ; Botfal Bxch. Assur. V. Tod, & T.Ii.R. 669). B., a charterer, contracts with A., -.a shipowner, " to pay lighterage to enable steamer to complete loaditig at If. dock." A. having removed the ship to another dock, owing to the adverse state of the tide, B. claims to set off the extra lighter- age thus incurred against A.'s claim for freight Held, that the contract being ambiguous, a telegram from B. prior to its execution, — " Lighterage, if any. through inability to take full cargo at X. my expense," was admissible to show the intention [The Curfew, 1891 P. 131, per Hannen and Butt, 33. ; atiter if there had been no ambiguity in the contract, The Xifa, 1892, P. 411]. A. sues B. for a debt. B. pleads that A., for valuable consideration, released B. from "all debts and claims whatso- ever." Evidence by A. that at the time of the release the statement of accounts between them with respect to the debt in question was not known to either of them ; — Held, admissible to exclude that debt from the release [Lyall v. Edtcards, 6 H. & N. 337. So, where, in consideration of certain payments by an executor, parties intei-ested in the estate released all their claims thereto and afterwards the estate was increased by a then unknown claim Inadmissible. tion and B. in whicli the former gave a rough estimate of the timouut of stone re- quired, which estimate was greatly less than the stone actually taken. Held, though admissible to show that the en- largement contemplated was the Nov. one, and not that of July as well, yet that the evidence was not admissible to limit the amount that might be taken for such en- largement (Chadwick v. Burnley, 12 W.R. 1077). A., a shipbuilder, agreed with B., an owner, to lengthen and repair an iron steamship so as to entitle her to class 100 Al at Lloyd's. The specification stipu- lated that the iron plating was to be "over- hauled and repaired," and a clause, after- wards struck out, provided that any new plates were to be paid for by B. In an action by A. against B. for the cost of the new plates, held, that only the final contract and not the deleted clause could be looked at ; that by it A. was bound to supply any new plates requ\red ; and tliat prior letters and interviews showing that new plates were not contemplated by the parties, and that the clause was only deleted because they were found not to be requisite, were inadmissible [Inglia v. Buttery, 3 App. Gas. 552 ; and cp. Citrn- berland v. Bowes, 15 C.B. 348. Contra, Strickland v. Maxwell, 2 Cr. & M. p. 550, where a deleted clause was referred to in construing a contract ; and words deleted in the will, omitted from the probate copy, have been received in aid of interpretation, Ke BatUe-TTri^htson, 1920, 2 Oh. 330, cited post, 661]. A bank releases, A., a debtor, from " all debts due by A. to the bank at this date." A. at the time owed the bank unsecured debts and also one guaranteed by B. — In an action by the bank against B. on his guarantee, held, that the bank could not give evidence of conversations between its manager and A. at the time of the release, showing the release was only intended to apply to the unsecured debts and not to the secured one {Mercantile Bank of Sydney v. Taylor, 1893. A.C. 317, cited ante, 59&. 647 ; and cp. Exp. Kirk, 5 Ch. D 800). Digitized by Microsoft® 638 THE LAW OF EVIDENCE. [book II. Admissible. succeeding, if was held that the release did not apply to the increase (Turner v. T., 14 Oh.D. 829.) But op. Mllen v. Q.N. Ry., ante 588-9 ; and for cases where know- ledge was rejected to vary a contract, see Leduo V. Ward and Oato v. Thompson, ante, 590-1]. A. contracts to " sell B. 70,000 trees, and to plant, and keep them in order, re- placing dead ones, for two years for £220." To prove that " keeping in order " meant planting and pruning only, and not weed- ing and cleaning the ground as well, A. was allowed, the words being ambiguous, to prove that the value of the trees to- gether with their planting and pruning nearly exhausted the £220, so that there was no surplus left tor weeding and clean- ing [Allen y. Cameron, 1 Or. & M. 832. This case is doubted in Sugden, v. & P. 14th ed. 170; and see also Inglis v. But- tery, 3 ApJ. Gas., at p. 557. la the first- mentioned case, Bayley, J., added that the words been " unambiguous, the price could not have been considered, any more than the amount of the premium can be con- sidered to gauge the risk in a policy," citing for the latter proposition, Oabay v. Lloyd, 3 B. & C, 793, 795, which, how- ever, does not seem to apply]. B., a clerkj sues A., his master, for wrongful dismissal. A. had sent B. by post " £100 for Business purposes," to which B., after deducting arrears of his own salary,' duly applied it. Held, evi- dence of previous correspondence between the parties was admissible to show that " business purposes " did not include A.'s salary (Smith v. Thompson, 8 C.B. 44). A., the owner of a ship, engages B. as master, B. to receive 'V£120 in lieu of privilege." In an action by A. against B. for freight on goods carried in the cabin, B., in order to show that " privi- lege " did not include cabin freight, may prove a conversation prior to the contract, in which he a,8ked, " What privilege will you allow me ?" to which A. replied, , "None; but there is a large cabin and you may make what you please of it" (Birch V. Depeyster, 4 Camp. 385 ; 1 Stark. 210) . So, prior conversations have been ad- mitted to show that in a contract of sale, " candlesticks complete " meant fitted with mosquito .shades (Sari v. BourdiUon, 1 C.B. N.S. 188). And similar evidence is receivable to show that " N.M." meant New Zealand Mutton (Cameron \. Wiggins, 1901, 1 K.B. 1). A., a publisher, sues B., an author, for failure to supply literary matter in ac- cordance with the followinff contract: " Dictionary of Practice. £80 a year for 5 years from Mich. 1828. £60 for rest of Mr. B.'s life. Feb. 15, 1827." Held, that Inadmissihle. A., having written to a railway com- pany for their terms for carrying marble, the company reply that they will only be answerable for damage if the value is declared and insurance paid. Some weeks later, after various letters and interviews, A. writes, " Please forward the three cases of marble, not insured, to B." In an ac- tion for negligence by A., held, (1) that there was no " special signed contract " exempting the company under the Bail- way and Canal Act, 1854; and (2), by a majority of the H.L., that the prior corre- spondence was inadmissible for any pur- pose, not being contained in, or referred to by, the contract; but, per Ld. Oran- worth, that but for the statute it would have been admissible to explain the words " not insured " ; and, per Ld. Chelmsford and three of the advisory judges, that it was admissible as surrounding circum- stances for that purpose though not re- ferred to (Peefc V. N. Staff. Ry., 10 H.L. C. 473) . So, where A. wrote to the com- pany, " Please receive and forward - the following cheeses, to B., Oiwner's risk " — in an action by A., the company having tendered their ordinary form of consign- ment note to show that " owner's risk " implied a reduced rate exempting the com- pany, — ^Held, that the note not being signed by A., or referred to in his forward- ing note, was inadmissible ; but that the course of dealing between A. and the company showed that A. knew of the al- ternative rate and so could not recover (Lewis V. G.W.Ry., 3 Q.B.D. 195; op. Leduc v. Ward and Cato v. Thompson, ante, 590-1). A. sues B. for non-delivery of " 60 tons of Ware potatoes at £5 a ton " which B. had contracted to sell him. Held, that evidence of persons in the trade was ad- missible that "Wares" were the largest and best potatoes in the trade ; but not that A. had contracted for " Regent's " wares, whereas B. had tendered an infer- ior kind called " kidney " wares, since this would vary and limit the written con- tract (Smith V. Jeffryes, 15 M. & W. 561; no equivocation was held to arise, since "wares" meant only one sort, the best, and not two sorts; op. post. 657; and see further as to this case, OauMwell V. Mger, A. sells a cargo of goods to B. "four- teen days from ship's arrival to be allowed for delivery." He,ld, that in the absence of usage, evidence that the parties meant fourteen days after the ship had arrived and the captain had received the bill of lading, was inadmissible. (SotiUohos v. Kemp, 3 Ex. 105 ; see more fully post, 642). A.., a manager, engages B., an actor, at £10 11 week during the run of the piece. Evidence that before the contract A. agreed to make the run of the piece eight weeks Digitized by Microsoft® CHAP. XLvi.] EULE I. SUEEOUNDING CIECUMSTANCES. 639 A.dmUsille. the terms being incomplete and unintell- igible, testimony by a witness present at the transaction was admissible to explain the sense in which they were used, pro- vided the evidence was not inconsistent with such terms {Sweet v. Lee, 3 M. & G. 452; 4 Scott, N.R. 77). A. sells B. wool " deliverable in Etag- laud with all despatch ; names of vessels to le declared soon as shipped." In an action by A. for non-acceptance, B. may prove that the wool was to A.'s knowledge required for the purpose of re-sale; that its value fluctuated ; and that it was not saleable till the names of the vessels were declared, — an order to show the words amounted to a, condition and not merely to a warranty (Graves v. Legg, 9 Ex. 709; Behn V. Buniess, 3 B. & S. 751 ; Sale of Goods Act, 1893, s. 11 (6) ). Inordmissible. at least, held, inadmissible to explain the phrase (Emery v. Parry, 17 L.T. 152 ; cp. Grimstori v. Cuningham, ante, 594). So, evidence of the correspondence and circumstances attending the execution of a settlement, have been rejected to show that money to which A. " was entitled in possession " included a share in money to which he was entitled in reversion (Bradford v. Bomncy, 30 Beav. 431). County justices bought land adjoining a prison and had it conveyed "in trust for them for the purposes of the Prison Act, 1877." In an action by the Prison Commissioners to decide whether the land belonged to them or to the justices, held, evidence of the minutes passed iby the justices before and after the sale showing that it was bought not for the purpose of enlarging the prison (which wduld vest it in the Commissioners), but of render- ing it miore commodious and safe (which it was contended would not divert it from the justices), was inadmissible (Prison Commissioners v. Clerk of Peace, 9 Q.B.D. 506, 511). (Wills.) Persohk. A. leaves a leg'acy to " the persons whcj shall be in partnership with me at my death, or to whom I shall have disposed of my business." Evidence may be given as to what persons filled those capacities at tiiose dates (Stuibs v. 8 ar- gon, 2 Keen, 255). A. leaves a legacy to " Mrs. G." Held, extrinsic evidence was receivable to show that a friend ot A.'s called Mrs. Gregg was meant thereby (Abbot v. Massie, 3 Ves. Jr. 148. In Clayton v. Nugent, 13 M. & W. at p. 204, Rolfe, B., remarked of this case, " the Lord Chancellor noes not say what evidence was to be received; probably the testator was in the habit ot calling Mrs. Gregg Mrs. G." ; cp. Shore V. Wilson, post, 662). A. appoints as his executor " Peroival , of Brighton, Esq., the father." Evi- dence that A. knew two persons called Percival Boxall, father and son, both of Persons. A. leaves a legacy to " B. his executors, administrators and assigns." B. having died in A.'s lifetime, C, B.'s representative, claims the legacy, and ten- ders evidence that A. knew of B.'s death ' when making the will, in order to show that A. intended the legacy to be trans- missible. Held, not receivable (Maybank V. Brooks, 1 Bro. C.C. 84; ante, 618). A. by will leaves a cup to " Lord S. and his heirs as an heirloom," and after- wards by codicil leaves " all his effects to B." Held, that the will spoke from its date, and Lord S. having died between the dates of the will and codicil, the gift lapsed, and evidence of A.'s intention ttat it should go to S.'s successor was inad- missible [Be WhortDood, 34 Ch.D. 446, C.A. Evidence that A. knew that the Lord S. alive at the date of the will was dead at the date of the codicil, was in fact re- ceived, but held not to affect the construc- tion of the will]. A. leaves a legacy to B. (a mai^ried woman), with remainder to her children for life, and a gift over to her grand- children. In an action by the grand- children, evidence that B. was, at the date of the will, past child-bearing and that this fact was known to A., held, inadmis- sible to show that children then living were meant so as to validate the gift over, which was otherwise void for remoteness (Be Sayer, 6 Eq. 319). A. leaves a legacy to " Mr. ," and another to " Lady " ; extrinsic evi- dence is not adndssible to fill up the blanks (Re De Rosae, opposite, and cases cited). Digitized by IVIicrosoft® 640 THE LAW OF EVIDENCE. [book II. AdmUsihle. whom lived at Brighton, was admitted, probate being granted to the former {Re De Rosae, 2 P.D. 66; if the words "the father " had been omitted an equivocation would have arisen and declarations of intent also have been receivable ; ante 52S, 627. Cp. Furniss v. Phear, 36 W.R. 521). A. leaves legacies to " my nephews and nieces [naming them] ; also to Cort and Cort ; also' to my sisters [nam- ing them]." Evidepce that there were three persons answering to the blanks — viz. the husband of A.'s deceased sister and their son and daug'hter; that A. knew his sister had children and that there were only two living at the date of the will, but did not know their Christian names, — held, admissible {Re Oregson's Trusts, 2 H. & M. 504 ; aliter as to direct declara- tions of intent, post, 661). A. leaves a legacy " to the children of B. and C." Extrinsic evidence is admis- sible -to show whether B. and C. were alive or dead at the date of the will, and whether they were or were not capable of intermarrying, so as to show the mean- ing of the gift {Re Walbran, 1906,, ICh. 64; Re Sibley, 5 Ch.D. p. 499)-. Subject-matter. A. left to B. " the sum of i.x.x.," and to C. " the sum of o.x.x." Evidence that A. was a jeweller and in the course of his business used private marks to denote sums of money, accord- ing to which the former meant ilOO and the latter £200,— held, admissible {Kell v. Charmer, 23 Beav. 195). A. bequeathed to B. "£4000 for the charitable purposes agreed on between ns." It was objected that the will disclos- ing a general charitable intent, evidence to limit it was inadmissible. Held, that the will only disclosed a limited charitable intent, and that extrinsic evidence was receivable to show what the purposes agreed on were {Re HuntaUe, 1902, 2 Ch. 793, CA. ; see Secret Trusts, ante, 580, 598). A. devises his property on various trusts, but directs that " in case certain contingent propei'ty and effects in expect- ancy shall fall in and become vested in- terests in my children during the life of my wife," a different disposition should tal^e .effect. Held, that " contingency " having a definite legal meaning, evidence was admissible as to whether the children were entitled to^any and what contingent interests at the date of the will, on the principle id cerium est. &c., and that such Inadmissible. ' So, where the devisees were indicated by single letters only, having no reference to their names, a card kept by A. separate from the will and containing a key to the persons meant, was held inadmissible to explain the will {Clayton v. Nugent, 13 M. & W. 200; aliter if A. was proved to have habitually called particular persons by those names; or if the card had been so referred to as to have been incorporated by the will, ante, 526). And where the gift was to " my dearly beloved," declarations by A. as to whom hfe intended were rejected, though evidence of the state of the family was admitted, and evidence would have been received to show who he had habitually so called {Sul- livan V. Sullivan, I.R. 4 Eq. 457). Subject-matter. A. leaves his widow a life interest in his property, adding, " And I desire and empower her by her will, or in her lifetime, to dispose of my estate in accordance with my wishes verbally ex- pressed to her." Held, extrinsic evidence of A.'s wishes was inadmissible, since the case was not one either of secret trust, or of incorporating an existing identified paper, but resembled that of filling up a blank {Re Hetley, 1902, 2 Ch. 866). A. bequeathed to B. " £4000 for the charitable purpose agreed on (between us." Evidence by B. (1) that A. was under a misapprehension and that no purposes at all had been agreed on between them {Re Huxtable, 1902, 1 Ch. 214, per Far- well J.) ; and (2) that the income of the £4000 was to be applied to the agreed char- itable purposes during B.'s life, but that B. was to dispose of the capital after his death as his own property, held, inadmis- sible as contradicting the will (Re Hux- table, opposite). In King v. Badeley, opposite, evidence that A.'s wife had a relative called B., who was rich, and that after the aate of A.'s will E. died leaving certain benefits to A.'s wife and children ; and that, subsequently to this, A. made an unexecuted codicil stating that "part of the expectations re- ferred to in my will have been realised," — Held, inadmissible, since it added to the will what had not been expressed therein. Cp. Neale v. N., post, 642. A. bequeaths to B. his "140 shares in Digitized by Microsoft® CHAP. XLVi.] EULE II. PRIMAEY MEANINGS, &c. 641 Aimissihle, evidence explained without adding to the wiU (King v. Badeley, 3 Myl. & K. 417). A., a doctor leaves " all the books in my house " to B. The question heing whether a number of MS. professional notes bound into volumes passed as "books," evidence that B. was also a doc- tor and that the contents of the notes would be of greater use and interest to him than to strangers, was received to show that they did so pass (Willis v. Curtois, 1 Beav. 189, 193). A. devises his " estate called Cleeve Court " to B. ; — evidence is admissible as to what property A. designated by that name at the time of his death; as to his treatment of, and additions to, it ; and what he called it both before and after the date of his will (Castle v. Fox, 11 Eq. 542 ; op. Well v. Byng, 1 K. & J. 580, 686, and post, 648, 655-6) . A. having a special power of _appoint- ment over a sum of Consols in favour of her children, by her will, which made no reference to the power, left " all the money belonging to her in Consols or any other funds, and all other property she might die possessed of, to her children." The question being whether the will executed ike power, — ^held, evidence that both at the date of the will and of her death A. had no other property than that com- prised in the power, was admissible to show an intent to execute the power (Be Gratwick, L.R. 1 Eq. 177; Be Wait, 30 Ch.D. 617). Inadmissihle. the 0. company." It is proved that A. held 40 fuUy-paid and 240 partly-paid shares therein. Evidence of declarations by A. that he intended 140 of the partly- paid shares to go to B. is inadmissible, al- though under the circumstances these alone were held to pass (Be Cheadle, Bishop v. HoU, 1900, 2 Ch. 620, C.A.). So, decla- rations by A. showing that by " farm " he meant two farms which he worked to- gether, has been held inadmissible (M'Oon- igle V. M'G., 1910, 1 I.E. 297 O.A.). A. having directed payment of (1) his debts, funeral and testamentary expenses, and of (2) a number of general legacies, — gave " all the residue and remainder of his two mortgage debts, after payment of his deibts, funeral and testamentary ex- penses, to A. and B.," there being no gen- eral residuary bequest. The question be- ing whether the debts and funeral and testamentary expenses only, or the legacies as well, were to be paid out of the mort- gage moneys ; — Held, that the former con- struction was correct, and that the words being unambiguous, evidence of surround- ing circumstances was not receivable ; also, even if ambiguous, evidence of the amount of the testator's property at the date of the wUl, showing that there was theu no other property but the mortgage moneys out of which the legacies could be paid — was inadmissible (Higgins v. Dawson, 1902, A.C.I.). A. made a settlement of his property by a separation deed, in which he reserved to Himself a general power of appointment by will over one-third thereof, declaring trusts of the remainder for his wife and children. By will, prior to the deed, he had left all his property on trust for his wife and children. Held, that the wiU was a good execution of the general power, and that the settlement and circumstances under which it was executed were not ad- missible as evidence of a oontrarv intent (Boges v. Cook, 14 Ch.D. 53, C.A. ; cp. Be Clark, id. 422). . Rttle II. Primai'y Meanings. Correct Names and Desoi-iptions. Primary Meanings. A., by agreement dated Sept 29, 1902, gives B. an option to purchase certain patents within sim months from that date. Held, that though the belief, and subsequent acts, pf the parties were not in general admissible to extend the word " months ' from lunar to calendar months — yet evidence either of an agreement so to extend the time, or of conduct by A. amounting to a waiver of the strict meaning, was admissible [Brunei' L.E. — 41 Primary Meanings. A. sues B. on a contract to pay commission it A. sold B.'s land " within two months after the auc- tion day." A. sold the land within two calendar, but not within two lunar, months. Held, that at common law the primary meaning of month being lunar month, and there being nothing in the con- text or surrounding circumstances, and no usage, to displace it, evidence (1) that by the conditions of sale, approved by B., the Digitized by Microsoft® 642 THE LAW OP EVIDENCE. [book n. Admitsiile. V. Moore, 1904, 1 Ch. 305; Morrell v. Studd, 1913, 2 Ch. 648; op. Wakins V- M'Qmity, 1907, 2 I.R. 660. In Helsham- Jones V. Hennen, 87 L.J. Ch. 569, Eve, J., held that in every contract, save mercantile ones in the City of London, ' month ' prima facie means lunar month, unless the con- text or surrounding circumstances show otherwise] . A. devises a life interest in property to " My dear vHfe Dorothy A. as long as she shall remain my itoidow." Evidence was admitted (1) that A. had higamously married Dorothy, whom he knew to be the wife of B. and had lived with her as Mr. and Mrs. A.; (2) that after A.'s death she had returned to B. and reverted to her former name of Mrs. B. ; and (3) that she had since given herself up for bigamy and been convicted therefor. Held, that the words wife and widow were used by A. in a secondary sense, and that the lady took the life-interest as persona designata (Re Wagstai, 1908, 1 Ch. 162, C.A. Gp. Doe V. Rouse, and Re Howe, post, 652). So, where A. bequeathed an annuity to his " mfe "/ evidence that he had no lawful wife, but that he lived with B. and had referred to her as his wife, — Held, admissible and that B. was entitjed to the annuity (Re Brady, 26 T.L.R. 257; for cases in which there are two claim- ants to the title, see post, 651-2). A., a testator, having married B., a woman whose husband C. was believed by both of them to be dead, although tliey knew there was a possibility of his being alive, left property to B. " during her wid- owhood." A.'s will being disputed, on the ground that C. was alive, — Held, that un- der the circumstances the word widowhood did not impart a condition, but only a definition of the period of enjoyment and that B. was entitled to the property until death or remarriage. [Re Hammond, 1911, 2 Oh. 342; op. Re Boddington, 25 Oh.D. Inadmissible. purchaser could object to the title within one "calendar" mouth; and (2) of an admission by B. asking when he could see A. and " liquidate his claim," — was not admissible to alter the meaning \_Simpson V. Margitson, 11 Q.B. 23; Bruner v. Mom-e, opposite. By the Interpretation Act, 1889, s. 3, month is now, unless other- wise expressed, to be construed "calen- dar " month in every statute passed since 1850]. So, where certain gas-meters were to be inspected " daily," — evidence of a practice of the parties to omit Sunday inspection, held, inadmissible to control the meaning of the word (Land. C.G. v. South Metro. Gas Co. 1904, 1 Ch. 76, C.A.) A. sells B. a cargo, of seed, " fourteen days to, be allowed after ship ready to discharge, for delivery." In an action by A. for non-acceptance, held, the words being unambiguous, evidence tendered by B. that the meaning of the parties was that A. was bound to deliver the seed im- mediately, but that B. had fourteen days in which to accept it was inadmissible. [Sotilichos v. Kemp, 3 Ex. 105; 18 L.J. Ex. 37 ; aliter, perhaps, if a usage to that effect had raised an ambiguity; ante, 638]. A., a widow, being about to marry her deceased husband's brother, conveyed lands on trust, " after the solemnisation of the said intended marriage," for herself tor life and then in fee for C, her young- est son. A. having died, in ejectment by B., her eldest son and heir, against C. ; — Held, that the words being clear and unambiguous, evidence of the knowledge and surrounding circumstances of the parties^ was inadmissible to show that by " marriage " they meant the proposed in- valid union [Neale v. N., 79 L.T. 629 C.A.; cp. Phillips v. Prolyn, 1899, 1 Ch. 811; and Re Garnet, 93 L.T. 117. The analogies (1) of " children " sometimes including illegitimates, and (2) of such evidence being receivable to identify per- sons or property, — ^were expressly held not to apply. The ease, however, illustrates the principle that no meaning can be proved which the words will not properly bear; see King v. Badeley, ante, ^0-1]. A. demises to B. his " messuage at Dale." Extrinsic evidence would not be admissible to show that by these words A. referred to a sheet of water which he owned at the same place (Waterpark v. Fennell, 7 H.L.C. 650, 680, per Ld. Cran- worth; cp. Miller v. Trovers, post, 655). A., by will, leaves " to my heir £4000." It being contended that A must have re-, feirred to a single person, evidence waa terid|red that A. had promised to make B., a stranger, " his heir," and was in the habit of so describing B. Held, inadmis- Digitized by Microsoft® CHAP. XLTi.] RULE II. PRIMARY MEANINGS, &c. 643 Admissihle. 685, where the circumstances led to the term being construed as a condition]. Persons. A. left property to his "chil- dren." He had no children of his own, but had four step-daughters. Evidence that they lived with him, adopted his sur- name, were known in the neighbourhood as his children and were .so treated and called by him, and that they called him "father," held, admissible, and to entitle them to the property (Be Jeans, 72 L.T. 835). A., by will, leaves property to " the chil- dren of the late Mary G." The latter had left two children, B., legitimate, and C, illegitimate. Evidence was admitted that A. knew -tiiese facts and had clothed and maintained C, who was a reputed child of Mary G., and B. and O. were accord- ingly held entitled (GfiK v. Shelley, 2 Russ. & Myl. 336). A., by will, leaves property to " the children, living at my death, of my de- ceased niece Margaret K." Mrs. K. had five children by K., and afterwards one child bv M., all living at A.'s death. The Inadmissible. sible; and, A. having three co-heiresses, the legacy was given to them (Mounsey v. Blamire, 4 Bus. 484 ; explained in Wigram, Extr. Ev. s. 36 and note: cp. Be Fish, 1894, 2 Oh. 83,86). Persons. A testator leaves a legacy to "his children," having at the date of the will both legitimate and illegitimate chil- • dren. Held, that the former alone took, and that extrinsid' evidence to show he in- tended tlie latter was inadmissible (Ellis V. Houston, 10 Ch. D. 236). A., who had two illegitimate children by B., subsequently married her. The day after his marriage he made a will leaving his property to B. for life, with power to dispose of it " ietween my children hy her." A. died soon after, leaving no other chil- dren. Held, that B.'s illegitimate children could not take as there was at the date of the will a possibility that B. might have legitimate children by A. (Dorin v. D., L.R. 7 H.L. 568; Hill v. Crook L.R. 6 H.L. 265). A., by will gave property in trust for her brother B. for life, and after his ^eath for all or any of his children living at the death of the survivor of A. and B. At the dates of A.'s will, and of A.'s and B.'s deaths, all in 1911, -iJ. had illegitimate children by S., whom he married in 1904. Held that the legitimates only took, and evidence that B. always supposed, and had been informed by B., that K. was his law- ful wife and his children by her legitimate, and that they had been so treated and re- ceived in the neighbourhood and by A.,— was not admissible to enlarge the mean- ing of " children " IRe Pearce, 1914, 1 Ch. 254, C.A. following Hill and Crook and Dorin v. D., sup.; and overruling Re Du Bochet, 1901, 2 Ch. 441 contra. See also Be Brotcne, 61 L.T. 463, and Re Brown, 63 id. 159. Re Pearce was followed in Re Emltiry, infra, and Re Dieppe, 138 L.T.Jo. 564]. A. leaves property to " the children of my sisters B. and C." A. had three sisters, B., who before the will had, to A.'s know- ledge, changed her name and become a nun ; and C. and D., who, to his know- ledge were married and had children. Held, there being a sister who answered the name of B., and who might leave the convent and marry,— declarations by A. that he intended C.'s and D.'s children, were rejected (Delmare v. RoheUo, 1 Ves. J. 412; see Wigram, Extr. Ev., 4t!h ed. p. 23; and cp. Holmes v. Gustance, 12 Ves. 279). In Andrews v. A., opposite, letters from A. after the second marriage declaring the gift to be confined to the five children of K. were rejected as evidence of intention, though admitted so far only as they stated Digitized by Microsoft® 644 THE LAW OF EVIDENCE. [book II. Admissihle. question being whether JM.'s child also took, — evidence that after K.'s deatli his five children lived with A., who took a great interest in them and their mother ; but that A. was greatly displeased with his niece's second marriage to M., her own manservant, and had dropped her entirely, and never spoke of her except as Margaret K., and after her death, withdrew the five K. children from M.'s custody, sup- porting them himself, while ignoring M.'s child, having been admitted as " surround- ing circumstances," as also evidence contra denying some of these facts, — Held, that the word children must have its prima facie meaning and included M.'s child {Andrews v. A., 15 Ii.R.I. 199, O.A.). A., who died in 1908, by will, in 1907, left property to the children of my sisters B. G. and D." B. had illegitimate chil- dren only and C. and D. legitimate chil- dren only. Evidence having been received that B. at the date of the will was a wi- dow, 68 years old, that she had been mar- ried in 1869 having had two children by her husband before marriage and none after; that she was living with A. at the date of the will and death ; and that A. knew all the facts and was on affectionate terms with the children; — ^Held, that as there were not, and never could be, legitimate children of B., the illegitimates were entitled to share (Re Eve, 1909, 1 Ch. 796, approved in Re Pearce, slip.). A testator left property to his sister B., " wife of C," and after her death to " B.'s children." B. was never married, but at the date of the will was cohabiting with C., by whom she had had children, though she was then past child-bearing. Evidence was received that the testator knew of this connection, had frequently visited B. and C., and always treated their children as his own nephews and nieces. Held, that the words " wife " and " children " were not to be construed in their strict sense, and that the children took [Be Horner, 37 Oh.D. 695; O'Loughlin v. Bellew, 1906. 1 Oh. 542]. A. left to " each of the children of Mary Ijord, £5 for insuring." Mrs. Lord had three children by Lord before, but none after, their marriage. Evidence that A. had been struck down by paralysis and nursed by his relative Mrs. Lord, and her children, in whose house he shortly after died, and that he knew that her children were illegitimate, but was on very friendly terms and exchanged visits with their mother and themselves, — ^Held, that the language of the will showed that he re- ferred to existing children and thought death near at hand, and that, under the above circumstances, her children took. (Re Baseldme, 31 Ch.D. 511, C.A. ; Re Deakin, 1894, 3 Oh. 565). Inadmissible. the circumstances of the testator's pro- perty. A. left property to " my nephews and nieces, children of W. H. D., living at my death." A. had no nephews or nieces, but his aunt had married W. D., by whom she had several children, amongst others W. H. D., a son, and unmarried. Held, that " my nephews and nieces " must be struck out as falsa demonstratio (see Rule HI. post) , but as there remained " children of W. H. D." which vyas a correct descrip- tion, the gift failed, and evidence that the testator knew that W. H. D. was an epileptic and unlikely to marry and in- tended the gift for the childTen of W. D. was inadmissible [Re Chenoiceth, 45 Sol. Jo. 520; 17 T.L.R. 515; ep. M'Hugh v. M'H. 1908, 1 I.R. 155, 158]. A. leaves property to his " nephews and nieces." A. had none, but his wife had both. Held, that these took, and that, there being no one claiming in competition, evidence of unfriendly treatment by A., or direct declarations by him that_ they were not intended, was inadmissible (Sherratt v. Mountford, L.R. 8 Oh. 928). A. left property to " his niece E.W." Neither A. nor his wife had any nieces, but his wife had two grand-nieces called E. W., one of whom was Jegitimate and the other illegitimate. — ^Held, that there being no latent ambiguity (i.e. equivoca- tion), the legitimate one took, and evi- dence tiiat the other lived in the house with A. and was habitually called by him " Ms niece," was not receivable (Be Fish, 1894, 2 Oh. 83, C.A.). A. left one-third of his property to his " first cousins " and two-thirds to his " second cousins." At his death A. had first cousins, second cousins, and children of first cousins. Held, that second cousins did not include children of first cousins, and that evidence that A. habitually called such children his " second cousins " was probably inadmissible [Re Parker, 17 Oh. D. 262, C.A. ; cp. Cloak v. Hammond, Re Taylor, post, 652, where " cousin " was held applicable in a secondary sense to the wife of a cousin]. Digitized by Microsoft® CHAP. XLvi.] EULE II. PEIMARY MEANINGS, &c. 645 Admisaihle. Inadmissible. A., in his wall, after referring to B. as his ' son-in-law ' and to his daughter Mary B. as ' the wife of B,' gave property in trust, after her death, to the " children of Mary B." Evidence was given that B. had, with A.'s knowledge and approval, ' married ' Mary, the sister of his deceased wife and had children by her; and that they were all treated by A. as legitimate relations and had acquired that reputation. Held that, using the will as a dictionary, there was a sufficient designation therein, coupled with the surrounding circum- stances to give the property to Mary B.'s children. (HUl v. Vrook, UR. 6 H.L. 265 ; Re Helliwell, 1916, 2 Ch. 580). A testator appointed his " nepheiw George Ashton " to be his executor. He had both a legitimate and an illegitimate nephew of that name. Held, as he had, in other parts of his will, spoken of his legitimate and illegitimate relations indis- criminately as his " relations," parol evi- dence was admissible to show that the illegitimate nephew was intended [Be Ash- ton, 1892, P. 83; -following Seate-Hayne v. Jodrell, 1891, A.C. 304 (where, how- ever, no question of evidence arose) ; Cp. Re Corsellis 1906, 2 Ch. 316. So, where the testator left a legacy to " my sisters " and had one legitimate and one illegitim- ate sister, — ^both took (Re MImhury, (1914) 111 L.T. 275]. A. left property to his "niece Mary Benyon, and after her death to her three daughters, Mary, Elizabeth, and Ann, as tenants in common." Mary Benyon had three legitimate daughters of those names, Ann, the only survivor of whom, took possession on - her mother's death ; she had also an illegitimate daughter, christ- ened Elizabeth Thomas, by a man Thomas, whom she afterwards married. In eject- ment for a share of the premises by Eliza- beth Thomas ; — ^Held, that though prima facie the words of the will imported legi- timate daughters only, yet that, as illegi- timates might be' included, evidence, other than direct declarations, was admissible that A. did or did not intend Elizabeth Thomas to take. On evidence that A. never knew of the death of the legitimate Elizabeth or of the birth of the illegitimate one, or of their mother's second marriage, all of which had been concealed from him, and that he alwa.vs wrote to her mother as "Mrs. Benyon," — Held, that Ann was entitled to the whole (Doe v. Benyon, 12 A. & E. 431). A testator appointed " William Mc- Cormack " as one of his executors. There was a Thomas McOormack, one of the deacons of A.'s chapel, and his son Wil- liam Abraham McCormack. Upon evi- dence: (1) That A. had told one of the witnesses of his will that " he wished Mr. A. appoints as one of his executors " Francis Courtenay Thorpe of Hampton, gentleman." There were living, at the date of A.'s will and death, (1) Francis Corbet Thorpe of Hampton, the testator's brother, and (2) Francis Govrtenay Thorpe, the former's son. a lad of twelve. Digitized by Microsoft® 646 THE LAW OF EVIDENCE. [book ii. AdfnisHble. McCormack, one of the deacons of his chapel, to be his executor " ; (2) that Thomas McCIormacIi was the only deacon of that surname ; and (3) that it did not appear that A. was acquainted with the son, — Held, that the father was intended [Re Brake, 6 P.D. 217; 29 W.R. 744; following Charter v. 0., post, 652, and Wigram, Prop, v., neither of which, how- ever, sanctions the admission of the first head of evidence. Re Peel, opposite, was also cited. Re Brake, sup., might, perhaps, be placed under Rule III., post, since though the name in the will did substan- tially, yet it did not completely, fit the son. Gp., however, Equivocations, ante, 627, where substantial identity has, in some cases, been held sufficient under that Rule]. A., by will in 1846, gives a legacy to " The Benevolent Institution for the delivery of poor married women at their own Habitations." It was claimed by an existing society called " The Royal Mater- nity Society for delivering poor women at their own Habitations ". which had been founded in 1757, and adopted its present name in 1824. In opposition to this claim, evidence was received that there had been a society called '• The Benevolent Institu- tion for the sole purpose of delivering poor married women at their own Habita- tions," which was founded in 1817,. but ceased to exist in 1824, of which A." was a life governor, and to which she sub- scribed and frequently recommended poor women to ' apply. Heltl, that if both so- cieties had been in existence the latter, be- ing more accurately described, must have taken ; but that as the former was suffi- ciently described, and as the only evidence that A. was not aware of its existence was an affidavit by A.'s maid that she believed A. was not aware of its existence {ante, 61), the former took [Coldwell v. Holme, 23 L.J.Ch., 595 ; 18 Jur. 396 ; followed in Re Magratn 1913, 3 Ch. 381; see cases post, 651-3]. A. left an annuity to his "brother Ed- ward Parsons for life, and afterwards equally to his children by his present wife." A brother, Edward Parsons, and his wife, had both died 'before the date of the will, and their children took other legacies thereunder, but another brother, Samuer Parsons, who had a wife and chil- dren, claimed, the annuity. — ^Held, evi- dence that he was the only brotier alive at the date of the will, and that A. often called him "Edward" and "Ned," was admissible, and that he took the annuity {Parsons v. P., 1 Ves. J. 265). Inadmissiile. residing with him. Held, that A.'s nephew, being correctly described, satisfied the description, and evidence that A. had asked his brother to be !his executor and the lat- ter had accepted; that A. had afterwards referred to him as such ; and that the word " Courtenay " was introduced by mistake, was inadmissible [Re Peel, L.R. 2 P. & D. 46; (fuller) 22 L.T. 417. Mr. Taylor remarks that to unprofessional men this case appears a reduction of the rule to an absurdity (s. 1202 «)]. A., by his will, gives a legacy to " The National Society for the prevention of Cruelty to Children." There was an Eng- lish Society precisely answering that name, and also a Scots Society similarly named except that the word Scottish was prefixed to " National," Held that the former took ; and that evidence that A. was a domiciled Scotsman, who had lived all his life in Scotland, that his will was made in Scots' form and prepared by a Scottish solicitor, that the legacy in ques- tion was inserted among a series of other legacies to Scottish charities, that his brother was a director of the Scottish So- ciety which had recently and specially been brought to A.'s notice, and that the Eng- lish Society neither operated in Scotland, nor appeared to be known to A. ; — ^was, even if admissible, not sufficient to deflect the name from its strict application {National Boo. do. v. Scottish National Soc, dc, 1915, A.C. 207 ; post, 658) . A leaves a legacy to " the London Or- phan Society in the City Road." There was (1) an "Orphan Working School" in the City Road and (2) a " London Orplhan Asylum " at Clapton. Held, that the former answered the description, and that evidence in favour of the latter was inadmissible [Wilson v. Squire, 1 Y. & 0. Ch. Cas. 654. Evidence was admitted in favour of (1) that A. frequently passed it on his way ,to business, and had in- structed his solicitor to give a legacy to it in his will {sed qu. as to such declara- tions, unless tendered merely to show A.'s knowledge of the institution) ; but re- jected in favour of (2) that A. was a sub- scriber thereto, and Lad expressed an in- tention to leave it a legacy. The descrip- tion of- (1) seems, however, hardly cor- rect enough to bring the case within tie rule so as to exclude evidence of (2) ; see cases post, 651-3]. A. left " £20 for mourning and his premises called Rose Cottage " to his " niece Elizabeth Stringer." A. had had a niece, Elizabeth Stringer, who died be- fore the date of his will, and whose fun- eral he attended ; but at Uie date of his will the only person known to A. in the least like this description was a great- grandniece, Elizabeth Jane Stringer, a Digitized by Microsoft® CHAP. xLvi.] EULE II. PRIMAEY MEANINGS, &c. 647, Admitrille. Property. See cases, post, 648-0. Inadmisaihle. child five years old. Held, the latter took as sufficiently answering the description, and evidence that the will was a copy of an earlier one made in Elizabeth Stringer's lifetime, and that the legacy to her had by inadvertence of the solicitor, who did not know of her death, been recopied into the new will without A.'s attention being directed thereto, was inadmissible [Strings v. Q-ardiner, 4 De G. & J. 468. Mr. Justice Stephen remarks that this decision^ the result of which was to give a legacy to a person whom the testator had no wish to benefit, and who was neither named nor described in the will, appears to be a practical refutation of the principle or rule on which it is based (Dig. Note xxxiii.). Cp. Goldwell v. Holme, supra]. A. leaves a legacy to his " cousin A. E. C. Loftus." A. had had a cousin of that name who, at the date of the will, was known by A. to be dead. Evidence that by a mistake of the draftsman the above name was inserted instead of his cousin's, George Loftus, held, not admissible, there being no ambiguity, and the gift held void [Re Ely, 65 L.T. 452. This case was dis- approved in Be Ofner, 1909, 1 Ch. p. 63, cited post, 650, and Re Balston, 1912, 1 Ch. 435, post, 651. Cp. Stringer v. Q-ardi- ner, sup-; and 'Charter v. C, post, 652]. Property. A. bequeaths " 33 shares in the E. Go. to B., and the, remaining shares to C." It appeared that A. held 74 shares in the E. Co., 37 being original fully-paid bonus shares, which had been allotted share for share to every holder of original ones. — Held, that B. took 33 single fully- paid shares ; and that testimony by the secretary of the company that A. and most but not all, of the other shareholders used to treat and speak of the two classes as one (i.e. in his ease as 37 double shares), and gave only one receipt for their divid- ends on both, was not admissible [Millard V. Bailey, L.R. 1 Bq. 378; approved in Re Trimmer, ante, 599 ; and cp. Mercan- tile Bank v. Taylor, ante, 599, 637. AUter had there been a usage by all the holders to treat all the shares as double shares]. . A, bequeaths to B. his 140 shares in the- C. company." It was proved that A. owned 40 fully-paid and 240 partly-paid shares therein. Evidence of declarations by A. that he intended 140 of the partly- paid shares to go to B., held, inadmissible, though under the circumstances these alone were held to pass (Re Cheadle, Bishop V. Bolt, 1900, 2 Ch. 620, O.A.). A. bequeaths " the sum of £2000, Span- ish bonds or coupons belonging to me " to B. A. owned 4 -Spanish debentures, nominally of £1000 each, but worth actu- ally about £500. Held, that these deben- tures being suiBc:ently described, B. was Digitized by Microsoft® 648 THE LAW OF EVIDENCE. [book II. Admissible. A. devised to B. " all my mansion-house at Tedworth in Hants, and all my lauds in Hants devised to me by my late hus- band, and all my other hereditaments in Hants." Evidence was received that there was an extensive property known as " the Tedworth Estate," partly in Hants and partly in Wilts, and that it had been en- joyed together as one property, without division to mark the county boundaries, and was so devised to A. by her late hus- band, and that the mansion-house was largely disproportionate to the Hants lands, which formed the smallest part o£ the estate. Held, only the lands in Hants passed, notwithstanding that (1) they were insufficient to keep up the house ; (2t that farms were thereby divided; and (3) that cottages were in some cases separated from their gaixJens [Webher v. Stanley, 16 C.B. N.S. 698, disapproving Stanley v. S., 2 J. & H. 491, contra, where further evidence had been received and relied on ; op. Pedley v. Dodds, 2 Eq. 819 ; and Cave v. Harris, 57 L.J.Ch. 62]. A. devised his " messuages and manu- factory on the west side of High Street in the occupation of B. and C, together with all appurtenances," to D. — Elvidence was received that A. owned two manu- factories, one on the west side of High Street and another, half the value, on the east side, both of which were at the date of the will, and had been for thirty years before, occupied and used together under one lease by B. and C. as one manufactory and at a single rent, and that though the smaller one had originally been separate yet it could not now be so used without considerable alteration and readjustment. Held, as the premises on the west side satisfied the description, they -alone passed (Smith V. Ridgway, L.R. 1 Ex. 331). A. devised to his wife " my residence called S. House and the premises thereto as the same are now occupied by me." Evidence was given that at the date of the will A. had let off to his two sons for their business an office in the yard of S. House and the stables and coach-houso, and that A. only occupied the remainder. Held, that only the parts occupied by A. passed, and that the inconvenience of such a division could not be considered. Davey, lijj., thought that the will must first be fiinstrued, and that evidence could only be adduced afterwards to show if there was anytliing iinswering the description. Inadmissible, entitled to 2 but not to all of them; and that evidence that (1) A. habitually des- cribed the debentures as "of £500 each" and the 4 as " securities for £2000 " ; and (2) had declared her intention to leave the whole of them to B., — was inadmis- sible (Horwood V. Oriffith, 4 De G. M. & G. 700). A. devises to B. " my estate of Ashton in the county of Devonshire." Held (1) tliat "my estate of Ashton" was equiva- lent to " my estate at Ashton," and passed only such of A.'s lands as were situated in the manor or parish of Ashton ; and (2) that evidence that A. habitually in- cluded lands outside these limits in the term " Ashton Estate,' and had instructed the scrivener who made his will " to give my Ashton Estate " to B., — was inadmis- sible [Doe V. Chiohester, 4 Dow. 65. In Somer v. if., 8 Oh. D. 758, 774, BaggaUay, L.J., stated that this and other cases "establish that under a devise of lands at a place, extrinsic evidence is not admis- sible to show that the testator intended to pass lands not at that place, either by reason (1) of the enjoyment of such other lands with the original ones for a long period of time; or (2) of his having dealt with- them as one property; or (3) of his having habitually refetTed to them as one property under one distinguishing name." Doe v. Chichester, sup., however, seems supportable solely on the ground that in this particular will of was held to mean at (see Webb v. Byng, 1 K. & J. p. 586; Webber v. Stanley, 16 C.B. N.S. p. 754; and ep. ante, 641, and post, 655-6)]. A. devised to B. the " townland of East T., including tlie house, offices, gardens, and demesne of Woodville." In addition to the original demesne of Woodville, part of East T., A. owned two adjoining lands M. and C, not part of East T. Held, evidence that A. had always treated and spoken of M. and C. as part of the demesne of Woodville was inadmissible {Kino v. K., 13 L.R.I. 531, 537-8). A. conveys to B. an estate called Cot- ton Farm by a deed which describes it as consisting of the particulars specified in a schedule and delineated in a plan thereon. In trespass by A. against B., the latter cannot prove that a close, not mentioned in either, was always occupied and ten- anted by A. as part of the farm and so passed by the deed to B, [Barton v Dawes, 10 C.B. 261; Llewellyn v. Jersey, 11 M. & W. 183; Boyle v. Mulholland, 10 Ir. C.L. Rep. 150; Baird v Fortune, 4 Macq. H.L. 127, 149. In the case of lands abutting on highways or non-tidal rivers, however, the owner of the land will be Digitized by Microsoft® CHAP. XLvi.J EULE III. INOOEEECT NAilES, &c. 649 Admissible. Inadmissihle. Smith, L.J., remarked that if evidence presumed to own the soil to the middle were not resorted to the cons'tructlon was of the I'oad or river, though the map only plain, and that if it were it was in favour shows the laud as going up to the side of of the sons [Re Seal, Seal v. Taylor, 1894, either ; and evidence in rebuttal of this 1 Oh. 316 ; Morrell v. Fislier, 4 Ex. 591 ; presumption may then be given, post, ~ Magee v. Lavell, Ii.R. 9 C.P. 107, in which Devonshire v. Pattinson, post, 675) . ease Denman, J., stated that extrinsic evi- A. conveys a house to B. " as norw staked dence was only admissible so far as to and marked as lot 24 in the particulars of identify the subject-matter. In Re Seal, sale, with all ways thereto appurtenant." Blip., evidence further than to show what Held, that a plan of tlie premises marked premises were occupied by A., would on the particulars of sale, but not on the seem, under the present Rule, to have conveyance, was not admissible to show been inadmissible]. that a right of way, though not appur- tenant, was included [Barlow v. Rhodes, 1 Or. & M. 439. So, where minerals had been reserved by the grantor in a convey- ance, the conditions and particulars of sale were rejected to show that sandstone was not included, Oreville v. Hemingway, 87 L.T. 443, cited (Mite, 633]. A. buys the " entire rights and liabil- ities" of a business from B., and agrees " to take over B.'s liabilities as scheduled." Held, there being other liabilities which were not scheduled, tliat evidence was not admissible to show that by " liabilities " the parties meant only those scheduled [Lloyd V. Sturgeon Co., Mite, 594 ; and op. Mercantile Bank of Sydney v. Taylor, ante, 599]. RuiE III. Incorrect Names, Descriptions, nfc; One Person or Oiject. A., having con- tracted to buy land from " B. as legal per- sonal representative of 0.," resists specific performance on the' ground that B. had misdescribed himself as such. B. may prove that at the time of the contract he was the only person entitled to take out letters of administration to C.'s estate and that, after the contract, he did take them out (Towle V. Topham, 37 L.T. 308). A vendor conveys property to " WdUiam Wray of Laurel House, Highgate." Evi- dence is admissible that the deed was exe- cuted by Henry Wray, who signed the name " William Wray " for himself and several partners, as purchasers (Wray v. W., 1905, 2 Ch, 349; cp. Simmonds v. Woodward, 1902, A.C. 100, cited ante, 625) ; In a settlement case, a deed > of appren- ticeship is produced made between " Joseph R. and John B.," but signed " Joseph R. and Joseph B." Testimony by John B. is receivable that he was the person men- tioned, and that he had served the appren- ticeship and been boutid by the indenture (R. V. WooMale, 6 Q.B. 549). And where a voting-paper beginning " I, the undersigned A.," was signed " B." Evidence by the town clerk that he gave A.'s paper by mistake to B., who signed it without noticing the mistake, was admitted , to explain the patent ambiguity and vali- Digitized by Microsoft® 650 THE LAW OF EVIDENCE. [book II. Admissible. date the vote (/Summers v. Moorhouse, 13 Q.B.D. 38S). So, where Thomas D. executed a will, but opposite his mark had been written " John D." — evidence was received that there was no person at his address except Thomas D., that the mistalie arose through his being commonly known as, and called, " John," and that he had five children as named in the will (Be Douce, 2 S. & T. 593; Re Clarke, 1 id. 22). A., by will, left " All for mother." Evi- dence that he had no mother, but called his wife "mother," was received and the gift upheld (Thorn v. Dickens, 1906. W.N. 54). So, where A. left small legacies to convents, "£50 to S." (a young nephew), and " the rest to my mother," Evidence that A. had no mother, biit, in dictating bis will to C. had said " your mother," which S. by mistake wrote as " my mother," — was received, and the Court of Probate act- ing as such, struck out the word " my," and acting as a Court of construction allowed " mother " to be explained by parol evi- dence and construed the word as referring to the mother of S. [Be Wrenn, 42 It. L.T. Rep. 152; ante, 327, 332]. A. leaves a legacy to " my grand-nephew Robert O." A. had no relative of that name, but had two grandnephews, brothers. Dr. Alfred O., and Richard O. A memo, in A.'s writing : " To my grandnephew. Dr. Alfred O., £100. To his brother Robert O., £100," was received, not as evidence of intention, but to explain the mistake al- though the document only amounted to a single instance of misdescription, and not to a general habit, and although the memo, formed part of A.'s instructions for his wiU (Be Ofner, 1909, 1 Ch. 60, C.A.). A. leaves a legacy to " the daughters of my late friend Ignatius Scoles, de- ceased." — ^A. had no deceased friend of \hat name, but had a friend Ignatius Scoles, a priest, unmarried and alive, who had several sisters, all the children of Joseph Scoles, who was dead at the date of the' will. Evidence of former wills made by A. in which legacies were left to the daughters of Joseph Scoles, architect, was admitted to show that father and daugh- ters were both known to A., and so infer- entially that the latter, though misdes- cribed, were intended (Be Waller, White y. Scoles, 80 L.T. 701, O.A.). A., by will, left land to " John William H., son of Israel H." Evidence was re- ceived that the latter had had a son of that name, who to A.'s knowledge had died when 10 days old and 17 years be- fore the date of the will ; also that Israel H. had another son, living, John Robert H., who was known to A. ; that A. had desired that this son should bear the same name as his deceased brother, but that A. Inadmissible. See Be Murphy, cited ante, 332. In Be Ofner, and Be Waller, opposite, the memo, and former wills, respectively, were re- jected as evidence of an intentioin by A. to benefit the claimants. See also Bobertson V. Flynn, 1920, 1 I.R. 78, C.A., where instructions lor a will were received merely to show the testator's knowledge of a legatee's name, and not his intention. Digitized by Microsoft® CHAP.XLVi.] RULE III. INCORRECT NAMES, &c. 651 AdmUiiile. did not know the second name Robert had been substituted for William ; that this son constantly stayed with A. and was told by the latter tiiat " the land would ultimately lelong to Mm." Held, that the living son took IBe Halston, 1912. 1 Ch. 435, not fol- lowing Re Ely, ante, 64T; but following (with regard to A.'s declarations) Re Blackman, 16 Beav. 377, where statements that the testator had left, or would leave, property to the legatee, were admitted. The last named case, however, is doubted in Wigram, 4th ed., p. 71 n ; and both cases seem on this point, contrary to principle, see Doe v. Hiacocka, Charter v. O. do., post . 652, and Beaumont v. Fell, opposite. A. having left a legacy to " Catherine Barnley " which was claimed by , Gertrude Yardley, — evidence was admitted that there was no such person as the former, but that the latter was a friend of the testator, who usually called her " Gatty," which might have been mistaken by the scrivener for Katy, i.«. Catherine. IPetm- mont V. Fell, 1723, 2 P. Wms. 141. In Doe V. EUoocka (1889), 5 M. & W. 363, it was said that Beaumont v. Fell, though somewhat doubtful, can be reconciled with true principles upon the ground that no such person as Catherine Earnley existed, and that A. was accustomed to call Gert- rude Yardley " Gatty." Mr. Taylor also considers that though this case carries the doctrine to its extreme limits, the Court was perhaps justified in deciding in favour of the claimant (8th ed., s. 1211). See Re Hooper, 88 L.T. 160, where property be- queathed to " Percy H;" was given to Wil- liam H., on evidence that he was called " Bertie " which might be mistaken for " Percy." In Beaumont v. Fell, aup., it was said that this laxity would not apply to a grant or even a devise of land, by reason of the mistake both of Christian and sur- name ; but see Simmonds v. Woodward do., ante, 625]. A. left a legacy to the " Patagonian, Chilian, and Peruvian Missionary Society." Evidence was received that there was no such society, but that there was a " South American Society " which carried on mis- sions at those places, and that A. knew of and subscribed to it, and the legacy was given to it [Makeovm v. Ardagh, I.R. 10 Eq. 445; Re Vaughan, 17 T.L.R. 278, where entries in the testator's cash book showing donations made ten years after the date of the will were admitted to iden- tify a misdescribed institution {cp. ante 615, 625; and see post, 653]. Two or more Persons or Oijects. A. leaves a legacy to " my dear wife, Caro- line." Upon evidence that A.'s wife's name was Mary, but that she had separ- ated from him, and that he had then big- emously married a woman called Caroline, Inadmissible. In Beaumont V. Fell, opposite, declara- tions of intention by A., ».e. that " he would do well for Tier ly his will," were also received, though these would now be inadmissible {post, 652). In Mostyn v. M., 54 H.Ii.C. 167-8, Ld. Brougham said he ' took Beaumont v. Fell no longer to be law, but to have been overruled by Miller v. Travers, 8 Bing. 244 " (cited ante 601 and post 655). This seems too sweeping. In the report of Miller v. Travers, Beaumowt V. Fell is not mentioned, and the effect of the former case would seem to be to over- rule, not the whole of the latter, but only the portion admitting A.'s declarations of intent. Wigram clearly recognizes this, re- marking: '' Beaumont V. Fell is extremely difficult, if not impossible, to reconcile with Miller v. Travers, unless it be upon the ground that the description of the legatee was in the circumstances of that case, suffi- cient without reference to what the testator had declared" (s. 193). In Doe v. Bis- oocks, -quoted opposite, Beaumont v. Fell was in fact supported upon this ground. Two or more Persons or Objects. A. de- vises land to " John Hiscocks, the eldest son of John Hiscocks." The latter had two sons, Simon, his elder, and John, his second son, who, however, was the eldest son by a second marriage. Held, that Digitized by Microsoft® 652 THE LAW OF EVIDENCE. [book II. Adinissihle. who was living with him at the date of his will and death ; — Held, that the latter took (Doe V. Bouse, 5 C.B. 422 ; cp. Re Ilfiirc, 33 W.R. 48; and ante, 642). A. appointed his " son Forster Charter " his executor. A son, known by A. to have died before the date of the will, had been so called, but A.'s only living sons were Wil- liam Forster Charter end Charles Charter. Evidence that William Foster had quar- relled with his father and tor many years lived away from home, and was habitually called by his father "William" or "Willie" and not "Forster" ; while Charles lived at home and helped his father to work the farm, was received to show that the latter and not the former was intended (Charter v. C, Ii.R. 7 H.L. 364 ; ante, 332-3 ; op. Re Towhill, 3 L.R.I. 21). A. left a legacy to " my cousin Har- riet Oloak." A. had at the date of the will no cousin strictly answering that name, but had (1) a cousin whose name had been Harriet Cloak, but who had since married and become Harriet Crane ; and (2) a cousin's wife whose name was Har- riet Cloak. Held, that " cousin," though primarily meaning by consanguinity, might in a secondary sense mean by aflSn- ity ; and that evidence that A. was more intimate with (2) than with (1), and knew, at the date of the will, that (1) was married and no longer called Cloak, was admissible and sufficient to give the legacy to (2) [Cloak V. Hammond, Re Ta/ylor, 34 Ch.D. 255, C.A.]. A leaves a legacy to "B.'s daughter, my godchild, for her sole and separate use." On evidence that B. had two sons, one of whom was B.'s godchild, and two daugh- ters, one of whom only was married, neither being a godchild of B. ;— Held, that the godson took (Re Blayney's Trusts, I.R. 9 Eq. 418). So, where A. devised property to "Eliza- beth, the natural daughter of B." and it appeared that B. had a natural son, John, and afterwards, on B.'S marriage to C, a legitimate daughter, Elizabeth ; — ^Held, on evidence that A.'s nephew was the putative father of the former, and that in consequence A. had wished him to marry B., though there was no proof that A. Jcnew the sex of B.'s illegitimate child, that John took (Ryalt v. Hatmam, 10 Beav. 5.36). A. left a legacy to " the fund for super- annuated preachers and widows of We^* leyan ministers." There was no fund ot that name ; but there were(lj " The Worn- out Ministers and Ministers' Widows Auxiliary Fund," and (2) "The Itinerant Methodist Preachers' Annuitant Society." Evidence was received that A. was a sub- scriber to (1) ; and also that he had once, 25 years before, given a donation to (2), Inadmissible. though the circumstances of the family might be proved, yet, as there was no equivocation, evidence of instructions given by A. for his will and declarations made by him after its execution were not admissible to show which of the two was intended (Doe v. Eiscocki, 5 M. & W. 363.) In Charter v. O., opposite, it was held that though the testator's treatment and habits of speech as to both sons might be proved, yet as there was only a misdescrip- tion and not an equivocation, his declara- tions shoving that he intended Charles and not William, were inadmissible. [See also Bemasooni v. Atkimon, 10 Hare, 34; Re Ingle, 11 Eq. 578, and Re Ghappell, 1894, P. 98, in whicih declarations of intention were also rejected in cases of misdescrip- tion]. In Cloak v. Bammond, opposite, at p. 258, Cotton, L. J., remarked that evidence of the testator's expressions of intention be- fore and after the making of the will was inadmissible, this not being a case of equivo- cation where the words were equally appli- cable to two or more persons, but of mis- description, where the words were not strictly applicable to any person. Digitized by Microsoft® CHAP. XLVi.] EULE III. INCOREECT NAMES, &c. 6.33 Adntissible. — the former being held entitled (Bunting V. Marriott, 19 Bear. 163 ; op. King's Coll. Mosp. V. Wheildon, 18 id. 30). A. left a legacy ta " The London Hos- pital for Incurables." There was a Royal Hospital for Incurables at Putney, the oldest and largest near London ; and a British Home for Incurables at Clapham Rise. Affidavits by A.'s widow were re- ceived (with hesitation) that A. had visited Clapham Rise and knew of, and had expressed sympathy for, the inmates of the latter ; while she did not believe he knew of the existence of the former. Held, 'by a majority of the Court, that the former took — and that the affidavits were no proof that A. did not know of its exist- ence [Re Beale, 6 T.L.R. 308, C.A. ? Bri- tish Home V. Royal Hospital, 1904, Times, Mar. 11, C.A., where the same institutions were involved and entries in A.'s diary of subscriptions made several years after the will to both, were received. Gp. Re Doane, S T.L.R. 550; and ante, 646 and 651]. Erroneous enumeration of Class. A., by will in 1873, leaves a legacy to " each of the 3 children of Mrs. W., widow of Wm. W." The latter, a .half-brother of A., had died in 1857, leaving a widow and 3 children, one of whom died in 1870, the other 2 surviving. In 1858 Mrs. W. had married again, and at the date of the will had 6 children by her second husband. On evidence that A. knew of the existence of the first 3 children, but not of the death of the one, and knew of the death of Wm. W. and the widow's remarriage, but not of the number of chUdren by such remar- riage; — ^Hdd, that the two children alone took {Ne%Dr>ian v. Piercey, 4 Ch.D. 41. Op. Andrews v. A., ante, 644). Property. A. by will leaves to B. •■ shares " in a company in which he had only debenture stock ; monies on " cur- rent account" when he had only a deposit account ; and " freehold " houses when he had only leaseholds. Held, these all passed to B. (ante, 625). A. lets B. the second floor of 13 and 14 Old Bond Street, "together with free^in- gress and egress through tlie staircase of Inadmissible. A. left legacy to the " Royal Hospital for Women." There was none quite an- swering that name, but there were several somewhat similarly named, some of which claimed the legacy. Held, that conversa- tions between A. and her solicitor when giving him instructions for her will, were not admissible to identify the legatee (Re Batemann, 27 T.L.R. 313; cp. Re Raven, 1916, 1 Ch. 373, cited post, 658). Erroneous enumeration of Class. A. bequeaths a fund "equally between my 9 grandchildren, viz., the 3 children of B., the 3 of C, the 2 of D., and the one of E." D.-had 4 children, 2 by his first and 2 by his second wife. Held, this was a gift to grandchildren as a. class, and that no evi- dence beyond the state of the family was admissible to confine the bequest to the children of D.'s first marriage. The evi- dence tendered, but rejected, was that A. knew of the chUdren of D.'s second mar- riage, but had never seen them, had said he knew nothing about them, and had often declared his intention only to bene- fit the children of D.'s first marriage (Matthews v. Foulshaw, 12 WJl. 1141). A. left a legacy to " the 3 children of B. born prior to her marriage with C." At tiie date of the will B. had 4 illegiti- mate children prior to such marriage — 3 by A., and one. some years earlier, by another man. Held, that the presumption of mistake did not apply to illegitimate chUdren; that in the absence of evidence to show that A. knew of the existence of the fourth child and admitted it to be his, the 3 alone took; but that .declarations by A. that he only intended to benefit his own children, were inadmissible (Re Mayo, Chester v. Keirl, 1901, 1 Ch. 404). Property. A. agrees with B. " to do the brick-work of the several houses in South Street and Southampton Street," B. to find the materials. In an action by A. against B. for not finding materials for, the latter houses, B. tendered evidence (1) that he had no ground in Southamp- ton Street, though he afterwards bought some and built houses thereon ; and (2) that " and " was a mistake, and he ten- Digitized by Microsoft® 654- THE LAW OF EVIDENCE. [book II. Aimistible. No. 13."— There was a lift, but no stair- case, in No. 13, and two staircases (front and back) in No. 14. In an action by B., claiming the use of the latter on the ground of mistake in the lease, A. counter-claim- ing for rectification confining B. to the use of the lift of No. 13;— Held, as the description referred to a non-existent thing, " the staircase at 13," and was too indefinite to refer to 14, it was doubtful whether the doctrine of falsa demonstratio applied, but on the evidence of common mistake the lease was rectified, giving B. the use of the back staircase in No. 14 [Cowen V Truefitt, 1699, 2 Ch. 309, C.A. Cp. Hutchins V. Scott, ante, 602]. A. bequeathed all his cash in bank, Consols and shares to B. He had no Consols at the dates of his will or death, but had some 2 1-2% Bank of England Annuities. A letter written shortly after his will to B. in which these latter were referred to as " Consols," was admitted and the Annuities held to pass [Re Windsor, 47 Ir. L.T.R. 344 (1918)]. A. directed his executors to sell " my two freehold cottages at Trowbridge, known as numbers 19-20 Castle Street," and divide the proceeds between B. and C. ; he devised 39 Castle Street, to D. At the dates of his will and death he owned two freehold cottages 19-20 Thomas Street Trowbridge, and 35 Castle Street, but had never owned 19-20 Castle Street. Held, that the word "My" introduced an ambiguity; that "Castle Street" could therefore he rejected as falsa demonstratio, and the direction applied to " my two free- hold cottages at Trowbridge known as numbers 19 and 20" (Be Mayett, 1913. 2 Ch. 488). So, where A. left " 143-4 W. Street" in the town of Y., to relatives, evidence that there were such houses, but he had no interest in them, but owned 143- 4 T. Road, in that town;— Held that the latter passed [Be Brimble, 144 L.T. Jo. 217 (1918)]. A., the owner of land on a river bank, to which he had moored a wharf, sues B. for interference with the flow of the stream. B. denies A.'s title to the land further than the water's edge. The root of A.'s title was a Crown grant to C. in which the soil of the river was granted " to a distance two chains from the shore," a conveyance by C. to D. dn which the boundary was similarly described ; and a conveyance by D. to A. in which the boun- dary was described as " the water's edge." Held, that the expression " the water's edge" being ambiguous, evidence that be- fore D.'s conveyance, A. was put in posses- sion of the river soil for 2 cliains, and moored his wharf, thereto, and had occu- pied it undisturbed by the Crown or D. for many years, was receivable and A. Inadmitsible. dered a receipt by A. in respect of work done " at houses in South Street, South- ampton Street." Held, that the document being unambiguous, evidence that "and" was inserted by mistake was inadmissible ; but on the other admissible evidence A. was only entitled to a verdict in respect of the South Street houses [Hitchm v. OroQtn, 5 C.B. 515^ the question of the intention of the parties was held to be for the Court on the construction of the docu- ment, and not for the jury. Op. ante, 602]. A. sues B. on a bill of exchange accepted by the latter, the amount in figures in the margin being £245, but in words in the body of the bill, " Two hundred pounds." Evidence that the bill was given in pay- ment for goods of £245; that B. intended to accept for that amount; and that he had been applied to three times for the "bill of £245 left with him for accept- ance," — held, inadmissible, the ambigaity being a patent one, and that A. could only recover £200 [Saunderson v. Piper, 5 Bing. N.C. 425; cp. Villiers v. Skelton, ante, 602]. Digitized by Microsoft® CHAP. XLVi.J EULB III. INOOREECT NAMES, &c. 655 Admiaaille. s entitled thereto [Booth v. Ratte, 15 App. Gas. 188. In Watchman v. A.-O. ante 614, this is treated as a case of patent ambiguity]. A. obtains an advance from a bank upon executing a deed charging the premises in a schedule thereto, -nhich described them as " three leasehold houses in C. held by the mortgagor under a lease of the 25th September." A. oiwued these three houses, but only one was held under that lease. A.'s trustee in bankruptcy having claimed that the contract only charged one of the houses; — ^Held, that all the Ihouses vtere charged ; that though the agreement might have been rectified, the case could be treated as one of misdescription, and evi- dence was admissible, in identification, that before the advance A. pointed out the three houses to the manager as those he offered to charge, and that the manager accepted them, and made the advance on that basis {Re Boulter, 4 Ch.D. 241 ; cp. ante, 72)., A. devised her " freehold lands and hereditaments at M." to B. A. had two freehold fields at M. Evidence was ad- mitted (1) that A. was not aware of any difference in tenure between them, or (as the fact was) that they had devolved on her in two different rigtits ; and (2) that the four fields were usually known and reputed in the locality to be " freeholds " and B. was held entitled to all four (Be Steel, 1903, 1 Ch. 135; cp. infra, 656). ^ A. devised " all that part of Rigby's estate devised to me by my father's will, consisting of Ii. meadow, K. pasture, F. meadpw, and M. meadow." — ^Held, on evi- dence that by bis father's will two other closes were devised to A., and that ex- treme inconvenience would result from separating them, the whole six passed (Travers v. Blundell, 6 Oh.D. 436). A testator devised to A. "all my farm called Trogues-farm now in the occupation of C." and to B. the residue of his lands. In ejectment by B. for two closes of which A. had taken possession under the devise, B., to show that these were not parcel of Trogues farm, nor did the testator take them as such, tendered evidence (1) that the two closes were not in the occupation of C. but of M., who paid rent for them to the testator, showing that the latter knew they were not in C.'s occupation; and (2) that by the will of H., who had devised them to the testator, they were devised as "Dale-closes," separately from Trogues-farm; and (3) evidence in reply by A. that shortly before making^ his will the testator served a notice to quit on M., in which he described the two closes as " my lands belonging to and called Trogues-farm," showing that he considered them as parcel, — ^Held, admissible, and Inadmissihle. A. devised " all his real estates in the county of Limerick and city of Limerick " to trustees. He had no real estates in the county of Limerick, but he had some in the county of Glare and the city of Limerick. G?he question being whether the estates in Clare passed,' evidence was ten- dered that in the draft of the will approved by A. the estates in Glare had been in- cluded, but that, by mistikie of the convey- ancer, " Limierick " had been substituted for "Glare" in the will afterwards executed by A. Held, (1) that the evidence was in- admissible as it made the will speak on a subject on which it was silent, like filling up a blank, and by adding a new devise tended to nullify the statute, (2) that the case could not be treated as one of misdescrip- tion, dnce there was neither an imperfect nor any description of the estates in Clare, and that the claimant was attempting not to apply an existing description but to in- troduce a new one [Miller v. Trovers (1832) 8 Bing. 244; ante, 332, 601. For a discussion of this case, see Wigram, Bxtr. Ev. ss. 174-94; Thayer Pr. Tr. Ev. 474-80. Prof. TSiayer thinks the case, though sound, decides no point of evi- dence, or construction (see, however (2) above), but merely one of substantive law. " It was an attempt to reform a will by adding words omitted by mistake. The claimant was trying, not to do a permis- sible thing by objectionable evidence, but a thing which, whether his evidence was good or bad, was forbidden by statute, viz. to give effect to a parol devise" (id. 474-8)]. A testator devised to A. " the house in which I now reside, with the stables and other luildings adjoining, and the several closes called X., part of th« farm and lands fioitr in my own ocoupation," and to B. the Digitized by Microsoft® 656 THE LAW OF EVIDENCE. [book II. A-dmissiile. that the closes passed as parcel of the farm to A. {Ooodtitle v. Southern, 1 M. & S. 299). A. devised to B. " all his estate in Shropshire called Ashford Hall." On a bill to execute' the trust, the heir contend- ing, on the authority of Doe v. Chichester, ante, 612, that only the capital messuage and mansionhouse called Ashford House, containing about ten acres, passed, and not that and other neighbouring parcels of about 150 acres. — ^Held, evidence contra was admissible that A. and his predecessor had always used the whole as one estate and had habitually described it as " the Ashford Hall Estate," as the heir himself had also done, and that the whole passed {Ricketts v. Turquand, 1 H.L.C. 472; cp. Doe V. Jersey, 1 B. & Aid. 550; Castle v. Fox, ante, 641 ; BwrdwioTc V. ff., 18 Eq. 168). A., by will in 1804, devised " all my lands in D. parish " to B. for life, then to C. At the date of his will A. had a farm in D., parish, one part of which was in the adjoining parish of W. In ejectment against C. by A.'s heir for the lands in W., evidence by 0. was admitted that the latter were commonly repwfed to be in D. parish ; that B. had during her life occupied them aS such without disturb- ance ; and that though rated in W. since 1824, they had been rated in D. in 1804 {Anstee v. Nelms, 1 H. & N. 2S5; cp. Be Steel, supra, 655). A. devised to B. " all that farm and lands called H., in the parish of L., con- taining by estimation eighty acres, more or less, now in the occupation of B." Evi- dence was received that there was a farm in the occupation of B. known as H. and so called for sixty years, containing 89 acres of freehold in the parish of Ij. and 86 acres of copyhold in an adjoining par- ish, the whole used and rented as one farm ; — Held, that the whole farm passed {Whitfield V. Lamffdale, 1 Ch.D. 61; Cram- shay V. C, 72 I/.T.Jo. 259). Specific Legacy. Mistake. .A., by will in 1796, left to his wife for life the inter- est and proceeds of £1250 "part of my stock in the 4% Bank of England Annu- ities," with gifts thereof over after her decease. At the dates of A.'s will and death he had no such stock; but in 1792 he had had some, which he had sold and re-invested in Long Annuities, and these latter he owned at his death. Evidence was admitted that the mistake arose through A.'s solicitor, not knowing of the change, but copying the description from a former will, and the legacy was held a general one (Selwood v. Milimay, ^ Ves. jun. 306). A. bequeaths in legacies to B. and others " £1000 of the 3 per cent. Consols InadmUsihle. property not devised to A. The question being whether two cottages originally ad- joining the house, but which before the date of his will the testator had separated therefrom by a wall and let off, passed to A, — ^Held, that they passed to A. as " ad- joining," although they were not in the testator's own occupation, and that decla- rations by him that he meant the cottages to go to B. were inadmissible [Doe v. Hoi- ton, 5 Nev. & M. 391 ; op. Doe v. Hvibhard, 15 Q.B. 227, in which a question put to the solicitor who drew the will of " what the testator had said as to the two cot- tages?" was disallowed, Campbell, C.J., remarking that the inquiry was not con- fined to the meaning the testator usually affixed to the expression " his two cot- tages," or to the designation 'by which any part of his property usually went, but was calculated to bring out an answer as to his intentions in making the will]. Specific Legacy. Mistake. In Selwood v. Mildmay, and Lindgren v. L., the evidence tendered was expressly held not admissible to show that A., when he used the errone- ous description of the first stock, meant to bequeath the moneys and securities sub- stituted therefor. A., who died in 1911, by her will in 1907, bequeathed to B. her shares in the X. Co. A. had no shares in the X. Co. at either date, but she had had shares in that Co. until 1900, when the X. Co. was amalgamated with the T. Co., and the shares of the former exchanged for those of the latter. Held, as A. had no shares in the X. Co. at her death, that extrinsic evidence was not admissible as to what shares she held, or as to the history of the Co. [Re Atlay, Digitized by Microsoft® CHAP. XLVI. KULE IV. EQUIVOCATIONS. 657 Admissible. now standing in my name at the Bank." At thb date of her will and death A. had no Consols. Held, evidence that three years before her will, A. had had that amount of Consols, which she then sold out, lending the proceeds to B., who paid her the same dividends until her death, was admissible not to prove the mistake .in description, which was obvious, but to explain how it arose ; and that the legacies, which would have been specific had A. owned the Consols, were general ones pay- able out of her personal estate [Lindgren V. L., 9 Beav. 358, approving Selicood v. Mildmay, sup. These two cases were doubted by Wigram, Extr. Ev. ss. 134, 193 and note to latter ; but were followed in Goodlad v. Burnet, 1 K. & J. 341, in Findlater v. Lowe, 1904, 1 I.R. 519, Re Smith, 20 T.L.R. 207, and Re Jameson, 190S, 2 Ch. 111). A. makes a specific bequest of securities, directing that if converted into others the latter should be considered legally the ,same on production of sufScient memor- anda to show the change. Held, memo- randa by A., after the will, but not incor- porated in the probate, stating she had sold , out certain securities and reinvested in others, were conclusive evidence of the change (Townseni v. T., 1 L.R.I. p. 187; cp. ante, 586, 603). Inadmissible. 56 Sol. Jo. 444. Eve, J., remarked, "Ex- trinsic evidence is only admissible in these cases where there is an ambiguity, latent or patent, or a misdescription. Here there ia neitier. Supposing she had bequeathed shares in some existing Co., but only held shares in a Co. of the same name, I doubt if extrinsic evidence would be admissible. But here the only question is, did she hold the shares specified in the legacy at the date of her death. The answer is no"]. Rule IV. Equivocations. A. sold goods to B. "to arrive ex Peej-- less from Bombay." Evidence was admit- ted that there were two ships of that name, and that A. intended one and B. the other [Raffles V. Wichelhaus 2 H. & G. 906; here the ambiguity went not merely to the interpretation, but to the factum, of the instrument, and the parties not being ad idem there was no contract; cp. ante, 573- 4 n. For Mr. Justice Holmes' explanation of this case, viz., not that each party meant, but! that each said, a different thing, see ante, 628; contra, Williams, V. & P., 2nd ed., 750 n]. A. sues B. on the following guarantee : " With regard to the transferring of C.^s order, it shall be paid. B., Jan. 20." A. had supplied two lots of goods on C.'s order : one on Jan. 13, for £15, the invoice of which A., at C.'s direction, had sent to B. ; and one for £44, before sending which to C, A. had required B.'s guarantee, and upon receiving it as above, the goods were sent. Held, that declarations of intention by B. were admissible to show to which of the two debts his promise applied (Brunton v. Dullens, 1 F. & F. 450). L.E. — 42 A. sued B. for non-delivery of " 60 tons of ware potatoes at £5 a ton," which B. had contracted to sell him. Evidence having been given by persons in the trade that there were 3 sorts of potatoes, wares, mid- dlings and chats, of which " wares " were the largest and best ; — ^Held, thait no equivo- cation arose, since wares meant only one sort, the best; and that evidence that there were two sorts. Regents wares (the besrt) and kidney wares (inferior), and that each party meant a different sort, was inadmis- sible {Smith V. Jeffreys, 15 N. & W. 561 ; cited ante, 638). A., by win in 1881, recited that she had " settled " certain property on her daugh- ter. Evidence having been ^ven that A. had made no settlement inter vii>os,- but had made a prior will in 1873, to which the word " settled " might possibly apply ; — ^Held, declarations by A. showing she intended to refer to a settlement ikter vivos which she erroneously supposed she had made, were inadmissible, since, except in her own mistaken belief, there was no second " settlement " to which the words could apply, and so no ambiguity (Paton v. Ormerod, 1892, P. 247, per Jeune, P.). Digitized by Microsoft® 658 THE LAW OF EVIDENCE, [book II. Admissible. A. sold B. a publiC'house called " The Jolly Sailor, with offices, &c., as per plan." On the back of the agreement A. had writ- ten to his solicitor : " Mr. M., please put on the number in the plan." In an action for specific performance by B., evidence (1) that there were two plans of the pro- perty, one as lot 9 and the other as lot 12, the dimensions of which differed; and (2) of A.'s admission in cross-examination that it was lot 12 that was referred to, was received, and the agreement held sufflr cient under the statute [Naylor v. Ooodall, 26 W.R. 162; op. Hodges v. Horsfall, 1 Buss. & M. 116, where the evidence fail- ing to identify which of several plans was intended, specific performance was refused ; cp. ante, 633]. A. devised to B. certain lands " bounded by the Dublin road." At the date of the will there were two Dublin roads in exist- ence, the " old " and the " new." Held, evidence that A. was -familiar with the old road, and had referred to it in a lease exe- cuted by him in his lifetime, but that he was not familiar with the new road, was admissible ( Carroll v. Barry, 40 Jr. KT.R. 122) . A. devised one house to " George Gord, the son of George Gord," another to " George Gord, the son, of John Gord," and a third to " George Gord, the son of Oord." Held, declarations by A. that by the third devisee he meant the first ot the two Georges, ^x <;re admissible [Doe v. Needs, 2 M. & W. 129. Parke, B., remarked that the mention of two fathers called Gord had no more effect than proof of that fact by extrinsic evidence ; aliter had the third devise been to " G_eorge Gord, the son of — Gord," for then there would have been a patent ambiguity showing that no cer- tain object had been selected]. A. left property to " the deceased son (named Bamber) of my father's sister." It being proved that there were three such deceased sons, — Held, declarations of in- tention were admissible, though, none be- ing proved, the gift was declared void {Re Stephenson, Donaldson v. Bamber, 1897, 1 Oh. 75, C.A.). A., by will, leaves property to " My grandnephew Frederick Johnson." A. had no grandnephew of that name, but had a niece named Johnstone who had two sons (grandnephews of A.), Robert William Johnstone, and Joseph Francomb John- stone. Held, that the description being equally, though not completely or accur- ately, applicable to both, declarations of intention by A. in favour of the latter were admissible and that he took the pro- perty (Be Ray, 1916. 1 Oh. 461). A. devised one part of his property to " my nephew Morgan Morgan " and an- other part to "my nephew Morgan r''ir- Inadmissible. A. leaves a legacy to the " National So- ciety for Prevention of Consumption.' There was no society precisely answerij^g that description, but there was one in London of that name, but with the addi- tional words " and other forms of tuber- culosis," and also a local branch thereof near A.'s house. Held, no equivocation, as there was only one institution and not two ; and that declarations by A. showing which he referred to, were inadmissible {Re Raven, 1915. 1 Oh. 673). So, where the bequest was to the "National Society for the Prevention of Oruelty to Children," and there was an English society precisely of that name, and also a Scottish one, of the same name save that the word "Scot- tish " was prefixed to " National " ;^it was held that the former took, the case be- ing treated, not as one of equivocation, but of correct and less correct description, under Rule II {National 8oc. icfc, v. Scottish National Soo. dc, 1915. A.O.; 207; ante 646). A. devised to " Matthew Westlake, my brother, and to Simon Westlake^ my brother's son, my house called S., jointly and severally." It was proved tliat A. had three brothers, Thomas, Richard, and Matthew, each of whom had a son called Simon. Held, — it being clear on the con- struction that A. was speaking of the son of that brother who was then particularly in his mind, — ^there was no ambiguity, and evidence of A.'s declarations in favour of Richard's son was inadmissible {Doe v. Westlake, 4 B. & Aid. 57). A. left a legacy to his " niece Laura, second daughter of my brother J.H. Web- ber " ; another to his " niece Laura " ; and the residue to " Laura Webber." It ap- pearing that he had another niece called Laura F. T. Webber, — extrinsic evidence in favour of the latter was rejected, on the ground that the intention being clear from the will itself, no equivocation arose {Webber v. Corbett, L.R. 16 Eq. 515). A., by will, leaves £300 to " the children of Peter Henry Douglas." A. had no relative so called, but had two relatives of the same degree, Peter John Douglas, (who had 5 children) and Henry Osborn Douglas (who had 3 children), the chil- dren of each claiming the legacy. Held, that declarations of intention by A. were not admissible, although they might have been had there only been one class of claim- ants [Douglas v. Fellows (1853) Kay, 114, 118]. Digitized by Microsoft® CHAP. XL VI. EULE IV. EQUIVOCATIONS. 659 Admiasible. gan of M." and ordered " the above Mor- gan Morgan " to pay certain sums to A.'s sister. There being two nephews called Morgan Morgan, one of M. T. and the other of M., — in ejectment by the lessor • of the former against the devisee of the latter, it was contended that as the devise was in one case to M. M. simply, and in the other to M. M. of M., it was clearly to different nephews, and no evidence contra could be given. Held, however, that declarations by A., that h6 meant both properties to go to M. M. of M. were ad- missible (Doe V. Morgan, 1 Cr. & M. 235). A. a testatrix, leaves property " between my brother B., his wife, and their daugh- ter." B. had five daughters. Held, evi- dence (1) that A. was particularly intim- ate with C, one of B.'s daughters, had desired C. to live with her, and wrote con- stantly and affectionately to C, while she took little notice of the others, and (2) that, in a former will, she had left pro- perty to "B. and his daughter C." ; — was admissible to identify C. as "the daugh- ter " referred to {Re Jeffrey, 1914. 1 Ch. 375). A. ' devises property to " my grandson Robert William Henderson." A. had two grandsons, one Robert William Henderson and the other William R.obert Henderson. Held, that an equivocation arose, and dec- larations of intent by A. were admissible to show to which he referred (Henderson V. H., 1905, 1 I.R. 353). A. leaves a legacy to " my nephew." A. had several nephews, viz., B., son of A.'s sister, and C, D., and B., sons of A.'s brother. Evidence was received (1) that B. and his mother resided with A. and helped to manage his farm, whilst C, D., and E. had, years before ■ the will, emi- grated to America, and A. knew and heard Uttle of them; (2) that A. had stated to the solicitor who drew the will that he intended B. to take the legacy IPhelan V. Slattery, 19 L.R.I. 177; the V.-O. re- marked that though (1) would have been sufficient per se to decide the case, yet, there being an equivocation, (2) was also admissible]. A. left a legacy to " Robert Careless, my nephew, son of Joseph Careless." A. had no brother Joseph, but had a brother John and one Thomas, each of whom had a son Robert Careless. Evidence that A, was intimate with one, but Hardly knew the other, was admitted to show to which he referred (Careless v. C, 1 Meriv. 384). A. devised property to " William Mar- shall, my second cousin." The testator had no second cousin of that name, but had two first cousins once removed, one called William Marshall, and the other William J. R. B. Marshall. Held, decla- rations of intention were admissible to Inadmissible. _ A. devised land to " my wife" Alice for life, and after her death to Margaret M. ; and I give the use of £500 stock Sot her natural life, but after her death among the brothers and sisters of my said wife." Held, that evidence was not admissible to show whether "her" referred to the wife or Margaret M. ; but, upon the construc- tion, held it referred to the wife [Castle- don V. Turner, 3 Atk. 257. So in Be Williams, 134 L.T. Jo. 619, it was held that, unless otherwise expressed in the context, the rule-of construction was that " her " applied to the last antecedent per- son, and evidence contra was inadmissible], A. by will gives a farm to " my nephew Joseph Healy"; £200 to "Joseph Healy, only son of my brother Joseph, to be paid at such time and in such manner as my brother Joseph may dirtct " ; and the resi- due to " my said nephew Joseph." A. had two nephews, one the son of a deceased brother James and the other thi son of a living brother Joseph. Evidence that shortly before the wUl A. ordered the son of his brother Joseph out of the house and never to show his face there again wa's admitted, and this being held sufficient with the wording of the will to decide the case, declarations by A. that he meant the farm and residue to go to his other Digitized by Microsoft® 660 THE LAW OF EVIDENCE. [book II. Admiasihle. remove the doubt {Bennett v. Marshall, 2 K. & J. 740; approved in Webler v. Cor- iett, ante, 658). A. devised property to has " nephew Joseph Grant." A. liad a nephew by Wood and also one by marriage of that name. Evidence that the latter lived in A.'s house, helped to manage his business, and was habitually called by A. his " nephew" ; while A. had for years been estranged from the family of the former and did not know of his name or existence ; — ^held, ad- missible to show that the nephew by mar- riage took [Grant v. G., L.K. 5 C.P. 727. This case being considered by the majority of the Court (dub. Blackburn, J.) as one of equivocation, direct declarations of in- tent were also received. — -The extension of " nephews " to include not only those by consanguinity, but by affinity, was ap- proved by Jeane, J., in Re Ashion, 1892, P. S3, ante 645 ; and also apparently by James, L.J. in Sherratt v. Mountford, 8 Ch. App. 928, 930, who remarked, " a man commonly calls his wife's nephews and nieces his nephews and nieces, especially when they are children and accordingly in Grant v. G., the Court held that that parol evidence was admissible that a wife's nephew was intended by ' my nephew ' though the testator had a nephew of his own of that name." In the same case, however. Hellish, L.J., said that, primarily, nephews means a man's own nephews, but that, if he has none, his wife's nephews will take as being such in "an ordinary and secondary sense." The latter view was followed in preference to that in Grant v. G., by Jessel M.R. in Wells v. W., 18 Eq. 504 ; and in Re Taylor, 34 Ch.D. 255, 257, Cotton, L.J., observed that Grant v. G. " had not always been looked upon favourably " ; see, also, Theo- bald, Wills 7th ed. 132; and Re Green, 1914, 1 Ch. 134, where Sargant, J., stated that Grant , v. G. nrast now be taken as overruled] . A testator leaves a legacy to the chil- dren of his daughter R. by any husband " other than Mr. Thomas Fisher of Bridge Street, Bath," — extrinsic evidence held ad- missible to sihow that at the date of the will the testator's daughter was unmar- ried, and was being courted by Henry Tom Ksher, son of Thomas Fisher of Bridge Street, at whose house he lived; that the testator strongly disapproved of the younger Fisher, who was known to him only as Tom Fisher; and that Thomas Fisher, the father, was a married man with a wife living. The testator's daugh- ter having subsequently married Henry Tom Fisher, her children were held not entitled to the legacy [Re Wolverton, 7 Ch.D. 197. Prof. Thayer thinks that this was not a case of equivocation, Pr. Tr. Inadmissible, nephew were rejected (Healy v. H., I.K. 9 Eq. 418). Digitized by Microsoft® CHAP. xLvi.] EULE V. USAGE. COURSE OF DEALING, &c. 661 Admissible. Ev. 465 ; but Jeune, J., in Be Ashton, 1892, P. p. 87, treats it as such, and the report of the former case in 37 L.T. 573, appears to confirm this]. A. devised land to " John Allen, the grandson of my brother Thomas, charged nevertheless with the payment of £100 to each and every the brothers and sisters of the said John Allen." There were two such grandsons, one having several broth- ers and sisters, the other having one brother and one sister. It Was contended that this excluded evidence in favour of the latter. Held, however, that the phrase " brothers and sisters," though it supplied an argument in favour of the former^ formed no part of the description ; and consequently that ap equivocation arose, and declarations by A., made several months after the will, and in favour of the latter, were receivable (^Doe v. Allen, 12 A. & E. 451). A. appointed as her executrix " my granddaughter — ." A. had at the date' of her will and death three granddaughters. Held, that the case involving only a partial and not a complete blank, extrinsic evi- dence, including declarations of intent by A., were admissible to identify the par- ticular granddaughter referred to (Re Eulluck, 1905, P. 129). A., who had accounts at several banks, bequeathed her balance " at the said hank " to B. Held, that a clause, which gave the name of the bank, but had been erased, could be looked at to supply the name (Re Battie-Wrightson, 1920, 2 Ch. 330). Itiadmissilile. A. devised lands to "' — Gort and — Cort." Thei'e were three persons, a father and his son and daughter, known to A. and answering these names. Held, as this number exceeded the number of devisees, declarations of intent by- A. were inadmis- sible, and that the doubt could be deter- mined only on evidence derived from the state of the family and the will itself (Re Gregson's Trusts, 2 H. & M. 504 ; ante, 640). As to the supposed case of equivocation raised by a gift to " the three children of A." When A. has more than that number, see ante, 625, 627. RlTLE V. Usage. Contemporanea Expositio. Course of Dealing. Mceperts. Usage. Evidence of usage has been held admissible to interpret the following words : — The usages of the House of Com- mons, to explain the meaning of, and form- alities involved in, taking an oath " sol- emnly and publicly " pursuant to the Par- liamentary Oaths Act, 1866 (Att.-Oen. v. Bradlaugh, 14 Q.B.D. 667, C.A.) ; a the- atrical usage, to show that the word " year" in a contract meant those parts of the year during which the theatre was open (Grant v. Maddox, 15 M. & W. 737) ; a mercantile usage, to show that " months" in a charter-party meant calendar and not lunar months (Jolly v. Young, 1 Esp. 186 ; Simpson v. Margitson, &c., ante, 642) ; or that "October," in a contract of marine insurance, meant from the 25th to the 31st of that month (Chaurand v. Angerstein, Peake B. 43). So, usage is admissible to show that, in a lease of a rabbit warren, the words " thousand rabbits " meant in that particular part of the country twelve hundred (Smith v. Wilson, 3 B. & Ad. Usage. Evidence of usage has been held inadmissible to interpret the following words: — ^That words of weight, measure, or number, having a statutory meaning at- tached to them, were not used in that meaning (Smith v. Wilson. 3 B. & Ad. pp. 731-734 ; O'Donnell v. O'D., 13 L.R.I. 226 ; the statutory meaning may, however, be excluded by the express terms of the document, Tay. s. 1165). So, evidence of local usage is inadmissible to show that the, terms " Lady Day " or " Michaelmas " in' a lease (made since the Act for altering the style) relate not to March 25 and September 29, but to the old style (Doe V. Lea, 11 East, 312 ; Doe v. Benson, 4 B. & Aid. 588 ; in the latter case, Alderson, B., held that such evidence would be ad- missible to control a -parol letting ; but this distinction would probahly not now be sustainable, Tay s. 1165 n; 1 Smith's Li C, 10th ed. 552.) A., a master, covenanted to find B., an apprentice, " meat, drink, lodging, certain Digitized by Microsoft® 662 THE LAW OF EVIDENCE. [book II. Admissible. 728) ; or that " 18 pockets of Kent hops at 100s.," meant at 100s. per cwt (Spioer v. Cooper, 1 Q.B. 424); that a "fuU and complete cargo of quarters of barley, Eng- lish weight," meant 400 lb. to the quarter (Drevfus v. Allen, 9 T.L.R. 1) ; and a " full and complete cargo of sugar," meant full and complete according to the cus- tomary mode of packing and loading sugar at the particular port {Cutlibert v. Cum- nting, 11 Ex. 405) ; that " Liverpool mer- chandise," meant such as was ordinarily shipped therefrom, and not ordnance stores (Vmdespar v. Duncan, 1891, W,N. 178) ; Uiat " warranted no St. Lawrence," ex- cluded, in a contract of marine insurance, both the gulf and river of that name (Bir- rell V. Dryer, age had been received as evidence of a lost grant. Held, on appeal, that as such a grant could have no legal origin, it could not be presumed, and evi- dence to establisli it was inadmissible (Neaverson v. Peterborough Council, 66 J. P. 404, C.A. ; cp. N. E. By. v. Hastings, post 664). On a warranty of "prime singed" bacon, evidence of a practice in the trade to receive bacon which was slightly tainted, as "prime singed," is inadmissible (Yates V. Pym, 6 Taunt. 446). In an action on a contract for the sale of com " as per sample," held, that a wit- ness could not be asked whether a sale of corn afloat imported only a warranty of quaUiy and not of condition, since (1) this varied the plain words ; (2) . was not preceded by an inquiry as to the difference, if aUy, between the words quality and con- dition ; and (3) here the corn being sold before, and not when, afloat, the usage was irrelevant (Malcolmson v. Morton, 11 Ir. L.R. 230). A. contracts to sell to B. " alout 300 quarters of barley, more or less, shipped on board the X." A., having tendered, and B. refused to accept, 320 quarters, in an action by A., held, that the evidence of mercantile men as to, what was the cus- tomary meaning of " about " and " more or less " was inadmissible {Cross v. Egtin, 2 B. & Ad. 106. Sed qu., perhaps, as to this decision ; see cases opposite; and also 48 Sol. Jo. 25. In Watkinson v. Wilson, 55 Sol. Jo. 617, " about 4 years " was held not to extend to 5 years]. A. sells B. 50 tons of certain goot^.s. A usage to show that the contract would be Digitized by Microsoft® 664 THE LAW OF EVIDENCE. [book II. Admissible. about 50 tons.'' Evidence of a usage among warehousemen only to accept trans- fer notes (i.e. delivery orders) in this form, they objecting to make themselves responsible for any particular weight, held, admissible (Moore v. Gmnpbell, 10 Ex. 323). Contemporanea EaiposiUo. By a charter in 1621, A.'s predecessors were granted certain lands and manors on the coast, and in 1848 a quay was built on the foresihore. The charter did not in terms grant the foreshore but its language might or migiht. not include it. In an action by A., claim- ing the quay, against B., evidence that A.'s predecessors had built the quay, main- tained it and collected the toUs thereon, with but slight interruptions since 1848, was received to show that the foreshore was Included in the grant of 1621. [A.-Q-. V. Vandaleur, 1907, A.C. 369. Evidence of acts of user before the grant is also ad- missible for the same purpose, Van Die- men's Land Co. v. liable Gape Board, 1906, A.C. 92 ; ep. Shore v. Wilson, ante, 662] . Course of Dealing. A. sues B. for non- delivery of goods which B. had contracted by bill of lading " to deliver safely at the port of London to A." The goods having been lost by fire after landing, but before receipt by A., evidence is' tendered by A. that, in previous transactions between them, the course of dealing bad always been for B. to deliver the goods by cart to A.'s London warehouse. Held, admissible not to extend, narrow, or vary the written contract, but to construe the word deliver, in anticipation of a case which, though not in fact pleaded, migiht be made by B., that by a custom of the port mere landing was a good delivery [Bourne y. Gatliff, 11 O. & F. 45, 70-1 ; op. ante, 106]. The question being as to the meaning of " Pacific ports " in a marine insurance slip ; — evidence that the course of dealing between the parties in similar contracts was to treat the words as confined to ports on the west coast of the Pacific, held, ad- missible (Royal Exchange Go. v. Tod, 8 T.L.R. 669). To explain the term " owner's risk " in the defendant's forwarding note, the course 0^ dealing between the parties was admit- ted to show that the plaintiff knew that there was a second, kind of risk, viz., " Company's risk," for which a higher rate was charged than he had paid under the former note (Lewis v. O.W. Ry. ante, 638). Where a joint proposal had been made by A. and B. to buy property, evidence of thfeir subsequpnt acts, but not of their declarations, was admitted to show that thpy intended to take it as tenants in common, and not as joint tennnts (Harri- son V. Barton, ante, 509). Inadmissible. satisfied by a delivery order authorising B. to receive " about 50 tons " would Ibe inadmissible (Moore v. Campbell, oppo- site). Contemporanea -Ewpositio. To explain the meaning of the term " Bills " in an old Bank Act (6 Anne, c. 22), although matters of contemporary general history and notoriety may be referred to, yet in- sulated facts, such as the rules of a min- ing company (1706), or the deed of part- nerahip of a then recently established bank (1698), are not admissible (Bank of Eng- land V. Andei-son, 4 Scott, 50, 83-4). Course of Dealing. A. by deed in 1854 granted leave to B. (a railway company) to make a railway through his land, B. agreeing to pay a cei-tain rent on all coal carried over "any part of the railways comprehended in their Act and Shipped at O." — In an action by A. for siich rent, held, the words being unambiguous, evi- dence that for forty years B. had paid and A. accepted rent only on such coal as passed over A.'s land, and was shipped at C, was not admissible to disentitle A. to rent on all coal passing over parts of B.'b railways, and shipped at C., but not passing over A.'s land (2V. E. By. v. Hast- ings, 1900, A.C. 260; Clyde Navigation V. Laird, 8 App. Oas. 658) . The question being whether iin Act, which provided for "daily," testings of gas-meters, was intended to include Sun- day testings, evidence of a practice by the parties only to test on weekdays, held, inadmissible (L.G.G. v. South Met. Gas Co., 1904, 1 Ch. 76). A. lets laud to B. for 21 years by a lease containing a covenant that at the expira- tion of the term A. would grant a new lease for the same term with "all coven- ants, grants, and articles, as in the ori- ginal lease contained " ; — held, tlie words being unambiguous, evidence of a course of dealing between the parties and their predecessors continually to renew is not admissible to construe the covenant (Iggulden v. May, 9 A^es. 335). — Nor, in construing an agreement, is the construc- tion put by one party a'ane admissible (McClean v. Kcnnard, 9 Ch. 336) ; except against him as an estoppel (Marshall v. Berridge. 19 Ch. D. 2.33; Gandy v. G., 30 Ch.D. .^T; Roc v. Mutual Loan Fund, 19 Digitized by Microsoft® CHAP. xLviO EULE V. USAGE. COUESE OP DEALING, &c. 665 Admissible. Experts. The question being whether a legacy of a sculptor's " mod tools for carving " meant modelling tools for carv- ing, or moulds, or models ; the opinions of statuaries were admitted to prove that there were no such tools known as model- ling tools for carving, and that the word "mod" would be understood by a sculptor as an abbreviation for models (OoMet v. Beechey, 3 Sim. 24; 2 Rus. & Myl. 624). The question being whether A., by the manufacture and sale of margarine, had broken a covenant not to carry on busi- ness as a provision mercliantj — The opin- ions of traders were received (1) as to what class of goods were included in tiie word " provision " taken in ccmjunction with " merchant " ; and (2) whether a mar- garine dealer came witiiin such class [Lovell y. Wall, 104 L.T. 85 (C.A.) ; 27 T.L.R. 236; cited ante, 394]. Inadmissible. Q.B.D. 347. Compare ante, 430 ; and post, 683). Ewperts. The question being as to what lands acquired by a railway company were " delineated " upon statutory plans ; the opinions of engineers on the point are not admissible, the word being intelligible to ordinary readers {Doioling v. Pontypool Co., ante, S8&, 390) . So, as to the meaning of the words " nominal rent " in a modern statute (Gamden v. Inland Rev. Commrs., 1914. 1 K.B. 641. C.A.) In Lovell v Wall, opposite, the opinion of traders as to whether A. in making and selling margarine would be properly des- cribed in the trade as a " provision mer- chant," were held inadmissible. Digitized by Microsoft® ( 666 ) CHAPTBE XL VII. ADMISSION OF EXTEINSIC EVIDENCE TO KEBUT PEESUMP- TIONS AFFECTING DOCUMENTS. Where any legal or equitable presumption arises against the apparent intention of a document, extrinsic evidence (including direct declarations by the writer) is admissible to rebut, or in reply only, to support, such presumption. [Tay. ss. 1237-1231; Steph. art. 91 (9>; Hawkins, Wills, 300, 305, 313; Whart. ss. 932-937.] Principle. The ground of admission is not to show, in the first instance, the intention of the document, but to ascertain whether the presumption raised by law -is well, or Ulj founded (Evrh v. Eddowes, 3 Hare, 609, 517). If no presumption is raised, or if though raised no rebutting proof is offered, evidence either to create or to fortify it will be inadmissible since in the former case it would contradict the document, and in the latter be unnecessary, i.e. as proving that which is presumed (Tay. s. 1229; Jarman, WiUs, 5tii ed. 392). Bules of construction must be distinguished from legal presumptions affect- ing documents. Where the meaning of a document can be ascertained by construction, no direct evidence of intention may be given by either side; but a presumption of intent is always rebuttable, and, being so, evidence in sup- port is in fairness also allowed (Hall v. Hill, 1 Dr. & War. 94 ; Lee v. Pain, 4 Hare, 201, 206; Barrs v. Fewkes, 13 W.E. 987; Tay. s. 1231). For illustra- tions of the distinction, see Satisfaction of Debts, post, 667-8. Eepetition of Legacies, post, 669, and Executors' Eight to Eesidue, post, 670-1; and. for an instance of the development of a rebuttable presumption of law into an irrebuttable rule of construction, see Barrs v. Feivhes, post, 675. Mr. Haw- kins points out that the anomalous case of what are called "presumptions " of law are in reality rules of construction derived from the civil law, which, having obtained a lodgment in English law, but being disapproved of, have been allowed to retain their own antidote in the shape of the capability of being rebutted by parol evidence which, in common with other rules of construction, they possessed in the system from which they were derived (Wills, p. v.). Confusion, however, often arises from the loose way in which the term " presumption " is used in the text-books and cases, t.e. instead of being confined to its strict sense of an inference raised by Courts of law independently of, or against, the words of a document, it is often used to denote an inference in favour of a given construction of particular language, as in Coote v. Boyd, Z Bro. C.C. 521, in wliich Ld. Thurlow remarked that Digitized by Microsoft® CHAP.XLvii.j EVIDENCE TO EEBUT PEESUMPTIONS. 667 "where a presumption arises from the construction of words, simply qiid words, no evidence can be admitted," clearly using the word as tantamount to a ride of law {Lee v. Pain, supra, 666; Tay. s. 1331). It is commonly said, too, that presumptions of law may be rebutted not only by external but internal evidence; but in a case involving double portions. Cotton, L.J., remarked, ," You look at the will for some expression of intention whether one or both [portions] are to be paid. If you iind no such expression, then you" are driven to a presumption of law, which only arises in the absence of an expressed intention. . . That is entirely independent of the construc- tion of the will, . . . You first construe the will, and if in any way a presump- tion arises, you admit evidence to rebut that presumption " [Re Tussaud, 9 Ch.D. 363, 374; Wigram, Extr. Bv., 4th ed. p. 54 nj. Satisfaction of Portions and Debts. Portions. Where a father or person in loco parentis, has covenanted to provide for a child and afterwards, by a different instrument, make a substantially similar provision for it, equity, presuming against double portions, holds that the latter, unless otherwise expressed, is a satisfaction pro tanto of the former, but admits evidence to rebut the presumption [Chichester T. Coventry, L.E. 2 H.L. 71 ; Re Tussaud, 9 Ch. D. 363; Be Lawes, 20 id. 81; Re Lacon, 1891, 2 Ch. 482; and Re Scott, 1903, 1 Ch. 1. As to the distinction between Satisfaction and Ademption, see infra, and Theobald, Wills, 7th ed. 759-60]. The rule does not apply to a mother, unless proof be given that the duty of providing for the child falls on, or has been assumed by, her {Re Ashton, 1897, 2 Ch. 574, 578) ; nor to a grandfather unless op. similar evidence {Re Dawson, 1919, 1 Ch. 103) ; nor to a second provision made either for valuable consider- ation {Re Lacon, 1891, 2 Ch. 482), or of a dissimilar nature {Be Jacques, 1903, 1 Ch. 267), or by the same instrument {Re Tussaud, 26 W.R. 874, per Brett, L.J. : " Where there is only one instrument in question, ixtrinsic evidence cannot be adduced to show what it means. The doctrine only applies where there are two. If they are very unlike in their provisions, you- cannot bring evidence to show that there ought to be a satisfaction of the first by the second, but if they are so much alike that this satisfaction will be presumed in equity, extrinsic evidence is admissible to rebut the presump- tion"). Declarations by the donor to be receivable under this liea.d must have been made contemporaneously with the second document, and not before or after it {Hall y. Hill, 1 Dr. & War. 94, 128-130). DeMs. A presumption of satisfaction arises also where a legacy is left to a creditor of equal or greater amount than the debt {Crichion v. C, 1895, 2 Ch. 853; 1896, 1 Ch. 870; 5e Fletcher, 38 Ch. D. 273; Re Battenberry, 1906, 1 Ch. 667; Theobald, Wills, 7th ed. 764-7), evidence being similarly receivable in rebuttal or support {Plunkett v. Lewis, 3 Hare, 316). Contrary to the rule as to portions, however, equity leans against the satisfaction of debts, and seizes upon trifling distinctions to exclude it. Thus, if the debt was con- tracted about, or after, the date of the will, or arises upon a negotiable security or current account, or if the legacy is residuary, contingent, of a different nature, or less advantageous than the debt, no satisfaction will arise (Theobald 7th ed. 764-7) ; while where there is a direction in the will to pay debts and legacies, or even, debts alone, an inference against satisfaction arises as a rule of construction, and not merely as a presumption, and extrinsic Digitized by Microsoft® 668 THE LAW OF EVIDENCE. [bookii. evidence is also inadmissible (Hawkins, Wills, 300-301; Eorlock v. Wiggins, 39 Ch.D. 142, Q,.K.;Re Huish, 43 Ch.D. 260).— On the other hand, i legacy to a debtor does not even prima facie release the debt; and declarations by the testator showing an intent to forgive it will therefore only be operative if amounting in law to a release under seal, a contract for value, or an accord and satisfaction, or if, in equity, it would be unconscionable for those taking the estate to ignore the intent {Cross v. Sprig g, 6 Hare, 553; Peace v. JIains, 11 id. 151; , Strong v. Bird, 18 Eq. 315; Be Stewart, 1908, 3 Ch. 2] 5; Be Pink, 1913, 3 Ch. 538, C.A.; Be Tinline, 56 Sol.Jo. 310). An appointment of the debtor as executor, however, releases the debt in law, though not in equity (Re Bourne. 1906, 1 Ch. 697) ; and in such oases evidence of a continuing intent to forgive the debt during the testator's life, though not a mere intent to forgive by his will, has been held to rebut the inerely equitable claim (Be Hyslop, 1894, 3 Ch. 533; Be AppleleA, 1891, 3 Ch. 443; Strong V. Bird, iup.j Be Griffin, 1899, 1 Ch. 408, 413; Be Gaff, 111 L.T. 34; Be Pink, sup.) Ademption and Repetition of Legacies. Ademption. Where a father, or person in loco parentis, leaves a legacy to a child and afterwards makes it an advancement, the legacy is presumed to be adeemed pro tanto (Hopwood V. H., 7 H.L.C. 728; Be Scott, 1903, 1 Ch. 1; Be Jacques, id. 367). And the same result follows in the -case of illegitimate children, if the testator has placed himself in loco parentis thereto (Palmer v. Newell, 20 Beav. 33; Re Lawes, 30 Ch. D. 81), and in that of strangers, if the legacy is expressed to be for a particular purpose and the subsequent gift is intended to be for the same purpose, so that it would be unconscionable for the donee, knowing this, to retain both (Pankhurst v. Howell, 6 Ch. App. 136; Griffith v. Boitrke, 31 L.E.I. 92, 95 ; Be Pollock, 28 Ch.D. 553 ; Be Smythies, 1903, 1 Ch. 259; Be Corhett, 3 Ch. 326; Be Shields, 1913, 1 Ch. 591) ; though in the case of residue this presumption will not be applied in favour of strangers to the detriment of children (Meinhertzhagen v. Walters, 7 Ch. App. 670; Be Heather, 1906, 3 Ch. 330). It is immaterial wkether the subsequent gift be in writing or not (Hopwood v. H., sup.; Be Tudsaud, 9 Ch.D. 363, 373) ; but prior gifts will not operate as ademptions unless so expressed (Leighton V. L., 18 Eq. 458; Taylor v. Cartwright, 41 L.J.Ch. 539). Where the intent clearly appears from the documents themselves declarations by the donor are not receivable (Be Aynesley, 1915, 1 Ch. 173, C.A.) ; but where the matter is doubtful, such evidence may be given, provided the declarations were mad'e contemporaneously with the advance (Be Pollock, sup., per Ld,. Selborne ; Eirk v. Eddowes, 3 Hare, 509, 533 ; and in Ferris v. Goodiurn, 37 L.J.Ch. 574, 576, and Griffith v. Bourke, sup.; declarations both contem- poraneous and subsequent thereto seem to have been admitted). Evidence of the making of other advances is also relevant to determine the intention of the advance in question (Hopwood v. H., supra; Fotvkes v. Pascoe, 10 Ch. App, 343, 348). As to ademption by sale or change of the subject matter of a specific legacy, see ante, 626. Cases of express ademption are not affected by the present rule. Thus, a parol declaration by the donor at the time of a gift that it is in satisfaction of a prior legacy, is admissible as part of the transaction (Eirk v. Eddowes, 3 Hare, 509; but see Be Shields, 1912, 1 Ch. 591, cited post, 673) ; and if Digitized by Microsoft® CHAP.XLvn.j EVIDENCE TO EEBUT PRESUMPTIONS. 669 the second gift is in writing, and expressly adeems the legacy, no evidence contra, can, on general principles, be given {id. cp. Be Aynesley, sup.). More- over, where the wiU directs that advances shall be deducted from legacies, or brought into holch-pot, and recites the amounts advanced, such recitals are conclusive, even though erroneous, evidence contra not being admissible unless the will contains an express or implied intention that only sums actually received shall be deducted {ante, 586, 603, post, 671-3; Re Wood, 32 Ch.D. 517; Re Kelsey, 1905, 2 Ch. 465). Documents existing prior to the will, if incorporated therein, even though not included in the probate, are also con- clusive as to the amounts, not as evidence but as part of the instrument itself {Quihampton v. Going, 24 W.R. 917; Re Coyte, 56 E.T. 510); subsequent memoranda, however, should on principle be excluded {Smith v. Condor, 9 Ch.D. 170; Re Eyslop, 1894, 3 Ch. 522; contra,^Whateley v. Spooner, 3 K. & J. 542; and Townsend x. T., 1 L.R.I. 180, 187; cp. ante, 586, 603, 672). Repetition: Legacies Cumulative or Substitutional. Legacies, whether iden- tical in amount or not, given to a stranger legatee by different instruments are cumulative unless otherwise expressed; and this being a rule of construc- tion, evidence contra is iaadmissible {Hurst v. Beach, 5 Madd. 351; Lee v. Pain, 4 Hare, 201, 216; Wilson v. O'Leary, 7 Ch. App. 448). Legacies given by different instruments, but identical both in amount and motive, are substitutional ; but this being inerely a legal presumption is rebuttable by evidence {Hurst v. Beach, sup.; Hall v. Hill, 1 Dr, & War. 94, 116; Suisse y. Lowther, 2 Hare, 424; Roch v. Calhn, 6 id. 531, 533; Tay. s. 1227), Legacies by the same instrument axe, unless otherwise expressed, cumulative if of different amounts {Brennan v. Moran, 6 Ir.C.L.E. 126), but substitu- tional if of the same {Burkinshaw v. Hodge, 22 W.R. 484). In the former case {Brennan v. Moran, sup.), and probably in the latter also (Hawkins, WiUs, 305; per Brett, L.J., ante, 667), this is a rule of construction, not rebuttable by evidence. Where the instruments themselves are substitutional, upon which point evidence is admissible both in a Court of Probate and one of construction {ante, 326, 330), the legacies also will be substitutional. Advancement and Besulting Trust. A purchase by a father or person in loco parentis, in the name of a child, or by a husband or wife in the name of each other {Mercier v. M., 1903, 2 Ch. 98), is, unless otherwise expressed, presumed to be a gift ; but a purchase in the name of a stranger is presumed to be upon a resulting trust for the purchaser. In the case of a father, no evidence, oliier than that he is such, is in general necessary to show tiie obligation to provide, which is the foundation of the presumption {Bennett v. B., 10 Ch.D. 474) ; though if the son stands in the relation of solicitor to client, the presumption will be excluded {Oarrett v. Williamson, 2 De G. & S. 344) . In the case, however, of mothers, or per- soiis in loco parentis, proof that the duty falls on, or was assumed by, fiem must be given {Re Ashton, ante, 667; Bennett v. B., sup.; Re Lacon, 1891, 2 Ch. 483). In addition to this, evidence may be required both: (1) To prove payment by the real purchaser, which may be shown by parol, even though othervnse expressed in the deed '{ante, 581, cp. ante, 586) ; and either by direct evidence or circumstantial, e.g. that the nominal purchaser was very poor {Lench v. L., ante, 118; Willevm v. Stevens, 1 Y. & C.C.C. 431) ; and (2) to prove the intention with which the money Vas paid. T^ess Digitized by Microsoft® 670 THE LAW OP EVIDENCE. [book ii. evidence is said to be required to rebut a resulting trust arising from a pur- chase in another's name, than to prove a trust by parol, it being only necessary in the former case to show that he who paid the price did not intend to take the benefit of the purchase {Nicholson v. Mulligcm, I.E. 3 l^q. 308). t'or this purpose the oral testimony of the parties is receivable (indeed, where this is available there is no necessity to resort to the presumption, Exp. Cooper, 26 Sol.Jo. 530, C.A.; FowTces v. Pascoe, 10 Ch. App. 343), as well as their declarations out of court if made contemporaneously with the trans- action {Stock V. McAvoy, 15 Bq. 55, 59; Williams T. W., 32 Beav. 370; Jeans v. Cooke, 24 id. 513, 521 ; Christy v. Courtenay, 13 id. 96 ; Sidmouth V. j8., 2 id. 447; Fowler v. F., L.Jo. May 11, 1912, Div. Ct., 1 Cy. Ct. Eep. 27; O'Brien v. Sheil I.E. 7 Eq. 255; Tucker v. Burrow, 2 H. & M. 515, 624; Morrison v. M'Ferran, 35 Ir. L.T. Eep. 81). Prior and subsequent declar- ations, by the donee are, however, receivable as admissions against the declarant to show that he considered himself to be merely a trustee {Jeans V. Cooke, 24 Beav. 513), and declarations by either are admissible, after their death,, as declarations against interest {Stock y.- McAvoy, sup.), or oven, it has been held, in their own favour as corroborative evidence {Be Gooch, 62 L.T. 384). Similar purchases in the names of other nominees may also be given to show the intent of the purchase in question {ante, 176^ 668) ; although a manorial custom that on a purchase by A. in the name of B. the latter takes beneficially, has been held unreasonable and bad {Lewis v. Lane, 2 Myl. & K. 449; cp Jeans v. Cooke, sup.). It has been doubted whether evidence to rebut a resulting trust arising by presumption, though admissible in the case of instruments inter vivos, can be received' in the case of wills; but on principle there seems no ground for the distinction {Re Tus'saud, 9 Ch.D. 363; Re Bacon, 31 Ch.D. 460). Executors. (1) Acceptance of Office. It is a presumption of law that a leg'acy left to an executor is conditional upon his acceptance of the office-; and parol evidence may be given in rebuttal or support thereof {Re Appleton, 25 Ch.D. 893.) (2) Appointment of Debtors as Executors; as to this, see ante, 668. (3) Right to Residue. Before 11 Geo. IV. & 1 Will. IV. c. 40, and where there was nothing to the contrary in the will, the executor in general took the undisposed of residue beneficially; since the Act, he takes it in trust for the next-of-kin {Williams v. Arkle, L.E. 7 H.L. 606; Re Bohy, 1908, 1 Ch. 71, C.A.) unless a contrary intent appears by the will {Re Howell, 1915, 1 Ch. 341, C.A.) ; and the statute cannot be displaced by parol evidence that he was intended to take beneficially {Love v. Gaze, 8 Beav. 472). Where, however, there are no next-of-kin (s. 2), or there is an express gift of the residue upon trusts which either do not exhaust the property, OT fail {Williams v. Arkle, sup.), the Act does not apply, and the executor's right will still prevail over that of the Crown or next-of-kin respectively, unless excluded by construction or presumption. Where the oxpliision is by construction, no evidence cohtra will be admissible; where it is by presump- tion, extrinsic evidence, including declarations of intention by the testator before, at, or after the making of the will, may be given in rebuttal or support, those made contemporaneously being entitled to the most weight {Olennell v. Lewthwaite, 2 Ves. 465, 644; Williams v. Jones, 10 id. 77, 82; Langham v. Sandford, 19 id. 649; Trimoner v. Bayne, 7 id. 508. 517-8; Digitized by Microsoft® CHAP.xLvii.] EVIDENCE TO EEBUT PEESUMPTIONS. 671 Lynn v. Beaver, Tur. & Eus. 63, 68; cp. WhUaher v. Tatham, ante, 638). A presumption against the executors' title has been held to arise and rebutting evidence in his favour to be admissible (a) where there is on the face of the document an intention to give the property to some one else, but the name of the donee is omitted {Re Bacon, 31 Ch.I). 460) ; or (fc) where a legacy is left to a sole executor simplicitef), since the presumption is that a testator by giving part did not intend to give the whole {Lynn v. B^'^'^^i'i sup.; Langham v. Sandford, 17 Ves, 435, 444). The distinctions here, however, are somewhat artificial; thus, whilst a legacy to an executor "for his care and trouble " amounts to a de3laration of trust by construction which excludes evidence (Langham v. Sandford, sup.; WhitaJcer v. Tatham, 7 Bing. 628; Barrs v. Fewhes, 13 W.E. 987, 988), a similar legacy to one executor, with nothing tc another, raises only a rebuttable prc-aiimption against the latter, which admits it (Williams v. Jones, 10 Ves. 77). So, though equal legacies- to several executors simpliciter merej.y raise a presumption against their title, equal legacies to executors "as such," or "for their care and trouble," are conclusive against it by construction and exclude evidence (Ommanney V. Butcher, Tur. & Eus. 360; Farrington v. Kv.ighihi. 1 P. Wms. 544; Hawkins, Wills, 313; as to unequal legacies, see Re Knowles, 28 W.E. 975, and A.-O. Y. Jefferys, 1908, A.C. 411). A devise of realty to ari executor upon trusts which do not exhaust the property, though formerly raising a mere presumption against his right, now raises a question of construction which excludes evidence (Barrs v. Fewhes, sup.; Croome v. 0., 59 L.T. 583). Miscellaneous. Amongst miscellaneous presumptions, legal or equitable, which may arise against the apparent effect of documents and admit of evidence in rebuttal, are those by which half the bed of a non-tidal river or highway belongs to the adjoining owners respectively (Devonshire v. Pattinson, 20 Q.B.D. 263 ; Ecroyd v. Coulthard, 1897, 3 Ch. 554) ; by which the freeholder owns usque ad coelum et ad inferos (Doe v. Burt, 1 T.E. 701) ; by which a wife who charges her separate property to pay her husband's debts is entitled to exoneration by him (Paget v. P., 1898, 1 Ch. 470; Be Marl- lorough, 1894, 2 Ch. 133) ; by which an agreement, silent as to duration, is revocable at the option of the parties (Llanelly Ry. v. L. & N. W. Ry., ante 594) ; or by which an intervening charge is merged in the equity of redemp- tion, or a lease in the fee (ante, 580). EXAMPLES. Satisfaction of Portions and Debts. AdmissnUe. Inadmissiile. A testator having made a settlement A., on the marriage of his daughter B., upon his daughter at her marriage of £200() with C, gives a bond to C. for £800, part to be paid six months after his death, pays payable during A.'s life and part at his £1000 to her trustees in part satisfaction death. Afterwards A. leaves B. a legacy thereof, and subsequently leaves her a of £800. Held, that-Dhough the bond debt legacy of £2800 by his will. To rebut the was a portion, yet as it was due to C. and presumption against double portions, dec- not to B. no presumption against double laratlons by the testator that he intended portions arose and declarations hy A. that the legacy to be in addition to, and not the legacy was in satisfaction of the bond in satisfaction of, the provisions in the were inadmissible {Hall v. Eill, 1 Dr. & settlement, held admissible [Be Tassaud, War. 94). Digitized by Microsoft® 672 THE LAW OP EVIDENCE. [book II. Admissible. 9 Ch.D. 363, O.A. The course adopted in this case seems unsatisfactory and to con- flict with the decision itself. The evidence was first heard and then the Court de- cided that . the differences between the legacy and settlement were so great that no presumption arose. Had this point been decided first, as seems the more con- venient course, tbe evidence would appar- ently have Ibeen rejected]. A., a father, owing B., his daughter, a debt, settles property largely in excess of the debt upon her on her marriage with C. The settlement is expressed to be " in consideration of natural love and affec- tion," and O. is ignorant of the debt. Held, a presumption that the debt was satisfied arose, and that evidence in rebuttal or support respectively was admissible {Plun- kett V. Lewis, 8 Hare, 316). A. borrowed fllOO from B., his mother- in-law, who boarded with him, paying him £212 10s. a quarter, it being agreed that the debt should be repaid by quarterly de- ductions of £100 from B.'s payments. Afterwards B., by her will, appointed A. her executor. , Held, that the appointment released the debt at law, and that in order to rebut any equitable claim, evidence that after two quarterly deductions of £100 had been made, B. stated She did not want any more of A.'s debt returned and thereafter made full quarterly payments for board, inserting memoranda to this effect on the counterfoils of her cheques, — was admis- sible as showing a continuing intent to forgive the debt during B.'s lifetime [Strong v. Bird, 18 Bq. 315 ; Be Applebee, 1891, 3 Ch. 422; Re Griffin, 1899, 1 €h. p. 412]. Inadmissible. A., in 1838, executed a voluntary deed giving certain annuities on his decease to two families of his natural children and their respective mothers. In 1840, one of the mothers married, and one of her chil- dren died. In 1651, A. executed a second deed giving very dissimilar annuities at his death to the remaining persons. Held, that on the construction of the deed of 1851, it was not intended to satisfy the deed of 1838 ; and that evidence that A. when executing the second deed did so under a mistake, having forgotten the ex- istence of the first deed, and that he did not intend to, give more portions than one, was inadmissible (Palmer v. Newell, 20 B«av. 32, 39). A. appointed B. his executor and left him a legacy of £500. B. at the time owed A. £100. In an unattested letter addressed to B. but never communicated to him, and found in a box with the will, though not included in the probate, A. gave B. various instructions as to the mode of winding up his estate and added, "The £100 I lent you does not form part of the £500 I left you, it is cancelled." Held, the letter be- ing intended as a testamentary document, but not being duly executed, was inadmis- sible, though aliter perhaps had it been communicated to B. in A.'s lifetime (Be Syslop, 1894, 3 Ch. 522 ; Selmin v. Brown, 3 Bro. P.C. 607 ; Re Applebee opposite) . Ademption and Repetition of Legacies. Presumed Ademption. A., having left his daughter, B., a legacy of £3000, after- wards gives her a promissory note for £500. Held, declarations by A. at the time of the gift, that it was In part satisfaction of the legacy, admissible, not as varying the will, but as part of the transaction to show a pro tanto satisfaction of the legacy (Kirk V. Eddowes, 3 Hare, 509). So, where A. left a legacy to his son B., his will directing that loans to children should be deducted from their legacies, and after-- wards advanced B. £200, inserting in the counterfoil of the cheque the word " loan" ; — Held that this statement was admissible as part of the res gesta and that the legacy was adeemed' pro tanto (Re Eng- land (1912) 134 L.T. Jo. 30, per Eve., J.) A. by will in 1874 bequeathed to B., her husband's niece, " £500 according to the wish of my late husband." Afterwards in 1881 A. paid B. £300, making an entry In her diary " a legacy from B.'s uncle." Presumed Ademption. A. by will in 1904 gave £500 to trustees to buy a piece of land called St. Mary's meadow to be added to the glebe of the parish church, "in pursuance of the express wish of my deceased wife." In 1905 he bought this piece of land for £375 and conveyed it tq trustees to add to the glebe, the deed reciting that it was "so bought and con- veyed in memory of my wife. "In 1912 he executed a codicil confirming his will. Held, (1) that the will and deed clearly ex- pressed the object of such gift respectively, and these not being the same, there was no ademption; and (2) that declarations by A. in 1896, after his wife's death, that " he wished to do something in memory of her," and later that "what he thought she would have liked best was the gift of St. Mary's meadow," were inadmissible [Be Aynesley, 1915. 1 (3h. 172, O.A. The decision would have been the same had there been no confirmatory codicil]. Digitized by Microsoft® CHAP.XLvii.J EVIDENCE TO EEBUT PEESUMPTIONS. 673 - Admissible. Held, a presumption ot ademption arising, evidence that A., a year before the pay- ; ment, told her friends she had asked B. if she would rather have £300 down or. £500 by will, and that B. had written choosing the former, — was admissible, not as proof that the conversation took place, but as showing A.'s intention at the time of the conversation, although B. denied the letter and it was not produced [Be Pollock, 28 Oh.D. 552, O.A. ; cp. Matter v. Linigan, 15 L.T. O.S. 97, where the legacy was also to strangers; and ante, 324-6]. Express Ademption: A. by will directed that "all moneys advanced by me to" my children, as will appear by a statement in my handwriting " should be brought into hotchpot. An unattested paper made after the date of the will in which A. re- cited the advances, held, admissiWe though not conclusive, of the fact and amount thereof {Whateley'V. Spooner, 3 K. & J. 542) . So, where A. directed that advances made, or to be made, by him to his chil- dren as recorded in a, certain book, signed by him, should be taken in satisfaction of their legacies, and A. afterwards destroyed th« book: — ^Held that, as it would prob- ably have been admitted to probate as part of the will, but had been revoked by des- truction, none of the sums advanced could be brought into hotchpot (Re Goyte, 56 L.T. 510). [For- cases in wWch evidence of express directions that advances to certain children or on certain occasions were to be in sat- isfaction of legacies, such directions being omitted as to others, has been held ad- missible, but not sufficient to rebut the pre- sumption that the latter also were adeemed, see Hopwood v. B., 7 H.L.C. 728, and Be Hariowhy, 46 Sol. Jo. 633, C.A.] Inadmissible. Bepetition. A., by will, leaves a legacy to B. of a certain amount and expressed to be for a certain motive. Afterwards A., by a codica, leaves M. a legacy of the same amount and for the same motive. Declara- tions by A. that he intended the legacies to be cumulative Would be admissible to LK. — i3 Express Ademption. A. by will in 1864 bequeathed the residue of his property among- his children and directed that sums advanced to them should be brought into hotchpot. In 1869 he advanced two of his sons money and in 1874 writes a letter to each, reciting the various sums so ad- vanced and stating that if they gave him promissory notes for a certain proportion he would write off the balance. Held, that the whole of the advances must be brought into hotchpot and that the letters being subsequent to the will could not be incor- porated therewith, and were inadmissible to vary it ISmith v. Gonder, 9 Ch.D. 170, not approving Wltateley v. Spooner, oppo- site. The Court remarked that the case was one not of rebutting a presumption, but of contradicting the will ; cp. ante, 586, 603, 669]. A., by will in 1908, left a legacy of £300 to B., his nurse. In 1909 he gave her a sealed letter, with a cheque for £300 en- closed, stating the cheque was in satisfac- tion of the legacy ; but he did not communi- cate its contents to B., one letter telling her to open it on his death. In 1910 he asked for the letter, opened it in B.'s pres- ence, took out the cheque and resealing the letter, gave it back to B. stating she was to open it on his death. A. afterwards placed £300 at his bank, iu their joint names with power to either to draw. Held, that B. was entitled to botn sums ; and that the letter of 1909, not having been com- municated to B. during A. » lifetime, was not admissible to show that the second gift was in substitution of the legacy [Be SMelds, 1912, 1 Ch. 591, per Warrington, J., who stated that ademption, in this con- text, meant a transaction to which both donee and donor were parties. This case is doubted in 56 Sol. Jo. 498 ; and cp. Be Enoland, ante, 672]. Bepetition. A., by will in 1816, gives to " Mrs. B. an annuity of £150 payable half- . yearly." Six months later, by a codicil on the margin of the will, he writes, " Now Mrs. C. £100 per ann. in quarterly payments." Evidence having been given that Mrs. B. cohabited with A. till shortly Digitized by Microsoft® 674 THE LAW OF EVIDENCE. [book II. AdmissiMe. rebut the presumption of substitution (Burst V. Beaoh, 5 Madd. 351, 358-359; Tay. s. 1227). Inadmissible. after the date of the will, when she mar- ried C, — Held, that the will and codicil though proved as distinct instruments must be construed as one, that the legacies were substitutional and declarations of in- tention by A. inadmissible (Martin v. Drvnkwater, 2 Beav. 215). A., by will in 1895, gave certain legacies, and in 1896 by a " codicil to my last will " gave legacies of equal amount and sub- stantially upon the same limitations to the same legatees, together with other legacies not contained in the will. Held, there being nothing in the language of the codicil to point to substitution, the legacies were cumulative, and evidence that at the date of the codicil the legacies thereia alone disposed of practically the whole estate, was inadmissible (Re Pitmey, 46 Sol. Jo. 552, following Wilson v. O'Leary, ante, 330, and Higgins v. Dawson, ante, 641). Advancement and Resulting Trust. A. buys shares in the ,0. company in the name of B., his son. To rebut the pre- sumption of advancement, evidence that the shares were so bought merely to qual- ify B. for a directorship, that A. received the dividends himself, and kept the cer- tificates in an envelope indorsed "C. Co.'s shares belonging to me"; held admissible [Re Ooooh, 62 L.T. 384; the endorsement was received not as evidence of A.'s inten>- tion at the time, :but as consistent with the whole transaction]. A. buys stock in the joint names of her- self and B., the son of her daughter-in- law, C. Held, that to rebut the presump- tion of a resulting trust, the testimony of B. and C. as to A.'s intention in making the purchase, and also the fact that she had made several similar purchases in the joint names of herself and a grandson and companion respectively, were admissible (Fowkes V. Pascoe, 10 Ch. App. 343). A. lodges certain securities at a bank in the joint names of himself and B., his daughter. After A.'s death, a memoran- dum, dated fifteen months subsequently to the deposit, is found in which he directs the securities to be applied to other pur- poses. Held, the memorandum was not admissible to rebut the presumption that the money was a gift to B. [O'Srien v. Sheil, I.E. 7 Bq. 255 ; Williams v. W., 32 Beav. 370, and cases cited, ante, 670. Aliter if the memorandum had been con- temporaneous with the deposit, since " the question was what was the intention at the time of the transaction, and not what it was subsequently." See, however, cases ante, 86]. Executors. A., using a printed will-form, left the residue of his property " to " (not filling in the space left in the form), and appointed B. his executor. Evidence of declarations by A. that he intended B. to take the property, held, admissible to rebut A. appoints B. and C. his executors, leaving them' all his personal estate "for you to pay all as follows," naming vari- ous debts and legacies which did not ex- haust the estate. Held, there being noth- ing in the will showing A. intended B. and C. to take the residue beneficially, declarations to that effect by A. were in- admissible (Love V. Oaze, 8 Beav. 472.) A. left the residue of his real and per- sonal property to B., his executor, "to en- able him to carry into effect the purposes of his will." A surplus of real and per- sonal property remaining after payment of the charges, — Held, in an action against B. Digitized by Microsoft® CHAP.XLvii.J EVIDENCE TO KEBUT PEESUMPTIONS. 675 Admissible. Inwhriisaible. the presumption arising from the iblank by C. as A.'s heir-at-law, that, there be- against the prima facie title of the execu- ing a resulting trust of the surplus by tor to the undi^osed of residue [Be construction and not by presumption, evi- Bacon, 31 Ch.D. 460; the Court remarked dence that A. intended B. to take the sur- that the effect of the blank could not be plus beneficially, and not in trust for C, greater than to raise a presumption was inadmissible (Barrs v. Fewkes, 13 against the executor]. W.E. 987; Croome v. Grooms, 59 L.T. 582). f Miscellaneous. A. conveys certain land to B., described as "bounded by the river." To rebut the presumption Idiat B., under this convey- ance, is entitled to the bed of the river, usque ad medium filum, evidence may be given that the fishing had always been dealt with separately to the land, and was in fact let at the time of the conveyance IDevonsMre t. Pattinson, 20 Q.B.D. 263, G.A. ; see Mioklethicaite v. Newlay Go., 33 Ch.D. p. 145, per Cotton, L.J., as to the limits of such evidence]. So, where a several fishery was pur- chased at an auction and the conveyance did not in terms include the bed of the river, the particulars of sale, whieh ex- cluded it, were received to rebut the pre- sumption that the bed of the river passed [Eoroyd v. Goulthard, 1897, 2 Ch. 554; Beaufort v. Aird, 20 T.L.R. 602 ; and cp. A.-&, V. Emerson, ante, 112]. A. conveys land abutting on a highway to B., neither the acreage nor the map in the deed including any x>art of the high- way. In an action by B. against A. for half the soil of the highway, it appeared that by one of the conditions of sale re- cited in the deed, B. was to pay for " the trees on the land sold " at a valuation ; and by a further recital this was stated to have been done. Heldj_" evidence that there were trees both on the acreage named and also on the side of the highway ad- joining it, and that the former trees alone had been valued and paid for by B., was admissible to rebut the presumption that half the highway passed (Pryor v. Petre, 1894, 2 Ch. 11, C.A.). A. having let B. a honse and yard, C. brings ejectment against B. for a cellar under the yard. To rebut the presumption that the cellar passed to B. by virtue of the maxim cujus est solum, &c., C. may give evidence that tiie cellar was let off to D. at the time of B.'s lease and that B. never claimed it till after D.'s lease ex- pired (Doe V. Burt, 1 T.E. 701). As to declarations of intent by testators to rebut presumptions as to the date of alterations in wills, see ante, 327. Digitized by Microsoft® ( 676 ) BOOK III. EFFECT OF EVIDENCE. CHAPTBE XLVIII. ' WEIGHT OP EVIDENCE. PEESUMPTIONS. ESTOPPELS. WEIGHT OF EVIDENCE. Questions of the admissibility of evidence belong, as we have seen, to the judge, those of its weight, credibility and sufficiency, to the jury {ante, 11). But the weight of evidence cannot, like its admis- sibility, be determined by arbitrary rules, since it depends mainly on common sense, logic and experience. " Eor weighing evidence and drawing inferences from it, there can be no canon. Each case presents its own peculiarities and in each common sense and shrewdness must be brought to bear upon the facts elicited" {B. v. Madhub Ghunder, 21 W.E.Cr. 13, 19 (Ind.), per Birch, J.; cp. Ld. Advocate v. Blantyre, 4 App. Gas. p. 793, per Ld. Blackburn). In determining such questions, however, valuable aid is provided by the judge's direction on the following points : — ^who has the burden of proof ; what presumptions apply; when corroboration is required; that statements are evidence for some purposes and not for others, or against some parties and not against others; that documents are sometimes conclusive and some- times merely prima fade evidence of the facts recorded; that oral evidence is more reliable than that given by affidavit; and that direct and positive testimony is preferable to the speculative opinion of experts [ante, 13-13, 386 ; Tay. ss. 50-69; Best, ss. 440-51; and for an elaborate examination of this topic, see Moore on Facts (Am.)]. As to what evidence is sufficient to be left to the jury, see ante 13. PRESUMPTIONS. Presumptions may, as we have seen, be either of law or fact, and when of law may be either conclusive {prcesumptiones juris et de jure), or rebuttable {prescesumptiones juris), but when of fact {prcBsump- tiones hominis) are always rebuttable {ante, 7). Mixed presumptions are those which are partly of law and partly of fact. As to conflicting presump- tions, see ante, 34. [Tay. ss. 70-316; Ros. N.P., 17th ed. 33-44; Eos. Cr. Ev., 13th ed. 14-33; Steph. arts. 85-89, 98-101; and cp. Introd.; and Appendix, Notes i., xxxv.- xxxvii.; Best, ss. 396-471; Whart. ss. 1336-1365; Thayer, Pr. Tr. Ev 313- 353, 539-576.] Conclusive Presumptions of Law. The modern tendency of courts being to contract the range /of all arbitrary rules affecting the weight of evidence, and to leave questions of fact to be determined as far as possible by the probabilities of the particular case, many presumptions of law, which in early times were considered absolute and indipjiutable, ha,ve since been Digitized by Microsoft® CHAP. XLViii.J PEESUMPTION.S. 677 relegated to the category either of rebuttable presumptions of law, or of mere presumptions or inferences of fact (Best, s. 307). Indeed, Prof. Wig- more maintains that " In strictness there cannot be such a thing as a con- clusive presumption. Wherever from one fact another is conclusively presumed . . . the existence of the second is wholly immaterial; and to provide this is to make a, rule of substantive law" (Ev. s. 2492). Dr. Wharton, also, remarks that while the juris et de jure class is still said to exist, no perfect individual of the class is to be found (s. 1234). In many cases at all events, these so-called conclusive presumptions are rules which belong, properly speaking, to the various branches of substantive law and not to the law of evidence. Thus, the presumption that an infant under seven is incapable of committing a felony, or that all men know the law (i.e., that ignorance of the law is no excuse for crime), (belong to the criminal law. Mr. Taylor gives the following instances, amongst others, of matters which are conchisively presumed, or amount to conclusive evidence, either by statute or common law: — The validity of any composition or general scheme of arrangement, when certified by the official receiver in bankruptcy (Bank- ruptcy Act, 1914 s. 16, subs, 14) ; the validity of the valuation list for the time being in force under the Valuation (Metropolis) Act, 1869, s. 45; the payment of simple contract debts after the expiration of six years (Statute of Limitations, 21 Jac. I. i\ 16; the statute has, however, been held not to discharge the debt, biit merely to bar the remedy) ; the proposition that judicial records are correct (see aMe, 404, 576, 584) ; that bonds and other specialties, in the absence of fraud, were given for good consideration (ante, 32) ; and that ancient documents were duly executed (see ante, 523. [Tay. 8th ed., ss. 70-88]. Most of these matters, , however, are now open to impeach- ment, including the presumption, which Mr. Taylor also regards as conclusive (s. 80), that every sane person intends the •probable consequences of }\is acts [Mr. Best regards this as a prmsumptio juris, merely (s. 305) ; it is, however, sometimes conclusive and sometimes rebuttable (R. v. Beard, 1920 A. C. 479 ; R. V. Meade, 1909, 1 K.B. 895; WUliams v. Birmingham Co., 1899, 2 Q.B. p. 345; New's Trustee v. Hunting, 1B97, 2 Q.B. p. 27; ante, 148-9) and the presumption does not apply where the question is whether the Act, though likely to cause injury, was intentional or accidental (R. \. Dnvies, 29 T.L.R. 150)]. Rebuttable Presumptions of Law. Disputable presumptions of law differ from presumptions of fact in the following respects: — (1) Presumptions of law derive their force from law : while presumptions of fact derive their force from logic. And though many of the former have intrinsic logical weight, being indeed derived from the latter, yet there are others which have none. Thus, it is difficult to see wliat inherent probability there is that a prisoner who has been committed for trial is innocent. (2) A presumption of law applies to a class, the conditions of which are fixed and uniform ; a presumption of fact applies to individual cases, the conditions of which are inconstant and fluctuat- ing. Thus, the presumption of death arises whenever seven years' unexplained absence is proved; but when it is necessary to stablish the death at any precise period within the seven years, the question must be decided on the evidence adduced in each specific case (see inf.) (3) Presumptions of law are drawn by the Court, and in the absence of opposing evidence are conclusive for the Digitized by Microsoft® 678 THE LAW OF EVIDENCE. [book in. party in whose favour they operate; presumptions of fact are drawn by the jury, who may disregard them, however cogent. [Greenleaf, s. 48 n; Wliart. s. 1137; Best, s. 304; Tay. s. 111.] In practice, however, these distinctions are by no means easy to apply ; and the line of demarcation, even when visible, is often overlooked. A presumption which is regarded by some judges and text-writers as one of law, is treated by others as one of fact, or of mixed law and fact; indeed, the same judges not infrequently place the same presumption in different categories at different times (Tay. s. 111). The chief function of a rebuttable presumption of law is to determine upon whom the burden of proof rests, using that term in the sense of introducing evidence {ante, 32-4) . With regard to this class of presumptions it has been said "they are merely •prima facie precepts ; and they presuppose only certain specific and expressed facts. The addition xof other facts, if they be such as have evidential bearing, may make the presumption inapplicable. All is then turned into an ordinary question of evidence, and the two or~ three general facts presupposed in the rule of presumption take their place with the rest, and operate with their own natural force as part of the total mass of probative matter. Of course the con- siderations which may have made these two or three facts the subject of a rule of presumption may still operate, or may not, to emphasize their quality as evidence; but the main point to observe is, that the rule of presumption has vanished" (Thayer, Pr. Tr. Ev. 346). The following are some of the principal instances usually classed under the head of rebuttable presumptions of law : Legitimacy, Access. It is a rebuttable presumption of law that a child, born during lawful wedlock, is legitimate, and that access" occurred between the parents; and this presumption can only be displaced by a strong preponder- ance of evidence, and not by a mere balance of probabilities [Banbury Peerage, 1 Sim. and S. 155; Morris v. Davies, 5 C. & P. 163, 344; Bosvile v. A.-G. 12 P. D. 177 ; Burnaby v. BoAlUe, 42 Ch.D. 283 ; Hawes v. Draeger, 33 Ch i) 173 • Evarvs y. E., 20 T.L.E. 613, 615; ante, 198-9; In the Estate of L., 1919' V.L.E., 17; Tay. s. 106; Best, s. 349. Formerly, legitimacy was conclusively presumed, if the husband had been within the four seas at the necessary time (Hubb. Ev. of iSuccn., 392-414)]. The presumption applies although the birth occurred so so6n after marriage that the child must have been be- gotten before it \R. v. Lufe. 8 East, 198 ; Turncock v. T., 16 L.T. 611 ; Re Par- sons, 18 L.T. 704; Gardner T. G., 2 App. Cas. 723, 728; The Poulett Peerage, 1903, A.C. ,393, 395, where Ld. Halsbury remarked, " The question is to be treated as one of fact and like every other question of fact, when you are answering a presumption it may be answered by any evidence that is appropri- ate to the issue."] If the Court is satisfied that the husband had, or from circumstances of time, place and health, could have had, intercourse with his wife at the necessary time, the presumption will not be rebutted by proof that she also had connection with other men [Banbury Peerage sup • Cove v C 1 M. & E 269; Wright v. HoUgate, 3 C. & K. 158; B.\. Mamfield, 1 Q.b! 444; Gordon v. G., 1903, P. 141; Yool v. Ewing, 1904, 1 I.R. 434, where the wife solemnly admitted the illegitimacy, though see as to such admissions, mf.l. But proof that access between husband and wife at the necessary tiriie was impossible {e.g. from his impotence, or absence), or highly improbable, {Moms V. Bavies, sup.; Barony of Saye and Sele, 1 H.L.C. 507; Legge v Digitized by Microsoft® CHAP. XLViii.] PRESUMPTIONS. 679 Edmonds, 25 L.J. Ch. 125; Atchley v. Sprigg, 33 id. 345; Aylesford Peerage, 11 App. Cas. 1; In the Estate of L., sup.), will rebut the presumption; and with this object not only the conduct of the parties, but the family treatment and reputatioii on the subject, are also admissible {ante, 117, 312). The direct testimony or declarations of the parents, however, cannot, as we have seen, be received {ante, 199), unless indeed such declarations be tendered merely as a part of their general conduct and not as evidence of the truth of the facts stated (Aylesford Peerage, sup., and eases cited, ante, 77) ; but the declarations of a deceased person as to his own illegitimacy have been received both as admissions and.as statements against interest (Re Perton, 53 L.T. 707 ; ante,S09). If it is not proved that the child was born of the body of the wife {Slingsby V. A.-O., 32 T.L.R. 364 (C.A.) ; affd. 33 id. 120 (H.L.) ; or that it was born during the marriage (Robinson v. Buccleuch, 31 Sol. Jo. 329, per C.A.), or that the alleged father was alive at the date of its conception (Re Perton, sup.), no presumption of legitimacy will arise. And if the child is proved to have been born more than nine months after the husband and wife have been judicially separated, it will be presumed to be illegitimate (Hetherington v. H., 12 P.D. 112). As to the case suggested, in Steph. art. 98 n, of a child born six months after the death of one husband and three months after the mother's marriage with another, see Shuman v. 8., cited Thayer, Pr. Tr. Ev. 349-350 ; and for a case in which a child, bom after the marriage of its parents, but conceived when the mother was not yet divorced from her former husband, was held legitimate, see Ingestre v. A.-O., Times, Oct. 14, 1913, and note 30 L.Q. Rev. 153-7. Marriage. Celibacy. A strong prima facie presumption is, except in cases of bigamy or petitions for damages for adultery, made by law in favour of the validity of a marriage proved to have been celebrated de facto (Piersi v. P., 2 H.L.C. 331; Sastry Velaider v. Sembecutty, 6 App. Cas. 364). And mere cohabitation may suffice to raise a presumption of valid marriage (id.j Doe v. Fleming, 4 Bing. 266 ; Collins v. Bishop, 48 L.J. Ch. 31 ; Fox v. BearblocTc, 17 Ch. D. 429; Re Thompson, 91 L. T. 680; ante, 110), which will not necessarily be rebutted by proof that the ceremony actually gone through was invalid (Re Shephard, 1904, 1 Ch. 456; doubted 20 L.Q. Rev. 226-7). In cases of bigamy, it has been held that where proof is given of the first marriage, and of the prisoner and his wife having lived together thereafter, the onus is on him to show the non-continuance of the marriage ; but if separation after the marriage is shown, the onus is on the prosecution to show bis know- ledge that the first wife was alive at the date of the second marriage (R. v. Jones, 15 Cox, 284; cp. ante, 384). As to death unmarried, see inf.. Death. Issue, Possibility and failure of. Women over 53 who are either spinsters, or if married, have been childless for many years, are in general presumed to be incapable of child-bearing (Croxton v. May, 9 Ch. D. 388, C.A.; Haynes V. H., 35 L.J. Ch. 303 ; Re HocUng, 1898, 2 Ch. 567. G.K. ; iJe White. 1901, 1 Ch. 570; Re Summer's Trusts, 22 W.R. 639; Re Thomhill, 1904, W.'N. p. 112, C.A.; Re Webster, 114 L.T. Jo. 428; Persse v. Mitchell, 34 Ir. L.T.R. 135). Nortii, J., however, declined to presume that a man over 72 years of age was past the possibility of issue, or even to hear medical testimony on the point (P. V. N., 31 L. Jo. 690). As to failure of issue, see inf.. Death. Digitized by Microsoft® 680 , THE LAW OF BVIDljINCE. [bookiii. Death. A person who has has not been, heard of for seven years by those' who, if he had been alive, would be likely to "have heard of him, is presumed to be dead {Prudential Co^ v. Udmonds, 2 App. Gas. 487, 509) ; but there is no presumption as to the time during the seven years at which he died {Be Phene's Trusts, 5 Oh. App. 139; Be Lewes's Trusts, 6 Ch. App. 356; Be Bhodes, 36 Ch. D. 586; B. v. Lumley, L.R. 1 C.C. 196; and see a series of articles on this presumption, Sol. Jo. 1890, Feb. 15, et seq.). The above pre- sumption has been held to apply though there were strong reasons for the deceased concealing his identity {Wills v. Palmer, 53 W.E. 169; cp. Be Ben- jamin, 1902, 1 Ch. 733; and Be Harding, inf.; see, however. Be Lidderdale, inf.). In the Probate Division, however, death is frequently presumed, as a matter of fact and not of law, before the seven years {Be Matthews, 1898, P. 17; Be Winstone, id. 143; Be Benjamin, sup.; Be Aldersey, 1905^ 2 Ch. 181; Be Long-Sutton, 106 L.T. 643), and in one case the Court refused to pre- sume death from unexplained absence under suspicious circumstances after twenty years {Be Lidderdale, 57 Sol. Jo. 3). With regard to the cause of death, accident rather than suicide will be presumed {Harvey v. Ocean Co., 1905, 2 I.E. 1, C.A.,), There is no presumption of law that a person died without issue {Be Jackson, 1907, 2 Ch. 354) ; but where thc'deceased, when last heard of, was unmarried, he may be presumed as a matter of fact, though not of law, to have died unmarried and without issue {Be Harding, 1891, Times, May 28; Be Callan, 39 Ir. L.T. Jo. 372; cp. Greaves v. Greenwood, 2 Ex. D. 289). Continuance of Life. Survivorship. Commorientes. There is no presump- tion of law as to the continuance of life {ante, 104). As to survivorship, if A. is proved to have died in a certain year and B. to have been last heard of more than seven years before, A. will be presumed to have survived B. {Be Thompson, 39 Ir. L.T. Jo. 372; Be Callan, sup.; as to less periods than seven years, see Be Phene's Trusts, &c., supra). There is, however, no presump- tion of survivorship in the case of Commorientes, i.e., two or more per- sons who have perished by a common disaster {Wing v. Angrave, 8 H.L.C. 183; Be Alston, 1892, P. 142; Be Johnson, 78 L.T. 86; Be Beynon, 1901, P. 141; Be Good, 24 T.L.R. 493; Be Boly, 1913, P. 6; Tay. ss. 202-203; Best, s. 410; Steph. art. 99; ante, 118) ; nor of simultaneous death {Be Rhodes. Sup. Ct. U.S.A., cited 37 Ir. L.T, Jo. 231; in Re Fisher, 1915, 1 Ch. 302, it was said that no two persons can die eo instanti) ; the question jn both cases being purely one of evidence. Sanity. It is usually said that the law presumes every man to be sane until the contrary is proved (Tay. ss. 197, 370; ante, 32; Thayer, Pi-. Tr. Ev. 380-383, who remarks that on an issue of sanity the presumption only frees the party in whose favour it operates from giving affirmative evidence of sanity in the first instance, not of relieving him" from the entire burden of the issue) ; in Sutton v. Sadler, 3 C.B.N. S. 87, however, the presumption was ■held to be one of fact, which ought not to influence the Jury in a case of con- flictingevidence. On the other hand, when insanity is pnmd facie established, e.g. by inquisition, it will be presumed to continue imtil disproved {Prinsep v. Dyce Sombre, 10 iMoo. P.O. 332, and cases ante. 104). Innocence, Marilal Coercion. In early times, the law appears to have pre- sumed guilt., not innocence; for if the prosecution proved a prima facie case. Digitized by Microsoft® CHAP. xLviii.] PEESUMPTIONS. 681 no alibi or other defence was allowable, since to have admitted " contrary probations would have opened a door to perjury" (Stephen, 1 Hist. Grim. Law, 353, 354:-5 ; ante, 212). At the present day, in the absence of evidence, innocence of crime is usually said to be presumed by law; at all events the burden of proof is always cast upon the party asserting criminality {ante, 33-4). Its commission, when the question arises in a criminal (but qu. in a civil) case, must, however, be proved not by a mere preponderance of evidence, but beyond a reasonable doubt {ante, 10). [See Thayer, Pr. Tr. Bv. 551-576.] Children under seven are *' conclusively presumed " ^o be incapable of commit- ting a felony ; but as to those between seven and fourteen, there is a r-ebuttable presumption of innocence, which can only be overcome by strong evidence of malice, in which case malitia supplet cetatem (R. v. Lochley, 47 Sol. Jo. 133 ; R. V, Oorrie, 83 J.P. Rep. 136). As to the presumption of marital coercion, see ante, 33. Regularity. Omnia prmsumuntur rite efsse acta. This presumption, which is nearly akin to that of innocence, is chiefly applied to judicial and official acts; and though sometimes conclusive (see, e.g. as to the correctness of records, and the due execution of ancient documents) is in general only rebuttable. Thus, the constant performance of divine servide from an early period in a chapel raises a disputable presumption of its due consecration {Rugg V. Eingsmill, L.R. 1 Ad. & Ec. 343 ; R. v. Cresstuell, 1 Q.B.D. 446 ; ante, 109) . Common instances of the presumption in its rebuttable form occur, also with respect to the validity of a person's appointment to a public office, from his acting therein {ante, 110) ; and as to the due execution of deeds and wills {ante, 326, 515). [Tay. ss. 143-149; Best, ss. 353-365; Ros. X.l'. 43-44.] Presumptions affecting Documents. Date: it is a general prima facie presumption that all documents were made on the day they bear date {Anderson v. Weston, 6 Bing. N.C. 296; Potez v. Glossop. 2 Ex. 191; cp. Butler V. Mounfgarret, 7 H.L.C. pp. 646-7), though as to wills, see Re Adam- son, L.R. 3 P. & D. 253, 356. When, however, there is reason to apprehend fraud or collusion (Tay. s. 169; Steph. art. 85; ante, 63-3) ; or, when an in- dorsement made by a deceased person upon an instrument is used for the purpose of defeating a plea of the Statute of Limitations, independent evidence may be required that the writing was made at the time it bears date {id.; ante, 379-80). So, the date appearing on a deed of arrangement is not sufficient proof without corroboration as to the time when it was executed, to justify the making of a receiving order {Exp. Slater, 76 L.T. 539). As to presumptions respecting sealing, delivery, attestation, alterations, stamps, ancient documents, &c., see ante. chap. xlii. Equitable Presumptions. It is beyond the scope of the- present work to enter at large upon this subject; but a few of the more common equitable presumptions — e.g. those as to satisfaction, ademption, advancement and cumulation of legacies — have already been considered ante, chap, xlvii. Presumptions of Fact. Presumptions of fact are, as we have seen, simply logical inferences of the existence of one fact from the proved existence of others. They are the inferences or presumptions which render circumstantial evidence admissible, and have already been considered at length under the head of relevancy and relevant facts.— Presumptions of fact of the more cogent Digitized by Microsoft® 682 THE LAW OP J3VIDENCE. [book iir. kind will, as we have seen, shift the burden of proof, no less than rebuttable presumptions of law (ante, 35-6). ESTOPPELS. An estoppel is a rule whereby a party is precluded from deny- ing the existence of some state of facts which he has formerly asserted. It is usually said to be only a rule of evidence, because at common law an action cannot be founded thereon {Low v. Bouverie, 1891, 3 Ch. 83, per Bowen, L.J. ; Re Sugden, 86 L.J.Ch. 277, 280, per Neville, J.) ; but as in equity an action {Williams v. Pinclcney, 67 L.J.Ch. p. 37, per V. Williams, L.J.), and in both a defence, can be, and as'estoppels must be pleaded and evidence not, it may in many cases be regarded as a rule of substantive law (Ewart, Estoppel, 187-195j Salmond, 21 Law Quart. Eev. 80; Gulson on Proof, ss. 436-8). Estoppels have been variously treated as conclusive presumptions of law (Tay. s. 89) ; as solemn admissions (2 Sm.. L.C. 11th ed. 744), and as conclusive evidence. They are, however, distinguishable from each of these — e.g. from the first named, in that an estoppel may be waived by the party ia whose favour it operates {Scarf v. Jardine, 7 App. Cas. 345 ; anfe, 413) ; from the second as well as the first, in that it cannot in general be taken advantage of by strangers ; and from the third in that the conclusiveness of evidence may result from mere logical cogency, while, when it results from same rule of law, it operates indifferently for or against all persons. [Tay. ss. 89-103; Best, ss. 533-45; S. Smith, L.C, 11th ed. 724-865; Steph.. arts. 102-5, and Note xxxviii. ; and see generally the works of Ewart, Evereit, Bigelow, Caspersz, and Cababe.] Estoppels are of three kinds: (1) By Eecord; (2) By Deed; and (3) By Conduct. When falling under the first and second heads they must be ^pleaded if there be an opportunity of pleading them, otherwise they will be deemed to be waived, and the jury may draw their own conclusion from the facts proved {ante, 412) ; and they must generally be mutual — i.e. both parties must be bound or neither will be ; strangers not being allowed to take advantage of such estoppels. When falling under the third head it has been said that they need not be pleaded {Freeman v. Gooke, 2 Ex. 654 ; Phillips v. Im Thurn, 18 C.B.N.S. 400; Tay. 8th ed. s. 92; Fleming v. Bank of N. Zealand, 1900, A.C. 557; contra, perhaps, under the Jud. Acts, Odgers, Pleading, 8th ed. 336 n; Everest, Estoppel, 2nd ed. 459, 466; Coppinger v. Norton, 1902, 2 I.E. pp. 243, 245; Tay. 10th ed. s. 92), and need not always be mutual {irvf.). Estoppels of all kinds, however, are subject to one general rule : they cannot override the law of the land (Cabab6, 133). Thus, where writing is required by statute, no estoppel will cure the defect {Hunt v. Wimbledon Local Board, 4 C.P.D. 48). So, even a judicial record or deed is always impeachable for fraud or illegality. And the same is true as to incapacity of parties — e.g. a married woman, precluded from contracting by reason of coverture, was not estopped by her representation that she was single {Cannam v. Farmer, 3 Ex. 698), nor by her denial of a restraint on anticipation {Bateman v. Faber, 1898, 1 Ch. 144, C.A.) ; so, an infant is not estopped by his fraudulent mis-repre- sentation that he is of full age; and he is not bound to refund money obtained thereby {Leslie v. Sheill, 1914, 3 K.B. 607, C.A.). A trustee in bankruptcy IS not estopped by a debtor's representation, made after an act of bankruptcy, that certain monies are not his own, though the debtor would be {Re Ashwell, Digitized by Microsoft® CHAP. XLviii.] ESTOPPELS. 683 1912, 1 K.B. 300)'. Nor is a corporation estopped by acts which are ultra vires {British Mutual Banking Co. v. Charnwood, 18 Q.B.D. 714). It has, however, been held that though deductions from wages for a sick fund cannot be set off under the Truck Act, yet acquiescence in such deductions raises an estoppel (Hewlett v. Aliens 1892, 2 Q.B. 662, C.A.) ; and an admission of liability may estop a defendant from relying on the absence of a statutory notice of action {Wright v. Bagnall, 64 J.P. 420, C.A.; Randall v. Hill's Dock Co.,69L.J. Q.B.554). Estoppels by Becord. The chief of these are Judgments, the conclusiveness of which has, for convenience, already been considered in conJTmction with their admissibility {ante, chaps, xxxvi.-xxxvii.). An estoppel by record is also probably created by letters-patent between the Crown and the grantee, but this will not extend the' benefit of the estoppel to all his Majesty's subjects {Cropper v. Smith, 26 Ch.D. 700, 712-13, where its effect as creating an estoppel by deed and by conduct was also considered). By the Patents Act, 1907, s. 29, a patent now has the same effect against the Crown as against a subject. Estoppels by Deed. Where a party has entered into a solemn engagement by deed as to certain facts, neither he {Bowman v. Taylor, 2 A. & E. 278) nor any one claiming through or under him {Dalton v. Fitzgerald, 1897, 2 Ch. 86; Clarke v. Hall, 24 L.E.I. 316; but see Re Anderson, 1905, 2 Ch. 70), is permitted to deny such facts. This rule, however, is subject to the following qualifications : (1) The Estoppel must he mutual, i.e. it applies only between Parties and Privies, and only in Actions on the Deed. It does not apply to actions on collateral matters even between the same parties {Sxp. Morgan, Be Simpson, 2 Ch.D. 72) ; nor does it apply in general to proceedings between strangers, or a party and a stranger {Cracknall v. Jansori, 11 Ch.D. 1, C.A. ; Tay. s. 99). The rule as to mutuality is relaxed in the case of a deed poll, since only the maker and his privies are intended to be bound thereby (Tay. s. 99) ; while even in the case of an indenture, one party alone may sometimes be bound — e.g. where he has gained an action or some other advantage on the footing of a given construction of the deed, he is estopped from afterwards setting up a different construction thereof {Gandy v. G., 30 Ch.D. 57; Roe v. Mutual Loan Fund, 19 Q.B.D. 34:7 ; Marshall v. Berridge, 19 Ch.D. 233; Re LaH,ante, 427,430). (2) No Estoppel arises upon Recitals or Descriptions which are either immaterial^ or not intended to hind. With regard to the materiality of a recital, the following conditions must exist in order to raise an estoppel: — (a) There must be a distinct statement of some material particular fact {e.g. in a grant of land by A., a covenant that he had power to grant will not create an estoppel, though a statement that he was seised of the legal estate will, General Finance Co. v. Liberator Soc, 10 Ch.D. 15; Heath v. Crealock, 10 Ch, App. 22 ; Onward Building Soc. v. Smithson, 1893, 1 Ch. 1 ; cp. Poulton V. Moore, 1915, 1 K.B. 400, C.A.) ; (6) a contract made with reference to such statement; and (c) an action founded upon, or brought to enforce the rights arising out of, the instrument {Carpenter v. Buller, 8 M. & W. 212; Exp. Morgan, Re Simpson, sup.; Tay. ss. 96-98). If these conditions concur, Digitized by Microsoft® 684 THE LAW OF EVIDENCE. [book in. indeed, a recital iii au iustrument not under seal will estop {id.). A recital, however, binds all the parties to the deed only when upon the construction of the instrument the statement appears to be one which all have agreed to admit a-s true; if it is intended to be the statement of one party only, he alone is estopjjed {Stroughill v. Buck, li Q.B. 781; Young v. Raincoch, 1 C.B. 310; Blackhall v. Gibson, 2 L.E.I. 49; Trinidad Co. v. Coryat, 1896, A.C. 587). So, if a party has joined for a specific purpose he cannot be treated as having joined for a different purpose {Re Horsfall, 1911, 3 C'h. 63). Where a binding recital is of another deed or document, the recital is not secondary, but primary evidence of such deed, and constitutes a muniment of title which cannot be controverted (Tay. s. 98; ante, 538) ; but this applies only to so much of. the deed as is actually recited ; the other portions must be proved in the ordinary way {Gillett v. Ahhott, 7 A. & E. 783). Married women are estopped by recitals in deeds duly executed and acknowledged hy them {Jones v. Frost, L.E. 7 Ch. 773) ; but not infants by recitals in deeds executed by their guardians {Milner v. Harewood, 18 Ves. p. 374). The mere tender of the engrossment of a deed of execution is not, however, such an admission as amotmts to an estoppel {Bulley v. B., L.E. 9 Ch. 739). {3) No Estoppel where Deed is tainted by Fraud or Illegality. As we have already seen, a party to a deed is nol precluded from impeaching it on the ground of fraud, duress, infancy, or the like; so, where both parties know, or have the means of knowing, that it was executed for an immoral purpose, or in contravention of any statute or of iDublic policy, neither party will. be estopped from proving these facts, although the effect may be to enable either to take advantage of his own wrong (Tay. s. 93; Birch v. B., and Bonaparte Y.B., ante, 4:06). ■ (4) A Deed which can take Effect by Interest shall not be construed to take Effect by Estoppel {Doe Yi Barton, 11 A. & E. 311). Thus, if a party leases premises to another for a longer term than he himself possesses, it only ensures to the extent of his own interest and no further {id.; Doe v. Seaton, 2 CM. & E. 732); but where he leases premises to which he has no title, this will estop the parties to the deed and their privies {Dalton v. Pitzfjemld, 1897, 2 Ch. 86) from alleging his want of title — i.e. as the lease cannot enure by interest, it will by estoppel ; should he, however, subsequently purchase the land, the lease which originally enured by estoppel will be con- verted into a lease in interest, and his heir or assignee will be bound thereby equally with the lessee and his assignee (Tay. s. 100; Webb v. Austin, 7 M. & G. 701 ; Sturgeon v. Wingfield, 15 M. & W. 234). It has been said that estoppels by deed do not bind the Crown, but that those by conduct do (A.-G v. Collom 1916, 2 KB. 193, 204). Estoppels by Conduct. Estoppels by conduct, or as tliev are still sometimes called, estoppels by matter in pais, were anciently acts of notoriety not less solemn and formal th.an the execution of a deed, such as livery oE seisin, entry,, acceptance of an estate, and the like; and whether a ]iarty had or had not concurred in an act of this sort was deemed a matter which there could be no difficulty in ascertaining, and then the legal consequences followed {Lyon V. Reed, IS M. & W. 285, 309). The doctrine has, however, in modern times, been extended so as to embrace practically any act or statement by a party which it would be unconscionable to permit him to deny. The rule has been Digitized by Microsoft® CHAP. XLviii.] ESTOPPELS. 685 authoritatively stated as follows: — "Where one by his words or conduct wilfully causes another to believe the existence of a certain state of things and induces him to act on that belief so as to alter his own previous posi- tion, the former is concluded from averring against the latter a different state of things as existing at the same time " (Pickard v. Sears, 6 A. & E. 469.) And whatever a nian's real intention may be, he is deemed to act willfully " if 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 " {Freeman v. Coolce, 2 Ex. 654, 663 ; McEenzie v. British Linen Co., 6 App. Cas. 82 ; Carr V. L. & N.WMy., L.R. 10 C.P. 307 ; Seton v. Lafone, 19 Q.B.D. 68 ; Coventry V. G. E. By., 12 Q.B.D. 776 ; and see inf.) ~ An estoppel by conduct may arise from agreement, misrepresentation, or negligence. (a) From Agreement. The agreement may be express — e.g. where the plaintiff had obtained a reduction in the rate for the carriage of his horses by a declaration that their value did not exceed £10 each, he was estopped in an action agaiust the ^defendants for injury to the horses, from asserting that their value was greater than that sum (McCance v. L. & N.W. Ry., 34 L.J. Ex. 39) ; or it may be implied from the conduct of the parties, or the nature of the transaction, as in the following cases : Share Certificates and Certifications, A company is precluded from denying the validity of its own share certificates, even though they have been obtained by means of a forged trtosfer {Balkis Co. v. Tomlinson, 1893, A.C. 396; Re Ottos Kopje, 1893, 1 Ch. 618) ; though this does not apply to a certificate forged by the secretary {Ruben v. Great Fingall, &c., 1906, A.C. 439), nor to a certification indorsed by him on a transfer {Whitechurch v. Cavanagh, 1902, A.C. 117; Peat v. Clayton, 94 L.T. 465). A certificate that shares are fully paid will estop the company as to that fact, even against an allottee, if he has bond fide acted on the faith of the statement {Bloomenthal v. Ford, 1897-, A.C. 156). The execution of a blank transfer by the owner of shares does not, however, estop him from proving his title as against a third party who has advanced money on the shares {Colonial Bank v. Cady, 15 App. Cas. 267). Landlord and Tenant. A landlord is estopped from alleging his want of title to the premises {Trevivan v. Laivreyice, 2 Smith's L.C., 11th ed. 742), or their structural instability {Grosverior Hotel v. Hamilton, 1894, 2 Q.B. 836; cp. Ramsden v. Dyson, L.R. 1 H.L. 129), against his tenant; though not, it has been held, the invalidity of a lease granted by him in good faith, but without necessary consent {Canterbury Co. v. Cooper, 72 J.P. Eep. 465). And conversely, a tenant or lodger, or the alienee of either, cannot, during his possession of the premises, deny the title either of his landlord {Balls v. West- wood, 2 Camp. 11; Doe v. MiXls, 2 A. & E. 17), or of the latter's heirs and privies in blood {Weeks v. Birch, cited, ante, 419). So, where A. devised land to B. for life with remainder to C, and B. 'purported to convey the fee to D. who took possession — in ejectment by the assignee of C, D. was held estop- ped from denying the validity of A.'s will {Board v. B., L.E. 9 Q.B. 48; Dalton V. Fitzgerald, ante, 683; cp. however, Re Anderson, 1905, 2 Ch. 70, and Re Tennant. 1913, 1 I.E. 280). But the tenant may show that such title has expired {England v. Slade, 4 T.E. 682 ; Serjeant v. Nash, 1903, 2 K.B. 304) ; or that a parcel of land about which he and the lessor are disputing was Digitized by Microsoft® 686 THE LAW OF EVIDENCE. [book hi. never comprised within the lease at all {Clark v. Adiej 2 App. Cas. 435, per Ld. Blackburn ; Cabab6, 34) ; or that he has been evicted by title paramount to his landlord's {Oouldsworth v. Knights, 11 M. & W. 337, 344). Mere receipt of payment of rent, however, though raising a strong presumption of tenancy, does not of itself operate as an estoppel (poe v. Francis. 2 M. & B. 57;Erdght v. Cox. 18 C.B. 645; Crawford v. OUlmor, 30 L.E.I. 238; Serjeant V. Nash, sup.), but only to an admission which may be explained. On the other hand, such estoppels do not bind strangers, e.g. where A., without title, lets to B., and C, and with B.'s license, brings goods on the premises on which A. distrains, C. is not estopped from disputing A.'s title to distrain, though B. would be {Tadman v. Henman, 1893, 2 Q.B. 168). [Tay. ss. 101- ■ 108; Steph, art. 103; Everest, Estoppel, 2nd ed. 267-99.] Bailor and Bailee. A bailee is estopped from denying that his bailor had, at the time of his bailment, authority to make it ( Gosling v. JBimie^ 7 Bing. 339). So, he is estopped from disputing the title of a purchaser to whom he has attorned at the request of the bailor (Henderson v. Williams, 1895, 1 Q. B. 521). But when the bailee is evicted by title paramount he can, with the consent of the evictor, set up the latter's title against the bailor {Biddle v. Bond, 6 B. & S. 225 ; Rogers v. Lambert, 24 Q.B.D. 573). Licensor and Licensee. A licensee of a patent cannot dispute the validity of the patent as against the licensor. But he may show its expiry {Muirhead v. Commercial Cable Co., 29 L.Jo. 298), or that what he has done does not fall within the scope of the patent, and he may refer to former patents to show what is the proper construction of the patent in question (Clark v. Adie, a/nte, 393, 612, 630) ; and he is not estopped from disputing its validity against an assignee who has not bought on the faith of the statements in the patentee's petition to the Crown (Cropper v. Smith, 26 Ch.D. 700). Principal and Agent. Similarly, an agent is estopped from disputing the title of his principal (Dixon v. Hammond, 2 B: & Aid. 310). Election. So, an estoppel, or gwasi-estoppel, may arise from a party's election to adopt one of two inconsistent remedies (see, e.g., ante, 416). As to estoppels between the acceptor of a bill of exchange and a holder in due course, see BiUs of Exchange Act, 1882, ss. 54, 55. (b) From Misrepresentation or Negligence. An estoppel by conduct may arise from an untrue representation of fact, not only when fraudulently, but even when mistakenly or innocently, made (Vaglimo v. Bank of England, 1891, A.iC. 107; Law V. Bouverie, 1891, 3 Oh. 83; Colonial Bank v. Cody, 15 App. Cas. 267; Swrat Chunder Dey v. Oopal Chunder Lola, 56 J.P. 741). And conduct by negligence, omission, or even silence, where there is a duty cast upon the person to disclose the truth, may often have the same effect (id. Freeman v. Cooke, ante, 685, and cases cited therewith; Arnold v. Cheque Bank, 1 C.P.D. 578; Johnson v. Credit Lyonnaise, 3 C.P.D. 32.) A person cannot, however, rely by way of estoppel upon a statement induced by his own misrepresentation or concealment (Porter y. Moore, 1904, 2 Ch. 367). In order to raise such an estoppel the following conditions are necessary : —(1) There must be a representation of fact, a mere statement of intention or promise de future is insufficient (Citizens' Bank v. Bank of N. Orleans L R 6 H.L. 352 1'Whitechurch v. Cavanagh, 1902, A.C. p. 130); and it must be precise and unambiguous (Low v. Bouvene, sup; Be Lewis, 1904, 2 Ch 655 Digitized by Microsoft® CHAP. XLViii.] ESTOPPELS. 687 C.A.). (2) There must have been sin intention, or conduct raising a reason- able presumption thereof, that the injured party was meant to act upon the representation as true {Freeman v. Cooke, McKenzie v. British Linen Co., and 8eton V. Lafone, cited ante, 685). (3) The party relying on the representation must have acted on it to his own detriment {McKenzie v, British Linen Co., and Re Lewis, sup.). And (4) The misstatement or negligence must have been the proximate cause of the detriment {Re Leuliis, sup.; Baxendale v. Bennett, 3 Q.B.D. 525; Staple of England v. Banh of England, 21 Q.B.D. 160), or, perhaps, more stnctly, of the error which caused the detriment {Swan T. North British Australasian Co., 2 H. & C. 175 ; Vagliano v. Bank of England, sup. 686; Cabab6, 145.) [Ewart, Estoppel by Representation; Cabab6, Estoppel by Conduct; Everest, Estoppel, 2nd ed. 325-427; Tay. ss. 839-856; Eos. N.P. 77]. Digitized by Microsoft® ( 688 ) CHAPTEE XLIX. WEONGFUL ADMISSION OE EEJECTION OP EVIDENCE AND EEMEDIES THEEEFOE. CIVIL CASES. Trials by Judge and Jury. (1) Admissible Evidence rejected. If admissible evidence has been rejected by the judge, and substantial injustice thereby occasioned, the injured party is entitled to a new trial, provided he formally tendered such evidence to the judge at the trial, and requested the latter to make a note of the point, or, if that request be refused, to enter an exception upon the record {Campbell v. Loader, 34 L.J.Ex. 58; Gibbs v. Pike, 9 M. & W. 351 ; Whitehouse v. Hemmant, 37 L.J.Ex. 295 ; Penn v. Bibby, L.E. 3 Ch. 127). Where there is no record, as in the Probate Division, application must be made to the C.A. for leave to serve notice of appeal {Cheese v. Lovejoy, 2 P.D. 161). Eejected testimony may, if the witness falls ill pending the appeal, be taken de bene esse before a special commissioner (Treasury Solicitor v. White, 55 L.J.P. 79). [Tay. ss. 1881-1882.] If the admissible evidence has been rejected because tendered on an untenable ground, and a valid ground, be subsequently discovered, redress can only be had upon pjoof that the valid ground could not, by due diligence, have been discovered at the time of the tender {Doe v. Beviss, 7 C.B. 456) . (2) Inadmissible Evidence received. The same relief as above is obtain- able if inadmissible evidence has been received by the judge, provided it was formally objected to at the trial. But the grounds of objection must be distinctly stated, and no others can afterwards be raised {Williams v. Wilcox, 8 A. & B. 314; Ferrand v. MilUgan, 7 Q.B. 730; Bain v. Whitehaven By., 3 H.L.C. 1; cp. McDougall v. Knight, 14 App. Cas. 194). Moreover, even if the specific objections prevail, yet should the evidence be admissible for any other purpose, a new trial will not be granted; the proper course being for counsel at the trial to ask the judge to explain the limits of the evidence to the jury, and if he refuse, then to impeach his decision on the ground of misdirection {Irish Society v. Derry, 12 C. & P. 641 ; Milne v. Leisler, 7 H. & N._786, per PoHock, C.B.; Willis v. Bernard, 8 Bing. 376, 282). The' judge may, in his discretion, allow an objection to evidence to be withdrawn {Barbat v. Allen, 7 Ex. 609) ; and in practice, inadmissible evidence is sometimes received because it is not worth while to object. " Trials by Judge alone. If admissible evidence has been rejected, the same rule holds as above. Moreover, a party may insist on his evidence being taken, even though the judge is about to decide in his favour {ante, 39 457) If inadmissible evidence has been received (whether with or without 'objection) It IS the duty of the Judge to reject it when giving judgment; and if he has not done so, it will be rejected on appeal, as it is the duty of Courts to arrive at their decisions upon legal evidence only {Jacker v. International Digitized by Microsoft® CHAP. xLix.J WEONGFUL ADMISSION", &c., OF EVIDENCE. 689 Cable Co., 5 T.L.R. 13; cp. Miller v. Babu Madho Das, L.E. 23 Ind. App. 106) ; a party may, however, by his conduct at the trial, .be precluded from objecting to such evidence {Gilbert v. Endean, 9 Ch. D. 359; Bradshaw v. Widdnngton, 86 L.T. 726, 732; ante, 250. CoTinty Courts. Similar rules apply to County Courts, appeals lying of right to the High Court as to sums over £20, and by leave as to sums under (C.C. Act, 1888, s. 120) ; or a new trial can be obtained. Commercial Court. Arbitrators. Bevising Barristers. Compensation Juries. Licensing Justices. Examiners. The Commercial Court is, like others, bound by the rules of evidence {Baerlein v. Chartered Bank, 1895, 2 Ch. 488). It has been held that arbitrators are not bound ^7 the technical rules of evidence {Re Eeighley, 1893, 1 Q.B. 405), but may act on docu- ments, &c., which are not strictly admissible {Re Eeighley, sup.; Symes v. Goodfellow, 2 Bing. N'.C. 532), or even on unsworn {Wakefield v. Llanelly Ry., 34 Beav. 245, 249), or other incompetent testimony, e.g. that of the parties be- fore 1851 (14 Law Eev. 208-9.) But in a more recent case this position has been denied, and arbitrators held bound by the general rules of evidence, although great strictness will not be enforced (^e Enoch, 1910, 1 K.B. 327, C.A. ; and see Andrews v. Mitchell, 1905, A.C. 78, 80; and East & West India Bocks v. Kirk, 12 App. Cas. 738). Thus, they may not receive evidence in respect of heads of claim not within the legal scope of the reference {Falkingham v. ^Victorian Rys. Commr., 1900, A.C. 452; Re Gerard, 1894, 2 Q.B. 915, where the submission was revoked on this ground) ; nor reject material evidence which is legally receivable {Hart v. Duke, 33 L.J. Q.B. 55, where the award was "held invalid). 'And flagrant irregularities of procedure, e.g. wrongfully excluding a party, or delegating the award to an aceoxmtant, wiU be ground for setting it aside {Eaigh v. H., 31 L.J.Ch. 420). The mere fact, however, that an umpire has discussed the question with the arbitrators and heard their views will not invalidate his award {Palmer v. Flack, 39 Ir.L.T. Eep. 165.) [Eussell on Arb., 8th ed. 140-145; Eedman, 3rd ed. 140-149]. Revising Barristers have also been held bound by the rules of evidence {Storey v. Bermondsey, 1910, 1 "K.B. 203 C.A.; though see Kent v. Fitfall, 1906, 1 K.B. 60; 1908, 2 K.B. 933, 937). On the other hand, the verdict of a t;ompensation jury cannot be impeached for wrongful admission of evidence as at nisi prius {R. v. Eastern Counties Ry., 3 Eail. Cas. 466) ; nor are Licensing Justices bound by the strict rules of evidence {R. v. Sharman, 1898, 1 Q.B. 578; ante, 462-3). As to objections before Examiners, see ante, 498-9. New Trials in the High Court (0. 39, r. 6), or in County Courts (0. 59, r. 7.; Ann. C. C. Pr. 1910, 457), will not, however, under any circumstances be granted for the improper admission or rejection of evidence unless the Court to .which the application is made is of opinion that some substantial wrong or miscarriage has been thereby occasioned in the trial. And this rule applies also to erroneous decisions as to the burden of proof or the right to hegin or reply {ante, 32, 39). As to what does or does not amount to substantial wrong' or miscarriage, see Bray v. Ford, 1896, A.C. 44; Manley V. Palache, 73 L.T. 98 ; Johnson v. Lindsay, 53 J.P. 599 ; Tait v. Beggs, 1905, 2 I.E. 525. L.E. — 44 Digitized by Microsoft® 690 THE LAW OF EVIDENCE. [book hi. Moreover, a new trial cannot be granted for a wrongful decision as to a claim of privilege by a witness (R. v. Kinglalce, 11 Cox, 499), or as to the sufficiency of a stamp {ante, 533; though aliter as to its insufficiency); and has been refused for the premature reception of admissible evidence {Fa/and v. Wallace^ 35 L.T. 361), for the improper reception of a document which would not have affected the result {Neave v. Ilaiherley, 2 T.L.R. 183), and for not allowing evidence improperly received to be rebutted {ante, 41); though granted for refusing to allow relevant evidence to be rebutted (Mac- laren v. Davis, 6 T.L.E. 372) . On new trials the case must be proved de novo (ante, 464) . CnmiNAl CASES. New Trials. The right to a new trial in. criminal cases, even to the restricted extent formerly allowed with respect to convictions for misdemeanour (as to which see 4th ed. of this work, p. 638), is now wholly abolished by the Criminal Appeal Act, 1907 (7 Ed. VII. c. 23), s. 20 (1). Crown .Cases Reserved. In appeals upon questions of law alone the Court of Criminal Appeal may, however, if they think fit, still decide that the procedure under the Crown Cases Act, 1848 (11 & 12 Vict. c. 78), as to the statement of a case, should be followed, and require a case to be stated accordingly under that Act, in the same manner as if a question of law had been reserved [Cr..App. Act, 1907, s. 20 (4) ; as to Crown Cases Eeserved, see 4th ed. of this work, pp. 638-9.] And a person appealing as above is deemed to be an appellant under the Cr. App.' Act, 1907, s. 3 (a), inf. [C.A.E., 1908.* r. 26 (d)]. CRIMINAL APPEAL ACT, 1907. Under s. 3 of this Act, a person convicted on indictment may appeal to the Court of Criminal Appeal (a) against his conviction on any ground involving a question of law alone; and (6) with the leave of the Court of Criminal Appeal, or upon the certificate of the judge who tried him that it is a fit case for appeal, on any ground involving a ques- tion of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court to be a sufficient ground of appeal; and (c) with the leave of the Court of Criminal Appeal, against the sentence passed on him, unless it is one fixed by law. Under s. 4, the Court may allow the appeal and quash the conviction if they think that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence; or that the judgment was erroneous in point of law; or that, on any ground, there was a miscarriage of justice; and in any other case shall dismiss the appeal. Provided that the Court may, notwithstanding that they think the point raised might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occur- red. [This proviso only applies to the Court of Appeal, not to the H. L. on appeal therefrom (Thompson v. R., 1918, A.C. 221, per Ld. Sumner).] Under s. 5, the Court has power either to affirm the sentence at the trial, or pass a substitutionary one, where they think that the appellant has been properly convicted on part of the charge, but not on some other part. Objections to evidence should be taken at the trial and when it is tendered, even though already taken during the opening speech of the prosecution (R. v. Sanders, 1919, 1 K. B. 560; see R. v. Bridgewater, &c., cited ante, 454) Appeals from Justices, &c. Except by statute, no appeal lies from the dismissal of a charge by justices (R. v. London J J., 25 Q.B.D 357-22 v Digitized by Microsoft® CHAP. XLix.] WRONGFUL ADMISSION, &c., OP EVIDENCE. 691 Antrim^ 1895, 2 I.E. 603) ; nor will a mandamus lie to compel them to hear further evidence {R. v. Knight, 32 L.Jo. 76; R. v. Yorhshire, 53 L.T. 728), unless their rejection of evidence amounts to a refusal of jurisdiction {R. v. Marsham^ 1892, 1 Q.B. 371). Convictions founded on erroneous evidence may, however, be impeached either by appeal to Quarter Sessions, which is a rehearing with right to adduce fresh evidence, or by ease stated to the King's Bench, under 20 & 21 Vict. o. 43, or 43 & 43 Vict. c. 49, s. 33 (see Boulton Case Stated; and as to amendment, 68 J.P. 169), though not generally by certiorari (J?, v. Macrae, 62 J.P. 729; R. v. Sullivan, 22 L.R.Ir. 504 n; R. V. Kerry, 35 Ir.L.T.R. 10; R. v. Barnes, 74 J.P.Rep. 231; R. v. Waterford, 43 Ir. L.T.R. 170), unless, perhaps, there be a complete absence of evidence on some material point (Wrottesley & Jacob on Cr. App., 105-7). Under these Acts cases have been entertained as to whether there was any evidence to support a finding, though not whether the justices came to a right conclusion (Ch-een v. Pensam, 22 J.P. 737; R. v. Heapy, 22 L.R.Ir. 500) ; or whether a rejection of evidence of custom was correct {Watson v. Jaeger, 13 T.L.R. 150; and see Read v. Ferrett, 1 Bx.D. 349); so, where justices had based their decision of one charge partly on evidence given on a second,, arising out of the same facts, both convictions were quashed, the former for that reason, and the latter because the defendant was thus deprived of his defence of res judicata {Hamilton v. Walker, 1892, 2 Q.B. 25 ; cp. R. v. Fry, 19 Cox, 135; ante, 29). So, also, where a question as to the prisoner's previous conviction had been put contrary to the Cr. Ev. Act, 1898, although the decision was not influenced by the answer {Chamoch v. Merchant, 1900, 1 Q.B. 474). And where a conviction had on appeal been affirmed by the Recorder subject to a case stated, which itself showed that an incompetent witness had been admitted by him, the Court, though refusing to hear the appeal, quashed the conviction {Connor v. Kent, 1891, 2 Q.B. 545; 1891, Times, 30 Ap.). In Ireland, it has been held that the old rule that a convic- tion must be affirmed if supported by a scintilla of evidence, is gone ; and that the King's Bench Division has inherent jurisdiction to quash convctions by inferior Courts where the evidence was unfit, or insufficient, reasonably to support them {R. v. Waterford, sup.). But, in general, the Court will not interfere where sufficient legal evidence remains to sustain the conviction {Shortt v. Reiinson, 63 J.P. 295; R. v. Macclesfield, 2 L.T. N.S. 352; R. v. Dwyer, 24 Ir.T.L.R. Ill) ; nor can a case he stated to determine the mere sufficiency of particulars {ante, 28). Subject to the above, any point of law arising on the facts stated in the case can be taken and decided, whether raised before the justices, or reserved, or not {Knight v. Halliwell, L.R. 9 Q.B. 412; Hamilton v. Walker, sup.). Digitized by Microsoft® Digitized by Microsoft® (693) APPENDIX CRIMINAL EVIDENCE ACT, 1898 (61 & 63 Vict. Ch. 36) ^^ An Act to amend the Law of Evidence. [12th August, 1898.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parlia- ment Assembled, and by the authority of the same, as follows : 1. Every person charged with an offence, and the wife Competency or husband, as the case may be, of the person so charged, "^ ^^^f^i* shall be a competent witness for the defence at every oases. stage of the proceedings, whether the person so charged is charged solely or jointly vrith any other person.^ Provided as follows : (a) A person so cha.rged shall not be called as a wit- ness in pursuance of this Act except upon his own application :^ (6) The failure of any person charged with an offence, or the wife or husband, as the case may be, of the person so charged, to give evidence shall not be made the subject of any comment by the prosecu- tion :' (c) The wife or husband of the person 'charged shall not, save as in this Act mentioned, be called as a witness in pursuance of this Act except upon the application of the person so charged :* (d) Nothing in this Act shall make a husband com- pellable to disclose any communication made to him bv his vrife during the marriage, or a wife compellable to disclose any communication made to her by her husband during the marriage:" (e) A person charged and being a witness in pur- suance of this Act may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged:' 1 See pp. 453-6. = See p. 454. s See pp. 43-4. 453. « See pp. 455-7. " Sse pp. 210-11, 455. » See pp. 215-6. 454-5. Digitized by Microsoft® 694 THE LAW OF EVIDENCE. [app. (/) A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he- has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is a bad character,^ unless — (i) the proof that he has committed or been cen- victed of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is theh charged ;" or (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution;' or 11&12 Vict. t. 42. Evidence of persons charged. Right of reply. Calling of wife or husband in certain cases. (iii) he has given evidence against any other person charged with the same offence.* (g) Every person called as a witness in pursuance of this Act shall, unless otherwise oMered by the Court, give his evidence from the witness-box or other place from which the other witnesses give their evidence:" {h) Nothing in this Act shall affect the provisions of section eighteen of the Indictable Offences Act, 1848, or any right of the person charged to make a statement without being sworn.' 2.. Where the only witness to the facts of the case called by the defence is the person charged, he shall be called as ~?i witness immediately after the close of ttie evidence for the prosecution.'' 3. In eases where the right of reply depends upon the question whether evidence has been; called for the defence, the fact that the person charged has been 'called as a witness shall not of itself confer on tiie prosecution the right of reply.' 4. (1) The wife or husband of a person charged with an offence under any enactment mentioned in the schedule to this Act may be called as a witness either for the prosecution or defence and without the consent of the person charged.' (2) Nothing in this Act shall affect a case where the 1 See pp. 188-9. 215, 453. " See pp. 454-5. °See p. 463. T See pp. 44, 455. » See pp. 465-6. 2 See p. 454. * See p. 455. « See pp. 44-5, 455. 8See pp. 44-5, 455. Digitized by Microsoft® APP.J CRIMINAL EVIDENCE ACT. 695 wife or husband of a person charged with an offence may at common law be called as a witness without the consent of that person.^ 5. In Scotland, in a case where a list of witnesses is required, the husband or wife of a person charged shall not be called as a witness for the defence, unless notice be given in the terms prescribed by section thirty-six of the Criminal Procedure (Scotland) Act, 1887. 6. (1) This Act shall apply to all criminal proceed- ings, notwithstanding any enactment in force at the commencement of this Act," except that nothing in this Act shall affect the Evidence Act, 1877. (2) But this Act shall not apply to proceedings in courts martial unless so applied ' — ' (a) as to courts martial under the Naval Discipline Act, by general ordersi' made in pursuance of section sixty-five of that Act; and (6) as to courts martial under tiie Army Act by rules made in pursuance of section seventy of that Act. 7. (1) This Act shall not extend to Ireland.* (2) This Act shall come into operation on the expir- ation of two months from the passing thereof. (3) This Act may be cited as the Criminal Evidence Act, 1898. Application of Act to Scotland. 50&51 V ict. 0. 35. Provision as to previous Acts. 40&41 Vict. 0. 14. 29&30 Vict. n. 109. 44&45 Vict. 0. 58. Extent, commence- ment, and short title. SCHEDULE." Section 4. ENACTMENTS KBFEEKED TO. Session and CJhap. Short Title. Enactments referred to. 5 Geo. IV. c. 83 The Vagrancy Act, The enactment pun- 1824. . ishing a man for neglecting to main- tain or deserting his wife or any of his family. 8 & 9 Vict. c. 83 . The Poor Law (Scotland)' Act, 1845. Section eighty 24 & 25 Vict. c. 100 The Offences Sections forty-eight to against the Per- fifty-five. son Act, 1861. 45 & 46 Vict. c. 75 . The Married Wo- Section twelve and men's Property section sixteen. Act. 1882. 48 & 49 Vict. c. 69 . The Criminal Law Amendment Act, 1885. The whole Act. 57 & 58 Vict. e.41 . The Prevention of Cruelty to Chil- dren Act, 1894. The whole Act. 1 See p. 456. 8 See p. 453. 5 See pp. 455-6. -' See p. 45.'?. * See p. 453. Digitized by Microsoft® 696 THE LAW OF EVIDENCE. [app. All Persons to be bound by the Oath administered in the Form, &c., which such Persons may declare binding. OATHS ACT, 1838 ^ (1 & 2 Vict. Ch. 105). An Act to remove Doubts as to the Validity of certain Oaths. [14th August, 1838.] Be it declared and enacted by the Queen's most Excel- lent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same. That in all Cases in which an Oath may law- fully be and shall have been administered to any Person, either as a Juryman or a Witness, or a Deponent in any Proceeding, Civil or Criminal, in any Court of Law or Equity in the United Kingdom, or an Appointment to any Office or Employment, or on any Occasion whatever, such Person is bound by the Oath administered, provided the same shall have been administered in such Form and with such Ceremonies as such Person may declare to be binding; and every such Person, in case of wilful false swearing, may be convicted of the Crime of Perjury, in the same Manner as if the Oath had been administered in the Form and with the Cere- monies most commonly adopted.^ 1 This title is given by the Short Ti 60 Vict. c. 14), s. 1, Sch. I. 2 See p. 458. OATHS ACT, 1888 (51 & 52 Vict. Ch. 46). An Act to amend the Law as to Oaths. [24th December, 1888.] Be it enacted by the Queen's most Excellent Majesty, by ^ and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this pres- ent Parliament assembled, and by the authority of the same, as follows: Digitized by Microsoft® ■APP,] OATHS ACT, 1888. 697 1. Every person upon objecting to being sworn, and When stating, as the ground of such objection, either that he f,f ™i^*"""j has no religious belief,^ or that the taking of an oath instoad "r * is contrary to his religious belief,'' shall be permitted to o^'^. make his solemn afBrmation instead of taking an oath in all places and for all purposes where an oath is or shall be required by law, which affirmation shall be of the same force and effect as if he had taken the oath; and if any person making such affirmation shall wil- fully, falsely, and corruptly affirm any matter or thing which, if deposed on oath, would have amounted to perjury, he shall be liable to prosecution, indictment, sentence, and punishment in all respects as if he had committed wilful and corrupt perjury 2. Every such affirmation shall be as follows : " I, A. B., do solemnly, sincerely, and truly declare j,^^^^ ^j and affirm," and then proceed with the words of affirmation, the oath prescribed by law, omitting any words of imprecation or calling to witness.' 3. Where an oath has been duly administered and „ .... , taken, the fact that the person to whom the same was oath not administered had, at the time of taking such oath, no affected by religious belief, shall not for any purpose affect the religious validity of such oath.* be ief. 4. Every affirmation in writing shall commence " I, F<,im of , of , do solemnly and sincerely affirm." affirmation and the form in lieu of jurat shall be " Affirmed at ^ "> wi> ">&■ this day of , 18 . Before me " 5. If any person to whom an oath is administered swearing desires to swear with uplifted hand, in the form and with uplifted manner in which an oath is usually administered in '"""^• Scotland, he shall be permitted to do so, and the oath shall be administered to him in such form and manner without further question." 6. The Acts mentioned in the schedule to this Act Repeal. are hereby repealed to the extent in the third column of the schedule mentioned. 7. This Act may be cited as the Oaths Act, 1888. short title. 1 See pp. 449, 451, 45S. 2 See pp. 449, 458. s See pp. 450-60. * See p. 458. " See p. 459. Digitized by Microsoft® 698 THE LAW OF EVIDENCE. [app. SCHEDULE. Session and Chapter. 17 & IS Vict. c. Ii5 19 & 20 Viet, c. 102 24 & 25 Vict, c. 66 28 & 29 Vict, c. 9 30 & 31 Vict, c. 35 81 & 32 Vict. c. 39 31 & 32 Vict. c. 75 32 & 33 Vict. c. 68 33 & 34 Viet. c. 49 Title. The Common Law Procedure Act, 1854. The Common Law Procedure Amendment Act (Ireland), 1856. An Act to give relief to persons who may refuse or be unwill- ing from alleged conscientious motives, to be sworn in crimin- al proceedings. The Affirmation (Scotland) Act, 1865. An Act to remove some defects in the administration of tJjg. Criminal Law. The Jurors' Affirmation land) Act, 1868. (Scot- The Juries Act (Ireland), 1668. The Evidence Further Amend- ment Act, 1869. The Evidence Amendment Act, 1870. Extent of Bepeal. Section twenty. Sections twenty- three and twenty- four. The .entire Act. The entire Act. Section eight. The entire Act. Section three. Section four. The entire Act. OATHS ACT, 1909. (9 Edwakd VII. Ch. 39). An Act to amend the Laws as to Oaths. [35th November 1909.] Be it enacted by the King's most Excellent Majesty, by and with the advice of the Lords Spiritual and Temporal "and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Digitized by Microsoft® APP.] OATHS ACT, 1909. 699 1. This Act may be cited for all purposes as the Oaths Short title. 46. Act, 1909; and the Oaths Act, 1888, and this Act may ^^*^' be cited together as the Oaths Acts, 1888 and 1909. 2. (1) Any oath may be administered and taken in Manner of the form and manner following: administra- The person taking the oath shall hold the New Testa- """ "' "'"^'■ ment, or in the case of a Jew, the Old Testament, in. his uplifted hand, and shall say or repeat after the ofl5cer administering the oath the words "I swear by Almighty God that ," followed by the words of the oath prescribed by law. (2) The oificer shall (unless the person about to take the oath voluntarily objects thereto, or is physically incapable of taking the oath) administer the oath in the form and manner aforesaid without question : Provided that, in the case of a person who is neither a Christian nor a Jew, the oath shall be administered in any manner which is now lawful.* 3. In this Act the word " oflBcer " shall mean and Definition. include any and every person duly authorised to administer oaths. 4. (1) This Act shall come into operation on the Commence first day of January nineteen hundred and ten. Stent*"*^ (2) This Act shall not apply to Scotland. 1 See pp. 458-60. Digitized by Microsoft® Digitized by Microsoft® (roi) INDEX. ABORTION, similar acts admissible to show prisoner's intent, on charges of procuring, 184-5 statements in presence of prisoner, when admissible on charges of procur- ing, 259 statements by the woman as to her symptoms and their cause, how far admissible, 84 statements of intention to procure, or of having procured, inadmissible, 80 dying declarations by the woman, not admissible on charges of, 321 •ABOUT,' 'HORE OR LESS.' Extrinsic evidence admissible to explain these terms in documents. 633-4, 663 ABSENCE, presumption of death from seven years', 7, 32, 680 ABSENT WITNESS, depositions of. See Depositions ABSTRACTS, when admissible as primary or secondary evidence, 538, 541 ABirSE OF PROCESS, protection of parties and witnesses from, 447-8, 484 ACCEPTANCE of written proposal, may be oral and the writing does not then require to be stamped, 531 ACCESS between husband and wife, presumed by law, 678 statements by parents as to, inadmissible when legitimacy of child is in issue, 198-9 principle of exclusion and scope of rule, 198-9 non-consummation of marriage is evidence of incapacity, 119 to documents, when implies a fcnowledge of their contents, 84. 145-6 when implies an admission of their accuracy, 258 ACCESSORY, confession of principal, not generally evidence against, 260, 269, 274-5 aiiter when made in letter's presence and not denied by him, 269, 274 conviction of principal, not evidence of his guilt against, 428 ACCOMPANYING EACTS, when admissible as part of res gesta, or transaction, 55, 57-65, 70-87 Declarations accompanying acts, 57-65, 70-87 (1) only admissible if act is in issue, or relevant, 58 (2) must be contemporaneous, 58 (3) by whom made. 59 (4) documents, 59-60 (5) of what facts accompanying declarations are evidence, 60-61 (6) miscellaneous, 61 mental and physical conditions, 61-5, 82-7 ACCOUPIiICE, confession of, not generally evidence against prisoner, 269, 274-5 testimony of, generally requires corroboration, 486-7. See Coebobqkation except where he is an informer, or the offence is merely technical. 486 thief and receiver, or suborner and perjurer, are not within the rule, 487 nature and extent of corroboration required, 486 ACCOTTNT (OR SHOP) BOOKS, judge may direct reception of party's, in taking accounts. 227. Sfe Books op Account, Shop-Books, Trader are admissions against writer. 229-30. 235. but not generally evidence for him, 229, 235 Digitized by Microsoft® 702 INDEX. ACCOUNT (OR SHOP) BOOKS— Continued exceptions, 230 kept by servants, shopmen, &c., when admissions against master, 258 by bankers, 234, 375-7. See Bankers' Books merchant's accounts «re evidence for him when not objected to within reasonable time, 258. of deceased agents, stewards, &c., admissibility of, 278, 285-6 ACCOTJITT-SALES of foreign agent, are evidence of amounts realized, 248 ACCOUNT STATES, admission in order to support, must be made direct to creditor, 231 ACCUSEI). See Pbisoneb ACKNOWLEDGMENT of deeds by married women, proof of, 565 before 1883, proved by office copy of certificate of, 565 after 1882, by memo, of, indorsed on deed. 565 of debts by co-contractor, effect under Statute of Limitations, 244 by deceased creditor, of payment under Statute of Limitations, 279-80 by family is evidence of relationship, 117, 312 by family, friends and neighbours is evidence of marriage, 117, 135, 312, 384 ACQUIESCENCE by conduct or silence in another's statement, when an admis- sion, 256-7, 259-61 in judgments, when an admission, 427, 429 ACQUITTAL of criminal charge is, in civil cases, evidence only of that fact, not of the correctness of the verdict. 404, 413, 418 does not, like a conviction, ascertain any precise fact, 407. See Conviction effect of, as res jttdicata, 417, 424-5 proof of, by certificate, 367-8, 557-8 ACTING IN A CAPACITY, relevant to prove title thereto, 109-11, 127-9 rule confined to public or official capacities, 109, 127-9 not generally admissible to prove private appointments or relationshipB. 110-11, 127-8 exceptions, 110, 128 title to property may be proved by ancient leases, licences, and grants, 111-3. See Ancient Possession modern possession not provable by modern leases, 113 ACTS or OWNERSHIP, admissible to prove title, 111-3, 128-33, 299 prior as well as subsequent, admissible to show identity or extent of land granted, 633-5. iSee Title ACTS OF PARLIAMENT. See S'tatutes ADDRESS TO THE CROWN, admissibility of, 335 ADEMPTION, evidence to rebut or support presumption of, 668-9, 672-3. See Legacies declarations of testators, how tar admissible to prove, 668-9, 672-3. ADMINISTRATION, LETTERS OF, are judgments in rem, 408, 431-2 of what facts are evidence, 429, 431-2 proof of, 560. ADMIRAL. See LoBD High Admibai, ADMIRALTY, seals of old court of, are judicially noticed, 23 general names of districts in charts issued by, are judicially noticed, 22, 878 log-books and official booker of, admissible as public documents, 351, 553 proof of such books, when more than twenty years old, 553. Loo-Booss navy list is admissible by statute in proof of facts stated, 353 affidavit evidence, when admissible in cases in, 496 testimony of experts not admissible in, when Court sits with Assessors, 385 judgments as to prize and lien fire judgments in rem, 408 Digitized by Microsoft® INDEX. 703 ADMIRALTY — Continued judgments in cases of collision, when res judicata, 419-20 statements by ship's officers, &c., when evidence against owner, 251-2 ETtatements by pilot and others, when part of res geata, 66-7, 70, 251 depositions takeq by Receiver of Wreck, are privileged, 207-8, 252 ADMISSIBILITY, defined, 50-3. See Evidence distinguished from relevancy, 50-.3 questions affecting, are determinable by judge, 11, 193 facts showing, are determinable by judge, 193 judge should caution jury as to particular purpose and limits of, 12-13 arguments as to, may be heard in absence of the jury, 42, 83, 180 ADMISSIONS— for purposes of trial may be made in civil cases (1) 'by the pleadings; (2) pursuant to notice; or (3) by agreement, &c., 18 when such admissions are conclusive, and when not, 19 distinguishable from admissions tendered as evidence, IS in criminal cases, none allowed, except by plea of guilty, 19 by conduct, 116, 134, 255, 259-60 by silence, when statements made in party's presence, 255, 259-60 by statement, as evidence of truth of facts stated, 228-36 definition of such admissions, 228 principle of their reception, 228 self-harming distinguished from self-serving statements, 228-9 (1) when and to whom admissions may be made, 230-1 (2) circumstances of the admission, 231-2 conditional admissions. 231 offers without prejudice, 231 admissions under compulsion, or compulsory process, 215, 282 (3) whole statement must be taken, 232-3 though containing hearsay or opinions, 233 (4) matters provable by admission, 233-4 matters of law and fact, 233 contents and execution of documents, 234 (5) form of admissions, 234-5 examples of admissions, 235-6 persons whose admissions may be evidence against a party, 237-54 (o) nominal and real parties, 237-8 (B) predecessors in title, 238-41 (o) partners," joint-contractors, co- trustees and associates, 242-6 joint-tenants, but not tenants in common, 242 co-trustees and co-executors, but not mere co-defendants, 242-S nor principal and surety, 243 (d) agents and referees, 246-54. See AoBaras corporation and officers, contractor and workman, 247-8 trader and shopman, landlord and agent, consignor and consignee, 248 husband and wife, client and solicitor, counsel and witnesses, 248-9 ship-owner and ship's officers, referrer and re£eree, 251-3 (e) miscellaneous; bankrupt and creditors, 253 Sheriff, TJnder-Sheriff, and Bailiff, 253-4 bill of sale holder and execution creditor ; arbitrator and parties, 254 of adultery by witnesses in divorce cases are privileged, 216-7 of contents of documents are generally primary evidence, 234, 470 ADTTLTERATION OP FOOD AND DRTTOS, analyst's certificate as to, 368-9 See Food, Drugs. Certificates what standards of quality admissible, pharmacopoeia, &c., 109, 380 ADTTLTERINE BASTARDY. See Bastardy, Leqitimact ADTTLTERY. See Divorce. Access, Affiliation, Bastardy, Legitimacy when in issue on the pleadings is for jury, when not, for judge, 16 admissions of, for purposes of trial in divorce cases, not conclusive, 19 Digitized by Microsoft® 704 INDEX. ADTIITERY — Continued facts relevant to prove, 104, 119, 121, 160-1. 166, 491 confessions of, made out of Court, when require corroboration, 233, 487, 491 entry as to venereal disease in military register, is evidence of, 119, 351 witnesses in divorce, but not in other, cases not bound to answer as to their, own, 216-7 unless have already denied fact on examination in chief, 216, 217 character of co-respondent, is relevant to establish respondent's, 190 bad character of wife admissible in mitigation of damages for, 192 respondent may be found guilty of, and co-respondent not, or vioe-versA, 93, 243 . . conduct and testimony of parents, when admissible, or not, to bastardise child, 77-8, 198-9 conduct and statements of adulterer admissible to bastardise child, 77-8, 117, 312 declarations by wife and adulterer, and their entries in birth-register admissible as parts of res gesta, to bastardise child, 77-8 proof of marriage in bigamy and divorce cases, 384 ADVANCEMENT, evidence to rebut or support presumption of, 669, 674 declarations of parents, how far admissible, or conclusive, to prove amount of, 603, 670, 674 ADVANCES, by parents, &c., evidence of. See Advancement ADVERSE WITNESS, when witness may be so considered, 469, 472 party calling, may lead or cross-examine, 469 or contradict by other evidence, 471-2 or, by leave of judge, prove prior inconsistent statements by, 472 but not give general evidence of bad character of, 471-2 ADVOWSON, collation by bishop is evidence of title to, 133 APFAIRS OP STATE, evidence as to, excluded by public policy, 194 scope of rule, 194 objection to disclosure, how taken, 395 effect of exclusion, 195 AFFIDAVIT. See Commissioner evidence by. may, in dvil eases, be given : (1) by agreement, 495 (2) in certain Admiralty cases, 496 (3) in Bankruptcy, 496, 502, 561 (4) by order of Court, 496-7 who may administer oaths to deponent, in or out of England, 460-1 sworn out of England, when requires verification. 24, 461 certificates of foreign oflScials when admissible to verify, 364, 366 must not be sworn before solicitor in cause, or interested, 461 witness refusing to make, procedure as to, 495, 498 statements in, by party, are receivable as admissions, 234 so also party's refusals to reply to, 257 or his user of such affidavit in other trials, 261 statements in, by deceased relatives, when admissible in pedigree cases, 313 alterations, omissions and mistakes in, 496 information and belief, hearsay and secondary evidence, when allowable in, 227, 401, 499-500 grounds of such information and belief must be stated, 500 proof of, 562-3 statutory declarations not admissible in place of, 501-2 in support of bills of sale, 122, 564 AFFIIIATION. See Bastard and Bastardising Offspring in proceedings for, testimony of mother must be corroborated, 485 what facts admissible to corroborate. 490 testimony of mother, if married, admissible after independent proof of non-access, to prove who was father, 199 defendant may prove misconduct of woman with other men, 139 dismissal of summons for, no bar to second application, 411 Digitized by Microsoft® INDEX. 705 AFFIUATION— CoJ^tm««(^ but order against defendant in, is rea judicata to certain extent, 411, 419 woman when witness, may be contradicted by previous order of jusrtices, 404-5 AITIBUATION, 458, 460. See Oaths AOE, strict proof of when required, 47. See Child, Bibth, Baptism:, Infant proof of, by appearance and inspection, 7-8, 118 by X-Ray examination of bones, 119 by party's own admission, 233, 236 by certificates of birth and baptism, 341-2, 344, 366-7 by testimony of parents and others present at birth, 342 by testimony of person himself, inadmissible, 219, 225, 466-7 by treatment and opinions of witnesses, 117, 400, 403 on questions of pedigree, but on no others, may be proved by declara- tions of deceased relatives, 225, 308, 318 AG-ENCT. See Agent, Servant proof of, as against principal, may be express, or by conduct (eg. holding out, ratification, adoption of similar acts), or principal's admission, 69, 88-90, 160, 166 as against the agent or third persons, 127, 128 by parol, wben document silent as to, 90, 517, 581-2 what facts admissible to corroborate testimony as to, 490-1 retainer of solicitor requires corroboration. 487 AGENT, acts, contracts, and representations of, when principal bound by, in civU cases, 88-9, 94-8 principle of rule, 88 knowledge of; and notice to, when principal bound by, 89 notice to principal's solicitor, &c., 89 in criminal cases, party not generally bound by acts, &c., of, 89 exceptions, 89, 92-4, 95-6, 99-101 proof of agency. .See Agency proof that drivers of vehicles or those in charge of ships, &c., are owner's servants, 97, 225, 236 declarations by, when part of res gesta, 70-2, 245 when signing document, admissible to prove writer an agent, 75, 517, 581-2 admissions by, when receivable against principal, 246. See Admissions as to past transactions, 246 reports to principal (though not privileged, 208-9) not generally receivable either for, or against principal, as, 246-7 by corporation and officers, or contractor and workman, 247-8 by trader and shopman, or landlord and tenant, 248 by consignor and consignee, or husband and wife, 248i-9 by solicitor, counsel, witnesses, depo^tions, pleadings, &c., 249-51 by shipowner and officers, 70, 251-2 by referrer and referee, 252-3 by conduct or silence of the agent, 255, 259 judgment against master, bow far admissible in evidence against servant, 404 estoppels between principal and, 686 parol evidence admissible to prove party signed contract as, 75, 517, 581-2 AGREEMENTS. See Contracts AGRICULTURE, Board, of, copies of official documents by, 552 customs of, admissible to annex incidents' to contracts, 105-7, 123-4 or to explain technical or local terms in contracts, 107, 629-30, 661-4 AIR-COITNCIL, documents issued by, how proved, 368, 552 ALIBI, relevant to disprove party's connection with an act, 137 similar facts admissible to rebut, 137, 163 evidence in rebuttal of, must not confirm main facts, 40 L.B. — 45 Digitized by Microsoft® 706 INDEX. AIMAITAC annexed to Book of Common Prayer is judicially noticed, 25, 380 matters not contained therein, not so noticed, 25, 380 ALTERATIONS AND EBASUBES IN DOCUMENTS, rules as to, 528 in deeds, contracts, bUIs, notes, and wills, 528-30 presumptions as to, 529-30, 681 eztrinETic evidence not generally admissible to vary document, 574 exceptions, 577-88 examples, 588-604 AMBASSADOR, how far name of, judicially noticed, 24 may administer oaths out of England, 461 not compellable witness, 457 registers kept by, 346 ; certificates of, 365, 389 AMBIGriTIES, patent and latent, defined, 613 distinction discussed, 618-4 extrinsic evidence when admissible to explain, 615-65. See Bxteinsio Evidence, Interpretation AMENDMENT, POWER OF COTIBT AS TO, in civil cases, 28 in criminal cases, 28-9 AMOTJNT OF EVIDENCE required, on issues resting on prosecution and defence respectively, 34. See Weight of Evidence ANALYST, certificate of, admissible to prove adulteration of food, 368-9 ANCIENT DOCtJMENTS, i.e., thirty (or, between Vendor and Purchaser, twenty) years old, prove themselves, 523. See Public Registers, and Records, Public Inquisihons, &c., Histories, &c. principle and exceptions, 524. thirty years is computed from date of execution. 523-4 must come from proper custody ; meaning and examples of this, 524 admissible to prove ancient possession, 112-3, 129-33 ancient reports of trials, how far admissible, 347-8 ANCIENT POSSESSION may be proved by ancient leases, licences, &c., 112-3, 129-33 ancient documents must constitute transaction ; prior directions and sub- sequent narratives inadmissible, 112 must come from proper custody, 113, 524 corroboration essential to weight, but not to admissibility, 113 must be distinguished from ancient documents admissible to prove reputation, 113 modern possession not so provable, 113 ANIMALS, character and propensities of, admissible when their conduct is in dispute, 162, 169, 186, 192 liability of owner for acts of, 162 owner's knowledge of propensities of, how proved, 95, 152 similar conduct by, admissible to prove conduct in question, 162, 169, 186, cruelty to, usage of locality admissiWe to rebut charge of, 126 ANSWEBS IN CHANCEBT. See Bills. ANTE LITEM MOTAM, declarations by deceased persons as to public rights or pedigree must have been made, 295, 300-1, 310-1, 317 but not declarations that aje part of res gesta, 61, 72-3, 77 APOTHECABIES, seal of Apothecaries Co., is judicially noticed, 24 when have onus of proving their qualification, 36 certificate of Company, is evidence of qualification of, 371 register of chemists, is evidence of contents, 354 practising without certificate by, cumulative instances admissible to prove 57 Digitized by Microsoft® INDEX. 707 AFFEAL for wrongful admission, &c., of evidence, 688-91 evidence on, (civil cases) 600, (criminal cases), 513 pendency of, does not prevent judgment binding, 405-6 APPOINTMENT to public office, may be proved by acting therein, 109, ^27-8 to private office, not generally so provable, 109-10, 127-8 APPBENTICE, acting as, is proof of apprenticeship, 110-1, 128 and Also of existence and terms of indenture of apprenticeship, 128, 521, 541, 547 APPROVERS, old law as to, 486 ARBITRATOR. See Awabd how far bound by rules of evidence, 686 flagrant irregularities vitiate award, 686 is competent witness touching his award, 196, 449 disclosures by, how far privileged, 196 admissions -by, do not ibind parties, 254 admissibility of award of, as evidence of facts found, 433-4 proof of award of, 562 extrinsic evidence, how far admissible to affect award, 196, 576 ARUORIAX BEARINGS, admissible to prove matters of pedigree, 312. See Visitations, Hebalds ARUY, regimental registers and records, when evidence of facts recorded, 119, 351 List or Gazette, admissible to show rank and service of officers, 353 so, also, letters; &c., of Secretary of State or commanding officers, 371 at common law. Secretary of State's, but not officer's, certificates allowed, 365 ARREST, when witness privileged from, 448 confession obtained when defendant under, admissible, 266-7 fact, time and place of, how far provable by certificate of deceased Sheriff's officer, 292-3 ARSON, on charges of, similar facts are admissible, 70, 183-4 ART, opinions of experts, admissible on questions of, 387 artistic tests may be undertaken before court, 9 ARTICLES OP WAR, and Rules under Army Act superseding them, judicially noticed, 20 but judge may require production of, 26 ASSATlIiT, declarations at time of, when admissible, 79, 81 proof of conviction, or acquittal of, 368, 558-9 effect of acquittal of, 368, 407 ASSESSORS, when CJourt assisted by, expert evidence inadmissible, 385 ASSOCIATES, admissions by, when receivable, 242-6 by co-partners, co-contractors, co-trustees, co-representatives, co-defend- ants, &c., when admissible against each other, 242-6 by co-conspirators and co-trespassers, when admissible, 92-4, 99-102, 269 ASSURANCE. See PoiiOT ASTROLOGY, &c., how far evidence of good faith of practitioner of, is admis- sible, 126, 155. See Palmistry ATHEISTS, TESTIMONY OP— formerly inadmissible, 451 when now receivable, 449, 458 Digitized by Microsoft® 708 INDEX. ATTEMPTS, prior and subsequent, admissible to show identity of accused, though completed act might not be, 137, 141, 154, 163 to rebut defence of accident, 175, 180 to show animosity, 140-1, 172 to corroborate testimony as to the main act, 163, 490-4 facts admissible to show, 102, 181 ATTENDANCE OP WITNESSES. See Witness ATTESTATION— documents requiring, must be proved by calling attesting witness, 519 principle and history of this requirement, 519 proof of, is original evidence and not hearsay, 277 when several attesting witnesses, only one need be called (except to prove will of realty), 519-20 and even this not necessary if execution already proved in former trial between same parties, 440, 519 who may be attesting witnesses, competency and credit, 520 grantor's solicitor may not attest a bill of sale, 461, 554. See Bill op Sale witness must sign animo attestandi, 326, 517, 520 and his declarations when part of the res gesta are admissible to show this, 277, 326 gucere whether attesting witness may be discredited by party calling him, 472 ~ . . when witness dead, absent, &c., his handwriting may be proved, 520-1 declarations by deceased witness not admissible to impeach, 83, 225, 277 when attested document lost, &c., witness must, if possible, 'be called, 521 when witness forgets, denies, or refuses to prove, 521-2 identity of party, witness and document must be established, 523 when attesting witness need not be called (1) on applications for probate, in certain cases, 523 (2) if document is ancient (i.e. thirty years old), 522, 523-5 (3) if document in possession of opponent, 522 (4) if opponent claims Interest under document, 522 (5) if opponent admits execution for purpose of trial, 18, 522 (6) if opponent is public oflScer bound to procure execution, 522 (7) under Merchant Shipping Act, 1894, 523 documents not requiring attestation may, though attested, be proved, as if no attesting witness, 523 except in proceedings ew parte, 523 ATTORNEY-GENERAL has right to reply, though no evidence called for prisoner, 44 signature of, is not judicially noticed, 23-4 AUCTIONEER may sue as principal, 582 statements by, at time of sale, admissible, 572, 597 AUTOMATIC MACHINES AND REGISTERS. See Mechanical Instbtjments AUTREFOIS ACQUIT OB CONVICT, effect of, 517, 524-5 AVERAGE ADJUSTMENT, rules of, judicially noticed, 21 AWARDS. See Akbitbatob admissibility of, as evidence of facts found, 433-4 proof of, 562 extrinsic evidence not admissible to supersede, or vary, 196, 576 but admissible to show that matters outside scope of, were considered, 196 how far arbitrator may be examined to explain, 196-7 or bound by rules of evidence, 689 BAILEE, estoppel by, 686 BAILIFF, admissions by, when bind the sheriff, 254. See Sheriff Digitized by Microsoft® INDEX. 709 BANKER not compellable to produce books except by judge's order for special cause, 202, 375. See Bankers' Books BANKERS' BOOKS, entries in, are primA facie evidence of contents, for or against all persons, 375 how proved, 375, 555 where bank not a party, original books only producible by special order, 202, 375, 543 inspection of, how and when obtainable, 375 meaning of " bank," 376 admissibility of pass-book, &c., between bank and customer, 376 BANKRUPT. See Bankruptcy is a competent witness to prove the petitioning creditor's debt, 215, 449 may be compelled to answer criminating questions, subject to qualified protection, 215 contradictory statements by, may be proved even by party calling him, 472 admissions by, made iefore bankruptcy, are evidence to prove petitioning creditor's debt, 235, 253 made in statement of affairs, or after bankruptcy, are evidence •against himself, but not against his trustee or creditors, 235, 253 statements by, are admissible to prove his knowledge of his affairs, 86-7, 153 or as part of res geata to prove his intention on leaving home, 59, 75-7 or on executing deeds, 75, 152 deceased, are not receivable as being against interest, 283 official receiver's or Board of Trade's report is evidence of conduct of, 434 on charges of obtaining credit without disclosing bankruptcy, intent of, is immaterial, 27 BANKRUPTCY. See Bankkttpt rules and seal of Court of, judicially noticed, 20, 23 Gazette is evidence of facts notified, in cases of, 337-8 general proof of proceedings in, 561-2 ' attendance of witness in, procured by subpoena, 441 affidavits in, can only be cross-examined on if read, 473 witness in, other than debtor, need not answer criminating questions, 215 private examinations in, privileged from disclosure, 198 depositions of deceased persons in, are admissible, 502 adjudications of, are judgments in rem, 408, 409 judgments are primd fade, but not conclusive, evidence of debts in, 426, 429 and consideration for such judgments may always be inquired into, 411, 426 Registrar's decisions, and file of proceedings in, do not generally estop, 441 dismissal of petitions in, no bar to fresh petition, 411 BAFTISK, register of, is evidence of baptism, but not of birth, 342, 344-5 except presumptively, 342. See Age entries as to, by deceased priests in courss of duty, how far admissible, 290 BARGAIN AND SALE, proof of deeds of, 565 BARRISTERS. See Counsel BASTARD. See Affiliation, Adultery, Legitimacy resemblance of child may be proved to show paternity, 118 declarations by deceased, not receivable to prove pedigree. 309 except against himself, as to own illegitimacy, 233-4, 236, 309, 315 statements by parents showing their child is a, generally inadmissible, 198-9 mid-wife may testify as expert in cases of adulterine bastardy, 84. See Bastardising Offspring BASTARDISING OFFSPRING, statements by parents, generally inadmissible, 198-200, 309 except as part of res gesta, 77-8, 190 principle of exclusion, 198 scope of rule, 199 conduct of parents and adulterer relevant for purpose of, 77-8. 117, 199. 312 BEER, quality of, provable by declarations of customers. 75. See Publican, Breweh or other samples from same brewing, 167 Digitized by Microsoft® 710 INDEX. BEGIN, right to, 37-8. See Right to Begin BELIEF. See Mental Conditions, Opinion, Atpidavits BELIEVERS of all creeds are competent witnesses, 449 diSeient forms of oath for different sects of. 458-60 affirmation by, 458, 460 BEST EVIDENCE must be given, rule that, 45-8. See Strict Proof history of the rule, 45-6 present scope, strict proof not generally necessary, 47 exceptions, 47-8 rule now chiefly confined to documents, 49 the " best evidence " principle not the true ground of the rules — (1) demanding primary evidence of contents of documents, 46, 534 (2) nor of the rule requiring attesting witnesses to be called, 48, 519 (8) nor of the rules excluding evidence in substitution, or in varia- tion, of documents, 48, 568, 574 BETTING, user of premises for, may be proved by cumulative instances, 57, 69 acts of servants when evidence against proprietor, 160, 166 BIAS of witness may be proved to discredit him, 481-2 BIBLE, entries in family, are evidence of pedigree, 311. See Oaths, 459 what is proper custody of family, 311, 525 BIGAMY, strict proof of marriage required on charges of, 47, 384, 573 prisoner's admission is evidence of former marriage, 233 presumptions in cases of, 34, 679 proof of prisoner's knowledge in cases of, 87, 146 first wife or husband, now admissible witness, in cases of, 456 BILLS AND ANSWERS in chancery, effect of, 435, 451. See Pleadings receivable to show what matters were in dispute, 435 but nof as admissions, unless sworn to, 235, 435 receivable as acts or assertions of ownership, 132, 435 or, when declarants are deceased, to prove ancient public rights, 299 or matters of pedigree, 312 BILLS or, EXCHANGE AND PROMISSORY NOTES— burden of proof in actions on, 32 drawing, indorsing and acceptance by agent, how far binds principal, 97, 167 alterations and blanks in, 528-9, 530, 613 where words and figures differ, former prevail, 614 ; and see cases, 602, 654 conditional delivery of, 584 extrinsic facts admissible to ■ show true relation and liability of parties, 582-3, 598-9 contemporaneous agreements in writing, but not by parol, admissible, to vary, &c., 578, 592 admissions by prior parties to, 239-40 letter enclosing admissible to show purpose, but not fact, of enclosure, 74, 82 fraud of holder, or predecessor in title, is provable, 239-40, 584, 601 mistake in, whether provable, 586, 602, 654 consideration is presumed to have been given for, 32 but want or, failure of consideration is provable, 586-7, 603 subsequent agreement in discharge, when may be proved, 588 indorsements on, by deceased holder, admissible as against interest, 285 forgery of, similar forgeries when admissible to show, 167, 177 declarations by acceptor, when admissible, 74 possession of, after maturity, is evidence of payment of, 117 when giving of, amounts to payment, 66 ^"^oS^o^o ''^l''*'"S to, what facts admissible as part of transaction, 66, 68, 82 BILLS OP LADING, how far incorporate charter-party, 147, 575, 612 when inconsistent with charter-party, former prevails, 147, 526 are declarations against interest of deceased master, 282 receipts in, may be contradicted by parol, 557, 589 Digitized by Microsoft® INDEX. rii BUXS OF SALE, proof of, 564 affidavits in support, requirements of, 461, 496, 564 must not be sworn before grantee's solicitor, 461 attesting witness to, must not be grantor's solicitor, 564 omission of Commissioner's description will not invalidate, 496 though aliter as to that of attesting witness, 564' ceirtificate of registration no evidence that affidavit was filed, 122, 370 admissions by grantor when receivable against execution creditor, 241 consideration of, may be impeached by parol evidence, 587 extrinsic evidence in substitution or variation of, inadmissible, 570, 604 declarations by grantor of, when in possession, admissible to show true ownership, 73 BIRTH register, and certified copy of, are evidence of age, 342, 344-7 so also army registers of, among officers abroad, 351 registers of, do not exclude other evidence of. 571 and may be contradicted, 577 fact of, may 'be proved by testimony of those present, 342. See* Age when provable by declarations of deceased relatives, 309, 312 BISHOP, registers of, are proof of facts contained, 347 register of chapter-leases granted by, is evidence of reputation as to parish limits, 296-7 returns by, made under canon law, are evidence of facts stated, 359 collations by, are proof of right to advowson, 133 certificates of, were formerly evidence of marriage, &c., 363, 365 admissions by, are evidence against successor, 240 BLACE-UAIL, similar acts admissible to show accused's intent in cases of, 184 BLANKS IN DOCUMENTS, rules as to filling in of, 530 in deeds, 530 in other instruments, 530 parol evidence when admissible to supply total or partial, in deeds or wills, 613, 627. 632, 639, 661 when may be supplied by construction, 624 BONA FIDES, what facts rdevant to show, 149, 154-6 facts showing good or bad faith of party's case are relevant, though such good faitii not in issue, 113, 133 BOARD OF AGRIGVLTITRE, seal of, judicially noticed, 24 orders of, how proved, 552 BOARD OF TRADE, seal of, judicially noticed, 24 admissibility of orders or certificates of, 561 reports of, as to Trustee in Bankruptcy, evidence of facts reported, 434 BOOKMAKER, betting slips admissible to show premises used for gambling, 69 and similar transactions, to show owner agent of, 69 BOOKS OF ACCOTINT, are prim& facie evidence in taking accounts. 227. See ACCOtTNT-BOOKS, SHOP-BOOKS kept between master and servant, trader and shopman, or in clubroom sometimes admissible on ground of access and acquiescence, 145, 258 so, also, those of partners, or company, 258 BOOKS OF BANK. See Baneeb's Books BOOKS OF CORPORATION OB COMPANY. See Corporation and Company's Books BOOKS OF HISTORY. See Histories BOOKS OF MANOR. See Manor Book-s BOOKS OF PARISH. See Parish Books BOOK OF RATES. See Rate Books Digitized by Microsoft® 712 INDEX. BOOKS OF REFERENCE, may be consulted by judge to refresh his memory, 26 or by experts to confirm their opinions, 392-3 but not read to jury, 39 BOOKS OF SCIENCE. See Scibntifio Works BOOKS OF SHOPS. See Shop Books BOOKS OF UNIVERSITY COLLEGE. See University Collegk Books BOOKS OF VESTRY. See Vestet Books BOROUGH ENGLISH, custom of, judicially noticed, 21 BOUNDARIES, presumptions as to, 671, 675 stones placed so as to mark, are evidence of, 129 declarations of deceased persons admissible as reputation to prove public, 294, ^99, 301 expired leases, &c., when evidence of, 296, 302 maps and surveys, when evidence of, 297, 303-5, 359-60 BREACH OF FROIHISE, plaintiff is compellable witness in actions for, 457 plaintiff cannot testify directly to the promise, only to what defendant said or wrote, 66 ; plaintiff's evidence must be corroborated, 485 what facts and statements amount to corroboration, 119, 259, 261, 489 plaintiff's bad character admissible to mitigate damages in cases of, 191 BREACH OF TRUST. See Trust BREWER, fraud of drayman, &c., when affects, 95, 183. See Beer, Publican BRIDGES, evidence on claims to repair, 132-3, 305 BROKER, usage admissible to determine liability of, 123. See Agent or to interpret contract with, 661 extrinsic evidence, how far admissible to prove agency, 581-2 bought and sold notes are primary evidence of contract with, 536 broker's slips when admissible, 536-7, 612, 633.' See Slip trustees and executors not liable for default of, 90-1 BUDDHISTS, how sworn, 460 BURDEN OF PROOF lies on party who asserts affirmative of issue, 30 principle, meaning and scope of rule, 30 Two burdens: — (1) burden of proof on the pleadings, and (2) burdefi of adducing evidence, 30-1 Exceptions to rule: — (1) where disputable presumption of law, or primA fade case exists in favour of party, 32-6, 678 (2) where fact asserted is peculiarly within opponent's knowledge, 36-7 new trials obtainable for erroneous decisions as to, 32 BURGLARY, declarations by witness for prosecution admissible -to explain his concealment of the crime, 82 similar acts committed with non-burglarious object, not admissible to rebut accused's burglarious intent, 185 BURIAL registers, and certified copies thereof, are evidence of death and burial, 343, 344 but not age or date of death, 343 BUSINESS. See Cotjese op Business facts relevant to show business genuine or sham, 120, 181-2 usages of, admissible to annex terms to, or to construe, contracts, &c . 105 629, 661-3. See Custom and Usage BY-LAWS, proof of, 555-6 validity of, may be presumed from long user, 556 CAMERA, hearings in, 464 CANALS, seal of commissioners of railways and, judicially noticed, 24 Digitized by Microsoft® INDEX. 713 CAR, CARBIAa£. See Motor-Cak, Servant, Driver, Collision CATTLE. See Animals evidence that painful operations on, were customary, admissible to rebut charge of cruelty, 126 to show that dogs have injured, 162, 169 character of, when relevant, 162, 186, 192 CERTIFICATES of public otficers are, by statute, but not generally at ooniuiou law, evidence of the facts certified, 363-71 and copies of documents certified by the proper officer are secondary evidence of the originals, 363, 540. See Certified Copies principle of admission, and history, 363 common law certificates, 364-6 of King, Secretary of State, ambassadors, heralds, bishops, judges, military o£Scers, &c., 364-5 of notaries and consuls, 365 statutory certificates, 366-71 of Speaker of House of Commons as to Parliamentai-y matters, 366 of birth, marriage, death, &c., which are copies of registers, 366 of naturalization, 367 of trial, conviction or acquittal of indictable offence, 367, 557 of summary conviction, 367, 558 of dismissal of charges at Petty Sessions and of assault, 367-8 of Ministers of Pensions, Labour, Food, Shipping, Air Council. &c., are evidence that their official documents were duly issned, 368 of adulteration of food, 368 of incorporation of companies, 369. See Company of proprietorship of shares. 369 of patents, designs, and trade-marks, 370 of registration and enrolment of deeds and wills, 370 of deeds of arrangement, bargains and sale, conveyances in mortmain, &c., 370 of bills of sale, 122, 370, 564 of British ships, 370 of title to land, or rules of building societies, 371 of rules .of Building Society, 371 of qualification of apothecaries, 371 of service of naval and military officers, 350-1, 353, 371 of age and fitness of factory children, 371 proof of, 553, 556 CERTIFICATIONS of shares, company not estopped by secretary's, 6S5. See Company CERTIFIED COPIES, definition of, 540. See, Certificates, Copies are admissible as secondary evidence of originals, 363, 540 mere certified extra-cts not generally admissible, 363 nor certificates of the effect or result of documents, 363 the following pahlic documents may be proved by : Colonial Statutes, Patents, Proclamations and Orders in Council, Records ' in custody of M. B., public registers and inquisitions. Corporation books and by-laws, 549-55 the following judicial documents may he proved by : old civil records in custody of M. R., probates, proceedings in County Courts, criminal convictions or acquittals, orders of justices, foreign and colonial judgments, and depositions in former trials, 556-63 CESTUI QUE TRUST. See Trustee admissions by, are evidence against trustee, and vice vers&, 242 CHAMBERS, evidence in, 500 proof of proceedings in, 560 CHANCERY, history of evidence in. 450-1, 495 practice in, now uniform with that in other divisions of High Court. 495 seal of old court of, judicially noticed, 23 practice as to marking documents put in evidence, 41, 433-4, 476-7 judge in, may order reports by accountants. &c., and act on their certificates, 886 Digitized by Microsoft® 714 INDEX. CHANCERY — Continued bills and answers, how far admissible, 435, 451. See Bills and Answetes Chancery visitors, reports of, under Lunacy Act, are privileged from inspection in, 198, 435 CHANNEL ISLANDS (Jersey and Guernsey), who may administer oaths, &c., in, 461 Registers of marriages in, admissible, 345-6 CHAPLAIN. See Cleeqt CHARACTER, or people, places, things or animals, when in issue, necessarily admissible, 186 may be proved by direct evidence, 186 including opinion of witnesses, 188, 401, 482 previous convictions against former occupier, admissible to show character of licensed premises, 186 {cp. 163, 171) when not in issue, generally inadmissible, 186 exceptions — . (a) character of prisoner, 187 good character of prisoner admissible to show innocence, 187 history of this exception, 187-8 must be of kind impeached, 188 should, in strictness, relate to his general reputation, not the individual opinion of the witness, 188 evidence may be negative as well as positive, 188 must relate to time proximate to charge, 188 bad character admissible under Vagrancy Act to show intent, 189 rebutting evidence, 188 (6) character of prosecutrix and third persons, 190 bad character of prosecutrix admissible in cases of rape, 190 of mother in cases of legitimacy, 190 of co-respondent in cases of divorce, 190 of deceased in cases of murder, 190 other cases, _ 190 (c) character as affecting stales of mind, 190 how far character admissible to show states of mind, or reasonable and probable cause in malicious prosecutions, 190-1 (d) character as affecting damages, 191 bad, admissible in mitigation of damages, in cases of (1) defamation, 191 (2) breach of promise, 191 (3) seduction, 191 (4) petitions for damages for adultery, 192 good, not admissible in aggravation of damages, 191 except to rebut evidence of bad, 191 (e) character of witnesses, 192, 478, 482 (/) character of places, things, and animals, 135, 162-3, 169, 171, 186 CHARITABLE TRUSTS, proof of deeds of, 330, 565 office copies of deeds of, admissible, in cases of, 530, 565 reports of commissioners under, are evidence of facts stated, 361. 434 seal of commissioners of, is judicially noticed, 24 CHARITY COMMISSIONERS, report of, is evidence of facts and documents stated, 361, 434 CHARTER-PARTY, how far incorporated in Bill of Lading, 147 See Bnx OP Lading telegrams between parties before execution of, admissible to show meaning of phrases in, 637 usage admissible to show meaning of phrases in, 662 cannot be contradicted or varied by parol, .TOO CHARTERS, proof of, 549 CHARTS. See Maps CHEMIST. See Apotheoabies Digitized by Microsoft® INDEX. 715 CHEQITE. See Bills or Exchange CHILD, proof of age of, by appearance, testimony of parents, &c., present at birth, 7-8, 118, 342. See Age by register of birth (or copy of), 342, 344-7. See Birth by register of baptism, how far admissible, 342, 344-6. See Baptism by appearance and inspection, 7-8, 118 by opinion evidence, 401, 403 by treatment as, 117 (cp. 312) on questions of pedigree (only), statements of deceased relatives admissible to prove age, &c., of, 225, 308, 314 proof of legitimacy of, by conduct and statements of parents, 77, 199 by resemblance to parent, 118 by family conduct and repute, 117, 312 by conduct and statements of adulterer, 77, 117, 312 testimony, &c., by parents as to access, inadmissible, 198-9 presumptions as to legitimacy and access, 678 competency of, as witness, 452 unsworn statements by, receivable in cases of cruelty to, if corroborated, 462 depositions by, admissible in cases of cruelty to, 511 dying declarations by, admissible, bow far, in cases of homicide, 319 presumption affecting : under seven, incapable of crime, 7, 681 over seven and under fourteen, is rebuttably presumed incapable, 681 legitimacy of, 678-9. in wills, " children " means legitimates, 623 ; when extrinsic evidence admissible to show illegitimates intended, 623, 643 erroneous enumeration of " children " as a class, 625, 653. t>NSPIRACY statements by. in presence of each other, how far evidence against. 259-61 confessions by. how far admissible against each other, 269. 274-5 Digitized by Microsoft® 716 INDEX. CO-DEFENDANTS— Conimued judgments for and against, 414-5 when competent as witnesses in criminal cases, 453, 457 when may cross-examine each other, 457, 474 where several defendants jointly charged, jury must, failing proof of com- mon design, ascertain guilty party, or acquit all, 93 CODICIL, intent with which executed, may be proved by parol, 326, 330, 333 See Will witness who attests cannot benefit by, but may by the will, 520 admissible to construe will, 613 ^evidence to rebut repetition of legacy by, 672-3 revoked, may be admissible as a declaration, 235, 281 CO-HABITATION is evidence of valid marriage, 110, 679 COLLATERAL ACrBEEUENTS, when may 'be added to written contracts by parol, 578-9, 593-7. See Wabrantees COLLATION by Bishop is evidence of title to advowson, 133. See Bishop COLLECTOB. See RECiavEB COLLEGE, books of, admissible as public registers, 354. See Corporation COLLISION, what facts are part of the res gesta in cages of, 70, 71-2. See - Ship, Motok-car, Servant, Driver injuries to person and to property by, give rise to different rights, 422 and judgments for either are not res judicata in action for other, 422 COLONY, seals arid signatures of judges, courts and notaries in, are judicially noticed, 24 law of, must be proved by experts, except before Privy Council, 20 statutes of, provable by certified, or Government Printer's, copies, 549 proclamations and legislative acts of, provable .by examined or sealed copies, 549-50 judgments, orders, affidavits, pleadings, &c,, filed in, how proved, 561-2 reciprocal admissibility of documents in England, Ireland, and, 561-2. See Appendix probates of, proof and effect of, 560 registers of, how proved, 554 who may administer oaths in, 461 copies of documents printed by authority of colonial legislatures, 539 COMMISSIONEBS FOB OATHS, who are. competent as, in England, 460-1. See AlTIDAVITS and out of England, 461 seals of, when judicially noticed, 24 COMMERCIAL COURT is bound by rules of evidence, 689 COMMON, rights of, provable by declarations of deceased persons, 300, 301 COMMON CHEAT, cumulative instances admissible to show accused is a, 56 COMM_pN DESIGN, acts committed with. See Conspiracy, Co-Trespass where not proved, jury must ascertain guilty party and acquit rest, 93 COMMOBIENTES, presumption as to survival of, 680 COMMUNICATIONS to jury, what matters must not be stated, 38. See JuRY to solicitor, husband and wife, &c., 201-211. See Privilege COMPANY, proof of incorporation of, by trading as, 109. See Corporation , by certificate, 369 of proprietorship of shares in. 369 liability of, for acts and representations of secretary and other officers, 91-2, 98-9. See Directors , ,• ,.M.f°'' '"' 39, 457 COMPETENCY OF WITNESSES. See Witness former disqualifications for interest, atheism, crime; history of, 449-51 all persons now competent to be sworn, with two exceptions, 449, 452-3 (1) exceptions as to defective intellect, 452 infants, lunatics, drunkards, &c., incompetent during such states, 452-3 (2) exception as to criminal proceedings, 453-7 accused persons, their wives or husbands, and those jointly indicted and tried with them, but not those separately indicted or tried, generally incompetent, for prosecution but not for defence, 453 competency of experts, 386 of attesting witnesses, 520 COMPLAINTS, admissible as part of res gesta, or to show present suffering, not to prove truth, but as conduct, whether complainant testifies or not: of bad quality of beer, &c., 75 of alarm, in cases of riot, &c., 84 of physical pain by injured person, 83 ; of hunger, by children, 84 admissible, though not part of res gesta, when made by prosecutrix in cases of rape, &c., 113-6, 488-9 history of rule as to, 113 particulars of, may be given, not to prove their truth, but to confirm testimony and disprove consent, 113, 488-9. how proved, 116 admissible to show party's knowledge of matter complained of, 95, 152-3 COMPROMISE, offers of, how far protected from disclosure, 231 (cp. 208) solicitors and counsel have authority to, 249-50 COMPITLSION OF WITNESS TO ANSWER, 457, 479 See Compellability compulsion to answer distinguishable from compellability to be sworn, 479 when witness protected from answering on grounds of public policy, 194-9 See Public Pouor when on grounds of privilege, 200-17, 454-5. See Pbivilegb to answer questions put in- cross-examination, 479 COMPURGATION and Wager of law, 211 CONCEALMENT OF MATERIAL FACTS when evidence of fraud, 150 CONCLUSIVE EVIDENCE, Government Gazette, when, 337-8 certificates of registration of Company, and proprietorship of shares, when, 369-70, 685. See Company Digitized by Microsoft® 718 INDEX. CONCITTSIVE EVIDENCE— Continiied of Registrar of Building Society, when, 371 must be distinguished from eiccluswe evidence, 566 history of rules as to, 566-8 estoppels, distinguished from, 682 CONCLUSIVE PEESimPTIONS, 7, 676-7 CONDITION 07 PLACES AND THINGS, provable by their condition at other times, 103-5, 163, 171, 186. See Character declarations by persons when inspecting, not admissible, 135 CONDITIONAL execution of deeds and contracts as escrows, &c., 517, 583, 599-601. See Escbows of wiUs, 327, 333, 583. See Will CONDITIONS, mental and physical, how provable, 61-5, 82-9, 145-57, 172-85 CONDITIONS AND PARTICULARS OF SALE, when extinguished by subsequent conveyance, 590 how far may 'be supplemented by a,uctioneer, 572, 597 not generally admissible to interpret conveyance, 633 but may be received to show what were known or reputed parcels, or if referred to in the deed, 634 or to rebut presumptions, 675 CONDUCT, previous and subsequent, relevant to connect party with acts, 136-43 to show states of mind, 145-57 conduct of parents and adulterer, relevant to bastardise child, 77-8, 199 admissions by conduct, 116, 134 estoppel, by, 684-7 conduct and propensities of animals, when admissible, 162, 169, 186, 192, See Animals CONFESSIONS, rules- as to, peculiar to criminal cases, 10 when voluntary, are admissible against accused, 263-75 if induced by promise or threat from person in authority, inadmissible, 263 principles of recejrtion and exclusion, 263 history of the rule, 263-4 burden of proving confession voluntary, is on prosecution, 264 corroboration of, 264 who are persons in authority, 265-6, 270 the inducement, 266-8, 270-3 removal of the inducement, 267-8, 273-4 whole confession must be taken together, 268-9 to and by whom confessions may be made, 269, 274-5 facts discovered in consequence of inadmissible confessions, 270, 275 CONFIDENTIAL communications. See Pbivileoe CONFIRMATORY EVIDENCE. See CJokeoboration CONFRONTATION, 465-6 CONNECTED DOCUMENTS. See Incorporation CONNECTION OF PARTY with transaction, facts relevant to prove, 136-44. See Identity previous and subs'equent conduct relevant to prove, 136-7, 140-3 alibi, relevant to disprove, 40, 137, 163. See Alibi possession of property and documents relevant to prove, 138, 142, 257, 261 conduct and declarations of others, when relevant to show,- 138-9, 143-4 similar or dissimilar facts generally irrelevant to prove or disprove, 158 See Similab Facts exceptions, 160, 163 character generally irrelevant to show, 186-7. See Character exceptions, 187-92 CONSENT, rules of evidence may be relaxed by, in civil but not in criminal cases, 10 inadmissible evidence sometimes receivable by, 10. Digitized by Microsoft® INDEX. 719 COKSENI — Continued ■to prove or disprove, person consenting need not necessarily be called, 46, 106 party's prior and subsequent statements when part of the alleged con- sent, 66 judgments by, when binding, 406 of prosecuteix in cases of rape, complaints admissible to disprove, 113-6, 488-9. See Complaints defence of, whether lets in accused's bad character, 453 of Public Prosecutor and Attorney-General, how proved, 23-4, 189-90, 559. See PuKLio Pbosecutor, Attobney-Genebal of Judge under Vexatious Indictments Act, 190, 559 of Corporate Body must be in writing, 91, 190 of prisoner to wife, &c., giving evidence, 455-6 of female in cases of incest, 487 COHSISERATION of deed, &c., when may be impeached by parol, 586-7, 603 burden of proof as to, is on party impeaching, 32 CONSIGKOK AND CONSIGNEE, admissions by, 248 CONSISTENT AND INCONSISTENT FACTS, when admissible to prove, or dis- prove, main fact, 89, 117-20, 487-8 CONSPIRACY. See Conspiratobs CONSFIKATOBS, acts and declarations of, in furtherance of common object, admissible against each other, 92-4, 99-102 immaterial whether einistenoe of conspiracy or participation of members shown first, but either nugatory without the other, 92 admissions, and narratives of past transactions by, inadmissible, 93, 101, 269 rules as to, apply in the case of co-trespassers, 94 CONSTITTJENT FACTS, admissible as part of res gesta. 56-7, 66-7 CONSTITTITIONAI MATTERS, are judicially noticed, 21. See Judicial NtoTiOE CONSTRrCTION OF SOCVUENTS. See Intekpeetation construction and interpretation distinguisbed, 605 rules of, distingui^ed from legal presumptions, 666 when for judge, jury, or witness, 14-15, 390, 394, 630, 665 extrinsic evidence, when admissible in aid of, 605-665 opinion of experts when admissible as to, 390, 394, 630, 665 party bound by judgment as to construction he has acquiesced in, 427, 430 CONSTRUCTIVE NOTICE, definition of, 146 rules as to, and examples of, 146-8 CONSTTLS, when seals and signatures of British, are judicially noticed, 24, 563 registers of marriages before^ when evidence as public documents, 346 certificates of, when evidence of facts certified, 366 CONSTTMUATION OF MARRIAGE. See Access CONTEMFORANEA EXFOSITIO, rules as to, 629-30 C0NTEMF0RANE01TSNESS of declarations which are part of res gesta, 58-9, 71-2, 75-7, 80-81 of declarations made in course of duty, 288, 292 of declarations as to pedigree, 310 by deceased as to homicide, 319 by testators as to their wills, 324 of entries in public registers, 341 of documents used to refresh memory, 470 CONTINTTANCE, of states of mind, persons and things, is presumed, 103-5, 120-1,680 . . ' previous existence of facts, is evidence of their subsequent existence and ince versa, 103-5, 120-1 Digitized by Microsoft® 720 INDEX. CONTINUANCE— ComtMHted of life, 34, 104, 680 of cause of action, 421 CONTINTTOTJS FACTS and transactions, how proved, 56-7, 67-9 CONTBACT, inadmissible evidence receivable if contemplated in the, 10, 225', 243, 248, 427 written proposal may be orally accepted, and does not require stamp, 531 CONTBACTS IN WBITING, onus on plaintifE to show proposal and acceptance, 608 whether contract reduced to writing and what were its terms, are ques- tions of fact, 566 proof of execution of, 514-25 documents incorporated by reference in, 525-8, 575, 612 when preliminary, are merged in subsequent conveyance, 575, 590 alterations and blanks in, 528-30 contents of must be proved by primary evidence, except in certain cases, 533. aSfec Primabt and Secondary Evidence extrinsic evidence not admissible in substitution of, 566-73 cannot generally be contradicted, varied or added to, by parol, 574r7 exceptions, 577-88 when may be rectified for mistake, 584-6, 601-3 when may be supplemented, or added to, by parol, 578-9, 587-97 when informal, and not required to be in writing, 577, 588-9 or, when supplemental agreement is collateral, 578-9, 593-7 impeachable for fraud, want of consideration, &c., 586, 601 may be proved to have been conditional, or delivered as escrow, 583, 599-601 may be wholly, but not partially, rescinded by parol, 587-8, 603-4 construction of, when for judge, jury, or witness, 14-15, 390, 394, 630, 665 effect of, when partly written and partly printed, 614 when partly in words and partly in figures, 602, 614, 654 meaning of technical terms in, is for the jury, 15 evidence of experts when admissible to explain such terms, 387, 390, 612, 630, 665 how far may be interpreted by parol, 616-7, 629-39, 641, 649, 653-4. fife* INTEKPBETATION, PBELIMINABT CONTRACT kinds of evidence admissible to interpret, 612, cp. 575 declarations of intention generally inadmissible, 606-9, 611, 613 CONTBABICTION of adversary's witnesses, allowed on all matters relevant to issue, 479-81 his own previous contradictory statements when relevant, may be proved, 479-81 allowed on irrelevant matters only in two cases, (1) bias, or partiality, 481-2 (2) previous conviction, 482 of T)arty's own witness, when allowed, 471-3 CONTBADICTOBT STATEMENTS iby witnesses, 479-81. See CONTRADiomow, Inconsistent Statements by deceased declarants, 276-7, 281, 288, 293, 319 CONVEYANCE, when preliminary contract merges in, and when not, 576, B90 collateral oral agreement or warranty, when may be added to. 578-9, 6934 how far may be interpreted by conditions and particulars of sale, 633 See Conditions op Sale CONVEYANCEBS not bound by strict rules of evidence, 227, 523 hearsay and other inadmissible forms permissible between vendor and purchaser, 227 statutory declarations receivable as evidence by, 501 recitals in deeds, &c., twenty years old prove themselves, 524 CONVICTION comprises both verdict and judgment, 559 of party, when amounts to res judicata, 417, 424-5. See Previous Con- viction, Autrefois Acquit, or Convict previous, when may be opened to the jury, 38 Digitized by Microsoft® INDEX. ' 721 CONVICTION— Oon/inwed previous, generally inadmissible till after verdict, 41-2, 174-5, 189 of witness, admissible to discredit him, 482 of accused, when he may be cross-examined as to, 454 proof of, 367-8, 482, 557-9 COPIES, are primary evidence of contents of documents when delivered by opponent, or made under Public authority, 538. iSee Pbimary Evidence . but are generally only seconda/ry evidence different kinds of, 539-42. See Secondaby Evidence (1) Government printer's copies, 539 (2) Government Gazette's copies, 337-8, 539 (3) copies sealed by foreign States, courts, officials, and notaries, 538, 539, 548, 560 (4) exemplifications, 539 (5) examined' copies, 539 (6) office copies, 540 (7) certified copies, 540 (8) machine, printed, and photographic copies, 640 (9) counterparts, drafts, abstracts, recitals, memorials, 541 (10) entries in public registers, 542 Cll) notarial copies, 366, 539, 548, 560. iSfee Notaby copies of copies not generally admissible, 542 COPYRIGHT, entry in register of, is evidence to prove, 348 infringement of, may be proved by comparison of genuine and disputed works, 8, 47, 573 CO-RESPONDENT, admissions of respondent not evidence against, nor vice versd, 242-3. See Divorce, Kespondent -cqnduct and declarations of when admissible to bastardise child, 77-8, 117, 199, 812. See Adttltert, Bastardising Offspring cross-examination of, by respondent, when allowed, 474 may be found guilty, though respondent not, and vice versd, 93 may take advantage of judgments against petitioner, 427, 429 CORONERS' inquisitions, gw. whether evidence of facts found, 356 depositions before, admissibility of, 511-12 proof of such depositions, 512 CORPORATION. iSee Company seals of, when judicially noticed, 23 proof of seals of, when not so noticed, 518, 553, 555 execution of documents by, 518 by-laws of, how proved, 555-6 acts of agents and servants of, when binding, 91-2, 98-9 appointment of agents by, how proved, 69, 89, 91, 109-10, 121, 127-8, 592 consent of, to Jegal proceedings, must be in writing, 91, 190. See Consent admissions by agents and servants of, when binding, 247-8 admissibility of books of, 372-5. See Corporation Books proof of books of, 553, 555 CORPORATION BOOKS. See Corporation, Company, Bankers' Books ^ knowledge of, not imputed to directors or shareholders, 145-6, 151, 258 admissibility of, 372-5 are at common law evidence of the public acts of the corporation, 372 and by statute evidence of various private matters as well, 373 entries must have been made_ by proper officer, 372 unsigned entries, when admissible, 372 proof of such books, 553, 555 informalities and errors in, 373 correction of, 373 bankers' books, 375-6. See Bankers' Books CORPUS DELICTI, may be proved by defendant's confession, 47, 264 evidence of, .is generally separable from evidence of identity of accused, 136-7 CORROBORATION, testimony of witnesses must be corroborated in treason, perjury, breach of promise, bastardy, removal cases, and under Criminal Law Amendment Act, and Children Act, 484-7 L.E. — 46 Digitized by Microsoft® 723 . ' Index. COBKOBOBATION — Continued and should be in qlaims against estates of deceased persons, or where wit- ness is accomplice, or circumstances suspicious, 487 what facts admissible in, 487-94 may sometimes, to save expense, be given by affidavit, 487 self-corroboration ; previous similar statements by witness generally inad- missible as, 488 except, (1) in cases of rape, or (2) where recent fabrication alleged, 488-9 statements when part of. res gesta are admissible in, 60, 74 confessions, how far require, 47, 264 ancient documents, showing ancient possession, how far require, 113, 524 CO-IBESFASSERS, acts and admissions by, when bind each other, 94. Bee Conspiracy, Accomplice, Co-Defendant COUNSEIi, opening ease to jury, and right to begin, 37-9 matters not to be opened, or stated to jury, 38-9 must not open facts he cannot pro-ve, 39 speeches by, and right of, to reply, 42-5 failure to object by, how far lets in evidence, 454, 688 authority of, over suit, 250 admissions by, when bind client, 18, 183, 250-1. See Admissions facts may be proved, though admitted by opposite, 18, 183 confidential communications of,' with client, privileged, 201-9. See Privilege knowledge of, when not privileged, 206 cannot be compelled to disclose statements made by him in court, 197 is competent witness for or against client, 449 when testimony of, may be given without oath, 462 COUNTEEPARTS, when admissible as primary evidence, 112, 536 when as secondary evidence, 536 when admissible to explain discrepancies between, or construe, original deeds, 536, 612 when to prove ancient possession, 112 COTTNTY COURT, seals of, judicially noticed, 23 inspection before trial may be ordered in, 9 attendance of' witnesses in, procured by summons, 443 service of summons, 445 penalty for disobediehce to_ summons of,. 446-7 powers of amendment in, 28 plaintiff may not split cause of action, 39, 416 judgments in, effect of, as res judicata, 410, 420, 422-3 memorials of proceedings in, cannot be varied, &c., by notes of judge or , registrar, 576 nor proved otherwise than by the memorials themselves, 561, 569 remedies for wrongful admission, &c., of evidence in, 689 COURSE OF BUSINESS, in public or private office, admissible to prove act done in pursuance thereof, 105, 122. See Course of Dealing COURSE OF SEALING between parties admissible, to prove existence of lost document, 128, 541, 546-7. See Course op Business to supplement terms of written contract, 575, 590 or to interpret meaning of written contracts, 612, 630, 634 but not generally to vary or contradict them, 590 COURSE OF DUTY, declarations by deceased persons in, 287-93. See Declara- tions COURSE OF EVIDENCE, parties' evidence must be heard, 89 ' where one issue, or several issues ; splitting a case, 39, 416 evidence in reply, or rebuttal, must not be confirmatory, 40 except where plaintiff misled or surprised, 40 anticipating and interposing evidence, 41 recalling witnesses, recrimination, 41 putting in documents, 41, 43-4, 473, 476-7 Digitized by Microsoft® INDEX. 723 COTTUSE OF EVIDENCE — Continued proof of previous conviction, at what stage of trial, 41 reopening case for omitted evidence, 42 . reswearing witnesses before fresh judge or juror, 42 remedy for erroneous decisions as to, 32, 39, 689 arguments in absence of the jury as to admissibility of evidence, 42, 83, 108 COURT BOLLS ASH MANOR BOOKS, admissibility of, as acts of ownership, 112, See Manob Books as reputation, 298, 305 as public documents, 354 proof of, 297, 556 proper custody of, 525 COVENANT in Restraint of Trade, reasonableness of, is question for judge not jury, 14 opinion of witnesses when admissible on this question, 394 distances, how measured, in cases of, 379 Ordnance Survey is evidence on question of limits of, 360, 379 CBESIBILITT of witness, what facts admissible to affect, 193, 477-83. See Ceedit of absent deponent, or deceased declarant, 193, 276-7 CBEDIT for goods sold, to whom given, cannot be proved by direct statement of witness, 65-6 CREDIT of witness, modes of impeaching (1) by cross-examination as to his- knowledge, observation and memory ; his errors, omissions, or inconsistencies ; his antecedents, associations, and mode of life. 477-9 ; compulsion to answer such questions, 479 (2) by calling witnesses to Contradict him on relevant matters, 479-81, but not on irrelevant ones, 481, except in the cases of (o) bias, or (6) previous conviction for crime, 481-2 (3) by proof that the witness bears a general reputation for untruth- fulness, 482 witness's attention must first be called to discrediting facts, so that he may explain them, 476, 479-80 what facts admissible, or not, as affecting, 477-82 party may discredit his own witness, when latter is adverse, 471-3, 480-1. See Adverse Witness > re-establishing credit, 482 recrimination, 483 CBIM. CON., declarations of wife, when were admissible in actions of, 78, 83 CRIME, information as to, protected on ground of public policy, 195-6 scope of this protection, 196 protection only applies in public, not private, prosecutions, 196 previous conviction for, when admissible to discredit witness, 482. See Peevious Conviction, CBEa)iT previous acquittal or conviction for, when res judicata, 417, 424-5. See Acquittal, Conviction, Autrefois Acquit ok Convict CRIMINAL CASES, rules of proof generally same as in civil cases, 10 exceptions, 10-11 inspection in, 9 power to view locality in, 9 when police may detain documents and articles, in, 9 or open letters and telegrams, 9 how far accused may be physically examined in,_ 9 burden of proof in, distinction when on prosecution or prisoner, 34 matters not to be opened to jury in, e.g., accused's previous convictions, 38-9, 41-2 right to reply in special rules as to, 43-5 witnesses' attendance obtained in, by suJypcena or recognizance, 441, 443 documents obtained in, by subpoena duces tecum. 537 depositions in, 502-13 Digitized by Microsoft® 734 INDEX. CRIMINAL APPEAL ACT, 1907 wrongful admission or rejection of evidence may be remedied under, 690-1 depositions of absent witness may be ordered to be, taken, under, 513 CRIMINAL EVIDENCE ACT, 1898. For annotated text of Act, see Appendix competency' of accused, &c., under, 453-7; and see Appendix and references • therein '' CRIMINATING ftUESTIONS, witnesses privileged from answering, 211-6 principle and history of protection, 211-3 scope of rule, 213 oath of witness necessary but not conclusive, 213 claim must be bond fide, 214 privilege ceases with liability, 214 exceptions to protection — by statute, under Criminal Evidence, Bankruptcy, Lunacy Acts, &c., 215-6 by witness's own contract or conduct, 216 CROSS-EXAMINATION, liability to, and exemptions from, 473-5 of accused, 188-9, 453-7 ; co-defendants, 474 of party's own witness, not generally allowed, 474, cp. 471-2 exceptions : where witness adverse, 469, 472. See Adverse Witness where recalled by opponent, 474 of attesting witness, 472, 474 death or illness, &c., of witness before, 475. See Depositions object and scope of, 475 omission to cross-examine, effect, 475-6 notice must be given to witness, before can 'be contradicted, 475-6, 479-80. See Credit what cross-examination lets in, 476 leading questions in, 476 as to documents, 476-7 as to credit, 477-83. See Credit witness compelled to answer relevant, and sometimes irrelevant, questions, 479 special rules as to contradictory statements, bias, previous conviction, and reputation for untruthfulness, 475-6, 479-82 facts admissible or not in, 477-82 various modes of impeaching credit. See Credit CROWN. See Sovereign. admissions and reputation are receivable against, 228, 294 inquisitions under authority of, are public documents, 355-62 has right of reply, though prisoner calls no witnesses, 43-5 CRUELTY, character for humanity not admissible to disprove in divorce cases, 162 evidence on charges of cruelty to cattle, 126, 162, 169. • See Animals, Cattle custom admissible to rebut such charges, 126 on charges of cruelty to children, how far prior and later acts are admissible," 68, 185 age of child, how proved, on such charges, 403. See Child, Age CUMULATIVE FACTS and offences, evidence of, 56-7, 67-8 CUSTODY or DOCUMENTS, what is proper, 524-5 CUSTOM AND USAGE, are judicially noticed when either settled by judicial decision or certified to the High Court, 21 party may be bound by, though ignorant of, 106 admissible (o) to annex incidents to contracts, 105, 579 (6) to explain technical terms or construe documents, 107, 629, 661 (c) to furnish standards of comparison, 107, 125-7 (d) as test of negligence, 107, 126 (e) to fix party with knowledge of the subject of the custom, 107, 146 proof of custom and usage may be given, — Digitized by Microsoft® INDEX. 725 CUSTOM AND USAGE— Continued (1) by direct testimony, 106 (2) by a series of particular instances, 56, 67, 106 (3) by similar customs elsewhere, 106, 161-2, 169 (4) when ancient, by reputation and declarations of deceased per- sons as to, 106, 299-301, 304-5 loss ofK how proved, 48. See Customebs CUSTOMERS, loss of, must generally be proved by calling the customers, 48 but sometimes provable by their statements as part of res gesta, 75 DAMAGE, malicious, to property, meaning of, 151 on , • Digitized by Microsoft® INDEX. 729 DIVORCE — Continued communications between husband and wife, privileged even after, 210 judgments in cases of, rules as to, 408, 427, 429 DOCTORS. See Medical Men, Experts DOCUMENTS, definition of, 514 classification of, as puilic, judicial, of private, 514 production of original documents, when necessary, 535 production of, how obtained: notice to produce, suhpwna. duces and judge's order, 442-3, 537 when notice to produce unnecessary, 545-6. See Notice to Pboduce Proof of Authorship and Execution of. 515-25 of handwriting and signature, 515. See Handwriting of sealing and delivery, 517-19 of documents requiring attestation, 519-23. See Attestation of documents not requiring' attestation, 523 of date of execution, 515. See Date, PiiESUMPTiONS of identity of party, wjtness and document, 523 ancient documents, generally prove themselves, 524-5 if produced from proper custody, 525-6 connected documents, and incorporation by reference. 525-S alterations, erasures, interlineations, and blanks in, 528-30 registration, enrolment and acknowledgment of, 530-1, 563-5 stamps, 531-2 Proof op Contents of: public and judicial documents may generally be proved by primary or secondary evidence, 533 private documents must be proved by primary evidence, except in certain cases, 533 principle, history, andjscope of rule, 534 primary evidence, forms of, 535-9. See Primary Evidence production of original, how procured, 537 secondary evidence, forms and degrees of, 539-43. See Secondary Evidence cases in which secondary evidence is admissible, 543-9 notice to produce in criminal and civil cases. 442, 537, 544. See Notice to Produce proof of puWic documents, 549-56. See Public Documents of judicial documents, 556-63. See Judicial Documents of private documents when registered or enrolled, 563-5 of private documents when not registered, &c., 533, 543-9 Admissibility of, as Original or Hearsay Evidence, 218-20 of public documents, to prove truth of contents. See Public Docu- MEIWS of judicial documents to prore truth of contents. See Judgments of private documents to prove truth of contents. See Hearsay Admissibilitt of Extrinsic Evidence to Affect. See Extrinsic Evidence not generally admissible in substitution of, 566-73 nor to contradict, vary, or add to, 574-604 but admissible in aid of interpretation, 605-665 or to rebut an equity or presumption, 666-75 examination in chief as to, 467 cannot be put in en Hoc, 473 what, admissible to refresh memory, 469-71. See Refreshing Memory what, admissible as part of res gesta, 57, 59, 69. See Res Gesta cross-examination as to, 476-7 admissibility of, when produced, or referred to, by witness, 477 presumptions affecting. See Presumptions DOGS, character and propensities of, when may be proved, 162, 169, 186, 192. See Anxmals, Cattle similar conduct and injuries by. admissible, 162, 169, 186, 192 proof of scienter of owner of, 95, 152 DOMICIL, party may testify to his own intent as to, 82 declarations out of Court, by either living or deceased persons, admissible to prove intent, 63, 77 probate and letters, how far evidence of testator's, 409, 431, 432 Digitized by Microsoft® 730 INDEX. DRAFTS, when admissible as secondary evidence, 331, 541 signed, admissible to ascertain true contract, when lease (not by deed), and counterpart differ, 536 • DRIVER, of carts, cars, &c., how proved, servant of owner, 97, 225, 235-6, 352. See Servant, Motot-cab DRUGS, the pharmacopoeia is evidence, hut not conclusive, as standard of proper composition of, 109, 380 analyst'sf certificate is admissible under Sale of Food and Drugs Act, 368-9. See Food DRUNKENNESS, when relevant to rebut intent, 154 statements in party's presence, when he is drunk, not evidence against him, 257 renders witness incompetent, 452 publican responsible if harman permits, 96 DUTY, declarations by deceased persons in course of, 287-93. See Declabations DTING- DECLARATIONS, admisisible in cases of homicide, 318-23. See Declaba- tions in cases of homicide EDUCATION DEPARTMENT, orders, &c., of, how proved, 551 ELECTION, ^s to two remedies, party when estopped by, 416, 420, 686 to sue on foreign judgment, or original cause of action, 411 in case of legacies by will, parol evidence not admissible to raise, 625-6 voting-paper in parliamentary, may be corrected by parol, 649-50 of Member of Parliament, how proved, 48, 335-6 ENGINE, proof that same, or similarly constructed, had caused other fires, when relevant, 170 ENGRAVINGS. See Piotuees , in cases of piracy of, comparison between rival specimens allowed, 8 when evidence, as public documents, of truth of matters depicted, 381 not admissible as evidence of reputation, 305 ENROLMENT of documents, 530, 563 secondary fi-vidence generally admissible of documents requiring, 530, 563 certificate or memorandum of, is evidence of fact and date of, 530, 563 ENVELOPE and letter may form sufficient memo, in writing under statute, 526 EQUITY, history of competency of witnesses, &c., in, 450, 495. See Ohanoert evidence formerly taken by affidavit in, 495 rules of evidence in, have superseded common law rules, in certain, oases, 582, 585-6, 588 presumptions in, may be rebutted by parol, 666-75 EQUIVOCATION in documents, definition of, and rule as to, 626-9, 657-61 parol evidence, including direct declarations of intention by the ■writer, admissible to solve, 611, 613, 626-9, 657-61 ERASURES in documents, 528-30. See Alterations ESCROW, documents may be proved to have been delivered in, 517, 533, 599 See Deed, Dei.ivert construction of documents showing such delivery is for judge, 15 ESTOPPELS, 682-7 definition of, 682 by record, deed, and conduct, distinguished, 682 (1) by record, 683. See Judgments (2) by deed, 683 applies only between parties and privies, and in actions on the deed, 683 none as to recitals if immaterial or not intended to bind, 683-4 none where deed fraudulent or illegal, 684 Digitized by Microsoft® INDEX. 731 ESTOPPELS— Continued none if deed can take effect by interest, 684 (3) by conduct, may arise by agreement, misrepresentation, or negli- gence, 684 (a) agreement express or implied, 685 share certificates and certifications, 685 landlord and tenant. 685 bailor and bailee, 686 licensor and licensee, 686 principal and agent, 686 election, 686 acceptor and bolder of bill, 686 (6) misrepresentation or negligence, 686 there must have been a clear statement of fact, 686-7 intended to be acted on. 687 and a detriment directly flowing therefrom,. 687 * EVIDENCE, definitions, 1-3. See Pkoof admissibility of, is for judge, sufficiency for jury, 11, 13, 676 may be admissible though illegally obtained, 201 classifications : direct, circumstantial, and real, defined and distinguished, 3 original and hearsay, defined and distinguished, 5-6, 218 primary and secondary, defined and distinguished, 6 conclusive and exclusive, distinguished, 566; ep. 369, 676, 685. See Con- clusive BviDEircE conclusive and sufficient, distinguished, 364 self-harming evidence, 228 self-serving evidence, shop-books, 229-30 making evidence for oneself, 230 judge's caution to jury as to effect of. 42. See Judge Commercial Court, arbitrators, compensation juries, licensing justices, revise ing barristers, and examiners, how far bound by rules of, 689 rules of, relaxed among conveyancers, 227, 523 wrongful admission. &c., of, and remedies therefor. 688-91 Book I. — Peoducpion of Evidence, 1-46 proof in civil and criminal cases, difEerences in, 10-11 lex fori governs, 11 functions of judge and jury as to ; law anee . Declabations by Deceased Peesons (c) statements in public documents, 335-81 reputation, opinion and belief, generally" inadmissible, 382-403. See Reputation, Opinions judgments, when admissible, 404-30. See Judgments probates, verdicts, awards, reports, inquisitions, when, 431-40. See Probates, Verdicts, Awards, &c. pleadings, writs and depositions, in former tvials, when, 435-40. See Pleadings, Depositions, &c. Part II. — Witnesses, 441-513. See Witness attendance, &c., ot, 441-8 competency and compellability of; oaths, affirmations and declara- tions by, 449-63 evidence taken at the trial, 464-94 examination, cross-examination, re-examination, &c., 464-83 examination 'by judge or jury ; recalling witnesses, 41, 483-4 number of witnesses and corroboration, 484-94 evidence taken before or after trial in civil and criminal cases, 495- 513 * Part III. — Documents, 514-675. See Documents authorship, execution, attestation, ancient documents, incorpora- tion, alterations, blanks, registration, stamps, &c., 514-32. See these several Heads, contents ; primary and secondary evidence ; proof of public, judicial, and private documents, 533-65. See Documents admissibility of extrinsic evidence to afEect documents, 566-6T."> in substitution of documents. 566-73 to contradict, Tary, or add to documents, 574-604 to interpret documents, 605-665 to rebut presumptions affecting documents, -666-75 . Book III. — Effect of Evidence, 676-87 weight of evidence, 676. See Weight op Evidence presumptions, 676-81. See Presumptions estoppels, 681-7. See Estoppels wrongful admission or rejection of evidence and remedies therefor, 688-91 EZAUIKATION, when medical examination of party allowable, 9. See Inspection when examination of objects or places, 8-9. See View of witnesses at trial must generally be v!v& vace and in open court, 464 when hearings may be in camera, 464 exclusion and separation of unexamined witnesses. 464-5 confrontation, 4G.')-8 EXAMINATION IN CHIEF, object and scope of, 460 name. &c., of witness sometimes protected, 207, See rKtviLBGE personal knowledge by witness required, 40R-7 Digitized by Microsoft® INDEX. 733 EXAMINATION IN CKIET— Continued as to documents, 467 leading questions generally inadmissible, 468-71 ground of exclusion of, 468 allowed in certain oases, 468-9. See Leading Questions refreshing memory of witness in, 469. See Refreshing Memory principle of, 469 what documents may be used for, 469-71 discrediting party's own witness, 471-2 adverse or hostile witness, 472. See Adverse Witness EXAMINATION OF PRISONER, before magistrate, 508-10 EXAMINATION OF WITNESSES BY JUDGE AND JURY, 41, 483-4 EXAMINED COPIES of documents, 539. See Copies EXAMINERS, attendance before, procured by sut)piBna, 441 may administer oaths, 461 when witnesses may be examined before, 497-8 objections to evidence given before, 498-9 remedies for evidence wrongfully admitted by, 499 EXOIUSIVE EVIDENCE, 566. See Evidence. Conclusive Evidence EXECTTTION OF DOCXTMENTS, 515-25. See Documents EXECUTOR, when acts of, or notice to, bind co-executors, 90-1 when admissions of one are evidence against rest, 242-6 when admissions of, bind testator and vice versA, 239 when bind devisee and vice versA, 242 judgments for or against, 413 presumptions in favour of, in will, may be rebutted by parol, 670-1, 674-5 EXEMPIIFICATIONS, 539. See Copies EXHIBITS to depositions, how proved, 503 EXPERIMENTS, may be ordered by judge, 9, 385, 392, 398 or tried in or out of court by experts, 392, 398 EXPERTS, opinions, of, admissible when subject involves special study or experience, 385-6 not admissible when jury equally capable of forming opinion as, 385 court may order independent reports or experiments by, 9, 385, 392, 398 (1) competency, credit and value of evidence of, 386 (2) subjects of expert testimony: science, art, trade, technical terms, handwriting, foreign law, Ac. 386-90, 630, 665 court may require translation or explanation of foreign documents by, 390 subjects on which opinions of experts not admissible; construction of documents, professional conduct, legal and moral obligations, &c., 390-1, 665 (3) scope, grounds, and form, of opinion, hypothetical questions, 391-2 (4) corroboration, illustration, experiments, impeachment, 392, 397-8 statements by patients to medical men, 62, 83-4 (5) reference to text-books, price-lists, &c., by. 392 examples of N>pinion evidence by, 393-8, 630, 665 EXPIiOSIVES, evidence to show action of, 70, 171 EXTENTS, ancient, admissible as public documents, 355, 358 EXTRADITION, depositions for purposes of. 513 ' EXTRINSIC EVIDENCE AS TO DOCUMENTS. See Documents admissible to prove execution, authorship, attestation, and identity of party, attesting witness and document, 326-7, 514-23 also to show what documents, constitute the transaction, or are so connected as to be incorporated therein, 326, 329, 525-8. See Incorporation Digitized by Microsoft® 734 INDEX. EXTKIWSIC EVIDENCE AS TO DOCVULEHTS— Continued not generally admissible : (o) In Substitution of documents, 566-73 history of this rule, 566-S principle of exclusion, 568 burden of proof, 568-9 rule applies to judicial and private formal documents, 569-71 exceptions to rule — (1) public documents, 571 (2) private informal documents, 571 (3) existence, as distinct from terms, of transaction, 572-3 or (6) TO Contradict, vary, or add to documents, 574-605 principle of exclusion, 574 forms of excluded evidence, 575 rule applies to judicial and formal private documents, inter partes, 576 exceptions to rule — (1) public documents, 577, 588 (2) private documents, when informal or infer alios, 577, 589 (3) private documents ; terms of transaction, 578-9, 589-97 additional terms, collateral agreements, usage, 578-9, 589-97 (4) true nature of transaction and relationship of parties, 579-83, 598-9 sale or mortgage; merger; trust; joint and common interests; agency; suretyship'; bills and notes; penalty or liquidated damages, 580-88, 598-9 (5) invalid or conditional execution; fraud; mistake; want of con- sideration, &c., 583-7, 599-603 _ (6) subsequent modification or rescission of transaction, 587-8, 603-4 but admissible (c) to Interpret Documents, 605-665. See Inteepeeta- tion; and (d) to Rebut an equity or presumption, 665-76. See Kebutting Presumptions PABRICATION or suppression of evidence, relevant to connect party with crime, 138 PACT, definition of, 2. See Facts classification, 3 matters of, generally determinable by jury, 13-7 when matters of, determinable by judge, 16-7 FACTS. See Fact, Evidenobv Similar Facts in issue, defined, 49 when in issue, direct testimony to, not generally admissible, 55, 65-6 constitutent, cumulative, continuous, and accompanying, 56-7 relevant to the issue, defined, 49 . relevancy and admissibility of, distinguished, 49-53. See (Relevancy Stephen's rules as to relevancy, 50-1 views of Thayer, Wigmore and Chamberlayne, 62-3 ■what ; relevant to prove main fact, 103-135. cp. 158-71 to show identity, or connect the parties with the transac- tion. 136-44, op. 163-4 to prove states of mind, 145-57, 172-6 previous, subsequent and similar facts when admissible, 103, 120, 158, 172 material facts defined, 53 FAOTUm, of will. See Wni FAILITKE OF ISSUE, is question of pedigree, 308 proof of, by declarations of deceased relatives, 308 presumptions as to, 679 FAISA DEMONSTRATIO NOW NOCET, application of maxim to the inter- pretation of documents, 624-6, 649^57. See Mistake FAISE IMPRISONMENT. See Malicious Prosecution FALSE PRETENCE, similar transactions relevant to show intent of accused 175, 181-2. See Genuineness, Siuilab Facts Digitized by Microsoft® INDEX. 735 FAUIIT treatment and repute, relevant to prove relationship, 116-7, 134-5, 312. See Teeatment, Reputation, Pedigree Bibles and portraits preserved in the, admissible on questions of pedigree, 312, 317 FEEIiINGS, UENTAI. AST) BODILY, statements as to, when admissible, 61-5, 82-7, 145-57, 172-85. See Mentai and Physical Conditions FERRY, right to, is question of public interest, 294. See Public Eights is provable by repotation, 294, 884 , FIOTTRES, effect of sums expressed in words (written or printed) , and, 614 admissibility of evidence, where these conflict, 602, 614 FIWES AND RECOVElilES, proof of, 562 FINGER-PRINTS, prisoner may be compulsorily examined to obtain, 9 are evidence of identity, 137 FIRE. See Abson, Policy FIRST-FRIJITS, 'bishop's returns as to, are admissible as public documents, 359 books of, are secondary evidence of such returns, 359 FISHERY, acts of ownership, admissible to prove right to. 111, 132 right to, in tidal rivers, is public right, 294 of which reputation is evidence, 294, 299 but mere claims, not followed by verdict or judgment, inadmissible to • prove, 305-6 right to several, is presumptive evidence of ownership of bed of river, 671 but may be rebutted by eTidence, 675 FIAGS AND BANNERS, inscriptions on, when part of res gesta, 79 nature of such evidence, whether flags, &c., are " documents," 533, 548 inscriptions on, how provable, 5S8, 548 FOOD, analyst's certificate is evidence of adulteration of, 368. See Adultera- tion, Certificates, Drugs adulteration of, master when liable for servant's, 95 FOOTPRINTS, when are evidence of identity, 137, 141 FOREIGN AFFIDAVITS, verification of, 24, 364, 366, 461, 568. See Affidavits FOREIGN CONTRACTS, construction of, is for judge, 15, 390 FOREIGN DOCTTMENTS, construction, of, is for judge, 15, 390 but court may first require translation or explanation of, from experts, 390 FOREIGN JUDGMENTS, in rem., admissibility of, 408 in personam, 411-2 on what grounds impeachable, 406-7 proof of, 549, 560-2 FOREIGN LAW, unlike English, is regarded as a question of fact, 14, 20 is not, 'by statute, to be decided' by judge, 16. See Addenda must be proved by experts, 14, 16, 20, 388-90, 549 who .may testify as experts in, 388-9. See Foi£Eign Statutes previous decisions on. Inadmissible even between same parties, 390 FOREIGN NOTARY. See Notary , FOREIGN PROBATES, proof of, 560. See Probates FOREIGN REGISTERS, admissibility of, to prove facts stated, 340 proof of, 554 FOREIGN SOVEREIGNS, existence and titles of, judicially noticed, 21 must give discovery on oath, 463 Digitized by Microsoft® 736 ^ INDEX. FOREIGN STATUTES, proof of, 388, 549. See Foeeign Law FOREIGN TREATIES, proclamations and acts of State, how provable, 549-50 FORFEITURES AND PENALTY, witness need not answer questions exposing him to, 211-3. See Privilege, Ceiminating Questions, Penalty but privilege ceases with liability, 213 FORGERY AND TITTERING OF DOCUMENTS. See Handwkiting errors in recitals, spelling, watermark, etc., relevant to prove comparison with genuine Specimens, admissible, 108, 125 other forgeries, when admissible as part of res gesta, 68-9, 167 when to show identity of accused, 167 when to show intent, 176-7 ; or corroborate, 163, 492 poverty of accused at time, admissible, 68-9, 118, 120 how far forged will is conclusive until revoked, 409, 431 declarations of testator admissible on question of forged will, 327, 330-1 conviction for, not admissible to prove forgery in a civil trial, 413, 418. acceptor's refusal to pay on ground of, admissible as part of res gesta, 74 FORMER TRIAESjdepositions in, 436-40. See Depositions judgments in, 404-30. See Judgments pleadings, affidavits, and writs in, 251, 435. See Pleadings, Affidavits, Weits FRAUD, facts relevant to prove, 149-50, 154-6 concealment or misrepresentation of facts when evidence of, 149-50 sim^ar facts admissible to prove, 175, 181-3 wills, deeds, &c., may be impeached by extrinsic evidence of, 327, 330-1, 584, 601 • judgments may be impeached for 406 FRESH EVIDENCE, re-opening case for, 42 on new trials and appeals, in civil or criminal cases, when allowable, 501, 513. See New Trials, Appeal FUNCTIONS OF JUDGE AND JURY as to evidence, 11-17, 193, 483-4. See Judge, Juet FURTHER CONSIDERATION, evidence on, when allowable, 501, 513 GAS, on charge of ' stealing, evidence of, continuous taking admissible, 98. See Continuous Pacts GAS INSPECTOR, report of, how far evidence, 435 GAS METER, is primd facie evidence of gas consumed, 163 GAVELKIND, custom of, is judicially noticed, 21 GAZETTES, G6vernment, when at common law, and when by statute, admis- sible to prove public matters contained therein, 337-8, 550 are judicially noticed without proof, 22, 337-8 GENUINENESS, of party's signature, how proved, 515 of wills, deeds, &c. See Forgekt, bSiaud of representations, by vendors, &c., 149, 154-5 of business alleged to have been carried on by accused. 181-2 of party's claim or defence, facts relevant to show, llj, 133 GEOGRAPHICAL MATTERS, when judicially noticed, 22, 378. See Maps GIFT, declarations at time of advance, admissible to show gift or loan, 73-4. Sec Loan poverty of donor or lender, admissible to rebut gift or loan, 118 purchase by father, &c., in name of child, presumed to be, 669, 674 GOOD FAITH of parties, though not in issue, may sometimes be proved in support of their claim or defence, 113, 133 facts relevant to prove, 149, 154-5 Digitized by Microsoft® INDEX. 737 GOOD FAITH — Continued similar facts, when relevant to prove, 175, 181-2 declarations showing, are original evidence, not hearsay, 218 GRAND 3TJR0BS, disclosures by, excluded, 197 GRETNA GREEN, registers of marriages not admissible as public documents, 345 OTJARDIAN and ward, burden of proof in transactions between, 33 admissions by, how far binding on, infant, 238 GUARANTEE. See Subety parol evidence admissible to identify subject-matter of, 617, 636 to show if continuing, &c., 617, 636 GTTERNSEY, registers of marriages in, 345-6. See Channel Islands GUILTY KITOWLEDGE. See Knowledge, Similae Facts, Keceiveb HABITS, party's, admissible to show his pergonal identity, 136 but not generally his commission of the act itself, 137, 158, 165, 167 of deceased, admissible to show cause of death, 138-9 of speech of writer, admissible to interpret documents, 607, 611, 620-4, 641-9 of animals admissible, when their conduct in issue, 162, 169, 186, 192. See Animals, Cattle, Dogs HABITTTAIi CRIMINAL, previo.us convictions admissible to show that prisoner is, 47-8, 189-90. See Previous Conviction HANDWRITING, ancient and modern, may be proved by comparison, 108, 125, 515 ancient, produced from proper custody, generally presumed genuine, 109. 523-4 (Op. 276, 281, 288) except where necessary to show identity of writer, 109, 281, 288 may be proved by opinions of experts, 388, 39-7 or comparison, 108, 125 modern, how may be proved, 515 by calling the writer, 515 or a witness who saw the document written, 515 by admission, 515 by comparison, 108, 125, 515 by opinion of experts, 397, 515 by opinions of non-experts familiar therewith, even though document lost, or not produced, 399, 402, 515 witnesses' familiarity with, may be acquired by — having seen the party write, 399-400 or having received letters, &c., from him, 399^400 or having observed his writing in course of business, 399-400 signature of documents, different modes of, 515. See Signature HANSARD'S debates, not admissible as Parliamentary Journals, 552. See Paeliamentaby Jouenals HATCHMENTS are evidence of pedigree, 311 HEARSAY evidence generally inadmissible, 218 original evidence and hearsay distinguished, 5-6, 218-9 conditions of admissibility of original, evidence, 60, 103, 218-9 verbal facts may be admissible as original evidence, though particulars excluded as hearsay, 220-1 wide and narrow meaning of hearsay, 218-9 testimony based on hearsay, and not on personal knowledge, inadmis- sible, 219, 466-7 ; rule as to, does not apply to conduct, 219-20 principle of exclusion of, 221-2 history of the rule, and of the exceptions thereto, 222-4 scope of the rule. 222 examples: receipts; statements by agents; statements by parents as to age, birth, &e., of children ; letters in party's possession ; deatlh-bed declarations, &c., 225-6- L.K. — 47 Digitized by Microsoft® 738 INDEX. HEARSAT — Continued exceptions to the hearsay rule: spurious exceptions, 227 interlocutory proceedings, 227, 499 . _. (o) admissions by party, or persons connected with him, 223-o4. See Abmissions statements in presence, and documents in possession, of a party, 255-62 confessions, 263-75. See Confessions (6) statements by deceased persons, 276-7. See Declarations by Deceased Persons extrinsic proof of death and special conditions of admissibility, must ibe given, 276 competency and credibility of declarants, 276-7 miscellaneous conditions, 277 (1) against interest, 278-86. See Declarations Against Interest (2) in the course of duty, 287-93. See Declarations in Course op Duty (3) as to public or general rights, 294-306. See Deci,arations as to Public Rights (4) as to pedigree, 307-17. See Declarations as to Pedigree (5) dying declarations as to homicide, 318-23. See Declara- tions AS, TO Homicide (6) declaration by testators as to their wills, 324-33. See Declarations by Testators (c) statements in public documents, 335-81 (1) statutes, State papers, and gazettes, 335-8 (2) public registers and records,- 339-54. See Public Registers ^(3) public inquisitions, surveys, assessments, and reports, 340-62. See Public Inquisitions (4) ofBcial certificates, 363-71. See Certificates (5) corporation, company and bankers' books, 372-7. See Cor- poration, Company (6) published histories; maps, dictionaries, andiscientific works, 378-81 J See Histories HEARSAY TJPON HEARSAY, receivable in the ease of admissions, 233. and of declarations as to pedigree, 310 HEATHEN, various sects of, how sworn. 459^60 HERALDS VISITATION BOOKS, admissible as public documents to prove pedigrees, 360 HIGHWAY. See EoAD HINDUS, how sworn, 460 HISTORICAL FACTS OF PUBLIC NATURE, are judicially noticed, 21, 26 HISTORIES, accredited, are evidence of ancient facts of a public, but not of a private or local nature, 378 also admissible to refresh memory of judge, 26, 378 HISTORY OF THE RULES OF EVIDENCE, of the rule as to inspection, 7 as to preponderance of evidence, and proof beyond reasonable doubt, 10 as to the best evidence requirement, 45-6 as to re gesta, 55 as to comparison of handwriting and seals, 108 as to complaints in cases of rape, &c., 114. 488-9 as 'to res inter alios acta, 159-60 as to prisoner's character, 187-8 as to oriminatins questions, L'll-o as to hearsay, 222-4 as to exceptions (generally) to the hearsay rule, 224. See the Specific Exceptions, infra. Digitized by Microsoft® INDEX. 739 HISTORY OF THE RULES OF EVIDENCE— Cewawiied as to self-serving statements, making evidence for oneself, and shop-books, 229^30 as to confessions by accused, 263-4 as to declarations by deceased persons against interest, 278 in course of duty, 287 as to public or general rights, 294 as to pedigree, 307 as to homicide, 318 as to official certificates. 363 as to bankers'' books, 375 as to reputation and opinion, 382-3 as to disgualification of witnesses for interest, atheism, and crime, 44&-51 as to affidavits, and other evidence in equity. 450^1, 495 as to kissing tiie book, 459' as to exclusion and separation of unexamined witnesses, 464-5 as to num'ber of witnesses required, 484 as to similar statements to corroborate witnesses, 488-9 as to proof of attested documents, 519 as to production of original document, 534-5 as to parol evidence in substitution of documents, 566-8 as to parol evidence to contrad'ict documents, 566-8 as to excluding declarations of intention by the writer, 608-9 as to presumptions of law respecting documents, 666 as to presumption of innocence, 680-1 HOMICIDE, burden on prisoner to justify negligence causing, 33. See Mubdeb dying declarations as to, 318-23 depositions before coroner in cases of, 511-2 before magistrates in criminal cases generally, 502-11 HOUSES OF FARLIAUENT, procedure and privileges of, judicially noticed, 20 but not orders in council, nor- journals of, 20 orders in council, how proved, 550 effect and proof of journals of, 335, 552 judgments of House of Lords, how proved, 557 address to 'Crown from, is evidence of matters contained, 335 HUSBAND AND WIFE. See Maekiage, Makried Woman, Divorce, Access communications between, privileged from disclosure, 210-11 when wife's admissions are evidence against husband, 248-9 when competent as witnesses for or against each other, 449, 453, 455-6 first wife or husband now an admissible witness on bigamy charges, 456 competent, but not bound, to answer as to their adultery, in divorce cases, 216-7 identity of wife, misdescribed in wUl, may be proved by pai'ol, 642, 651 purchase in name of either, by other, is presumed to be gift, 669 charge of property in favour of husband, entitles wife to exoneration from his estate, 671 ■ when presumption of marital coercion arises, 33 ID CERTUM EST QUOD CERTUM REDDI POTEST, 616 IDENTITY, IDENTIFICATION, direct testimony admissible to prove, 65, 136 (1) personal: facts relevant to prove, 136 opinions of witnesses, though not experts, admissible to prove, 398-9 leading questions admissible in examining witnesses as to, 468 general reputation in community, admissible to prove, 384 photographs admissible to prove. 399, 540-1 of child by resemblance to party, 118 (2) of party as the doer of on act, facts relevant to show, 136-7 previous conduct and declarations ; special capacity or skill. 136-7 subsequent conduct : possession of property, &c., 9, 138, 142-3 alibi, 40. 137 conduct and declarations of the injured party or others. 138-9, 143-4 similar facts not generally admissible to show ; exceptions, 158-71 compulsory examination of accusedi to show his. 9 character not generally admissible to show, except in reply, 186-91 of person who took prior proceedings, 136 Digitized by Microsoft® 740 INDEX. IDENTITY, IDENTIFICATION— Ooniinited or wlio acted in an official capacity, 136 of deceased declarants, &c., 136, 276, 281, 288, 295 of party who lias executed document, 136, 523 of witness who has attested documents, 136, 523 (3) of persons, &c., referred to in documents ; e.g. in registers, 343-4 ; in libels or threats, 384-5, 390, 401, 62G. See Libel, Thbeats in wills and contracts, 328. 332, 615-8, 623, 625^6, 630, 639, 643-7, 649,-53, 658^61 (4) of documents sued upon, e.g. a disputed contract, 108, 125, 523 of papers alleged to constitute a will, 326, 329 of infringing picture, or trade mark, 8, 47, 548, 573 (5) of physical objects, production w'hen compulsory, 8, 47, 548 by marks, inscriptions, &c., upon, 8, 47, 533, 548 (6) of handwriting, 515. See Handwbiting (7) of parties to, and issues in, judgments and depositions, 412-6, 417-22 INCITEMENT TO MURDER, facts admissible or not, to prove, 102 INCIOSURE ACTS, how far admissible as reputation, 297, 302. See Private Acts maps made under, when admissible, 297 awards under, when evidence of title, 434 INCONSISTENT STATEMENTS, may be proved to discredit adversary's witness, 4791-81. See Contbadictobt Statements or party's own witness when hostile, 471-3 or dying declarants in cases of homicide, 276-7, 319 but not deceased dedarants in other cases, 83, 276-7 nor deceased attesting witness, 83, 276-7 INCORPORATED LAW SOCIETY. See Law Society INCORPORATION of documents by reference, 147', 525-8. See Documents interpretation of documents so incorporated, 612 of company, provable by certificate, 369. See Company, Ceetifioate or by trading as such,- 109 INDIA, legislative acts in, how proved, 549 depositions taken in, admissibility of, 512-3 admissibility of registers of birth, marriage, &c., in, 340, 346 proof of these registers, 554 INDUCEMENT. See Confessions INFANCY. See Age, Bibth INFANT, under seven, incapable of committing crime, 681. See Child over Seven and under fourteen, is only rebuttably presumed incapable, 681 not estopped by misrepresentation as to age, 682 when competent as vritness, 452-3 when need not be sworn, but requires corroboration, 461-2, 485 admissions by, or by guardians of, 238. Op. 233, 236 depositions by, when too ill to attend trial, 511 judgments for, or against, 412 recognizance by, 443 age of, how proved. See Age INFIDEL, testimony of, formerly inadmissible, 451, 458. See Atheist when now receivable, 449, 451, 458 INFORMATION AND BELIEF, admissible in affidavits in interlocutory pro- ceedings, 227, 401, 499-500 INFORMATION FOR DETECTION OF CRIME, evidence as to, excluded in public prosecutions on ground of public policy, 195 scope of rule, 196 ibut not generally in private prosecutions, 196 reports by police to super;ors as to, protected, 195-6, 473 Digitized by Microsoft® INDEX. 741 INFOHMES, evidence of, does not need corroboration, 486 INIIIAIS, signature by, when valid, 515 INK, signatures, &c., in pencil or, effect of, 516, 529. See Signature INNKEEFER, lien of, on goods of guest, custom of, judicially noticed, 2] licence of, must be proved by its production, 573. See Licence, Licensing when liable for acts, knowledge and declarations of barman, &c., 96. See Publican INNOCENCE, presumption of, 33-6, 680-1. See Bubden of Proof formerly guilt, not innocence, was presumed, 212, 680 INNTJENSO, reputation and opinion of witnesses admissible to prove, 384, 399, 401-2. See Libel surrounding circumstances admissible to prove, 620 INftTJISITIONS, public, admis'sible to prove public matters, 355-62. See Public Inquisitions private, admissible only between parties and privies, 356 INSANITY, presumption is against, 32, 680. See Sanity, Lunatic, Lunacy but when once proved, presumed to continue, 104, 680 similar conduct of party at other times admissible to prove his, 104, 161, 167 and other parties' knowledge thereof, 152 of ancestors and collaterals admissihie, 167 treatment of friends how far admissible to prove, 134-5 qucere whether party may testify on subject of his own, 400 opinion of experts, admissible as to other people's, 386. 395 but opinions of non-experts not senerally. 400-1 how far affects competency of witness, 452 declarations, even post-testamentary, receivable on questions of testator's, 324, 330. See Declarations by Testatoes INSCRIPTIONS on rings, banners, &c., proof and effect of, 8, 47, 533. 548 on tombstones, hatchments, &c., are evidence in cases of pedigree, 311 INSPECTION AND VIEW, 'defiued, 7 history of, 7 before trial, when allowed in civil and criminal cases, 9-10. during trial, when allowed, 7-8 when compelled, 8 court may adjonm trial to permit, 8 INSTTRANCE. See Policy INTENTION. See Declarations of Intention party's own testimony admissible to prove his, 61, 82 party's declarations out of Court, when admissible to prove his own, 61-5, 82-6. 148-53, 325-6, 329-31, 517, 579-81, 611-3, 627. 657-61. See Declarations of Intention, Testators collateral facts, when admissible to show party's, 148, 153 previous and subsequent intent, when relevant, 148 previous and subsequent declarations, how far admissible to prove. See supra. relevancy of to identify the doer of an act, 137, 140 to rebut defence of accident, mistake, &e., 175, 180. See Similar Facts to prove intent to commit felony, under Vagrancy Act, 189 INTERCEPTED LETTERS. See Letters. Post Office power of police as to, 9, 138 effect of, in cases of conspiracy. 102 of false pretences, 181 INTEREST, in result of ease, formerly rendered witness incompetent, 449-51 now only goes to credit, 451 declarations against, by party, 228. See Admissions Digitized by Microsoft® 742 INDEX. INTEREST — Continued dedarations against, by living persons not parties, 228 by deceased persons, 278-86. See Dectlakations AGAINST INTEEEST how far effects admissibility of declarations by deceased persons, made in course of duty, 288 or as to public rights, 295 or as to pedigree, 310 of officer, does not exclude entries made by him in public registers, 341 INTERIINEATIONS, 52S-&. See Altebations INTERIOCITTORY f BOCEESINGS hearsay ^nd secondary evidence, when admissible in, 227, 401, 499-50 affidavits admissible in, 496. See Affidavits depositions before examiners in, 497 evidence on motion, further consideration, appeal, and in chambers, in, 500 statutory declarations in, 501. See Statutory Declarations INTERPRETATION OF DOCUMENTS, 605-665 definition of, construction distinguished from. 605 a question of substantive law, evidence, or logic? 605-6 object of; the meaning of the words, or the intent of the writer? 606-9 these two theories explained and criticised; 606-9 limits of, 609 Wigram'a division of explanatory evidence and evidence of intention, criticised, 610-11 forms of extrinsic evidence which are admissible ; general forms, 611-13 declarations of intent generally inadmissible, 611, 613, 615, 621, 624 exception in cases of equivocation, 626-9i ambiguities, blanks, equivocation, inaecuracies, 613-4 print, writing, figures, punctuation, marginal notes, 614-5 rules as to admission of extrinsic evidence; Rule I. (surrounding circumstances) , 615:20 examples, 63041 Rule II. (primary and secondary meanings, correct and less correct names and descriptions), 620-4 examples, 641-9' Rule III. (incorrect names, descriptions, &c.), 624-6 examples, 649-57 Rule IV. (equivocations), 625-30 examples, 657-61 Rule V. (usage, course of dealing, experts, dictionaries), 629-30 examples, 661-5 Rule VI. (documents, when void for uncertainty), 630 INTERROGATORIES, receivable as admissions against the deponent, 234 rules as to admissibility of, 499-500 INTESTACY. See Pedigree, Administration, Judgments is matter of pedigree, which declarations by deceased relatives are admis- sible to prove, 308, 313 grant of administration, in cases of, is judgment in rem, 408 effect of judgments in cases of, 409^10, 413, 415, 426, 429 lOTI is evidence of account stated, but not of money lent, 234 ISSUE, evidence must be confined to, meaning of rule that, 27 facts in, defined, 49 facts relevant to, defined, 49 what facts admissible as parts of the fact or transaction in issue, 55-87 statements by parents bastardising their, inadmissible, 198-9 failure of, is question of pedigree, 308 possibility and failure of, presumptions as to, 679 JERSEY, registers of marriages, &c., in, 345. See Channel Islands JEWS, how sworn when witnesses, 459 marriage of, provable by registers, 340, 344 except in cases of bigamy, 344, 384, 573 Digitized by Microsoft® INDEX. 743 JEWS — Continued register of circumcision kept by deceased rabbi, not evidence of ag?, 29'1 marriage customs tit, how proved, 390 JOINT CONTRACTORS. See Oo-Contractors JOINT DEBTORS. See Co-Debtors JOINT DEFENDANTS. See Co-Defendants JUDGE, acting as, is evidence of due appointment, 110, 128 functions of, with respect to evidence, 11 duty of is 4-fold : (1) to decide as to the admissibility of evidence, 11 (2) to instruct jury as to its production and effect, 11-12 should caution jury against considering previous convictions .of accused, 38-9, 41 should explain limitedl purpose for which com- plaints in cases of rape are admissible, 113-4 ^ould warn jury that admissions or confessions are in general only evidence against maker,- and not against co-defendants, co-respondents, or co-accused, 242-3, 269-70. See Conspiract should caution them as to need of corroboration, 486-487 (3) should determine if any evidence has been given fit to be considered by jury, 11, 13 (4) should explain the law applicable to the case, dis- tinguishing between questions of law and of fact, 11, 13-17 questions of law, which include production and admissibility of evidence, and the construction of documents, are determinable by, 11 questions of fact determinable by, in three instances, 16 (1) facts on which admissibility of evidence depends, 11-2, 193, 487 (2) what is reasonable in certain cases, 16 . (3) foreign law. See Addenda notice of facts 'by, 19^26. See Jttdicial Notice refreshing memory of, 26 may act on general, but not private knowledge, 19 is competeui: as witness, 19, 196, 449 but not compelled to disclose what passed in Court, 196 should, but is not compelled to, advise witness of privileges, 200, 453 may comment on failure of prisoner to give evidence, 44, 453 may read document to see if it be privileged, 200. See Privilege notes of, are not, except by consent, evidence of witness's testimony, 438 examination of witnesses by, how far allowable, 483 may call witnesses himself, when, 484 may order independent reports and experiments to be made, 385-6 but may not generally decide question on his own view without evidence, 8 or on counsel's opening without evidence, 13, 39, 457 JTIDGMENT debtor, what questions may be put to, 215 creditor, in -interpleader issues, may be bound by admissions of, 253 JUDGMENTS, five general rules applicable to, 404 (1) are conclusive of existence as distinguished from truth, 404-5 (2) are conclusive of truth in favour of judge, 405 (3) are always impeachable on certain grounds, 405-6, 584 (4) are never evidence of collateral matters, 407 (5) effect of, for or against party ; convictions, dismissals, acquittals, 407 judgments in rem, definition and list of chief, 407-9 conclusive against all the world of matter actually decided, 407 foreign judgments, in rem, effect of, 408 principle of conclusiveness, 409 conflicting judgments in rem, 409 judgments in personam, as affecting parties and privies, 410 conclusive of matters decided and ground of decision, 410 scope of rule, 410-1 foreign judgments in personam ; merger ; election, 411 effect of; as plea, evidence, or stay, 412; as estoppel, 683 Digitized by Microsoft® 744 INDEX. JTrDGMENTS — Continued judgments, principle of conclusiveness, 412 conditions of admissibility — . . -101- (1) same parties or their privies: mutuality, 412-10 examples, 417-19 (2) same subject-matter and object, 415-16 ^ . , ^ . cases of election and fresh evidence, distinguished from ■i present rule, 416 examples, 419^22 ^ (3) whole case, 416-17 examples, 422-4 in criminal cases, 417, 424^5 judgnients in personam, as affecting strangers, 42o generally inadmissible, 425, 428 principle of exclusion, 426 exceptions in cases of — (1) public rights, and as acts of ownership, 113, 426, 428 (2) bankruptcy, administration, divorce and patents, 426, 429 (3) judgments operating by contract, admission, or acquiescence, 427, ,429-30 proof of judgments and judicial documents, 556-62 complete record, when necessary, 550 in proceedings on appeal, or in chambers, 560 in old civil actions, 556-7 in Probate Division, 560 in bankruptcy, 560 of County Court proceedings, 561 of criminal proceedings, 557-9 of foreign and colonial proceedings, 561 reciprocal admission of, in England, Ireland and Colonies, 561 of verdicts and awards, 433, 562 of fines and recoveries, 562 of affidavits, depositions, pleadings and writs, 562-3 minutes of judgments in House of Lords, are primary evidence, and * provable by examined copies, 557 those of other judgments are secondary. 541 records cannot generally be proved by parol, 543, 569 nor varied or contradicted thereby. 576 exception in cases of fraud, &c., 405, 584 mistakes in, when and how rectified, 584 judgments as estoppels, 683 JUDICIAL SISCLOSTTRES, protected on grounds of public policy, 196-8 by judge, 196 arbitrators, 196 ^ barristers, 197 grand and petty jurors, 197-8 private examinations in bankruptcy, winding-up, lunacy, &c., 198 JIfDICIAL SOCTTIIENTS, other than Judgments admissibility of, to prove the truth of the matters contained — probates and letters of administration, 431-3 verdicts, awards, reports, 433-5 inquisitions, 355-02, 435 pleadings and writs, 235, 251, 435 depositions in former trials, 436-40 proof of judgments and other, 556-62. See Judgments JTTSICIAI NOTICE, defined, 7, 19 no evidence required of facts so noticed, 7. 19 scope of rule, 19 matters of w'hich notice will be taken — (1) law, procedure, and custom, 20-1 (2) constitutional, political, and administrative matters, 21-2 (3) territorial and geosraphical divisions, 22, 378 (4) official gazettes, 22, 337-8 (5) official seals and signatures, 22-4 (6) matters notified in, and companies ineorp6rated by, statute, 24-5 (7) notorious matters, 25 refreshing memory of .iudge as to such matters, 20, 379-80 Digitized by Microsoft® INDEX. 745 JUmSSICTION, extent of British, judicially noticed, 22, 364 when doubtful, statement of Sec. of State as to, is conclusive, 22, 364 acts done without the jurisdiction, when receivable, 56, 93, 99-100 JURY, functions of, with regard to evidence, 11-17. See Judge originally were witnesses, 222 matters of fact generally determinable by, 11 including weight of evidence, 11, 676 and meaning of peculiar or technical terms, 16 matter^ not to be opened or state^d to, (1) amount df damages claimed in any action, 38 (2) fact of payment into Court, 38 (3) previous conviction of accused, 38, 41-2. See Previous Cox- VICTIONS (4) confessions, qwsref, 38 (5) facts of which no proof is intended to be given, 38-9 (6) addresses on matters of law, 39 (7) quotations from scientific works, 39 (8) facts in other cases, 39 if disclosures of (1), (2), or (3) made, fresli jury should be had, 38 may notice matters of common knowledge without proof, 19 may ask admissible but not inadmissible questions of the witnesses, 483 disclosures by grand or petty, when excluded by public policy, 197 objections to evidence sometimes argued in absence of. 42, S3, 108 verdict of compensation, not impeachable for wrongful admission of evidence, 689 KISSING IHE BOOK, former requirement of, when taking oath, 459 history of, 459 KNOWLEDGE AND NOTICE, may be shown by party's direct testimony, 61 or his declarations out of Court, 65, 86-7 or circumstantially, by his means of knowledge, 145-8, 151-3 or by statements made in his presence, 255 or by possession of documents, 142-3, 145, 257 or by execution, but not attestation, of documents, 145 or by previous course of business, 145 or by access to, but not mere right to inspect, documents, 145-6 or by duty to know fact, 146 or by notoriety of fact, but not mere rumour or reputation. 146 or by recitals in public, but not in private Acts, 336 or by publication in Gazette or newspaper, 146, 337 ol' by previous, but not subsequent, knowledge, 87 or by similar facts, 174-5, 176-9 or by similar documents, 612 constructive notice defined, and when arises, 146-8. See Constructive Notice by claiming under instrument, 146-7 of conditions on passengers' tickets, 147 of documents incorporated by reference, 147. 525-8. See Incor- poration of agents, solicitors, partners, trustees, executors, when affects principal, 89^53, 95-7, 100 of directors, when affects company, 91-2, 151. See Company Directors of debtor as to his insolvency, 86-7, 152 of consignor or shippers as to terms of contracts, 152 of character of ship, by owner, 143, 152 of insanity of one party to contract, by other party. 152 of poisons, by accused in murder trial, 142. 163 ■by owner, of animals' propensities. 95, 152. See Animals by bigamist, that first wife was alive, 87. 146. See Bigamy of parties, not admissible to vary or contradict contracts, 590-1 when admissible to interpret contracts, 616 of testator of contents of toill, 327-8. 586 generally admissible to interpret wills. 612, 617-18, 639-40 but not Jo vary or contradict them., 639-40 witness can only testify to facts within personal knowledge, 219, 446-7 admissibility and sufficiency of evidence of, distinguished, 147 LAND TAX ASSESSUENTS, admissible as public documents, to show assessment on person and for property named, 361 but not to show his seisin, 361 Digitized by Microsoft® 746 INDEX. LANDLORD AND TENANT, admissious by either, how far evidence against the other, 239-40. See Tenant, Lease, Admissions by Pkeuecessoks declarations by deceased against his proprietary interest, how far evidence against successor, 279 estoppels between, 685 receipt or payment of rent is evidence, but not conclusive, of tenancy, 685 acts of ownership by, when admissible to show title, 111-2, 129-33 LAPSE of legacy, extrinsic evidence, how far admissible to rebut, 618, 623, 639, 647 • LAW, substantive and adjective, defined, 1 of the land is judicially noticed, 20-1 questions of, are ' determinable by judge, 11. See Judge and fact distinguished, 11. foreign, is treated as question of fact, 14, 16, 20. See Foreign Law and Statutes foreign, how provable, 14, 20, 388 LAW LIST, is admissible as public document, 353 LAW SOCIETY, reports of committee of, as to conduct of solicitor, are evidence of facts stated, 434-5 rules of, are not judicially noticed, 21 LEADING aUESTIONS, not admissible in chief, or on re-examination, 468 grounds of exclusion, 468 * exceptions (1), introductory or undisputed matter; (2) identification; (3) assisting memory; (4) contradiction; and (5) adverse witnesses, 468-9 admissible in cioss-examination, 476 LEASE. Bee Landlord, Tenant, Reoitais expired leases, or counterparts, admissible to prove ancient, but not modern possession, 112-3,. 129-30 custody of expired, 525. See Proper Custody counterparts of, are primary evidence against party executing, but secondary against others, 112, 535, 541. See Counterparts terms of written, cannot be proved by parol, even between strangers, 570 how far contradicted, varied, or added to by parol. 594-6, 602 when parol evidence admissible in interpretation of, 632, 634-5, 642, 653-4, 661-4 when to show intent to merge lease in fee, 85, 153-4 usage, when admissible to annex incidents to oral or written, 105, 123-4 when to interpret meaning of, 661-4. See Usage LEGACIES, when parol evidence admissible to show wbether cumulative or sub- stitutional, 326, 669, 672-3 when to identify- persons taking, 328, 332, 615-18, 623, 625-6, 639, 643-7, 650-53, 658-61. See Identity when to show extent of subject-matter of, 618, 623, 625-6, 640-1. 647-9, 653-6 when to construe specific, as general, 625-6, 656-7 extrinsic evidence, how far admissible to rebut lapse, 618, 623. See Lapse LEGITIMACY. See Access, Affiliation, Bastard of child born during wedlock, and access of its parents, are presumed, 678 proof of non-access of parents will rebut, 678 but their direct statements as to access not admissible, 77, 199, 309 conduct and declarations of adulterer will, however, rebut, 77, 117, 199, oU%f, 312 as also family treatment and reputation, 117, 190, 312 LETTERS, proof of posting and delivery of, from course of office, 105, 122 from entries by deceased clerks, &c., made in course of duty, 291 postiharks on, are evidence of dates and places named, 122. 348. S?e Date party's possession of, when evidence of knowledge of their contents 84 142.3, 145, 257. See Knowledge fajjure to answer, when an admission of truth of assertions in, 257-8, Digitized by Microsoft® INDEX. 747 lETTEKS — Gontvwued admissible to show terms on which writers lived, 77-8, 84, 49(1 police may intercept, 9, 138, 181. See Inteboepted Lettebs admissibility of intercepted, 102, 181. See Posting, Post Office construction of, when for judge or jury, 14-15 lETTERS OF ADMINISTRATION. See Probates conclusiTe of title of administrator against all persons, 409-10, 419, 420, 431 but are no evidence of the death or domicil of intes'tate, 409-10, 431-2 are, in general, only impeachable in Probate Court, 431 proof o5 560 LETTERS PATENT, are judicially noticed without proof, 24, 549. See Patent creates estoppel by reeotd, 6153 judgments as to construction of, bind strangers, 427 registers of, are evidence of matters' contained, 348 LEX FORI, evidence is determined by, not by lex loci contractus, 11 interpretation of wills and contracts affecting realty, is determined by lex situs, 11 of wills of personalty by lex domicilii, 11 of contracts affecting personalty, by lex loci contractus, 11 UBEL, province of judge and jury as to, 15. See Slander proof of authorship of, by handwriting, 108-9, 125, 515; by other libels,' 169, 491 of reference to plaintiff, by evidence of surrounding circumstances, 620 by opinion of friends, &c., 399, 401 by reputation, 384, 401-2 by exclamations of spectators at caricature, 384, 401-2 of meaning of words, by surrounding circumstances, 620 by opinion of witnesses, 399. 401-2 by similar libels, 176, 612, 620 of defendant's malice, by his previous- and subsequent conduct, in relation to, 151, 166 by similar libels, 176 loss of customers, through libel, customers must be called, 48, 75 names of defendant's informants, when privileged, 207, 468 bad character of plaintiff admissible in mitigation of damages, either in chief, or cross-examination, 191-2 as to justification and particulars thereof, 28, 182-3, 191 what Questions admissible in cross-examination of plaintiff, 191, 478-9 plaintiff's abstention from suing for similar libels, is not admission by conduct of truth of libel, 134, 262 reports about plaintiff to same effect as libel, when provable, 6, 133, 262 IiICENCE, must be proved by production of, 573 when lost, indorsements may be proved by course of office, 122 when estoppel is raised by, 686 LICENSING- CASES, rules of evidence, how far observed in, 689. See Inn- keeper, Publican unsworn testimony when receivable in, 4i«n«erf existence of, as distinct from terms of deed, may be s'liown by parol, 572 access to books of, is evidence of knowledge and acquiescence in contents, .145, 258 books of partnership generally evidence against partners, 258 PASS-BOOKS, banker's, are evidence against bank and customer, 234, 376-T PASSENGERS' TICKETS, when knowledge of conditions on, presumed, 147 PASSING OFF, how far opinions of witnesses admissible in cases of, 65. 393-4 facts not admissible in actions for, 118 PATENT, grant of, how far an estoppel, 683. See Letters Patent is judicially noticed, 549' on question of utility of, public user or non-user, admissible, 75, 87, 118 what statements are part of transaction in action for infringements, 75, 87 judgment as to infringement of, estops parties as to all grounds of invalidity," 417-8, 424 judgment as to construction of, binds strangers, 427 how far expert evidence admissible to explain patents, 393 what surrounding circumstances admissible to construe, 398, 612, 620 register of, is admissible as public document to prove title to, 348, 370 certified and sealed copies of patents, specifications, &c.,. admissible, with- out production of originals, 549 patent agent, communications to, not privileged, 202 certificate of comptroller of, is primA facie evidence of contents of register, &c., 348, 370 PATERNITY. See Legitimaoy, Pedigree, Atfiliation, Bastard, Access resemblance of child, is evidence of, 118 connection of mother with other men, and her ill-fame, provable to rebut, 139, 190 statements by parents not admissible as to access, or to bastardise offspring, 199, 679 except when part of conduct, 77, 679 PAUPER, proof of settlement of by apprenticeship, 128. See SETTLiatENT terms of conveyance of. land to, must be proved, even between strangers, by production of the deed, 570-1 when such terms may be contradicted, 577-8 removal orders at Quarter Sessions, how proved, 558 PAYMENT, acts and declarations relevant to prove, 73-4, 117-8 may be proved, or contradicted, by parol, though written receipt given, 571-2, 577 > under Statute of Limitations. See Limitation fact of payment into Court, not to be disclosed to jury, 38 PEDIGREE, matters of, may be proved by declarations of deceased relatives, 307-17. See Declarations by Deceased Persons, Reputation family conduct and treatment, also admissible to prove, 117, 312, 317 reputation as to, admissible, 384 judgments between strangers, how far admissible as reputation to prove- 312-3 PEERAGES, not receivable in evidence as public registers, 353 PENALTY, questions subjecting to, when need not be answered by witness 211-6. See Criminating Questions, Forfeiture may be proved to be liquidated damages, by parol, 583 PENCIL, signature in, valid, 516, 529. See Signature but alterations in, are presumed to be deliberative, not final, 529 PERAMBTTLATIONS, statements as to, how far admissible as reputation, 296 or as part of res gesta, 111 PERJURY, num'ber of witnesses, &c., required in cases of, 485 in cases of, the former trial may be proved by certificate, &c., 367, 557 aflidavit containing, how proved, 556, 562 Digitized by Microsoft® INDEX. 75? PERPETUATION OF TESTIMONY, depositions in civil and criminal proceed- ings for, 502, 510-11 PERSONALTY. See Probates, Lbttgbs of Administbation PERSONS IN AUTHORITY. See Confessions confessions induced by, are inadmissible, 263 who are such persons, 265, 270 PETTY JURORS. See Jubobs PHARMACOP(EIA is evidence as standard for ingredients of drugsr, 109, 380 PHOTOGRAPH, identification of persons by, 398-9 of objects by, 540-1 photographic copies of documents are primary evidence of each other, but secondary evidence of thp common original, 537, 540-1 PHYSICAL APTITUDE or CAPACITY, when relevant to connect party with crime, 137, 142, 163 PHYSICIANS, gee Medical Men PLACARDS, &c., proof of inscriptions on, 533, 548. See Inscriptions PLANS. See Maps inspection by court of verified plans, 8 how far restrictive of deeds to which they are annexed, 623-4, 648-9 PLEADINGS, evidence must be confined to issues raised' by, 27 variance from, and amendment of, 28-9 admissions, in, generally conclusive in same proceedings, 18 in other proceedings, admissible to show what were issues, but not truth of facts, unless the pleadings are sworn to, &c., 235, 251, 435-6 proof of, 562 POLICY OF ASSURANCE, company when bound by acts of agent, 96-7, 99 intention of assured in affecting, may be proved by his declarations, 84-5; 153 as also may the health of the assured, 83 parol evidence, how far admissible to affect: not admissible to except particular ship from marine, 589 nor generally to contradict terms of, 591-2, 596 but admissible to disprove payment of premium, 586-7, 600 to identify documents referred to in, 633 prior proposals for, admissible to identify subject-matter of, 633 broker's slip, how far admissible for this purpose, 633. See Slip, Broker usage admissible to annex incidents to, 105, 123-4 or to interpret words in, 661-3 course of dealing admissible to interpret, 664 proof of age of assured, in, 225. See Age POLITICAL MATTERS, when judicially noticed, 21 POOR LAW BOARD, seal of old, judicially noticed, 24. See Locai, Govern- jiENT Board orders of old, how proved, 551 POOR LAW VALUATIONS AND ASSESSMENTS, admissibility and effect of, 361; proof" of, 555 POOR RATE BOOKS are prim& facie evidence of occupation, &c., 361 PORTRAITS, likeness of to sitter, provable both by expert and non-expert witnesses, 387, 399 family, are evidence in pedigree cases, 311 POSSESSION, ancient, provable by expired leases, &c., 112, 129-33 conditions on which such documents receivable, 112-3 presumption of title increased with long, possession, 112' modern, cannot be proved by expired, leases, 113 of property, and acts of ownership, relevant to prove title, 111-12 Digitized by Microsoft® 758 INDEX. POSSESSION — Continued of security is prim& facie evidence of payment, 117 of property and documents is relevant to connect accused with crime, 138, 142-3 or to implicate co-conspirators, 93 or to sliow knowledge of contents of documents, 145-8 declarations explanatory of, are admissible as part of res gesta, 72-3 admissions by predecessors in title, made while in, are admissible, 238-41 and statements against proprietary interest similarly made, 279 documents in possession of party, when admissible against him, 257-8, 261-2^ POST LITEM MOTAU, declarations by deceased persons, when must have been made. 210, 296-6. See Lis Mota POSTING AND DEIIVERY of letters. See Lbttees proof of, by showing course of business to post, or to deliver, 105, 122 by declarations of deceased clerk, 291 POSTMARKS on letters are evidence of dates and places named, 122, 348 POSTMASTER-GENERAL, decision of, that a publication is a newspaper, is not binding, 435 orders, &c., by, how proved, 552 POST OFFICE, registers publicly kept at, are evidence of their contents, 348 letters intercepted at, when admissible, 102, 181. See Letters PRAYER-BOOKS AND MISSALS, entries in, are evidence of pedigree, 311, 317 PREAMBLE of statutes, admissible to interpret them, 609, 615. See. Statutes PREDECESSORS IN TITLE, admissions by, are evidence against party, 288-41 rule only co-extensive with identity of interest, 239 admissions must qualify declarant's title, 240 and be made during currency of interest, 240 examples, 240-1 judgments, for or against, when bind party, 413-4. 418-19 PREJUDICE, offers of compromise made without, are protected, 231, 235 (cp. 208 PRELIMINARY CONTRACT and negotiations, not admissible to vary subse- quent conveyance, 575, 590 how far admissible to interpret such conveyance, 616, 633-9 PRESENCE. See Statements in Peesence of Party, 255-62 PRESENTMENTS of manor jury, are evidence of reputation, 297-8, 305. See Manor PRESUMPTIONS OF LAW AND FACT, defined and distinguisfhed, 7, 676-82 conclusive presumptions of law, 7, 676-7 rebuttable presumptions of law, 677-81 as to legitimacy, access, marriage and celibacy, 32, 678-9 possibility, or failure, of issue, 679 continuance of lite, death, and survivorship, 32, 104, 680 killing presumed to be unlawful, 33 sanity, 32," 104, 680 innocence, regularity, and omnia rite esse acta, 32-3, 680-1 undue influence and martial coercion, 33 that persons intend the probable consequences of their acts. 148, 677 as to documents, e.g. date, 280, 515, 681 ; sealing and delivery, 517-8; ancient documents, 523-5 ; alterations. 529; stamps, 532 ; that judicial documents are correct, 584 signature sometimes presumed from reduction of agreement to writing, 516 execution of lease raises presumption that counterpart also executed, 516 consideration for bills and holders in due course, 32 Digitized by Microsoft® INDEX. 759 PRESUMPTIONS OF lAW AND VACT— Continued rebuttable as to ownershdp of soil of river and highway, 671, 675 as to executors, e.g. extinguishment of debt by appointing debtor executor, acceptance of office, and right to residue, 670, 674-5, See BXEOUTORS equitable pres'umptions as to double portions, satisfaction, ademption, advancement, resulting trust, and cumulation of legacies, 667-74 as to merger, 671 (cp. 580) shift burden of proof, 32-4, 678 conflicting presumptions, 34 presumptions of faot, 7, 103-98, 681. See Relevant Facts rules of construction distinguished from, 666 PREVENTION OF CRIMES ACT, 1908, proof of formalities under, 189-90 PREVIOUS CONDUCT, of parties, relevant to identify doer of act, 137, 139-42 to sihow states of mind, 146-57, 172-i85 to interpret contracts. See Cottse of Dealing PREVIOUS CONTRADICTORY STATEMENTS admissible to discredit adver- sary's witness, 474-81 or party's own witness, if adverse, 471-3 PREVIOUS CONVICTION of accused must not, in general, be disclosed in opening a prosecution, 38 except where act is only a crime if done after such, or upon appeals from justice's sentences, 38 nor be proved until aifter verdict and to affect punishment, 41-2 except — (1) when forming an essential ingredient of the offence, 38, 41-2, 189, 454; or (2) showing guilty knowledge, 42, 174-5, 189; or (3) rebutting good character, 188-90, 454-5; or (4) to contradict defendant's denial of the conviction, 42, 454, 482 ; or (5) to prove public rights, 42, 298, 428; or (6) to prove a plea of res judicata, 42, 412, 424-5 ; or (7) in summary cases, 42 of witness (other than accused), admissible to discredit him, 482 proof of, 367-8, 482, 567-9 PREVIOUS EXISTENCE OF FACTS, when relevant to prove their subsequent existence, and vice vers&, 103-5, 120-1. See Continuance PREVIOUS SIMILAR STATEMENTS, not generally admissible to corroborate witness, 114, 488 exceptions; 114, 488 how far admissible to discredit witness, 479-81 (cp. 166) how far to interpret documents, 176, 612, 619-20. See Similar Documents PRICE-LISTS, admissible to refresh memory of experts, 392 PRIEST, confessions to, not privileged, 202, 265 PRIMA FACIE evidence, best evidence of facts not now generally necessary, 47. See Best Evidence, Strict Proof, Conclusive Evidence exceptions, 47-8 judicial notice, when conclusive and when only primA faoie proof, 19 admissions when only, and when conclusive, 18 when burden of proof shifted by, 32-7 judgments when conclusive and when only, 404-5, 407-25. See Judgments statutory certificates, when conclusive and when only, 364. See Cebitifi- cates 1 share certificates, when are, 370 • registers, when are, 339, 571, 577, 588 PRIMARY EVIDENCE of documents, 533-65 definition of, 6 forms of — (a) original document, 535-7 ; production of, how obtained, when in possession of party or strangers, 537 (b) admissions, 537-8 (c) copies made under public authority, 538-9 of handwriting, 400, 519 Digitized by Microsoft® 760 INDEX. FSINCIFAL AND AGENT, ^ee Agent, Servant PRINCIPAI AND SURETY. See Sotett PRINT, signature, when may be in, 516 when documents partly written and partly in, writing prevails, 614, 654, op. 602 PRISONER, statutory examination of, when must not be upon oath, 508-10 history of the judicial examination of, 211-13 unsworn statements by, before magistrate, practice as to putting in, 44-5 statutory caution must be given to, before taking examination, 508 when examination, inadmissible under statute, may be admissible as a confession, 509 facts relevant to identify, or connect him with crime, 136-44 to show state of mind of, 145-57 similar facts when relevant to prove criminal act, identity, or state of mind. See, Simhae Facts character of, when relevant, 186-82. See Ohaeacter confessions hy, 263-75. See Confessions statements in presence, or documents in possession of, when admissible, 255-62. See Statements in Pbesenoe explanatory statements by, at time of crime, 81-2 competency and testimony of, under Cr. Ev. Act, 1898, 453-7 attendance of, as witness in other trials, how procured, 444 documents and property in possession of, may be detained, 9 and are evidence against, 93, 137, 142-3, 257, 261 when originals required from, notice to produce, not subpoena, should be served on, 537 medical inspection of, against consent, illegal, 9-10 PRISONS, seal of Commissioners of, is judicially noticed, 24 conveyance to Oommissioners of, extrinsic evidence rejected to explain, 639 PRIVATE ACTS. See Statutes PRIVATE DOCrMENTS, proof of execution of, 515-25. See Documents of contents of, 532-65 PRIVATE EXAMINATIONS in bankruptcy and winding-up, privileged from disclosure, 198 PRIVI1E6E, facts excluded by, 200-17 nature of claim, and by whom and how made, 200 effect of, when allowed, 200 subject-matter of: (1) professional confidences, 201-9. See PRorEssiONAL Confidences (2) party's title-deeds, evidence and lien, 209-10. See Title-deeds (3) matrimonial communications, 210-11. See Matrimonial Com- munication (4) criminating questions, 211-16. See Criminating Questions (5) admissions of adultery in divorce eases, 216-17 PRIVITY, defined. 239 of three kinds, blood, law, and estate, 2.39 admissions by party bind his privies, and vice versd, 239 judgments against' party bind his privies, and ince versd, 412-15 depositions when evidence against privies, 436-40 PROBABLE CONSEftTJENCES of acts are pi'esumed to be intended. 148, 677 PROBATES of will of personalty how far operate in rem, 408-10, 431-3 can, in general, only be impeached in Probate Court, 431-2 are conclusive even against strangers of appointment of executors, and of validity and contents of will, 408-10, 431 are not conclusive, or even perhaps admissible, evidence of death, domicile, or on charges of forgery, of genuineness of will, 408-10, 432 of will of realty only conclusive when proved in solemn form, or in con- tentious proceedings, 432 Digitized by Microsoft® INDEX. 761 PROBATES— Continued are generally primary evidence of contents of will, 431. 560 except to prove declarations by deceased, when they are secondary, oil, 432, 560 ^'l®^, original will may be looked at in aid of construction, 431, 538, 560, 613, 637, 661 proof of, 560 right to begin in probate suits, 38 PROCESTTRE, defined, 1 matters of parliamentary, executive and judicial, are judicially noticed, 20-1 PROCESS. See Witnesses PROCLAMATIONS by Sovereign, admissible as public documents, 335 proof of, 539 PROBVCTIOIT of documents may be obtained as follows: in Civil Oases: ieforeoT after trial, from parties or strangers, by judge's order, at trial, from party, by notice to produce (under which production is optional), 537 notice to produce, rules as to, 544-6. See Notice to Pkoduce from either party or stranger, by subpoena (under which production is compulsory), 442-3, 537 »« Criminal Cases: from prosecutor, by subpoena ; and from accused, by notice to pro- duce, 442, 537 witnesses called merely to produce documents, need not be sworn. 442, 46:: right to inspect docaments produced on notice, or referred to by witness. 471, 473, 477 of original document is primary evidence of its contents, 534-5 origin of rule requiring, 4S, 534-5 what documents are excluded, or privileged, from production, 194-216 of property at trial, when compulsory, and when not, 8 PROPERT, history of, 534-5 is origin of rule requiring production of original document, 48, 534-5 PROFESSIONAL CONFIDENCES, generally privileged, 201-9 principle of protection, 201 privilege confined to legal advisers; clergy, doctors, &c., not included, 201-2 (a) the retainer, sole or joint, 202 (6) scope of employment, 203 (e) communications must be necessary and confidential, 203 (d) joint interest destroys privilege, 203-4 (e) duration of privilege, 204 (/) waiver of privilege, 205-6 examples of matters privileged, or the reverse, 205-9 PROmSSORT NOTES. See BitLS OF Exchange PROOF. See Evidence, Pkima Facie, C!onclusive definition of, 1 effected by (1) evidence, (2) presumptions, (3) judicial notice, and (4) inspection, 1 rules of, generally same in civil and criminal cases, 10 exceptions — (1) in civil cases rules of evidence may be relaxed by consent or order of the Court, 10 (2) rules as to character, complaints, confessions, dying declarations, competeno.v, and compellability of witnesses, are peculiar to criminal law, 10 (3) civil issues provable by preponderance of evidence, criminal ones beyond reasonable doubt, 10 burden of, rules as to, 30-7. See Bubden of Pkoof strict proof of facts not generally required, 47. See Best Evidence exceptions, 47-8 of authorship, execution, and attestation of documents. 514-32. See Doou- ~ mknts Digitized by Microsoft® 763 INDEX. PROOF — Continued , of contents of documents, by primary evidence, 532-9. See Peimabt Evidence by secondary evidence, 539-49. iSee Sboondart Evidence of particular documents — public (statutes, registers, Corporation books, &c.), 549-56 judicial, 556-63 private, 563-5. PROPER CUSTODY. OF DOCUMENTS, 524-5. See Ancient Documents PROSECUTOR, is not a party to the proceedings, in criminal cases, 38, 270, 413, 537 wife or husband of, is compellable witness, 457 must not, in opening case, disclose previous conviction of accused, 38 nor prove same before Terdict, 41-2 admissSons by, not evidence for prisoner, 270, 413 may be ordered out of court if a witness, 464-5 character of, when relevant, 190 is person in authority, so that confessions induced by, inadmissible, 265 public. See Public Pbosecutob PROTECTION OF WITNESSES, 447-8. See Witnesses PROXY, when blank, may be filled in after execution, 530. See Blanks PUBLICAN, acts, knowledge, and declarations of barman, &c., when evidence against, 96. See Innkeeper PUBLIC AUTHORITY, registers kept under. See Public Registers inquisitions and surveys under. See Public Inquisitions PUBLIC AND GENERAL RIGHTS— declarations by deceased persons as to, 294-306. See Declarations general reputation as to, 384 judgments as to, 426, 428. See Judgments PUBLIC DOCUMENTS— defined, 335, 339, 355 principle of admissibility of, to prove truth of the statements contained, 335, 355 (1) statutes. State papers, and Government gazettes, 335-6 (2) public registers and records, 339'-54 (3) public inquisitions, surveys, assessments and reports, 355-62 (4) official certificates, 363-71 (5) corporation, company, and bankers' books, 372-7 (6) published histories, maps, dictionaries and scientific or mercantile records, 376-81 proof of the authenticity and contents of various public documents : statutes, British, Colonial, and Foreign, 549 statutory rules, 549 treaties, charters, letters-patent, &c., 54& proclamations and Orders in Council, 550-2 parliamentary journals, 552 general records of realm, 552 public registers, inquisitions, surveys, assessments, corporation books, by-laws, certificates and manor books, generally, 553-6 registers, British, Colonial, and Foreign, 554 inquisitions. Surveys and Extents, 555 assessments, 555 corporation and bankers' books, 555 certificates, 553, 556 by-laws, 555-6 manor-books, 556 military and naval records, 556 notarial protests, 556 (cp. 366, 538, 548, 560) PUBLIC HEALTH BOARD, seal of, judicially noticed, 24 PUBLIC HOUSE. See Licence and Licensing Cases Digitized by Microsoft® INDEX. 763 PTJBUC INftriSITIONS, SURVEYS, ASSESSMENTS AND REPORTS, admis- sible when made under public authority and as to public matters, 355 principle of admission, 355 , (1) what is public authority, 355 (2) what is public matter or purpose, 355-6 (3) excess of jurisdiction ; irregularity ; interest of officer in subject- matter of inquiry, 356 examples of, 357-362 inquisitions in lunacy, or by coroner, 356 ancient inquisitions under royal, statutory, or judicial authority, 357-9 Doomsday Book, Down Survey, Terriers, Bishop's returns, &c., 357-9 duchy and manor surveys, 357-8, cp. 297-8, 304-5 Tithe Commutation maps, 359; op. 304-5 Ordnance Surveys, 360; op. 298, 305 herald's visitation books, 360 , orders of Nlaval Courts or Board of Trade, 360 land' tax assessments, poor law valuations, and rate-books, 361 reports by custom-house officials, charity commissioners, &e., 361-2 railway deposited plans, 360 proof of, 5^ PVBIIC POLICY, facts excluded by, 194-9 (1) affairs of State, 194 (2) information for the detection of crime, 195-6 (3) judicial disclosures by judges, arbitrators, barristers, and jurors, 196-8 private examinations, &c., in bankruptcy, winding-up, lunacy, or before receiver of wreck, 198 (4) statements by parents bastardising their offspring, 198-9 PUBLIC PROSECUTOR, consent of, to prosecution, presumed until challenged, ' 190. See Consent signature of, not judicially noticedj 23-4 may be proved by witness familiar with handwriting, 189-90 or who has received letter of consent in ordinary course after application therefor, 190 PUBLIC REO-ISTERS are prim& facie evidence of truth of matters recorded, 339-54. See Registers but may be contradicted by parol, 577, 588 and do not exclude other evidence of the matters registered, 571 (1) must be kept under public authority and for public benefit, 339 parish registers within the rule, 339 also non-parochial, when deposited under statute, 339-40 ' and colonial and foreign, when kept under local authority, 340 (2) entries must be made by proper officer, and promptly, 340 (3) originality ; errors ; interest of officer in matter recorded, 341 (4) entries are only evidence of matters it was officer's duty to record, not of extraneous particulars, 341-2 registers of birth, baptism, marriage, death and burial, how far admissible, 342-3 identity of persons referred to must be proved aliunde, 343 proper custody of, 525 proof of, 554 examples of : registers of birth, baptism, marriage, death, and burial, 344-7 bishops' registers, monastic registers, vestry and parish books, 347 registers of public offices, e.g.. Inland Revenue, Excise, -Patent, Post Office, &c., Beer and Spirit Licences, 348 registers Isept under Copyright and Newspaper Acts, &c., 348 Bank of England Transfer Books, 348. See Bankers' Books minute-books under Bankruptcy Act, 349 registers of deeds, &c., in Yorkshire and Middlesex, 349 registers of voters under Ballot Act, 350 registers of convictions, &e., under Summary Jurisdiction Acts, 349, 350, 558 military and maritime registers ; army, navy, and law lists, 350-3 log-books, passenger lists, coastguard and lighthouse journals, 352-3 medical registers ; university, college, and manor books, 354 private registers generally inadmissible, 339-40; and cp. 290-1. See Registeks, Shop-books as to mechanical registers, e.j;. of gas, water, &c., see 163 Digitized by Microsoft® 764 INDEX. PUBLIC WORKS, seal of commissioners of judicially noticed, 24 PUBLISHED HISTORIES, admissible to prove public, but not private or local matters, 378, 381 when Court may refer to, to refresh memory, 26, 379-80 QUAKERS, may affirm in^ead of taking oath, 459 marriage registers of, when admissible as public documents, 340, 344 QUI SENTIT COMUOSUU SENTIRE DEBET ET ONUS 'ground of admission of judgments against privies, 413-5 RAILWAYS, seal of Commissioners of, judicially noticed, 24 RAILWAY TICKETS, knowledge of conditions on, when may be inferred, 147 RAPE, facts admissible to prove or disprove, 67, 119, 185 admissibility of complaints in cases of, 114-6, 488-9 bad cliaracter of prosecutrix may be proved in cases of, 190 also previous connection of prosecutrix with prisoner or others, 190, 478 qu. whether consent is defence of an imputation on character, 454 RATE, justices protected though rate distrained for invalid, 405 rate-liook admissible to prove the making, &c., of a, 361. See Rate-Books making, &c., of, must be proved by rate-book, or copy thereof, and not by parol, 573 * admissions by ratepayer are evidence against churchwardens, &c., 238 RATE-BOOKS, are admissible as public documents, to prove treir contents, 361 proper custody of, what is, 525 ; proof of, 555 RATE OP SPEED of motor-cars provable by opinion of witnesses, by watches, &c., 162-3, 170-1, 485-6. See Motor-Cab REAL EVIDENCE, defined, 5 production of, is not generally compulsory, 8-10, 47 REALTY, admissibility of wills, or probate of wills, of, 432-3 proof of wills, or probate of wills, of, 563-4 REASONABLE AND PROBABLE CAUSE, functions of judge and jury in cases involving, 16 burden of proving absence of, is on plaintiff in actions of malicious prose- cution, 31 burden of proving presence of, is on defendant in actions for false imprison- ment, 31 bad character of plaintiff is not admissible to show defendant had, 191 in actions for malicious prosecution, depositions must be put in, 558 REASONABLE TIUE, when a question for the judge, 16 REBUTTING EVIDENCE, rules as to, 40 when defendant has special reply on plaintiff's, 43 evidence in reply must be rebutting, not con^rmatory, 40, 496 prisoner's evidence of good character may be met by, 188-90 REBUTTING PRESUMPTIONS raised by words of document, parol evidence admissible for purpose of, 665-75 principle, 665 rules of construction distinguished from those of presumption, 665 as to satisfaction of portions and debts. 667, 671 as to ademption and repetition of legacies, 668. 672 as to advancement and resulting trust, 669, 674 as to executors, 670, 674-5 as to miscellaneous instances, 671, 675 RE-CALLING WITNESSES, when allowable, 41 , 4S3-4 RECEIPT, IS an admission affain.it party signing, 234 written, when may be contradicted. &c., by parol, 577. 586-7, 588-9 Digitized by Microsoft® INDEX. 765 RECEIPT — Continued when admissible, as part of res geata, to prove payment, 66 unstamped, may be used to refresh memory, 471, 531 by deceased agent, &c., is admissible as against his interest, 278, 2S2. 285 by deceased clerk, &c., is admissible it given in course of duty, 290 of rent does not estop, 686. See Rent oral evidence of loan admissible, though receipt and inventory of goods, also taken, 571-2 RECEIVER, entries in account books of deceased, admissible as against interest, 278, 282, 285 and also as made in course of duty, 290 report of official, as to bankrupt's conduct, is evidence of contents, 434 depositions taken by official, are privileged; 198, 208 of wrecks, depositions before, are privileged, 198, 208 confessions by, when evidence against thief, and vice versd, 260, 269 and thief, testimony of, does not require corroboration in charge against the other, 487 guilty knowledge of, how proved; 174-5, 178-9 statements by, exculpating himself, how far admissible, 81 RECEIVI NG ST OIEM GOODS, facts admissible to prove, 174, 178. See Rexiwvbb previous conviction for fraud, not per se sufficient to shift proof of scienter from prosecution, 175 RECENT POSSESSION OF STOLEN GOODS is evidence of guilt and calls on prisoner to explain, 35, 138 RECITALS in deeds, are hearsay, but operative words are original evidence, 216 when operate as admissions or estoppels. 112, 234, 683-4. See Deed, Estoppels by deceased relatives in family deeds are evidence to prove matters of pedigree, 311 in ancient deeds are evidence of reputation, to prove public or general rights, 296 but not to prove private rights (except as admissions) , 112, 296 nor (except as admissions) to prove ancient possession, 112 when are primary evidence of document recited, 538, 684 when are secondary evidence, 541 of formal, and sometimes of substantial, matters may be corrected by parol, 585-6, 601-3. See Mistake, Misnomee. mairrled women and inifants how far estopped by, 684 RECOGNISANCE, binding witness by, 443 disobedience to, 447 RECORDS or THE REALU, public andi judicial, proof of, 552-3 RECOVERIES, proof of fines and, 562 RECRIMINATION, by witnesses, 41, 483 RECTIFICATION, of documents for mutual mistake, &c., 585-6 RECTOR. See Vicab, Clergy RE-ESTABIISHING CREDIT OF WITNESS, 483 RE-EXAMINATION, of witness, only allowaWe when cross-examined, 483 must he confined to explanation of matters in cross-examination, 483 new facts can only be elicited in, by leave of judge, 483 REFEREE, admissions by, 252-3 . , ^o^ = « t. „„..,„ effect of reports and awards by official, or special, 434-5. See Reports REFERENCE, incorporation of documents by, 147, 525-8, 612 See Incor- poration to complainant in cases of libel or threat, 399, 620 _ ■,..., to persons and things in documents, generally extrinsic evidence admissible to show. See Interpretation Digitized by Microsoft® 766 INDEX. REFRESHING MEMORY of judge, 21, 26, 378. See Memory of experts, by reference to text-books, price-lists, &c., 392-3 of witness, principle of, 469-71 by whom document may be written, 469 must be contemporaneous, 470 independent recollection not necessary, 470 originals and oopies, 470-1 inadmissible document may be used for, 471 production of documents used for, and cross-examination as to, 471 REGIMENTAL MATTERS, military registers, are evidence of, 350-1, 353 gazette is evidence of, 337 army list is evidence of, 353 at common law, officers' certificate no proof of military service, &c., of subordinate, 365 but now, by Army Act, 1881, certificates, letters or returns by Secretary of State, or commanding officers, are evidence of such, 365, 371 REGISTERS, public, admissible to prove facts stated, 339-54. See Public Registers but are in general only primd evidence, and may be contradicted' by parol, 577, 588 and does not exclude other evidence of the registered facts, 571 effect of, when required to be sealed, 374 non-public, inadmissible at common law to prove facts stated, 339-40, cp. 290-1 by statute Company registers are eviden'ce, 373-5. See C!ompany gas- or water-meters aTie evidence of quantities used, 163 REGISTRATION OF DEEDS, &c., 530, 543, 563^. secondary evidence generally admissible of documents requiring, 543, 563-5 certificate of, is evidence of fact and date of, 530-1, 563-5 REGULARITY of facts when presumed, 109, 326, 515, 681. See Omnia Pbe- SUMTTNTtrR, &C. RELATIONSHIP. See Pedigree, Treatment RELEASE of deed, how far may be proved by parol, 588 RELEVANCY, defined, 49 legal and logical, distinction discussed, 52 admissibility distinguished from, 49-50 Stephen's rules as to, 50-51 objections to these rules, 51 his distinction between relevancv to issue, and relevancy to truth of matter considered, 51, 221-2 views of Thayer, Wigmore & Chamberlayne, 52-3 RELEVANT FACTS, defined, 49. See Relevancy facts relevant to prove main fact or transaction, 103-35 to show identity or connection of the parties, 136-45 to prove states of mind, 145-57, 172-85 similar facts when relevant to prove the main fact or identity of the parties, 158-171 when relevant to prove states of mind, 172-85 presumption of conUnwmce of facts generally weakens with lapse of time, 103, 120-1. See Oontinuance aUter in the ease of the i>ossession of land, &c., 112 RELEVANT STATEMENTS, 103, 145, 221-2 REIIGI0"[TS BELIEF, not now necessary to vender witness o.mpeteni-, 449, 458 and questions as to, not admissible to discredit him, 478 party's own declarations as to his, adtaissible, 64, 121 when once prjvod, continuance of, presumed, 103, 121 REMOVAL. See Pauper, Settlement Digitized by Microsoft® INDEX. 767 BENT, receipt or payment thereof, thoug'h evidence of tenancy, does not estop, 686 faict of payment of, may perhaps be pvovia by parol, thotffh written lease exists, 673 •ui. not amount of, even in actions b»itwcijn third parties, 570, 573 nor can amount of, be contradicted oy parol, iiuli'i?-) reclilication be claimi- i. 602; op, 585-6 and not always where rectification is claimed, 602 receipt for later, is evidence of payment of earlier, 117. REOPENING CASE, for further evidence, when allowed, 42 REPAIRS, doing of, is evidence of ownership. 111 liability to repair bridge or highway, repairs or indictment for non-repair, of other parts, admissible on questions of, 132-3, 168-9 REPLY, evidence in, must not be confirmatory, 40, 483 except where party misled, or suprised, 40 rigiht to, 42-5. See Eight to Reply REPORTS by public officials, when receivable as public documents to prove the maltf Ts reiKirted, a^'ainst strangers, Sri5-62, 359, S'il 2 proof of such, 555 by judicial officers, though not admissible as public documents, sometimes receivable inter partes, by Statute, 434-5 by referees, &c., under the Arbitraition Act, equivalent to verdicts, 385-6 under this Act the judge may also order independent report and experi- ments ito be made hy experts for his own guidance, 385-6 by Official Receivers, Board of Trade, Committee of Law Society, admis- sible for special purposes, 434-5 by Chancery Visitors, Company Inspectors, &c., not evidence of facts stated, 434-5 'by judge, admissible to show what matters were in issue in trial, 416, 434 by police or detectives, sometimes admissible to show party's iona-fidea, 133, 262 by deceased engineer, as to Thames Tunnel, admissible fis public document, 380 by Charity Commissioners, 361, 434 by Government officials to heads of departments, generally privileged, 194 REPUTATION, generally inadmissible to prove facts, 382 except public rights, pedigree, marriage, and identity, 384-5 admissible in such oases although divided, discontinuous, or restricted to particular dass or locality, 384 sometime admissible for other purposes, o.ff., as convertible with character, 188, 383 or as affording reasonable grounds for party's belief, 155, 383 or as showing the state of the public mind as to some material matter, 84, 283 for untruthfulness, admissible to discredit witness, 482 RESCISSION of contract for unilateral mistake, &c., 585 extrinsic evidence, how far adinissible on questions of, 487-8, 603-4 RESEUBIANCE of child to parent is evidence of paternity, 118. See Child of portrait to sitter, opinions of artists, or friends, admissible to pro^ve, 387, 399 of libellous description or picture to plaintiff, provable by general repute, 384; or opinions of witnesses, 398-9 of copy to infringed picture, &c., may be proved by comparison, although neither is produced in Court, 8, 47, 548, 573. See Compakison RES 6ESTA, definition of term, 55-6 history and principle of rule as to, 55-6 what facts admissible as parts of. 55 the fact in issue, per se. 56, 65 constituent facts. 50-7, 66 cumulative and continuous transactions, 56-7, 67-9 dooumemtary transactions, 57, 69 accompanying facts, 57 Digitized by Microsoft® 768 INDEX. KES QESIA — Continued what incidents other than declarations, 58, TO-1 dedarations accompanying acts, 58, 71^82 (1) The act must be in issue, or relevant, and that declara- tions must relate thereto, 58 (2) must be contemporaneous, 58-9 (3) bjr whom made, 69 (4) documentary declarations or acts, 59-60 (5) the declarations are original evidence, not hearsay ; of what facts Uiey are evidence, 60-1 (6) miscellaneous provisions, Gl dedaorations as to mental and physical conditions, 61-5, 82-7 direct testimony and declarations out of Court, 61-2, 82 (1) as to health and feelings, 62-3, 83-4 (2) as to intention and motive, 63-4, 84-6, 148. See Inten- tion (3) as to opinion, 64-5, 85-6. See Opinion (4) a J to knowledge, 66, 86-7, See Knowledge examples, 65, 87 declarations (civil cases) as to accidents, collisions, &c., 71-2 as to identity, ownership, possession, &c., 72-3 as to business transactions, e. g., ■ to explain payment, to show to whom goods sold or credit' given, in what capacity document signed, reasons for loss of contract, land, or custom, 73-75 as to bankruptcy, 75-7 as to domicU, 77 as to legitimacy, marriage, adultery, &c., 77-8 (criminal cases) sedition, murder, assault, 79-81 explanatory statements by accused and others, 81-2 B£S INTES Alios ACTA, history of maxim and bearing as a test of irrelevancy, 159-60 . as the supposed ground of exclusion of similar facts, 159 of hearsay, 221 of judgments, 426, and depositions, 436 parol evidence admissible to ■V'ary documents when inter alios, 577-8, 589 BES OUSICATA. See JinxsMEatTS BESOIVIIONS, &c., at company meetings, effect of, 373-4 ; proof of, 555 at creditors' meetings, minute-books ajre evidence of, 349, 561 may be proved by parol, though recorded in minute-books, 571 read out ot public meetings, may be proved at parol, without production of documenit, 572 (cp. inscriptions and placards ex'hibited' at such meet- ings, 533, 545) BESFONDENT. See Co-rkspondent, Divoece, Aditltert BE-SWEABING witnesses before fresh judge or juror, 42 BETAINEB, of solicitor, informal, sufficient to render clients' communications 'privileged, 202 if disputed, requires corroboration, 487 BEVISINO BAREISTEE, how far bound by rules of evidence, 689 REVOCATIOIT OF Will, direct declarations by testators inadmissible to Drove 328 but their declarations of intention may afford presumptive evidence of 324, 328, 333-4 ' so, in cases of dependent relative revocation, 328 RIGHT or WAT. See Way RIGHT TO BEGIN, in civil cases, 37-8 (1) where onus of proving any of the issues is on plaintiff, he begins, oT (2) where no issue is on plaintiff but he claims substantial and un- liquidated damages, he begins, 37 Digitized by Microsoft® INDEX, 769 RIOHT TO BEGIN— Continued (3) otherwise, where all issues lie on defendant, latter begins, 37 in criminal cases prosecation always begins, 3S matters not to be disclosed in opening, 38 new trial may be obtained for erroneous decisions as to, 32, 39 BIOHT TO KEPIY— in civil cases, ^-3 when opponent adduces evidence, 42-3 does not adduce evidence, 43 . when there are joint defendants, 43 in criminail oases, 43 where defendant calls witnesses other than himself, 43-4 where he calls none, or only hiimself, defendant generally replies, 44 except (1) in Crown cases where law officers prosecute, 44 (2) or prisoner makes stajtemenrt to jury, 44^ pules where there are joint defendants, 46 RINGS, inscriptiops on, how proved, 47, 533, 545 are evidence in pedignee oases, 311 RIVERS, acts of ownership upon other parts of, when evidence of title to loctis in quo, 161 ; cp., 167 public rights in, may be proved by reputation, 294, 299 presumption that owner of bank of non-navigable, owns the bed, usque ad medium filuni/ aquee, 671, 675 liability to repair bridges over, 132-3, 168, 305 ROAD, rule of, custom as to, judicially noticed, 21. j^fee Wat repairs to, are evidence of ownership of, 132-3, 168-9 dedieatian of, to public, 130-1 reputation is evidence of ownership or boundaries of public road, if not relatiug to particular facts, 294, 289, 301, 304 as also are verdicts, judgments, and indictments, 298-9, 305-6, 405, 428 and ordnance maps, 305^ as to injuries caused by obstructions on, 169 ROLZ OF SOLICITORS, and Law List, are proof of solicitors' admittance, &e., 353 ROLLS of Manor, admissibility of. 297-8, 305. See Couet Rolls, Manob proof of, 297, 556 ROHAN CATHOLICS, how sworn in Ireland, 459 priests, communications and confession to, not privileged, 201-2, cp., 269 ' marriage and other registers of, 340, 344-5. See Registers, Makmage, &c. entries in such registers, made by deceased priests, in course of duty, 290-1 ROYAL PROCLAMATIONS, admissibility of, to prove facts stated, 335 proof of, 550 RUMOUR, generally inadmissible to prove facts, 382. See Reputation or to 'fix a party with knowledge of facts, S83 SAILOR. See Seamen SALE. See Bill of Sale, Conditions of Sale, Contbact SALE OF GOODS Act, 1883, in contracts under, terms implied by law may be varied by parol, 579 SAMPLE, equality of bulk with, may he-proved without production of either, 47 SANITY, See Insanity, Lunacy how far presumed by law, 32, 680 burden of proof in questions of, 32 inquisitions in lunacy, and masters' orders and doctors' certificates, how far admissible on issue of, 356 reports of chancery visitors as to party's, privileged, 435 I..E. — 48 Digitized by Microsoft® 770 INDEX. SANITY — Continued opinions of experts as to, 3S6, 395 of non-experts, 400 as to own sanity, whether admissible, 400, 452 admissibility of testator's conduct and dedarations to show his, 61-4, 84, 86, 161, 167, 181, 324 prior insane conduct of same party and his relatives, admissible, 161, 167 See SiMiLAB Facts treatment of friends and strangers, how far admisEdble to show, 84, 134-5 testimony of friends, &c., how far admissible as to party's, 82, 400 SATISFACTION of judgment by debtor, bars recovery against co-debtor, 415 of portions and debts, 667-8, 671-2 SCHEDTTIES, how far are restrictive of deeds, 624, 626 parol evidence, when admissible to identify goods in lost, or absent, 616, 632 SCIENCE, opinions of experts, admissible on matters of, 386-7, 393-7 SCIENTER. See Knowledge SCIENTinC INSTRUMENTS, accuracy of watches, thermometers, gas and water meters, &c., presumed, 162-3, 170-1. ' See Similar Facts SCIENTIFIC TERMS, experts may explain, 387, 393-4, 630, 665 SCIENTIFIC WORKS, e.g., almanacs, tables, and records, when admissible as public documents, 380 may be referred to by experts to refresh memory, or confirm or correct opinion, 399 pharmacopoeia, admissible as standard for drugs, 109' SCOTCH law, 14, 20, 388. See Foeeign Law registers of marriage, &c., 340, 345 form of oath, 459 SEALING AND DELIVERY of deeds, pwof of, and presumptions as to, 517-19 when sealing of register required, unsealed register inadmissible, 374 SEALS AND SIGNATURES, history of, 566-7 judicial notice is taken of the following: — The great seals of the United Kingdom The royal sign manual The signatures of the principal Secretaries and Ministers of state The seals of the old Superior Courts of Justice The signatures of Judges of the Superior Courts, of the Examiners, of the Judges and Registrars in Bankruptcy and of the County Courts The seals of the central office, and of the District registries, &c., &c., 22-4 SEAMEN, contracts with masters may be proved without calling attesting witnesses, 523 and contents thereof, by secondary evidence without giving notice to produce original, 546 attendance of naval, as witnesses, how procured, when detained by superiors, 444 SEARCH, what is sufficient, to let in secondary evidence of lost documents, 547 SEAWORTHINESS, See Ship SECONDARY EVIDENCE, definition of, 6-7 of documents, 539^49 of hand-writing, 400, 515 of attestation, 519-20 Forms op — (A) copies — GovernmentT)rinter's copies, 539 ; Gazette copies, 338-539 copies sealed by foi'eign States, courts, officials or notaries, 539 exemplifications, examined, office, and ceTtified copies, 539-40 machine, printed, and photograph copies, 540 Digitized by Microsoft® INDEX. 771 SECONSAKT EVISEITCE — Continued eomrterparts, drafts, minutes, abstracts, recitals, memorials, 541 notarial copies of foreign documents, 366, 538, 548, 560 (B'^ oral testimony and admissions, 541 (C) presumptive evidence, 541 (D) entries in registers, 542 (E) statements of deceased persons, 542 inadmissible forms: copies of copies, &e., 542 Degrees of — in general, no degrees of, recognised, 542 except in case of public documents and depositions, 543 Oases in which Admissible — (1) when original is a puWic or Statements verbal facts, or summarized statements, may be admissible, but particulars thereof excluded, 220-1 STATEMENTS ACCOMPANYING ACTS, See Res Gesta STATEMENTS BY DECEASED PERSONS, See Deolabations by Deceased Pebsons STATEMENTS BY PARTY, in his own favour. See Sexp-Sebvinq Evidence against his interest. See Admissions, Self-Habming Evidence STATEMENTS IN PRESENCE OF PARTY, 255-62 principle of admission, 255 when statements replied to, 256 when statements not replied to, 256-7, 259-61 STATEMENTS IN PTTBIIC DOCUMENTS, 335-8. See Public Documents STATES OF MIND, party's direct testimony admissible to prove his, 61, 82-3 See Mental and Phtsioal Conditions party's declarations out of Court, when admissible to prove, 63-4, 80-6 Digitized by Microsoft® INDEX. 775 STATES OP ULTSU— Continued presumed to continue, 103-4, 121, 324, 327, 320 what facts, previous and subsequent to main fact, are relevant to prove, 145-57 proof of knowledge and notice, See Knowledge, Notice of intention. See Intention of good and bad faith. See Good Faith of fraud. See Fraud of malice. See Malice facts similar to main fact when admissible to show party's knowledge, intent, good or bad faith respecting the main fact, 172-85 opinions of experts and non-experts when admissible to show, 386, 395, 400-1, 403 STATTTTES, existence of, is judicially noticed, 20 public, are admissible to prove public matters stated therein, 345-6 private, are not evidence of their contents against strangers, except in peerage claims, 336 nor even as notice of facts contained, 336 proof of public and private, 20, 549 colonial, provable by expert testimony, or official copies, 388, 549-50 foreign, provable by expert testimony, 388, 549 preamble of, admissible to interpret, 609, 615 marginal notes admissible to interpret, 614-15 extrinsic evidence, how far admissible to interpret, 619-20, 629, 661-5 meaning of words in, cannot be proved by experts or parol, 388, 390, 622 630, 612, 665 STATUTE OF FRAUDS, only bars enforcement of, does not extinguish claims unsupported by writing, 587, 604 signature under, may be by mark, initials, stamp, &c., 516. See Sionatitbe where contract under, contained in several documentsTconnection must be shown by internal reference, not by parol, 525-7 extrinsic evidence not admissible to supersede contracts under, 570 nor to contradict, vary, or add to, them, 576 exceptions, 578-88 but admissible to identify parties or subject-matter, 616, 630-9 STATUTE OF UMITATIONS, bars remedy, but does not extinguish debt. 677 what acknowledgments, or part payments, take case out of, 244, 279-80 STATUTORY DECLARATIONS, admissibility of, 501 STATUTORY MEANING OF WORDS, cannot be altered by parol, 388, 390, 622, 630, 642, 665 ' STRICT PROOF OF FACTS, not generally required, 47. See Best Evidence, Peoof exceptions, 47-8 SUBP(ENA, See Witness may be o