Olnrn^U Slam Bt\^aa\ Slibtatg 
 
Cornell University Library 
 KD 7499.3.PS7 1921 
 
 Manual of the law of evidence 
 
 for the u 
 
 3 1924 021 713 213 
 
Cornell University 
 Library 
 
 The original of tliis 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/cu31 924021 71 321 3 
 
MANUAL 
 
 OF THE 
 
 LAW OF EYIDENCE. 
 
MANUAL 
 
 OP THE 
 
 LAW OF EVIDENCE 
 
 FOR THE USE OF STUDENTS 
 
 BEINR 
 
 AN ABRIDGEMENT OF THE SIXTH EDITION 
 
 OP THE AUTHOE'S LARGER TREATISE 
 
 UPON THE SAME SUBJECT 
 
 BY 
 
 SIDNEY L. PHIPSQN, M.A. (Caxtab.) 
 
 OF THE INNER TEMPLE, BAREISTER-AT-LAW 
 
 THIRD EDITION 
 
 LONDON 
 
 SWEET & MAXWELL, LIMITED 
 
 3 CHANCERY LANE, W.C.2 
 1921 
 
BY THE SAME AUTHOE. 
 Boyal 8uo. 
 
 PHIPSON'S LAW OF EVIDENCE 
 
 SIXTH EDITION. 
 
 Professor "Wigmore, in The Harvard Law Meview, says: "It 
 is the best book now current on the Law of Evidence in England. Since 
 the last edition, more than one thousand cases have been added, making 
 in all some fifty-seven hundred cases and statutes cited ; and these 
 citations excel in their careful exhaustion of all the minor sources, such 
 as the Law Journals, the Times, and the Justice of the Peace Reports. . . 
 The most valuable feature of Taylor's treatise, the English statutory 
 citations, now appears here also with equal fulness. A casual testing 
 finds no omission of the latest English decisions. . . Indeed, the pains- 
 taking search for every vestige of a ruling is apparent on every page. As 
 a lawyer's handbook it is difficult to suppose that this work can be 
 improved upon. . . Mr. Phipson's woi-k has thoroughly freed itself from 
 the unreasoning conventions and meaningless fictions of the older law, 
 and has taken careful account of all the established results of modern 
 theory. In this respect his book should be highly valued by the prac- 
 titioner for its safe and enlightening guidance." 
 
 " "We know no law book which contains as much accurate information 
 in the same space as Mr. Phipson's book on Evidence. The principle and 
 history of eachrule is concisely set forth, and the present state of the law 
 is stated compendiously, yet completely, with ample citation of authori- 
 ties. We have used the book constantly and have scarcely ever found it 
 wanting." — Law Quarterly Meview. 
 
 "In conclusion, we can only say that no better textbook on the Law 
 of Evidence can be found, whether for the student or the practitioner."— 
 Irish Law Times. 
 
 "A treatise on evidence which as passed through five English editions 
 in less than twenty years must have merits which make a strong appeal 
 to the profession. While the freshness and fulness of the work, its 
 abundant use of cases and its apposite gi'ouping and arrangement of 
 authorities make it a valuable work of reference for law students, it is 
 distinctly a practitioner's handbook. With its 6,000 citations, which, the 
 author believes, ' practically exhaust the English case-law of the subject,' 
 and with its avoidance of theopzing and specidation, it supplies the 
 greatest quantity of digested and ready-to-be-used infoi-mation as to the 
 law of evidence of any book with which the writer is acquainted. . . . 
 The index, already one of the best of its kind, has been enlarged and 
 made still more useful.''— Columbia Law Bevieto. 
 
( V ) 
 
 PREFACE 
 
 There is, perliaps, no subject whicli the student finds 
 less easy to assimilate, in a limited time, than the Law 
 of Evidence. 'J'his may, to some extent, be due to the 
 nature of the subject itself ; but it is, I fancy, attribut- 
 able much more to the paucity of really helpful 
 elementary works thereon. The standard text-books are 
 too voluminous and discursive readily to yield the 
 necessary information. On the other hand, the well- 
 known Digest of the late Sir James Stephen, incompar- 
 ably the best summary of the law extant, is, from the 
 special form in which it is cast, an extremely difficult 
 book for the beginner to miaster. Written to be enacted 
 verbatim as a stalii'tory code, it necessarily contains no 
 statement of principles, no explanatory detail, and the 
 barest possible guidance to the scope and play of the 
 various rules. Yet it is precisely here that the student 
 most requires aid. The present compendium is an 
 attempt to supply this. 
 
 The general arrangement of topics is the same as 
 that in the sixth edition of my larger work; and in 
 order to facilitate i-eference thereto, the corresponding 
 pages in the main work are indicated by figures in 
 heavy type at the heads of chapters and elsewhere. 
 
 A Preliminary Outline of the Subject has been 
 added, which it is hoped ma\^ prove useful to students ; 
 and the cases and statutes are brought down to March, 
 1921. 
 
 SIDNEY L. PHIPSON. 
 
 4 Papee Buildikgs, Temple. 
 April, 1921. 
 
ritlSTED BT 
 
 THE EABIKRN PBKBS, LIUIISV, 
 
 LONDON AND READINO. 
 
( vii ) 
 
 TABLE OF CONTENTS. 
 
 I'AOE 
 
 PREFACE ; V 
 
 TABLE OF STATUTES xi 
 
 TABLE OF CASES xv 
 
 PBELIMINARY OUTLINE OF THE LAW OF EVIDENCE xxv 
 
 BOOK I. 
 
 PRODUCTION OF EVIDENCE. 
 
 CHAP. 
 
 I. INTRODUCTORY 1 
 
 II. MATTERS or WHICH EVIDENCE IS UNNECESSARY ... 7 
 
 III. BURDEN or PROOF. THE ' BEST-EVIDENCE ' RULE 10 
 
 BOOK II. 
 
 ADMISSIBILITY OF EVIDENCE. 
 Part I. — Facts. 
 
 IV. facts IN ISSUE. RELEVANCY, ADMISSIBILITY ... 14 
 
 V. THE FACT OR TRANSACTION IN ISSUE. RES OESTA 16 
 
 VI. AGENCY. PARTNERSHIP. COMPANY. CONSPIRACY. 
 
 CO-TRESPASS, ETC ... 21 
 
 VII. FACTS RELEVANT TO PROVE THE M.IDC FACT 2-5 
 
TABLE 0¥ CONTENTS. 
 
 CHAP. 
 VIII. 
 
 IX. 
 
 X. 
 
 XI. 
 
 XII. 
 
 XIII. 
 
 XIV. 
 
 XV. 
 
 XVII. 
 
 XVIII. 
 
 XIX. 
 
 XX. 
 
 XXI. 
 
 FACTS RELEVANT TO SHOW IDENTITY, OB CONNECT 
 
 THE PARTIES WITH THE TKANSACTION 
 FACTS HELEVANT TO PROVE STATES OF MIND 
 
 SIMILAR FACTS 
 
 CHARACTBE 
 
 FACTS EXCLUDED BY PUBLIC POLICY OR PRIVILEGE 
 
 HEARS.AY 
 
 EXCEPTIONS TO THE HEARSAY RULE. ADMISSIONS . 
 PERSONS WHOSE ADMISSIONS M.iY BE EVIDENCE AGAINST 
 
 A PARTY 
 
 STATEMENTS IN THE PRESENCE AND DOCUMENTS IN 
 
 THE POSSESSION OF A P.\RTY . . . 
 
 CONFESSIONS 
 
 STATEMENTS BY DECEASED PERSONS 
 STATEMENTS IN PUBLIC DOCUMENTS 
 REPUTATION. OPINION. BELIEF 
 JUDGMENTS' AND DEPOSITIONS IN FORMER TRIALS 
 
 34 
 38 
 43 
 49 
 53 
 60 
 62 
 
 66 
 
 73 
 
 77 
 
 82 
 
 105 
 
 116 
 
 125 
 
 BOOK II. 
 
 ADMISSIBILITY OF EVIDENCE. 
 Part II.— Witnesses. 
 
 XXII. COMPETENCY. COMPELLABILITY. OATH AND AFFIRMA- 
 TION 135 
 
 XXIII. EVIDENCE TAKEN BEFORE OR AFTER TRIAL. — AFFI- 
 
 DAVITS, COMMISSIONS, DEPOSITIONS, INTERROGA- 
 TORIES 143 
 
 XXIV. EVIDENCE TAKEN AT THE TRIAL. EXAMINATION, CROSS- 
 
 EXAMINATION. RE-EXAMINATION, ETC. NUMBER OF 
 WITNESSES. CORROBORATION 174 
 
TABLE OP CONTENTS. ix 
 
 BOOK II. 
 
 ADMISSIBILITY OF EVIDENCE. 
 Part III.— Documents. 
 
 CILVr. PAOTi 
 
 XXV. AUTHORSHIP AND EXECUTION: HANDWRITING, SEAL- 
 ING, DELIVERY, ATTESTATION. ANCIENT DOCUMENTS. 
 ALTERATIONS AND BLANKS. STAMPS 158 
 
 X^VI. CONTENTS OF DOCUMENTS GENERALLY : PRIMAKY AND 
 SECONDARY EVIDENCE. CONTENTS OF PARTICULA){ 
 DOCUMENTS : PUBLIC, JUDICIAL, AND PRIVATE . . . 163 
 
 XXVi;. EXCLUSION OF EXTRINSIC EVIDENCE IN SUBSTITUTION' 
 
 OF DOCUMENTS 172 
 
 XXVm. EXCLUSION OF EXTRINSIC EVIDENCE TO CONTRADICT, 
 
 VARY, OR ADD TO DOCUMENTS 176 
 
 XXIX. ADMISSION OF EXTRINSIC EVIDENCE IN AID OF 
 
 INTERPRETATION 186 
 
 BOOK III. 
 
 EFFECT OF EVIDENCE. 
 
 XXX. weighs; OF EVIDENCE. PRESUMPTIONS. ESTOPPELS 202 
 
 \ 
 
 APPENDIX... \ 209 
 
 INDEX ... \ 213 
 
( Ki ) 
 
 TABLE OF STATUTES. 
 
 PAQR 
 
 4 Ed. I. statute 1 110 
 
 21 Jac. I. c. 16 (Limitation Act, 1623) 68, 8-1 
 
 29 Car. II. c. 3 (Statute of Frauds) 173, 175, 178 
 
 2 Geo. III. c. 88 (Bumboat Act) 126 
 
 46 Geo. III. c. 37 (Witnesses Act, 1806) 58 
 
 5 Geo. IV. c. 83 (Vagrancy Act, 1824) 51, 138 
 
 9 Geo. IV. c. 14 (Statute of Frauds Amendment Act, 
 
 1828 : Lord Tenterden's Act) 68, 84 
 
 6 & 7 Will. IV. c. 86 (Births, Marriages, and Deaths Eegis- 
 
 tration Act, 1836) 107 
 
 7 Will. IV. & 1 Viet. c. 26 (Wills Act, 1837) 178 
 
 1 & 2 Vict. c. 94 (Public Record Office Act, 1838) 168 
 
 1 & 2 Vict. c. 106 (Oaths Act, 1838) 141 
 
 3 & 4 Viot. c. 92 (Non-Parochial Kegisters Act, 1840) 107 
 
 6 & 7 Vict. c. 18 (Parliamentary Voters' Eegistration Act, 
 
 1843) 165 
 
 8 & 9 Vict. c. 10 (Bastardy Act, 1845) 155 
 
 8 & 9 Vict. u. 16 (Compainies Clauses Consolidation Act, 
 
 1845) 114, 160 
 
 8 & 9 Vict. c. 113 (Evidence Act, 1846) 165, 168, 170 
 
 11 & 12 Vict. c. 42 (Jervis' Act, 1848) 144, 145 
 
 14 & 15 Vict. e. 99 (Evidence Act, 1851) 168, 169, 170, 171 
 
 19 & 17 Vict. u. 83 (Evidence Amendment Act, 1853) 67 
 
 17 & 18 Vict. c. 104 (Merchant Shipping Act, 1854) Ill 
 
 19 & 20 Vict. c. 97 (Mercantile Law Amendment Act, 1856) 69 
 21 & 22 Vict. c. 25 (Births and Deaths Registration Act, 
 
 1858) 107 
 
 21 & 22 Vict. c. 90 (Medical Act, 1858) 108 
 
 23 & 24 Vict. c. 127 (Solicitors Act, 1860) 108 
 
 24 & 25 Vict. c. 96 (Larceny Act, 1861) 50, 59 
 
 24 & 25 Vict. c. 97 (Malicious Damage Act, 1861) 40 
 
 24 & 25 Vict. c. 100 (Offencee against the Person Act, 1861) 
 
 112, 138 
 
 28 & 29 Vict. c. 18 (Criminal Procedure Act, 1866). ..27, 150, 161, 
 
 152, 160, 170 
 
 29 & 30 Vict. c. 19 (Parliamentary Oaths Act, 1866) 200 
 
 30 & 31 Vict. c. 35 (Criminal Law Amendment Act, 1867) 145 
 
 31 & 32 Vict. e. 37 (Documentary Evidence Act, 1868) ... 9, 168 
 
xii TABLE OF STATUTES. 
 
 PAQE 
 
 33 & 33 Vict. c. 68 (Evidence Further Amendment Act, 
 
 1869) °^' ^^"' ^°° 
 
 34 & 85 Vict. c. 112 (Prevention of Crimes Act, 1871) 170 
 
 35 & 36 Vict. c. 33 (Ballot Act, 1873) 155 
 
 35 & 36 Vict. i;. 65 (Bastardy Laws Amendment Act, 1872) 156 
 33 & 36 Vict. u. 93 (Pawnbrokers Act, 1872) 5 
 
 36 & 37 Vict. u. 66 (Supreme Court of Judicature Act, 
 
 1873) 9. 180 
 
 38 & 39 Vict. c. 63 (Sale of Food and Drugs Act, 1876) ... 113 
 
 39 & 40 Vict. c. 61 (Divided Parishes and Poor Law 
 
 Amendment Act, 1876) 155 
 
 41 & 42 Vict. c. 31 (Bills of Sale Act, 1878) 171 
 
 42 & 43 Vict. c. 11 (Bankers' Books Evidence Act, 1879) ... 114 
 42 & 43 Vict. u. 49 (Summary Jurisdiction Act, 1879) ....:. 12 
 44 & 45 Vict. c. 41 (Conveyancing Act, 1881) 180 
 
 44 & 45 Vict. c. 8 (Army Act, 1881) 108, 113 
 
 45 & 46 Vict. c. 50 (Municipal Corporations Act, 1882) 114 
 
 45 k 46 Vict. c. 61 (Bills of Exchange Act, 1882) 181 
 
 45 & 46 Vict. c. 75 (Married Women's Property Act, 1882) 138 
 
 46 & 47 Vict. u. 52 (Bankruptcy Act, 1883) 58, 107 
 
 46 & 47 Vict. c. 57 (Patents, Designs, and Trade Marks 
 
 Act, 1888) 168 
 
 47 & 48 Vict. c. 14 (MaiTied Women's Property Act, 1884) 
 
 138, 139 
 
 48 & 49 Viet, c- 69 (Criminal Law Amendment Act, 1885) 
 
 138, 155 
 
 50 & 51 Vict. c. 71 (Coroners Act, 1887) 145 
 
 51 & 5? Vict. c. 41 (Local Government Act, 1888) 114 
 
 61 & 52 Vict. c. 48 (County Courts Act, 1888) 170 
 
 51 & 52 Vict. c. 46 (Oaths Act, 1888) 140, 141 
 
 62 & 53 Vict. u. 10 (Commissioners for Oaths Act, 1889) ... 9 
 
 52 & 53 Vict. c. 68 (Interpretation Act, 1889) 8, 167 
 
 53 & 54 Vict. c. 37 (Foreign Jurisdiction Act, 1890) 9 
 
 53 & 54 Vict. c. 39 (Partnership Act, 1890) 23, 68 
 
 64 & 55 Vict. c. 39 (Stamp Act, 1891) 161 
 
 54 & 65 Vict. c. 50 (Commissioners for Oaths Act, 1891) ... 9 
 
 56 & 57 Vict. c. 71 (Sale of Goods Act, 1893) 178 
 
 67 & 68 Vict. c. 41 (Prevention of Cruelty to Children Act, 
 
 1894) 138 
 
 57 & 58 Vict. c. 60 (Merchant Shipping Act, 1894) 108, 111 
 
 61 & 62 Vict. c. 36 (Criminal Evideuce Act, 1898) ... 50, 67, 58, 
 
 78, 136, 139, 157, 209 
 
 3 Ed. Vn. c. 86 (Motor Car Act, 1903) 122, 165 
 
 4 Ed. VII. c. 15 (Prevention of Cruelty to Children Act, 
 
 1904) .' 139 
 
 7 Ed. VII. c. 16 (Evidence (Colonial Statutes) Act, 1907) 167 
 
 7 Ed. vn. c. 23 (Criminal Appeal Act, 1907) 146 
 
 8 Ed. VII. c. 45 (Punishment of Incest Act, 1908) 139 
 
 8 Ed. VII. c. 59 (Prevention of Crime Act, 1908) 174 
 
 8 Ed. VII. c. 67 (Children Act, 1908) ...... 4, 139, 142, 146, 155 
 
TABLE OF STATtTTES. 
 
 PAGE 
 
 8 Ed. VII. Ci 69 (Companies (Consolidation) Act, 1908) 
 
 112, 113, 114 
 
 9 Ed. VII. c. 39 (The Oaths Act, 1909) 141, 212 
 
 1 & 2 Geo. V. c. 6 (Perjury Act, 1911) 155 
 
 4 & 5 Geo. V. c. 68 (Criminal Justice Administration Act, 
 
 1914) 138, 142, 155, 170 
 
 4 & 5 Geo. V. c. 59 (Bankruptcy Act, 1914) 169 
 
 6 & 7 Geo. V. c. 50 (Larceny Act, 1916) 47 
 
 10 & 11 Geo. V. i;. 5 (Administration of Justice Act, 1920) 
 
 6, 143, 171 
 
( sv ) 
 
 TABLE OF CASES. 
 
 PAGE 
 
 A.-G. V. Bradlaugh...31-, 106, 200 
 
 V. Hitchcock 162 
 
 1-. Horner 92 
 
 V. Slkigsby 30 
 
 Aga^siz V. London Tram- 
 way Co 18 
 
 Ainsworth v. Wilding 56 
 
 Aitkcn I'. McMeckan 118 
 
 Aliock I-. Royal Exchange 
 
 Co 118 
 
 Alderson v. Clay 175 
 
 Allen V. Allen 150 
 
 I. Dundas 127 
 
 Amys r. Barton 19 
 
 Anderson, Exp 131 
 
 V. Whalley 148 
 
 Annesley v. Anglesea 56 
 
 Amott, Re 56 
 
 1'. Hayes 114 
 
 Ashton, Re 196 
 
 Aatbury v. Astbury 69 
 
 Atkinson v. Morris ... 101, 102, 
 
 103 
 
 Augustien v. Challis 174 
 
 Ayleaford Peerage 204 
 
 Bain v. Cooper 69 
 
 Balkis Co., Re 169 
 
 Ballard v. Way 106 
 
 Bank of New Zealand v. 
 
 Simpson 196 
 
 Bateman v. Hnnt 180 
 
 Baylis v. A.-Gr 189 
 
 Beasley v. Magrath 64 
 
 Beaufort v. Smith 106, 110 
 
 Beaven v. McDonnell 41 
 
 Beckwith v. Benner 66 
 
 PAGE 
 
 Bell V. Ansley 68 
 
 Bennet v. Marshall .... 193, 199 
 
 Berkeley Peerage 91 
 
 Berry v. Banner 93 
 
 Bessela v. Stern 75, 156 
 
 Beynon, Re 205 
 
 Bickerton v. Walker 180 
 
 Birchall v. Bullough 149 
 
 Blake f. Albion Society ... 45 
 
 Blewitt V. Tritton 162 
 
 Blyth I/. Fladgato 129 
 
 BoldroD V. Widdows 30, 32 
 
 Bolton V. Tomlin 149 
 
 Bonelli, Be 117 
 
 Bosvile V. A.-G 204 
 
 Bom-ne v. Gatliff 201 
 
 Bowerbank v. Monteiro ... 182 
 
 Bowker v. Williamson 162 
 
 Bowman v. Hodgson 160 
 
 Boyes, Re 178 
 
 Bradshaw v. Murphy 58 
 
 Brady v. Todd 23 
 
 Breton v. Cope 166 
 
 Brett V. Beales 32 
 
 Brickell v. Hulse 76 
 
 Brigge v. Wilson 84 
 
 Brisco V. Lomax 91, 93 
 
 Bristol V. Cox 56 
 
 Bristow V. Cormican 28 
 
 Brittain v. Kinnaird 126 
 
 Brocklebank v. Thompson 91 
 
 Brooke v. Wigg 143 
 
 Brown v. B. & M. Ry. ... 44 
 
 V. White 134 
 
 ■ V. Wren .-. 31 
 
 Brnff V. G. N. Ey 70 
 
 Brunner, Re 72 
 
 Brunning v. Odhara 196 
 
TABLE OF CASES. 
 
 PAGE 
 
 Brunswick v. Harmer 123 
 
 Burgess v. Bennett 149 
 
 Burnaby i'. Bail]ic...30, 169, 204 
 
 Bursill V. Tanner 56 
 
 Burton v. Plummev 149 
 
 Butohart v. Butcharfc 45, 51 
 
 Butler V. Allnutt 31 
 
 Calcbai't v. Guest 55 
 
 Calmenson v. Merchants' 
 
 Warehousing Co 184 
 
 Camden i'. Couimisaioners, 
 
 &c 119, 201 
 
 Cantello v. Cantello 45 
 
 Carey v. Pitt 123 
 
 Carmartlieu By. v. Man- 
 chester Ry 175 
 
 Carnarvon v. Villeboia .... 93 
 
 Carr v. Mostyn 110 
 
 Caatledon r. Turner 199 
 
 Castrique v. Tmrie 128, 130 
 
 Chambers v. Berna8Coni...88, 89 
 
 Charter v. Charter 190, 192, 
 
 197, 198 
 Chatenay r. Brazilian Co. 186 
 Chaurand v. Angeretein ... 200 
 
 Child V. Grace 74 
 
 Clarke v. Adie ... 119, 207, 208 
 
 V. Alexander 31 
 
 V. Clarke ... 101, 103, 160 
 
 Clark V. E 61 
 
 Clifford V. Burton 71 
 
 —■ — u. Timms Ill 
 
 Cloak V. Hammond 192 
 
 Closmadeuc v. Carrel 162 
 
 Clothier v. Chapman 92 
 
 Coates V. Bainbridge 70 
 
 Cocks V. Na^h 181, 195 
 
 Cole V. Manning 156 
 
 Collier v. Simpson 120 
 
 Concha v. Concha 68, 127 
 
 • V. Murrietta 119 
 
 Connor v. Pitzgerald ... 86, 166 
 
 Conradi v. Conradi ... 128, 132, 
 
 133 
 
 Cook -v. Ward 117 
 
 Cooke V. Tanswell 160 
 
 Coole V. Braham 72 
 
 Cooper V. Metropolitan Bd. 
 of Works 70 
 
 PAGE 
 
 Copin c. Adamson ' 6 
 
 Cowen V. TrueBtt 180 
 
 Crawford v. Crawford 69 
 
 Crease v. Barrett ... 85, 86, 90, 
 * 92, 93, 94 
 
 C'rippen, Re 128 
 
 Crispin v. Doglioni 95 
 
 Croome v. Croome 178 
 
 Cropper v. Smith 207 
 
 Cunningham, Re 22 
 
 Curry v. Walter 54 
 
 Daines v. Hartley 121 
 
 Daintrey, Re C3 
 
 Daniel V Wilkin 110 
 
 Darby v. Ou.seley 153 
 
 Dashwood v. Magniac... 194, 200 
 
 Davidson v. Cooper 161 
 
 Davicd V. Lowjides 96, 97 
 
 De Lassallc i'. Guildford ... 183 
 
 De Rosaz, He 189, 195, 199 
 
 Decley'a Patent, Re 130 
 
 Derry v. Peek 39, 40 
 
 Devala Co., Re 70 
 
 Dexter r. Hayes 27 
 
 Dickins r. Randerson 115 
 
 Djambi Estates, Re 89 
 
 Doe V. Andrews 106 
 
 V. Arkwright 86, 110 
 
 V. Barton 95 
 
 V. Benson 200 
 
 t. Beviss 87 
 
 V. Bray 107 
 
 V. Catomore 161 
 
 V. Date 57 
 
 — - V. Davics 91, 95 
 
 V. Derby 129, 134 
 
 V. Eowler 161 
 
 V. Griffin 97 
 
 V. Hardy 101, 103 
 
 V. Hertford 56 
 
 V. Hisooks ... 193, 194, 198 
 
 V. Kemp 45 
 
 V. Lea 200 
 
 V. Michael 82 
 
 V. Needs 188 
 
 V. Palmer 101, 102, 
 
 104, 161 
 
 v. Rosa 166 
 
 V. Beaton 110 
 
TABLE OF CASES. 
 
 PAGE 
 
 Doe v. Suckermore 123 
 
 V. Turford 85, 88 
 
 r. West-lake 194, 199 
 
 1). Whitcomb 9-2 
 
 Dorin v. Dorin 191, 197 
 
 Cowling V. Pontypool Co. 201 
 
 Diinkwater v. Porter 94 
 
 Du Bost V. Beresford 123 
 
 Dunraven v. Llewellyn ... 92, 93 
 
 Durham v. Durham 33, 124 
 
 Dwyer v. Collins 56, 167 
 
 Dysart Peerage 97 
 
 Earl of Dumfries, The ... 71 
 
 Edmonds v. Challis 167 
 
 Edwards, Exp 83, 86 
 
 Ellis r. Houston 196 
 
 Emery v. Parry 188, 196 
 
 Enoch, Re 154 
 
 Equitable Office r. Ching 
 
 180, 184 
 
 Erskine c. Adeane 183 
 
 Evans v. Evans 59 
 
 u. Morgan 174 
 
 .;. Eoe 182 
 
 V. Taylor 109, 110 
 
 FAtTLKNBn I'. U 50, 51 
 
 Penwick v. Bell 120 
 
 Pish, Re 193, 197 
 
 Folkes r. Chadd 44, 46, 120 
 
 Foster r. Globe Syndicate 9 
 
 Fox ,. Bearblock 108, 113 
 
 Freeman v. Cooke 208 
 
 -v. Phillips 90, 91, 93 
 
 r. Read 92, 110 
 
 Frith r. Frith ^1896, P.) ... 121 
 
 V. — - (94 L. T.) ... 180 
 
 Fulham Council v. Farmers' 
 
 Co 113 
 
 G. W. Ex. V. Willis 70 
 
 Gadd V. Manchester 119 
 
 Gaden v. Newfoundland 
 
 Bank 113 
 
 Gee i'. Ward 93, 97 
 
 Gerish ■! . Chartier 32 
 
 Geyerr. Aguilar 127 
 
 L.E. 
 
 PAGE 
 
 Gibson r. Gibson 167 
 
 V. Minet 187 
 
 Gilbev I'. G. \V. Rv 19 
 
 Giles 1'. Warren 102 
 
 Gladstoac i-. Gladstone .... 132 
 
 Gleadow v. Atkin 83, 85 
 
 Goblet V. Beechcy 201 
 
 Goldrei v. Sir.clair 129 
 
 Gooch, .Be 20 
 
 Gosling V. Birnie 208 
 
 Goss r. Nugent 181, 185 
 
 Gould V. Lakes 101, 103 
 
 Gouldsworth r. Knights ... 207 
 
 Grant r. Grant 193 
 
 V. Maddox 200 
 
 Greaves v. Hunter 123 
 
 Green i\ New River Co. ... 131 
 
 Greenough v. Eccles 150 
 
 Greenslade v. Dare 41 
 
 Gregory v. Tavernor 149 
 
 Grey i'. Pearson 187 
 
 Griffith V. Payne 44 
 
 Grimston v. Cunnir.gham 
 
 183, 196 
 
 Guest V. Warren 130 
 
 Haikbs i. Guthrie .... 61, 95, 97 
 
 Halifax, Re 166 
 
 Haller v. Worman 73 
 
 Harding i'. Harding 132 
 
 1'. Williams 114 
 
 Hardwick v. Hardwick...l91, 193 
 
 Hardy, Re 104 
 
 Harris v. Harris 45 
 
 Harrison r. Vallance 68 
 
 Hart V. L. & N. W. Rv. 33 
 
 Harvey r. Wild 132 
 
 Haynes v. Doman 119 
 
 Healy i'. Healy 194 
 
 Heilbut V. Buckleton 177 
 
 Henderson v. Arthur 182 
 
 V. Hendersoni 193, 199 
 
 Hennessy v. Wright 45 
 
 Henniker v. Howard 71 
 
 Henry v. Leigh 108 
 
 CoxoD, The 88, 89 
 
 Hetherington v. Kemji 31 
 
 Hewitt V. Taylor 113 
 
 Hickey v. Campion 157 
 
 Hickman r. Berens 142 
 
 b 
 
TABLE OF CASEfi. 
 
 PAGE 
 
 Highara r. Eidgway 85 
 
 Hill V. Clifford HI 
 
 V. Crook 191 
 
 r. Manchester Water- 
 works 113 
 
 Hoare r. Silverlock 8 
 
 Holcombe v. Hewgon 4i 
 
 Holdsworth v. Dimsdale...63, 64 
 
 Holland, Re 180 
 
 HolUiJshed v. Devane 177 
 
 Holt V. Collyer 194, 200 
 
 Horwood V. Griffith 191 
 
 Howard v. Beall 114 
 
 V. Howard 45 
 
 V. Shcward 23 
 
 Hubbard v. Lees 96, 161 
 
 Hubbuck, Re 193, 195, 199 
 
 Hutchins v. Scott 185 
 
 Hutton V. Eas Ill 
 
 Huxtablc, Re 178, 184 
 
 Hyde v. Palmer 19 
 
 Ibrahim v. Bex 9, 78 
 
 Indian Zoedone Co., Re ... 108 
 
 Ireland r. Powell 94 
 
 Irish Society r. Derry,..108, 110 
 
 Jackson, Re 178, 205 
 
 r. WooUey G9 
 
 Jaggers v. Binning 68 
 
 Jago r. Jago 69 
 
 James r. Biou 33 
 
 Jameson i-. Drinkald 120 
 
 Jeans, Re 196 
 
 Johnson r. Lawson 95 
 
 r. Liiidsey 71 
 
 V. Lyford 100 
 
 Jolly V. Young 200 
 
 Jones r. Newman 193 
 
 r. Stroud 149 
 
 Kaines v. Knightlv 182 
 
 Keen r. Keen ' 101, 102, 103 
 
 Kell r. Charmer Ifi9 
 
 Kellett V. Stockport 181 
 
 ,Ke!ly v. Colhoun 58 
 
 Kcmpshall r. Holland 157 
 
 Kendall v. Hamilton 129 
 
 PAGE 
 
 Kennedy v. Bray 47 
 
 V. Dodson 144 
 
 King V. King 45 
 
 V. Norma;n 125 
 
 V. Spencer 40 
 
 Kirstall r. Furnace By. ... 70 
 
 Kurtz 7'. Spence 63 
 
 Lafone v. Griff en 166 
 
 Lalor V. Lalor 85 
 
 Lamb v. Orton S7 
 
 Last, Re 128 
 
 Lauderdale Pearage .... 108, 113 
 
 Leach v. E 139 
 
 V. Simpson 173 
 
 Leduc V. Ward 182 
 
 Leo V. L. & Y. Ey 176 
 
 Legatt V. Tollervey 125 
 
 Legge !'. Edmonds 64, 68 
 
 Lewis, Re 208 
 
 V. Clay 179 
 
 r. Jones 46 
 
 V. Sapio 133 
 
 Ley V. Peter 71 
 
 Llanover v. Homfray 130 
 
 Lloyd V. Powell ... 18, 20, 85, 86 
 
 Lockett r. Nicklin ' 175 
 
 Lockyer v. Ferryman 128 
 
 London County Council r. 
 South Metropolitan Gas 
 
 Co 201 
 
 Lovell r. Wallis 143 
 
 Lucas V. Williams ... 3, 121, 122 
 
 Luttcrell v. Beynell 156 
 
 Lvell r. Kennedy 56, 57, 96, 
 
 107, 169 
 
 Maas v. Pepper 178 
 
 MacAUum v. Ecid Ill 
 
 Macdonald, Re 69 
 
 r. Longbottom 195 
 
 r. Whitfield 179 
 
 Makin r. A.-G 48 
 
 Malcolmson v. O'Dea 28 
 
 Malpas r. L. & S. W. Bv. 182 
 
 Malton r. Nesbit 120 
 
 Mans.cll r. Clements 124 
 
 Marki r. Beyfus 53 
 
 Marlborough^^ Re 178 
 
TABLE OF CASES. 
 
 I'AOE 
 
 Marriot v. Harriot 127 
 
 Marriott v. Hampton 130 
 
 Marlir> v. Johnston 118 
 
 Mash V. Darley 170 
 
 MasoLi V. Wood 31 
 
 Massey v. Allen 87, 89 
 
 Maughan r. Hubbard 149 
 
 Mellniish v. Collier 33 
 
 Mellor V. Walrasley 89 
 
 Mercantile Agency v. Flit- 
 wick Co 183 
 
 Bank of Sydney r. 
 
 Taylor 181, 195 
 
 Mercer v. Denne 92, 109 
 
 Merrick v. Wakley 108 
 
 Metropolitan Asylinn Dis- 
 trict V. Hill 120 
 
 Ey. I'. Jackson "5 
 
 Middlcton v. Melton 85 
 
 Mighell V. Johore Ill, 112 
 
 Milles V. Lamson 121 
 
 Milne r. Leisler 18, 19 
 
 Mitchell V. Croyden 8 
 
 Mohan r. Broughton 132 
 
 Moore v. Eansome 46 
 
 Morgan r. Griffith 183 
 
 V. Nicholl 133, 134 
 
 Moriarty v. L. C. & D. Ev. 33 
 
 Morrell r. Cowan 180 
 
 r. Morrell 101 
 
 Morris v. Baron 181, 185 
 
 V. Delobbel-Flipo 173 
 
 ■ V. Edwards 57 
 
 Muirhead . v. Commercial 
 
 Co 208 
 
 Murray v. Milner 95 
 
 N. E. Ey. V. Hastings.. .194, 201 
 
 Narracott v. Narracott 49 
 
 Nash V. Ali Khan 140 
 
 National Provincial Bank 
 
 of England r. Jackson ... 1.59 
 National Soc. r. Scottish 
 
 National Soc 191, 197 
 
 Neile v. Jackie 74 
 
 Nevill r. Pine Art Co 5 
 
 New London Credit Synd. 
 
 V: Neale 182 
 
 Xew's Trustee v. Hunting 68 
 
 Newman r. Belsten 20 
 
 PAGE 
 
 Newman v. Gatti 183 
 
 Nicholl I'. Jones 57 
 
 NiehoUs r. Parker 92 
 
 Noble r. Kennoway 46 
 
 r. Ward 181, 185 
 
 North Australian Co. v-. 
 
 Goldsborough Co 151 
 
 North Stafford Ey. v. 
 
 Hanley 89 
 
 Notbard r. Pepper Ill 
 
 Nottingham Gdns. v. Tom- 
 
 kir.son 54, 59, 140 
 
 O'Bhien t. Shell 20, 206 
 
 O'Donnell r. O'Donnell ... 200 
 
 Ofiier, Re 198 
 
 Omychund r. Barker Ill 
 
 Orianada, The 142 
 
 O'Bourke v. Darbishire .... 57 
 
 Orsman c. Eobinson 182 
 
 Osborne v. Chocqueel 46 
 
 Ovens, Re 160 
 
 Oxley V. Pitts 142 
 
 Paget v. Marshall 180 
 
 Palmer v. Palmer 97 
 
 Papeudick v. Bridgwater ... 84 
 
 Parkinson v. Simon 119 
 
 Parsons, Exp 174 
 
 V. Parsons 197 
 
 Pattlc V. Hornibrook ... 179, 184 
 
 Peacock v. Harris 20 
 
 Pearce, Re 191, 197 
 
 -^— t. Hooper 160 
 
 Pcndrell r. Pendrell 51 
 
 Percival v. Nanson 85 
 
 I Perkins r. Jeffrey 48 
 
 j !'. Vaughan 19 
 
 I Perry r. Gibson 142' 
 
 Pertjn, Re 65, 85, 95 
 
 Peich r. Lyon 71 
 
 ; Potrie i\ Nuttall 51, 131 
 
 Phclan 1'. Slattery 194 
 
 ' Phe:-,«'s Trusts, Re 204 
 
 Phibbs, Re 160 
 
 I Pike V. Ongley 32 
 
 Pilot v. Craze 23 
 
 Pinney v. Hunt 164 
 
 ,Plant\-. Taylor 95, 96, 97 
 
XX 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Plunier r. Briscoe 160 
 
 Pollard V. Pollard 45 
 
 Pollock V. Garle 114 
 
 Poulett Peerage 54 
 
 Powell V. London Bank ... 161 
 
 r. McGlynn 6.3, 65 
 
 Powls Peerage 109 
 
 Poynton r. P 118 
 
 Prescott V. Flinn 45 
 
 Price V. Manning 160 
 
 v. Torrington 88 
 
 V. Woodhouse 164 
 
 Priestman r. Thomas ... 127, 130 
 
 Prince r. Samo 64, 154 
 
 Printing Co. r. Drucker ... 134 
 
 Provis V. Ep.e<l 102, 103 
 
 Putnam r. Bates 68 
 
 Pym V. Campbell 179, 184 
 
 I). 1. Acasler 139 
 
 V. Albnt 114 
 
 .'. Antrim 8, 1.54 
 
 V. Baldry 77, 80 
 
 V. Ball 45 
 
 r. Barnard 121, 122 
 
 V. Baskerville 156 
 
 I'. Bate 81 
 
 .-. Beard 205 
 
 r. Beckett 122, 124 
 
 1-. Bedfordshire 90 
 
 c. Bedingfield 19 
 
 V. Berger 92 
 
 V. Bernard 36 
 
 r. Bernardolti 98, 99 
 
 f. Best 78 
 
 ('. Biggin 51 
 
 .-. Bird 79 
 
 1. Blake 23 
 
 ,. Bliss 90, 93, 94 
 
 L-. Boalcr 32 
 
 I. Bond 47 
 
 I. Boyes 58 
 
 T. Bridgwater 137 
 
 r. Browhill 36 
 
 c. Brown 152 
 
 V. Buckley 35 
 
 r. Burke 153 
 
 V. Butcher 145 
 
 r. Buttery 127 
 
 ■. Cantwell 20 
 
 PAGE 
 
 B. V. Casa 80 
 
 V. Caton 23 
 
 r. Chappie 78 
 
 -v. Chitson 137, 157 
 
 V. Christie ... 19, 37, 73, 75, 
 
 1.56, 157 
 
 .. Cockroft 51 
 
 f. Coll 157 
 
 c. Colpas 79 
 
 V. Cooper 81 
 
 r. Coote 78 
 
 V. Court 80 
 
 V. Cowle 145 
 
 i. Cowper 37 
 
 V. Cox (1 F. & F.) ... 75 
 
 V. (14 Q. B. D.) 55 
 
 V. (1898, 1 Q. B.) 122 
 
 V. Coyle 157 
 
 r. Cresswell 205 
 
 V. Crippen 61 
 
 r. Crouch 122, 123 
 
 ■ V. Croydon 80 
 
 V. Davies 205 
 
 V. Debenham 107 
 
 V. Dohertv 81 
 
 r. Doolin" 150 
 
 r. Drummond 83, 98 
 
 V. Dytche 36 
 
 V. Edwards 37 
 
 r. Erdheim 59, 173 
 
 r. Erith 97 
 
 1. Errington 99 
 
 V. Feai ell 80 
 
 ... Fisher 47 
 
 V. Fletcher 154 
 
 !'. Fontaine Moreau ... 130, 
 
 131, 132 
 
 V. Fordingbridgo...l60, 165 
 
 c. Foster 19 
 
 V. Prances 118, 120 
 
 c. Francis 47 
 
 t. Francklin 106 
 
 V. Garbett 79 
 
 c. Gardner 78 
 
 V. Gazard 54 
 
 r. Gillis 78, 79 
 
 V. Gloster 19, 99 
 
 V. Goddard 99 
 
 .■. Gould 79, 81 
 
 ... Gray dr. Cir. Bep.) 
 
 61, 79, 99 
 
TABLE OF CA3BS. 
 
 PAGE 
 
 E. V. Gray (68 J. P. 
 
 liep.) 156 
 
 — — V. Green 138 
 
 • r. Greenwich 72 
 
 c. Guinea 149 
 
 r. Hadwen ... 138, 139, 150 
 
 V. Hampson 36 
 
 V. Hardy 24, 31 
 
 r. Hare 36 
 
 r. Harris 81 
 
 r. Harvev 149 
 
 ,. Hendy 121, 123 
 
 V. Hicl<8 47 
 
 r. Hind 98 
 
 V, Hodgkinson 136 
 
 V. Holmes (12 Cox) ... 51 
 
 1. (43 Sol. Jo.) 137 
 
 V. Hubbard 98 
 
 V. Hulton 136 
 
 V. Hurley 13 
 
 V. Jameson 115 
 
 u. Jarvis 78, 80 
 
 r. Jenkins (E. & E.) 
 
 79, 81 
 
 r. (L. R. 1 
 
 C. C. R.) 100 
 
 V. Jessop 37 
 
 V. Johnson 19 
 
 V. Jones 81 
 
 V. Kay 20 
 
 V. Kingston 12C, 127 
 
 V. Kinloch 149 
 
 V. Labouchere 33 
 
 V. Lang 80 
 
 I: Laiigton 27, 148 
 
 V. Layton 120 | 
 
 V. Lillyman 29, 154 ■ 
 
 V. Lingate 81 i 
 
 V. Lloyd (4 C. & P.) 99 ! 
 
 u. — ■- (6 C. & P.) ... 80 ! 
 
 u. Lockley 205 I 
 
 V. Lord Mayor 139 i 
 
 V. Lovegrove 157 
 
 V. Macarthy 51 
 
 V. Maenaghten 120 
 
 V. Mansfield 80 
 
 V. Marahall 137 
 
 I. Martin 107 
 
 V. Mason 118, 120 
 
 V. Mead 99 
 
 V. Meade 20.5 
 
 I'AQE 
 
 R. V. Mean 45 
 
 i: Mills 80 
 
 — - V. Moore (2 Den.) .... 80 
 c. (61 L. J. 
 
 M. C.) 140 
 
 r. Mosley 99, 100 
 
 r. Mothersell 113 
 
 r. Murphy 99 
 
 I. Neville 124 
 
 I. Norton 73 
 
 .. Orton 115 
 
 ?'. Osborno 29 
 
 !'. Parker 157 
 
 V. Partridge 80 
 
 ,^ Paul 139 
 
 ,. Payi:e 1,36 
 
 V. Peel 100 
 
 -. V. Penfold 51 
 
 !•. Perry 98 
 
 I'. Pctcherini 20 
 
 .'. Peters 115 
 
 u. Picton 6 
 
 I. Plumcr ... 3S, 61, 73, 75 
 
 c. Pook 37 
 
 V. Pratt 19 
 
 c. Radley 48 
 
 V. Ratcli'ffe 154 
 
 r. Rawden 174 
 
 I'. Eeaney 99 
 
 f. Reason 80 
 
 v. Reeve 78, 80 
 
 V. Rhodes 1.36, 137 
 
 V. Richards 120 
 
 I. Riekard 122 
 
 V. Riley 7, 51 
 
 V. Rosier 81 
 
 V. Rouse 137 
 
 V. Rowton 49 
 
 V. Saunders 136 
 
 V. Scaife 99 
 
 V. Seberg 174 
 
 ■ V. Sernfi 130 
 
 V. Sexton 80 
 
 f. Shaw 152 
 
 r. Sheriff 136 
 
 .;. Silverlock 117 
 
 f. Sipp:;t 79 
 
 V. Sleeman 80 
 
 V. Smith 99 
 
 r. Spilsbury 79, 99 
 
 V. Staunton 118 
 
'i'ABLB or CASJiS. 
 
 PAOH 
 
 B. c. Sullivan 77 
 
 f. Summers 174 
 
 ,-. Sutton 106 
 
 f. Tancock 130 
 
 c. Thomas 109 
 
 r. Thompson (L. R. 
 
 1 C. C. E.) 136 
 
 V. (1893, 2 Q. B.) 
 
 77, 7.8 
 r. Thomson 35, 37 
 
 V. Thoniiill 7 
 
 1'. Thornton BO 
 
 r. Thurtell 81 
 
 1-. Tolson (4 V. k F.) 121 
 
 V. (23 Q. B. D.) 40 
 
 I. Tomcy 130 
 
 I-. Tooke 123 
 
 f. Tiu-ner ... 05, 7t, 75, 131 
 
 I. Upchurch 80 
 
 r. Wainwrigbt 37 
 
 V. Walkley 80 
 
 r. Warden of the 
 
 Fleet 132 
 
 f. Watt 33 
 
 r. Wcnham 108 
 
 r. Whitehead (3 C. & 
 
 Iv.) 44 
 
 r. (L. E. 1 
 
 C. C. E.) 135 
 
 r. Willis 150 
 
 c. Willshire 11, 204 
 
 V. Woodcock 09 
 
 !■. Woodley 50 
 
 V. Worth 85, 87, 88 
 
 I'. Zuluetta 30, 41, 75 
 
 Baffles V. Wichelhaus ... 180, 199 
 
 Raraadge v. Byan 118 
 
 Baven v. Stevens- 108 
 
 Bawlinson v. Scoles 155 
 
 Bead v. Lincoln 115 
 
 Becepta, The 170 
 
 Beece v. Tryc 50 
 
 Bevell, Exp 72 
 
 Beynoldfl, Re 58 
 
 Bice V. Howard 148, 152 
 
 Bich V. Pierpoiiit 120 
 
 Bichards v. Bassett 93 
 
 V. Morgan 72. 7t 
 
 Bichardson v. Peto 72 
 
 V. Watson 194, 2O0 
 
 Eickman v. Carstairg 186 
 
 PAGE 
 
 Bobb I. Green 182 
 
 Eoberts v. Security Co. ... 184 
 
 Bobiusou r. Buccleuch 113 
 
 — T7- 1'. Markis 01 
 
 Eochefoucauld i\ Bou.ilead 184 
 
 Eoe V. Parker 92 
 
 Eogers v. Lambert 208 
 
 V. Wood 93 
 
 Bose-Troup v. Sleeping Car 
 
 Co 6 
 
 Bowley r. L. & N. W. By. 115 
 
 Eoyal Exchange Co. v. Tod 201 
 
 Salmon v. Webb 177, 182 
 
 Sandilands, Re 159 
 
 Sastry A'elaider / . Senibe- 
 
 cutty 204 
 
 Saunderson v. Piper 189 
 
 Sayer v. Cilossop 169 
 
 1-. Kitchen 167 
 
 Schott, Re 180 
 
 Schwabaoher r. Heinicr ... 32 
 
 Sfhwalbe, The 18 
 
 Seal, Re 191 
 
 Scale-Hayne r. Jodrell 197 
 
 Seamain r. Netherclift 153 
 
 Seed V. Higgins 118, 119 
 
 Serjeant r. Nash 207, 208 
 
 Sewell V. Corp 31 
 
 Shedden v. A.-G 91, 96, 117 
 
 Sheen v. Bumpstead 42 
 
 Shephard, Re 204 
 
 Sherratt r. Mountford...l91, 196 
 
 Sheward, Re 181 
 
 Shilling V. Accidental Death 
 
 Co 20 
 
 Shoe Machinery Co. v. 
 
 Cutlan 130 
 
 Shrewsbury v. Blount 41 
 
 r. Hart 113 
 
 Peerage 95 
 
 Sills V. Brown 118, 134 
 
 Simmonda v. Woodward ... 192 
 
 Simmons v. London Bai.k 70 
 
 Simpson v. Margitson 2(K) 
 
 Sims i\ Marryat 8 
 
 Skaife i'. Jackson 69 
 
 Slane Peerage 110 
 
 Slatterie v. Pooley 164 
 
 Slinn, Re .' 101 
 
 Sly V. Sly 88, 89, 166 
 
TAULE OF CASES. 
 
 PAOIS 
 
 Smith V. Audersoii , 64 
 
 !'. Andrews 110 
 
 Blakey ... 19, 85, 87, 88, 89 
 
 V. Brownlow 110 
 
 V. Daniell 55 
 
 V. Hughes 40 
 
 V. Jeffryes 199 
 
 i;. Lister 92 
 
 V. Lyon 68 
 
 r. Sainsbury 123 
 
 • V. Wilkius 45 
 
 V. Wilson 191, 200 
 
 Snowball v. Goodricke 72 
 
 Solway, The 71 
 
 Southwark Co. r. Quick ... 57 
 
 Spencer's Will, Re 178 
 
 Splents r. Lefevie 97 
 
 Spokes V. Grosvenor Hotel 58 
 Stapyltou V. Clough ... 83, 88, 89 
 
 Steeds v. Steeds 181 
 
 Stobart v. Dryden 61, 83 
 
 Storr V. Scott 64 
 
 Stringer v. Gardiner 198 
 
 Sturla r. Freccia ... 97, 106, 107, 
 109, 111 
 Sugden v. St. Leonards 
 
 100, 101, 102, 104, 166 
 
 Sullivan V. Sullivan 189 
 
 Summers r. Moorhou6e...l89, 198 
 
 Sussex Peerage 83, 86, 117 
 
 Sutton V. Saddler 33, 124 
 
 Swiftsure, The 84 
 
 Swiiiinerton v. Stafford 161 
 
 Taylor v. Witham ... 84, 85, 87 
 
 Thomas v. David 152, 153 
 
 1). Jenkins 90 
 
 Thompson, Re 97 
 
 r. Hickman 180 
 
 Tonge, Re 104 
 
 Traey Peerage 108 
 
 Trimlestown v. Kemniia ... 84 
 
 Trotter v. Maclean 31 
 
 Tucker v. Oldbury U.D.C. 86 
 
 Turner, Re (29 Ch. D.) ... 95 
 
 Re (1906, W. N.) 117 
 
 Tussaud, Re 206 
 
 Tutton V. Darke 115 
 
 Tyler v. Kingham 113 
 
 PAGE 
 
 Vachbr i\ Cocks 20, 41 
 
 Vagliano v. Bank oC Eng- 
 land 208 
 
 Van der Do::ckt v. Thellus- 
 
 son 117 
 
 Van Dienien'a Laud Co. v. 
 
 Table Cape Board 194 
 
 Villiers c. Skelton 185 
 
 Viney v. Barra 44 
 
 Wagstakf 1'. Watson 71 
 
 Waldridge v. Kenuison ... 63, 64 
 
 Wales V. Wales 45 
 
 Walker r. Wilshire 63 
 
 Waller, Re 198 
 
 Warner r. Mosses 144 
 
 Webb r. Spicer 182 
 
 Weeks v. Birch 207 
 
 Wenman v. McKe; zie 129 
 
 Westmacott v, Westmacott 169 
 
 Weston V. Emes 181 
 
 Whaley v. Carlisle 9, 87 
 
 Wheatley v. Williams 66 
 
 Wheeler c. Le Marchant ... 57 
 
 White r. Dowling 76 
 
 Whittuck f. Waters 97 
 
 Wiedemann v. Walpole ... 74, 75, 
 156 
 
 Wilcox V. Gotfrey 156 
 
 Wilding V. Sanderson (76 
 
 L. T.) 142 
 
 V. (1897, 2 Ch.) 180 
 
 Williams r. Quebrada Ry. 55 
 
 V. Stern 181, 185 
 
 V. Williams 206 
 
 Wills r. Palmer 82, 204 
 
 Wilson r. Turner 71 
 
 Windsor v. R 186 
 
 Wiug V. Angrave 205 
 
 Withnellr. Gartham 93 
 
 Wolmerhausen, Re 69 
 
 Woodward v. Buchanan ... 46 
 
 — — V. Goulstone 101 
 
 Woolley V. N. L. Ey .57 
 
 Wright V. Tatham ... 30, 33, 74, 
 
 118, 124, 133, 134, 154 
 
 Wyatt V. Bateman 61 
 
 Wynne v. Tyrwhitt 82 
 
 Young v. Schuler 178 
 
 Manufacturing Co., iie 122 
 
( xxv ) 
 
 PRELIMINARY OUTLINE OF THE 
 LAW OF EVIDENCE. 
 
 The subject of Evidence is treated in the following page.3 
 under the three divisions of Production, Admissibility 
 and Effect, of which the second is by far the largest 
 and most important. 
 
 The rules of PRODUCTION deal first with what 
 need not be produced, viz. : evidence of facts which are 
 either Admitted for the purposes of the trial, or 
 Jii-dioially Noticed. As to matters of which Evidence 
 may be given, the leading rule is that the Burden of 
 Proof, in the sense of introducing Evidence, rests on 
 the party who alleges a fact, and not on him who denies 
 it, sa^e where the fact alleged is presumed by law. Or 
 lies peculiarly within the knowledge of his opponent. 
 There is, in theory, a further rule, viz. : that the 
 Best Evidence must be given of whidli the nature of the 
 case permits. This used to be largely true, but is now 
 no longer so; and beyond the caution that a party who 
 would win his case, had best produce the strongest 
 evidence he can, there is little in the way of compulsion 
 to be noticed [post, 7—13]. 
 
 Coming to ADMISSIBILITY, evidence consists 
 roughly of Facts which have occurred before the trial, 
 and Testimony and Documents by means of which 
 these facts are established in Court. Of (A) Facts, 
 there is one general provision to be noted, viz. : that 
 those admissible must be either in issue, relevant to the 
 issue (i.e., logically probative thereof), or necessary 
 for the legal proof of such as are so. In civil cases, 
 direct testimony as to the facts in issue is usually 
 
xxvi OUTLINE OF THE LAW OF EVIDENCE. 
 
 forthooming ; in criminal cases re&ort to relevant facts 
 {i.e., indirect, circumstantial, or presumptive evidence) 
 is more largely required. It is not possible satisfac- 
 torily to classify relevant facts, since their variety may 
 be infinite; but in practice they tend to group thesm- 
 selves under three principal heads or issues, dealing 
 respectively with the Existence of the main fact, the 
 Identity of the parties, or their States of Mind {e.g., 
 knowledge, intent, fraud, or malice) with reference to 
 the main fact. 
 
 With regard to the Existence of the main fa«t, this 
 is often provable by direct testimony ; but, in any case, 
 whatever was said or done by the parties at the time, 
 is generally admissible as part of the ti-ansaction, or res 
 gesta. Extrinsic matters, however, may often be 
 relevant, e.g., in civil cases, custom, to add unex- 
 pressed terms to a contract, or acts of ownership to 
 show title to property. Questions of Identity arise 
 chiefly in criminal cases, and on such questions in 
 addition to opinion evidence on the point, a quite 
 different set of facts becomes relevant, e.g., those show- 
 ing motive, preparation, possession of property con- 
 nected with the crime, flight, change of name by the 
 accused; or, in his favour, alibi. In both civil and 
 criminal cases, also. States of Mind come constantly in 
 question ; and here a wide range of previous and subse- 
 quent facts is receivable [post, 16 — 42]. 
 
 Facts, although logically relevant to the issue, how- 
 ever, are not invariably admissible ; and there are five 
 classes thereof, viz. Similar Fact-s, Character, Privileged 
 Matters, Hearsay and Opinions, which are shut out by 
 as many excluding rules, either because they tend to 
 embarrass the case with collateral issues, or prejudice 
 the parties with the jury, or are too dangerous and 
 uncertain to form the basis of judicial decisions. 
 
 Thus: (1) Facts similar to the main fact are, in 
 general, rejected to show either the existence of the 
 main fact, or the identity of the parties, though 
 admitted to show their state of mind with reference to 
 the main fact. So (2) The Character of the parties is, 
 in general, inadmissible unless actually in issue. And 
 
OUTLINE OV THE LAW OF EVIDENCE. xxvii 
 
 various matters., otherwise relevant, are protected from 
 disclosure by (3) Public policy or Privilege, e.g., State 
 Secrets, coflfidential Communications between either 
 Solicitor and Client, or husband and wife, and self- 
 criminatory answers by witnesses [post, 43 — 59]. 
 
 (4) Hearsay. The rule against hearsay, \vliich is 
 perhaps the most important in the whole subject, 
 requires more lengthened consideration. This rule 
 excludes, with certain exceptions, all statements 
 made by persons not called as \^itnesses, as evidence 
 of the truth of the facts stated. In applying it, a 
 distinction must be observed between what ife often 
 called " Original " evidence and Hearsay [post, 2, 
 25, 60]. 
 
 A statement, it must be remembered, is a fact of a 
 dual nature, involving not merely the relevancy of the 
 fact asserted, but also the truth of the assertion made ; 
 and here admissibility depends on whether the i5rst or 
 the second quality is relied on, in other words, on the 
 purpose for which the statement is tendered. If it is 
 tendered merely as original evidence, i.e., as relevant 
 to the issue irrespective of its truth or falsity, it will, 
 with certain safeguards (post, 25), be admissible, or 
 not, like any other relevant fact, or piece of circumstan- 
 tial evidence. If, on the other hand, it is tendered not 
 circumstantially, but testimonially, i.e., as evidence 
 of the truth oi the matter stated, it will fall under the 
 ban of hearsay and be excluded, unless brought within 
 some recognized exception thereto. For example: — 
 A. sues B.' for having him falsely imprisoned on a 
 charge of forging C.'s acc6pta;nc6 to a bill of exchange. 
 B., in mitigation of damages, pi'oves that C. (not called 
 as a witness) refused to pay the bill, stating that A. had 
 forged his name : held, that C. 's statement was admis- 
 sible to show B.'s bona fides in making the charge, but 
 not to prove the forgery [Perkins v. Vaughan, post, 19; 
 cp. also, R. V. Labouchere, post, 33; R. v. Buckley, 
 post, 35; Vacherv. Cocks, post, 34; R. \. Plumer, post, 
 61; Keen v. Keen, post, 103; and see further, post, 2, 
 17, 25, 60, 100]. Similarly, in cases of Rape, com- 
 plaints, made shortly after the outrage by the woman 
 
xxviii OUTLrNE 0¥ THE LAW OF EVIDENCE. 
 
 assaulted, are adiniiisible to confirm her testimony or 
 disprove consent, but are no evidence of the truth of 
 the matters complained of {post, 28). In the above 
 examples, the statements were received as original 
 evidence, but would have been excluded as hearsay if 
 tendered testimonially. 
 
 The Hearsay rule, however, is subject to three impor- 
 tant groups of exceptions under which the statements 
 of non-witnesses may become -admissible to prove the 
 truth of the facts asserted if made (a) by a party to the 
 case as an Admission or (Confession ; or (b) by a deoeased 
 person under special circumstances; or (c) in a Piihlic 
 Document. As to Admissions, the rule is that state- 
 ments by a party to the proceedings ai'e evidence against 
 but not for him ; the reason being that what is said by 
 a person may always be presumed to be true as against 
 himself, but not when, tendered in his own favour, 
 otherwise everyone when in a difficulty might " make 
 evidence for himself." In criminal cases, admissions 
 made after the crime are called confessions, and to be 
 receivable must have been made voluntarily [post, 62 — 
 81]. — As to (b) statements by deceased persons, these, 
 if made against their pecuniai-y interest, or in the course 
 of duty, or as to public rights, pedigree, or homicide 
 committed on themselves, are receivable to prove the 
 facts stated, the truth of the declarations being deemed 
 to be guaranteed by the special circumstances under 
 which they were made [post, 82 — 1041. — The third 
 exception to the hearsay rule relates to (c) statements 
 contained in Public Documents , e.g.. Statutes, Govern- 
 ment Gazettes, Public Registers and the like, which 
 are receivable to prove the truth of the facts stated on 
 the general ground that they are made by the 
 authorized agents of the public, in the course of official 
 duty, and as to matters of public interest [post, 105 — 
 115]. 
 
 (5) Opinions and Judgments. — The last of the 
 classes of facts shut out by the rules above indicated, 
 consists of Opinion Evidence, which, either in the form 
 of general reputation, or of individual opinion and belief, 
 is in general inadmissible to prove material facts, since 
 
OUTLINE OF THE LAW OF EVIDENCE. xxix 
 
 if founded on no evidence or illegal evidence it is worth- 
 less, and if founded on legal evidence it tencls to usurp 
 the functions of the tribunal whose business alone it is 
 to draw conclusions of law or fact. There are some 
 exceptions in the case of General Eeputation, which is 
 admissible to prove public rights, matters of pedigree 
 and marriage, and some in the case of Individual 
 Opinion, which is admissible from Experts upon ques- 
 tions of science, art, trade, handwriting, and foreign 
 law, and from Ordinai-y Witnesses (Non-Experts) on 
 questions of identity, handwriting, age, and rate of 
 speed [post, 116 — 24]. When opinion evidence takes 
 the form of a Judgment of a court of law, more technical 
 rules apply; but, broadly speaking, judgments in rem 
 (i.e., those affecting status) are conclusive evidence of 
 the fact actually decided, when tendered in future pro- 
 ceedings between either parties or strangers, while 
 judgments in personam (i.e., those in contract, tort, or 
 crime) are conclusive evidence both of the fact found 
 and of the grounds of the finding, but only between 
 parties, being, in general, wholly inadmissible between 
 strangers [post, 125 — 34]. 
 
 The above are the chief cases in which relevant facts 
 are excluded in proof of the facts in issue; but there are 
 man cases in which facts, though logically irrelevant 
 to the issue, are yet legally admitted, e.g., the fact that 
 a witness has or has not been sworn in a particular 
 manner, or that a hearsay declarant is dead at the date 
 of the trial, or that proper search has or has not been 
 made for a lost document. These are arbitrary require- 
 ments imposed not by logic, but by law, and may 
 change in different jurisdictions, or at different periods 
 [post, 14—15]. 
 
 (B) Testimony. — With regard to witnesses, all 
 persons are now competent to testify, except those of 
 defective intellect, and, to a certain ext-ent, prisoners 
 and their consorts. As to the latter, the subject is 
 regulated by the Criminal Evidence Act of 1898, and is 
 somewhat detailed. But, generally, the accused, 
 though incompetent for the prosecution, may give 
 evidence for the defence either of himself or of a 
 
XXX 
 
 OUTLINE OF THE LAW OV EVIDENCE. 
 
 co-defendant, subject to cross-examination, but with 
 protection from cei'tain questions thereon. The consort 
 of the accused may also, with the latter 's consent, give 
 evidence for the defence, but not for the prosecution, 
 save in certain scheduled cases. And co-defendants 
 are also competent for the accused, but can only be 
 called on their own application. Witnesses; with a few 
 exceptions, e.g., in the case of very young children, or 
 ■when merely producing a document, are required to 
 testify on oath or affirmation. As to the order of 
 testimony, they must first be examined in chief by the 
 party calling them, but may not be asked leading ques- 
 tions, though they may refresh their memory by memo- 
 randa made at the time of the events narrated. Nor 
 may a party calling a witness discredit him, unless in 
 the opinion of the judge he proves hostile. The witness 
 is next cross-examined by the opposite party, when he 
 may be asked leading questions, and when contradictory 
 statements, bias, or previous convictions may be put to 
 him, and if denied proved; otherwise answers going 
 merely to credit, and not themselves relevant to the 
 issue, cannot be contradicted. The witness, however, 
 is in general compellable to answer questions of either 
 kind put to him in cross-examination. He is then 
 re-ex imined by his own side, when he has the oppor- 
 tunity of explaining any disadvantageous matters which 
 have been elicited on cross-examination. As a general 
 rule, Cour'ts may act on the testimony of a single wit- 
 ness, even though uncorroborated; but in cases of 
 treason, perjury, bastardy, breach of promise, or 
 where the witness is an accomplice, coiToboration is 
 required either by rule of law, or invariable practice 
 [post, 135—157]. 
 
 (C) Documents. — Questions of evidence, here, mainly 
 arise with regard to the Execution, Content-s, or Admis- 
 sion of extrinsic facts to affect, documents. As to 
 Execution, Public and Judicial documents are some- 
 times {e.g., Statutes) judicially noticed, in other cases 
 they may require no further authentication than that of 
 appearing in a Government Gazette, or of "purport- 
 ing " to be printed by official printers, or to be certified, 
 
OUTIjIJ^K of the law of evidence. xxxl 
 
 signed, or sealed by some court or public department. 
 The execution of Private documents is proved by evi- 
 dence of their signature given by some person who 
 knows the writing, or in the case of documents requiring 
 attestation, by calling the attesting witness. Ancient 
 documents, (i.e., over 30 years old), however, if pro- 
 duced from proper custody, prove themselves. The 
 Contents of Public or Judicial documents are usually 
 proved by secondary evidence, e.g., duly authenticated 
 copies; those of private documents by primary evidence, 
 e.g., production of the original, secondary evidence 
 being, however, admissible where the document has 
 been lost or destroyed, or is in the possession of the 
 opposite party, who refuses to produce it after notice. 
 The most important provisions, however, are those 
 relating to the admissibility of Extrinsic Evidence to 
 affect documents, and in this connection there are two 
 rules of exclusion and one of admission. The first rule 
 excludes extrinsic (or parol) evidence in suhstitniion of 
 documents, i.e., if a transaction has been reduced to a 
 documentary form, it must be proved by production of 
 the document or a copy, and not by oral evidence of the 
 transaction, even though the oral and written terms 
 might be identical. The second rule excludes extrinsic 
 evidence to contradict, vary, enlarge, or restrict the 
 written terms. Both rules are subject to certain excep- 
 tions. Thirdly, there is a general rule admitting extrin- 
 sic evidence in aid of the interpretation of documents 
 wherever their language is peculiar, or their application 
 to the circumstances of the case is ambiguous or 
 inacciu'ate. This controlling iiile is worked out in six 
 subordinate rules, too detailed to be given here, but 
 concluding the diffioult subject of extrinsic evidence to 
 affect documents [post, 158 — 201]. 
 
 EFFECT. — Finally, a word must be said as to the 
 effect of evidence. In so far, then, as the natural 
 weight or effect of evidence goes, this is not controlled by 
 any arbitrary rules whatever, but is determined purely 
 by the common sense, logic, and experience of the 
 tribunal. But in many ca^es the law directs particular 
 consequences to be annexed to individual facts, these 
 
xxxii OUTLINE OF THE LAW OF EVIDENCE. 
 
 being called presutn-ptions of law, and when " conclu- 
 sive," as that a child under seven is incapable of com- 
 mitting a felony, no opposing evidence at all is allowed 
 to be given; but when megely " rebuttable," as that a 
 child bom in lawful wedlock is legitimate, or a person 
 not heard of for seven years is dead, the effect of the pre- 
 sumption is provisional only, that is, it throws on the 
 party against \\hom it operates the burden of proving 
 the contrary if he can, and only if he fail to do so will it 
 become absolute. Lastly, the weight of evidence may 
 be arbitrarily affected by the principle of Estoppel, 
 by which a party is, within certain limits, precluded 
 from denying some fact he has previously asserted. 
 As this topic is usuallj' treated in works on evidence, 
 a brief summary of its rules is included in the present 
 manual [post, 202 — 8]. 
 
 NOTE. 
 
 (i) References at the heads of Chapters, or end of Eiiles, thus 
 [1-10], indicate the pages of the Sixth Edition of tlie 
 Author's lai'ger work where the corresponding topics 
 are more fully treated. 
 
 (ii) Letters at the end of Iieadings in the text, thus (ft), (b), (o), 
 as on p. 17, refer to corresponding letters in the Examples. 
 
 ERRATA. 
 
 Page 3, line 7, for xxviii read xxvii. 
 Page 60, line 7, for xii read xxvii. 
 
To face page 1. 
 
 A COMPANION BOOK. 
 
 After or with this book you should read 
 
 LEADING CASES AND STATUTES 
 ON EVIDENCE 
 
 This book and Phipson's Manual are together sufficient for all 
 ordinary examination purposes, and will save students the necessity of 
 reading larger works on this subject. 
 
 By an ingenious use of black type the author brings out the essen- 
 tial words of the judgments and Statutes, and enables the student to 
 see at a glance the etEect of each section. 
 
 " Of all the collections of leading cases compiled for the use of 
 students with which we are acquainted, this book of Mr. Cockle's is. 
 in our opinion, far and away the best. The student who picks up the 
 principles of the English law of evidence from these readable and 
 logical pages has an enormous advantage over a generation of prede- 
 cessors who toiled through the compressed sentences of Stephen's little 
 digest in a painful effort to grasp its meaning. Mr. Cockle teaches his 
 subject in the only way in which a branch of law so highly abstract 
 can ever be grasped ; he arranges the principal rules of evidence in 
 logical order, but he puts forward each in the shape of a leading case 
 which illustrates it. Just enough of the headnote, the facts, and the 
 judgments are selected and set out to explain the point fully without 
 boring the reader ; and the notes appended to the cases contain all the 
 additional information that anyone can require in ordinary practice." 
 — Solicitors' Journal. 
 
 The price of the thick or thin paper edition 
 is 1 6s. 6d. net. Postage 1 s. extra. 
 
 Order Form. 
 
 To SWEET & MAXWELL, LTD., 
 
 3 Chancery Lane, LONDON, W.C. 2. 
 
 Send a copy of the paper edition of COCKLE'S 
 
 CASES ON EVIDENCE. Remittance value 17s. 6d. Is 
 enclosed. 
 
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 Date 
 
MANUAL 
 
 OF 
 
 THE LAW OF EVIDENCE. 
 
 BOOK I. 
 PRODUCTION OF EVIDENCE. 
 
 CHAPTER I. 
 
 INTRODUCTORY. 
 
 [1-17.] 
 
 LAW, — Substantive and Adjective. — Law is com- 
 monly divided into Substantive 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. 
 
 PROOF is effected by — (a) evidence, (b) presump- 
 tions, (c) judicial notice, and (d) inspection. 
 
 (a) Evidence means the facts, testimony, and docu- 
 ments which may be legally received in order to prove or 
 disprove the facts under enquiry. 
 
 [Mr. Taylor applies the word to " all the legal means 
 exclusive of mere argument, which tend to prove or dis. 
 prove any fact the truth of which is submitted to 
 judicial investigation." (s. 1.) This, however, is too 
 wide, since, though it excludes " mere argument " {i.e., 
 presumptions of fact), it would include presumptions of 
 law, judicial notice, and inspection, which are not 
 usually treated under the head of Evidence. On the 
 
 L.E. 1 
 
2 THE LAW OF EVIDENCE. [book i. 
 
 other hand, the word is sometimes, though it is sub- 
 mitted unduly, restricted to ^^cts exoluEive of testi- 
 mony (Hunter, Eoman Law, drd ed. 1050) ; and some- 
 times to testimony and documents exclusive of facts 
 (Steph. Digest, art. 1; this," it may be remarked, con- 
 flicts with other parts of the Digest, e.g., an admission 
 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: " Introd. p. xii.).] 
 
 The following distinctions are commonly taken with 
 I'espect to the nature of evidence : — 
 
 '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 himself 
 perceived it. By indirect, circumstantial, or presump- 
 tive evidence, is meant that other facts are so proved, 
 from which the existence of the given fact may be 
 logically inferred. The two forms are equally admis- 
 sible, and the testimony, whether to the factum prohan- 
 dum or the facta probantia, is equally du'ect; but the 
 advantage of the former is, that it contains only one 
 source of error, fallibility of testiinSpy, while the latter 
 has, in addition, fallibility of infej^ce. Little is to be 
 gained from a comparison of the:^kge3.cy, since both 
 forms admit of every degree of-'^^^t^bUity, from the 
 lowest to the highest. Material objects, other than 
 documents, produced for the inspection of the Court, 
 are often called Real, evidence. 
 
 Original and Hearsay Evidence. Statements used 
 circumstantially and used testimonially. — The term 
 Original evidence, as distinguished from Hearsay, is 
 used in two senses : (1) to mean the proof of facts by 
 witnesses, as opposed to their proof by statements made 
 out of Court; and (2) to mean 8tat«ments made out of 
 Court which are used circumstantially (i e as relevant 
 irrespective of their ti-uth or falsity), as' opposed to 
 those used testnnomally (I.e., to prove the truth of the 
 facts asserted). Thus, the information, whether true 
 
CHAP. I.] INTEODUCTORY. 3 
 
 or false, on which a party acted is often material to 
 explain his conduct, and is then original evidence ; 
 while if the same statement be used to prove its own 
 truth, it is hearsay and only admissible in exceptional 
 eases. The test of whether a declaration belongs to 
 one class or the other is, therefore, the purpose for 
 which it' is tendered {ante, xxviii; post, 25, 60). The 
 present distinction, though not always sufficiently 
 recognized, or easy to apply, is one of the most impor- 
 tant in the whole s.ubject. 
 
 Primary and Secondary Evidence. — These terms 
 apply to the kinds of proof that may be given of the 
 contents of a, document, irrespective of the piirpose for 
 which such cont-ents, when proved, may be used. — 
 Primary evidence means the best or highest kind, that 
 which the law regards as affording the greatest cer- 
 tainty of the fact in question; thus, production of the 
 original document, or proof of an admission of its con- 
 tents 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 exis^tence of more original sources 
 of information; thus, a copy, or the testimony of a 
 witness who has I'ead the document, is secondary. In 
 Lucas V. WaUams, 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 the absence of that 
 better evidence, when a proper explanation of its 
 absence has been given." This, however, is only 
 approximately true, for the law sometimes requires 
 secondary evidence to be given first, and sometimes 
 ■ allows the production of primary evidence to be optional 
 {post, chap. XXVI.). 
 
 (6) Presumptions are either of law or of 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 committing a felony; or rebuttable, as that 
 a person not heard of for seven years is dead, or that a 
 bill of exchange has been given for value. They are 
 
4 THE LAW OF E\T;DBNCE. [book i. 
 
 sometimes defined as infercficos, directed by law to be 
 drawn from particular facts (Steph. art. 1 ; Best, 
 ss. 304 — 306); but, strictly speaking, a compulsory 
 inference is a contradiction in terms, the law having ijo 
 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 (Thayer, Pr. Tr. Ev. 314 — 5, 
 317). 
 
 Presumptions of fact are inferences which the mind 
 naturally and logically draws from given facts, irrespec- 
 tive of their legal effect. They are always rebuttable. 
 
 (c) Judicial Notice is the cognizance taken by the 
 Court itself of certain matters which are so notorious, or 
 clearly established, that evidence of their existence is 
 unnecessary. 
 
 {d) Inspection. — Inspection has been defined as a 
 substitution of the eye for the ear in the reception of 
 evidence, and is generally allowed whenever it will 
 assist the tribunal in arriving at a decision. Valuable 
 inferences are frequently derived through this channel 
 from the demeanour of witnesses, the comparison of 
 handwriting, or the condition of instruments used in 
 committing a crime. Under the Children Act, 1908, 
 s. 123, and in certain other cases, the age of persons may 
 be determined by inspection. 
 
 PROOF IN CIVIL AND CRIMINAL CASES.— 
 The rules of proof are in general the same in civil and 
 criminal proceedings, but the following differences 
 should 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 ti^ their 
 case upon affidavits ; may make admissions for the pur- 
 pose of dispensing with proof at the trial ; or may obtain 
 leave in chambers to interrogate each other before trial, 
 or, in certain oases, to prove particular facts at the trial 
 by affidavit or hearaay, and documents by secondary 
 evidence. Stamp objections, also, can only be taken 
 in civil cases. 
 
 (2) The provisions relating to complaints, character, 
 
CHAP, i] INTKODUCTOBY, 5 
 
 confessions, dying declarations, and. the competency 
 and compellability of witnesses are wholly, or partially, 
 peculiar to the criminal law. In criminal trials, also, 
 the accused may make unsworn statements in lieu of, 
 or in addition to, his sworn testimony. 
 
 (3) Civil issues may be jDroved by a preponderance of 
 evidence; criminal issue, when arising in criminal pro- 
 ceedings, must be proved beyon-d a reasonable doubt. 
 It has been said that criminal issues, when arising in 
 civil proceedings, must also be strictly proved (Tay. 
 s. 112; Steph. art. 94); but the better opinion is, 
 perhaps, contra. 
 
 FUNCTIONS OF JUDGE AND JURY. LAW 
 AND FACT.— Matters of law are determinable by the 
 judge; matters of fact (with the exceptions mentioned 
 below) by the jury. 
 
 Questions as to the production and admissibility of 
 evidence belong to the former class; questions as to its 
 credibility and weight to the latter. Whether there is 
 any evidence, therefore, is for the judge ; whether there 
 is sufficient evidence is for the jury. Thus, in actions of 
 negligence, it is for the former to say whether, from any- 
 given state of facts, negligence caji be infened, and for 
 the latter to find whether it ought to be [Metropolitan 
 Ry. Co. V. Jackson, 3 App. Cas. 193, 200); so, in libels, 
 civil or criminal, it is for the former whether the words 
 were capable of the meaning alleged, and for the latter 
 whether they bore it {Nevill v. Fine Art Co., 1897, 
 A. C. 68). The construction of written documents is 
 for the Court ; the construction of peculiar or technical 
 terms is for the jury. 
 
 The following matters of fact are, by exception, 
 determinable by the judge : — 
 
 (1) What is reasonable in certain cases, e.g., the 
 question of reasonable and probable cause in actions for 
 malicious prosecution or false imprisonment; the 
 question of reasonable suspicion under the Pawn- 
 brokers Act, 1872; the question of the reasonableness 
 of a covenant in restraint of trade. 
 
 (2) The existence of all facts on which the admis- 
 sibility of evidence depends; e.g., those which show 
 
6 THE LAW OF EVIDENCE. . [book i. 
 
 whether a confession waa voluntaiy, a communioation 
 privileged, or a dying declaration made without hope of 
 recovery. 
 
 (3) Foreign laiv {i.e., Scotgh, Irish when differing 
 from English, Colonial and Foreign), which, unlike 
 English Law, is treated as a question of fact to be proved 
 by experts, is determinable by the judge alone (Admini,!- 
 tration of Justice Act, 1920, s. 15. This adopts the rule 
 in Capin v. Adamson, 31 L. T. 242, not that in R. v. 
 Picton, 30 How. St. Tr. 536-40; Rose-Troup v. Sleeping 
 Car Co., Times, Feb. 3, 1911, and Tay." s. 48, where 
 foreign law is said to be for the jury). 
 
( 7 
 
 CHAPTER II. 
 
 MATTERS OF WHICH EVIDENCE IS UNNECESSARY. 
 
 [18-26.] 
 
 No evidence is required of matters which are either — 
 (a) admitted for the purposes of the trial, or (6) 
 judicially noticed. 
 
 (a) ADMISSIONS FOR PURPOSES OF TRIAL.— 
 
 Admissions for the purpose of dispensing with proof at 
 the trial, may be made as follows: — 
 
 In Civil Cases, (1) By the pleadings ; (2) Pursuant to 
 notice under O. 32, rr. 1-5 (such admissions are only 
 available for the particular person giving, and cause 
 afiected by, the notice, and the admissions may be 
 amended or withdrawn on terms : r. 4) ; (3) By agree- 
 ment, or otherwise, before, or at, the trial, and with 
 reference thereto, by the parties or their agents. 
 
 Admissions for the above purpose must be distin- 
 guished from those tendered as evidence, the former 
 not being usually receivable in other proceedings and 
 the latter not being usually conclusive. 
 
 In Criminal Cases, except by a plea of guilty, no 
 such admissions are allowed in cases of felony ; and in 
 R. V. Thornhill, 8 C. & P. 575, the same rule was 
 applied to a case of misdemeanour. A plea of guilty, 
 however, only admits the offence charged, and not the 
 truth of the depositions (R. v. Riley, 18 Cox 285). 
 
 (6) JUDICIAL NOTICE.— It is competent for 
 Courts to take judicial notice of the various matters 
 enumerated below, these being so notorious or clearly 
 established that formal evidence thereof is unnecessary. 
 
 Scope of the Rule. — The doctrine of Judicial Notice 
 extends not only to judges, but to juries with respect to 
 matters falling within the sphere of their everyday 
 
8 THE LAW OF EVIDENCE. [book i. 
 
 knowledge and experience. Thus the latter, as well as 
 the former, may be asked to notice, without proof, the 
 meaning of the imputation " Frozen Snake," in a libel 
 action {Hoare v. Silverlock, 12 Q. B. 633). On the 
 other hand, neither judges nor juries may act on their 
 ■prinatc Imowledge of the case, but s.hould, if they have 
 material facts to impart, be sworn as witnesses. When 
 so sworn, a judge, unlike a juryman, must not, whether 
 acting alone or with others, adjudicate on his own 
 testimony (B. v. Antrim, 2 I. E. pp. 141, 164; Mitchell 
 V. Croyden, 30 T. L. E. 526). 
 
 Matters directed by statute to be noticed, or which 
 have been noticed by well-established practice or 
 precedent, must be recognized ; but beyond thi&, judges 
 have a wide discretion and waj/' notice much which 
 they cannot be required to notice. The notice is in 
 some cases conclusive, and in others {e.g., the genuine- 
 ness of signatures) merely prima facie and rebuttable. 
 
 When in doubt, the judge may refresh his memory by 
 referring for information to appropriate sources, e.g., to 
 public histories, almanacs, dictionaries, or the officials 
 of a public departrijent {post, 115). 
 
 (1) Law, Procedure, Custom Judicial notice will 
 
 be taken of all Public Statutes, and of all Acts of 
 Parliament of whatever nature passed since 1850, 
 unless the contrary is expressly provided (52 & 58 Vict, 
 c. 63, s. 9) ; as well as of every branch of unwritten law. 
 Thus if, in a common law Court, points of ecclesiastical 
 or admiralty law arise, they must be determined not by 
 calling experts, but by the Coui-t itself, either of its 
 own knowledge, or by inquiry, or by hearing authorities 
 and argument {Sims v. Marnjat, 17 Q. B. pp. 288, 
 292). On the other hand, foreign law is not noticed, 
 but must, as we have seen, be proved as a fact to the 
 judge by skilled witnesses {ante, 6). 
 
 Judicial notice will be taken of the procedure of the 
 Houses of Parliament, and of the High Court (though 
 not of inferior Courts, unless regulated by Statute), as 
 well as of all customs which have either been settled by 
 judicial decision, or ceHified to the Hiqh Court (post, 
 112). 
 
CHAF. II.] JUDICIAL NOTICE. 
 
 (2) Constitutional, Political, and Administrative 
 Matters. — Notice will be taken of the accession and 
 demise of the* Sovereigns of this country; of the 
 existence and titles of all other recognized Sovereign 
 Powders; of the principal officers of State and heads, of 
 departments, past or present {Whaley v. Oarlisle, 17 
 It. C. L. E. 792); and of the Judges of the Supreme 
 Court. Notice wiU also be taken of wars in which this 
 country is, or has been, engaged; and generally of all 
 public matters affecting the government of the country. 
 
 (3) Territorial and Geographical Divisions. — Notice 
 will be taken of the extent of British jurisdiction ; but 
 if this is in doubt the Court should either apply under 
 the Foreign Jurisdiction Act, 1890, s. 4, to one of 
 H.M.'s Secretaries of State, whose i-eport will be " con- 
 clusive evidence " of the mattei's stated (Foster v. 
 Globe Syndica.tc, 1900, 1 Ch. 811), or, if this has not 
 been done, hear evidence on the point (Ibrahim v. Rex, 
 1914, A. C. 599). The territorial and administrative 
 divisions of the country into counties, towns, parishes, 
 &o., will also be noticed, but not the situation or boun- 
 daries of particular places. 
 
 (4) The Official Gazettes of London, Edinburgh, and 
 Dublin will be noticed on their mere production (31 & 
 32 Vict. c. 37, ss. 2 and 5; post, 106). 
 
 (5) Official Seals and Signatures Notice will be 
 
 taken of the various royal and duchy seals; the seals of 
 the superior courts, central office, and district registries 
 (Jud. Act, 1878, s. 61) ; the signatures of the judges of 
 the superior courts to official documents ; and those of 
 the various officials authorized by the Commissioners 
 for Oaths Acts, 1889 and 1891, to administer oaths m 
 any place out of England. 
 
 (6) Notorious Facts. — The Courts will notice facts 
 which are notorious — e.g., the ordinary course of 
 nature; the standards of weight and measure; the 
 public coin and oun'ency ; and the meaning of common 
 words and phrases. They have also taken notice that 
 the streets of London are crowded and dangerous, and 
 that boys are naturally reckless. 
 
( 10 ) 
 
 CHAPTER III. 
 
 nURDEN OF PROOF. THE " BEiST-EVIDBNCE " RULE. 
 
 [30-48.] 
 
 BURDEN OF PROOF The general rule is, that he 
 
 who asserts must prove, whether the allegation be an 
 affirmative or negative one, and not he who denies. 
 
 As applied to judicial proceedings, however, the 
 phrase, " bui'den of proof," has two distinct and fre- 
 quently confused meanings : the burden of proof as a 
 matter of law and pleading — the burden, as it has been 
 called, of establishing a case, whether by preponder- 
 ance of evidence, or beyond a reasonable doubt; and 
 the burden of proof in the sense of introducing evidence. 
 
 (1) Burden of proof on the pleadings. — The burden 
 of proof, in the former sense, rests upon the party, 
 (plaintiff, prosecutor, or defendant), who in substance 
 asserts the affirmative of the issue. It is fixed at the 
 beginning of the trial by the state of the pleadings, and 
 it is settled as a question of law, remaining unchanged 
 throughout the tdal exactly where the pleadings place 
 it, and never shifting under any circumstances what- 
 ever. If, when all the evidence, by whomsoever intro- 
 duced, is in, the party who has this burden has not 
 discharged it, the decision must be against him. 
 
 (2) Burden of adducing Eviden-ce. — It is in the 
 second sense that the term is more generally used, and 
 must be understood in applying the following rules. 
 This burden may shift constantly, according as one 
 scale of evidence or the other preponderates. 
 
 The 071US probandi in this sense rests upon the pacty 
 who would fail if no evidence at all, or no more 
 evidence, as the case may be, 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, 
 
CHAr. m.] BUBDEN OF PEOOF. U 
 
 after evidence is gone into, upon the party against 
 whom the tribunal, at the time the question arises, 
 would give judgment if no further evidence were 
 adduced. 
 
 EXCEPTIONS — There are 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 arise during the trial, will 
 operate to shift such burden to his opponent. 
 
 (1) When there exists a disputable presumption of 
 law, or a prima facie case, in favour of a party, it lies 
 upon his adversary to rebut it. 
 
 Thus, a party suing on a bill of exchange need not 
 allege, nor at the outset prove, consideration ; nor when 
 suing upon any contract, the defendant's fiiU age or 
 sanity, for the presumption is prima facie in favour of 
 such conditions. So though a party asserting 
 another's death must prove it, yet, if he give evidence 
 that such person has not been heard of for seven years, 
 by those most likely to have heard, the burden of dis- 
 proof is shifted to his adversary, for the law presumes 
 death in such a case (post, 204). So, the legitimacy of 
 a child bom during wedlock is presumed; but if its 
 parent-s are shown to have been judicially separated 
 more than nine months before its birth,- the presump- 
 tion is reversed (post, 204). Conflicting presumptions 
 neutralize each other, and the case must then be 
 decided solely on the evidence adduced. (B. v. Willshire, 
 6 Q. B. D. 366). 
 
 The burden of proof, however, may be shifted not 
 only by rebuttable presumptions of law, but by pre- 
 sumptions of fact of the stronger kind, or by any species 
 of evidence sufficient to raise a prima, facie case. 
 
 (2) Where the subject-matter of a party's allegation 
 (whether afBrmative or negative) is peculiarly within 
 the knowledge of his opponent, it lies upon the latter to 
 rebut such allegation. 
 
 The principle of this exception has been recognized 
 chiefly in the older oases and by the Legislature. Thus, 
 the burden of proving authority, consent, qualification, 
 lawful excuse, and similar defences in criminal cases. 
 
12 THE LAW OF EVIDENCE. [book i. 
 
 has in many instances been cast by statute upon the 
 defendant as lying peculiarly within his knowledge. So 
 the Summary Jurisdiction Act, 1879, s. 39, dispenses 
 with disproof by infoa-mants, or complainants, of "any 
 exemption, exoepition, proviso, excuse or qualification " 
 which would be in favour of the defendant. 
 
 In the absence of statutory provision, however, the 
 better opinion seems to be that some prima facie 
 evidence must generally be given by the plaintiff or pro- 
 secutor in order to cast the burden of disproof on the 
 other side. It has frequently been held that the 
 difRculty of proving a fact peculiarly known to an 
 opponent, may affect the quanhivi of evidence 
 demanded in the first instance, but does not necessarily 
 shift the entire burden of proof. 
 
 THE BEST-EVIDENCE RULE. STRICT PROOF. 
 — The maxim that " the best evidence miist he given 
 of which the nature of the case permits," has often 
 been regarded as the one great cardinal principle under- 
 lying the law of evidence. 
 
 The maxim first appeared in the year 1700;'and for 
 more than a century largely regiilated the subject. 
 Thus, circumstantial evidence used to be excluded if 
 direct could be obtained, as also extrinsic proof of hand- 
 writing or consent, if the party's own testimony were 
 available. About the beginning of the 19th century, 
 however, a reaction set in; and perhaps the most 
 conspicuous feature of the modem law has been its 
 persistent recession from this once famous principle. 
 
 It is not now true that the best evidence must, or 
 even mtitf {post, 164, 168), always be given; though its 
 non-production may afford matter for comment. Thus, 
 circumstantial evidence is now as admissible as direct. 
 Words spoken may be proved by third persons, though 
 the speaker is in court and might be called. So, of 
 handwriting : it is not necessary to call either the 
 writer, or some one who saw the document written; 
 the opinion of a witness who but once, and many years 
 before, has seen the party sign, is equally admissible, 
 though its weight may be slight. Even on an indict- 
 ment for forgei-y, the prosecutor is no longer an 
 
CHAP, in.] THE " BEST EVIDENCE " BULB. 13 
 
 essential witness to disprove either the handwriting or 
 his authority to sign {R. v. Hurley, 2 M. & Rob. 473). 
 
 On the other hand, strict proof is requii'ed of 
 marriage in cases of bigamy or divorce {post, 116) ; of age 
 on a plea of infancy ; generally of the contents of private 
 documents by their production, though this rule, 
 founded on the old doctrine of p^'ofert, long ante-dated 
 the present maxim {post, chap. XXVI.); and of a few 
 other matters. 
 
( 14 ) 
 
 BOOK II. 
 ADMISSIBILITY OF EVIDEACE. 
 
 PAET I.— FACTS. 
 
 CHAPTER IV. 
 
 FACTS IN ISSbE. RELEVANCY. AD.MISSIBILITY. 
 
 [99-54.] 
 Thk facts whicli 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. 
 
 FACTS IN ISSUE are those facts which are 
 necessary by law to es.tablish the claim, liability, or 
 defence, forming the subjeot-mat-ter of the proceedings; 
 and which, either by the pleadings, or by implication, 
 are in dispute between the parties.. Facts in issue are, 
 therefore, determinable primarily by the substantive 
 law, and secondly by the pleadings. 
 
 FACTS RELEVANT TO THE ISSUE are facte 
 which tend, either directly or indirectly, to prove or 
 disprove a fact in issue, or so^me relevant fact. Facts 
 relevant to the issue are determined by ordinary logic 
 and experience. 
 
 Relevanoy and Admissibility. — Although, however, 
 legal admissibility is for the most part based upon 
 logical relevancy, or that connection between events 
 ^^'hicli, in the ordinary course of experience, is found to 
 
CHAP. IV.] RELEVANCY AND ADMISSIBILITY. 15 
 
 render one probable from the existence of the other, the 
 two theories do not wholly coincide. Thus, certain 
 classes of facts {e.g., similar occurrences and the 
 character of the parties) which in ordinai-y life are 
 relied upon as rendering other facts probable, the law 
 (with certain exceptions) rejects, on grounds of policy or 
 precedent, e.g., as being too slight in probative force to 
 form the basis of judicial decisions, or as confusing the 
 jury by a multiplicity of issues, or as infringing some 
 safeguard of public policy or personal privilege. On 
 the other hand, numerous facts {e.g., that a witness 
 was not awom in a particular way, or that, at the date 
 of the trial, a hearsay declarant was dead, a document 
 was thirty years old, or, if lost, was duly searched for) 
 are legally admissible though they may liave no 
 logical bearing on the issue. It is not correct, there- 
 fore, to say, as is sometimes done {e.g., Thayer, Pr. Tr. 
 Ev. 266; Wigmore, Ev. s. 9; Wills, Ev. 2nd ed. 58), that 
 " without any exception, nothing that is not logically 
 relevant is admissible." Indeed, Sir J. Stephen 
 amended his original definition of relevancy to 
 mark this very distinction by the use of the terms 
 "relevant" and "deemed to be relevant," respec- 
 tively (art. 2; ep. Best, s. 34). These terms, however, 
 are apt to mislead, as they seem to imply that legal 
 logic is something different from lay logic, and that the 
 Court may regard facts as logically probative or the 
 reverse, when they are not really so, whereas all the 
 author means is that the Court may admit or reject 
 facts irrespective of their logical relevancy. It is 
 safer, therefore, to use the term " relevant " as mean- 
 ing logically probative, and " admissible " as meaning 
 legally receivable, whether logically probative or not. 
 
 Moreover, there are three important classes of facts 
 dealt with by the law of evidence — viz. Hearsay, 
 Opinions, and Judgments, which are of a two-fold 
 nature, and as to which it is necessary to consider not 
 merely the relevancy of the fact asserted, but also the 
 accuracy Or other quality of the assertion made, which 
 is a matter determinable by rules other than those of 
 relevancy (post, 60, 116, 125). 
 
( 16 ) 
 
 CHAPTER V. 
 
 THE FACT OR TRANSACTION IN ISSUE. RES GESTA. 
 
 [85-87.] 
 
 Acts, declarations, and incidents which constihite, 
 or accompany and exflain, the fact or transaction 
 in issue, are admissible, for or against either party, 
 as forming parts of the res gesta. 
 
 Principle. — The ground of admission is that such 
 facts and declarations form parts of the act itself, para 
 rei gestx, or are so intimately connected therewith, 
 that they may be considered as doing so. The plural 
 form, res gestse, though conveying the evidential idea 
 less correctly, is also frequently used. 
 
 CONSTITUENT FACTS.— The fact or transaction 
 in issue is not always admissible in evidence in the 
 sense of being the subject of direct assertion or denial, 
 for it may involve inferences of law or fact which it is 
 for the Court or jury, and not for the witnesses, to 
 draw. 
 
 Where the main fact is of a simple nature, e.g., the 
 mere utterance of slanderous words, or the identity of 
 a person or thing, this objection does not apply. But 
 wherever the inference is doubtful, the proper course is 
 for the witness to state the incidents relied on as con- 
 stituting or amounting to the main fact, and not the 
 latter per se. Thus, in a breach of promise action, the 
 plaintiff may not testify that the defendant promised 
 to marry her, but should state what he wrote or said. 
 So, on a question of infringement, experts, though they 
 may give their opinion on the points of science involved, 
 may not testify that there has, or has not, been an 
 infringement (post, 118-20). 
 
CHAP, v.] THE TRANSACTION IN ISSUE. RES GESTA. 17 
 
 Sometimes the main transaction can only be estab- 
 lished by proving a series of similar facts, which may 
 happen either because the nature of the case itself 
 demands cumulative instances {e.g., custom, trading, 
 jrequenting), or because the similar facts have occun'ed 
 in such close connection in point of time, place, etc., 
 that they virtually form one continuous transaction. 
 
 ACCOMPANYING FACTS There are many inci- 
 dents, however, which, though not strictly constituting 
 a fact in issue, may yet be regarded as forming a part of 
 it, in the sense that they accompany, and tend to 
 explain, the main 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 circumstance. 
 
 Declarations accompanying Acts (a). — Questions of 
 evidence in this connection usually arise with regard to 
 statements, since with other incidents there is less 
 danger of being misled. The following points should 
 be noted : 
 
 (1) The declarations must be substantially con- 
 temporajisous withthe act, i.e., made either diuring, or 
 immediately before or aft-er, its occurrence — but not at 
 such an interval as to allow of fabrication, or tO' reduce 
 them to the mere narrative of a past event. 
 
 (2) The act itself must be in issue, or relevant; and 
 the declarations can only be used to explain the fact 
 they accompany, and not prior or subsequent discon- 
 nected facts. 
 
 (3) The declarations ai'e no proof of the fact they 
 accompany; this must be established independently. 
 And though admissible to explain or corroborate, they 
 are not, in general, evidence of the trvth of the matters 
 stated, i.e., they are original evidence, not exceptions 
 to the hearsay rule (ante, 2 ; post, 60). 
 
 Mental and Physical Conditions (b). — Direct Testi- 
 mony. Witnesses may speak directly as to their own 
 feelings, motives, or intentions, at a given time, their 
 testimony being based not on inference, but conscious- 
 ness. They may not, in general, however, testify to 
 the state of mind of others, as to which they can have 
 
 L.K. 2 
 
18 THE LAW OF EVIDENCE. [book ii. 
 
 no direct knowledge, but must detail the facts from 
 which the given condition may be inferred. Declara- 
 tions out of Court. — Thus, when 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; though not statements as to their 
 cause, nor as to past conditions. In proving intentio^i, 
 also, a stricter rule prevails in criminal than in civil 
 cases; bare declarations, unconnected with an act, being 
 generally excluded (except against the declarant him- 
 self) in the former, although admitted in many cases in 
 the latter. Such declarations are sometimes considered 
 to fall within the res gesta principle, and sometimes to 
 form a special category of their own. In either view, 
 they ai'e admitted merely as coiiduct from which the 
 existence of the given condition may be infen'ed, and not 
 as assertions establishing the truth of the facts asserted 
 {Lloyd V. Powell dx. Co., 1914, A. C. 740-1, 751-2). 
 
 EXAMPLES. 
 Admissible. Inadmissible. 
 
 (a) The question being which (a) The question being whether 
 of two vessels was to blame for a a collision, by, which the plaintiff 
 collision ; — the fact that the pilot was injured, was due to the negli- 
 of one of the vessels, after she gence of the defendants, a tram- 
 was cut away and while she was car company ; — a remark made 
 backing, exclaimed, stamping his by a fellow-passenger of the 
 
 foot, " The d d helm is still plaintiff's to the conductor, a 
 
 a-starboard,"isadmissibleaspart few momenta after the collision, 
 
 of the res gresto.althoughitwould that " the driver ought to be re- 
 
 not be receivable against the ported," and the conductor's 
 
 owners as an admission by their reply, that "he has already been 
 
 agent (T/seS'c/iwaZfce, Swab. 521). reported, for he has been off the 
 
 So, an exclamation by a by- line five or six times to-day — he 
 
 stander in a running down case, is a new driver," held inadmis- 
 
 of " Shame 1" if made at the sible (1) the transaction being 
 
 time, is receivable (Milne v. over, and (2) the remark refer- 
 
 Leisler, infra, per Pollock, C.B. ring, not to the res, but to the 
 
 The question being whether past acts of the driver (yljassiz v. 
 
 A. sold goods to B. personally, or London Tram. Co.,21W.E.199). 
 to B. as C.'sagent,the sale being The question being as to the 
 
 made subject to inquiry from D. , terms upon whiohA. ,the country 
 
 B.'s reference; — a letter written agent of B., bought goods from 
 
 by A. to his own agent, asking C. ;— a letter written immedi- 
 
 him to "enquire from t>. as to ately after the sale by A. 
 
 the credit of C. and also of B.,. (deceased) to B., stating the 
 
CHAP, v.] THE TRANSACTION IN" ISSUE. TIES GESTA. 10 
 
 Admissible. 
 
 who is making large purchases 
 for C," is admissible for A. as 
 part of the transaction in corro- 
 boration of other evidence, 
 though no proof per se that B.'s 
 purchase was for C. [Milne v. 
 Leisler, 7 H. & N. 786 ; hero the 
 action was by A. against a third 
 party to whom B. had pledged 
 the goods]. 
 
 A., the drawer of a bill pur- 
 porting to be accepted by C., 
 sues B.,the indorsee, for falsely 
 imprisoning A. on a charge of 
 forging C.'s acceptance; — evi- 
 dence that C. , who was not called 
 as a witness, had refused to pay 
 the bill, stating that his name 
 had been forged by A., held ad- 
 missible as part of the res gesta 
 to show B.'s good faith, in miti- 
 gation of damages, but not to 
 prove the forgery (Perkins v. 
 Vaughan, 4 M. & &. 988). 
 
 A. is charged with the man- 
 slaughter of B., by driving over 
 him. A statement by B., im- 
 mediately after the occurrence, 
 that ho had been knocked down 
 by A.'s cabriolet, — held admis- 
 sible to prove that fact [7?. v. 
 Foster, 6 C. & P. 325. Declara- 
 tions as to the cause of an injury 
 have been considered to form 
 an exception to the general rule 
 that declarations of the present 
 class are no evidence of the truth 
 of the facts stated ; ante, 17]. 
 
 (b) A. i.s charged with causing 
 B.'s death by poison; — the fact 
 that shortly before the alleged 
 administration of poison B. ap- 
 peared to be, and expressed him- 
 self as being, in good health, 
 and subsequently to it exhibited 
 symptoms and made statements 
 expressive of suffering, are ad- 
 missible (R. V. Johnson, 2 C. & 
 K. 354). And where A. was 
 charged with an illegal opera- 
 
 Inadmissible. 
 
 terms and enclosing C.'s invoice 
 and draft for acceptance by B., 
 held not admissible as part of 
 the res gesta {Smith v. Blakey, 
 L. E. 2 Q. B. 326 ; post, 85, 89). 
 
 A. sues B.for infringement of 
 a patent granted in 1849, B.'s 
 defence being want of novelty. 
 B. having proved that C. (de- 
 ceased) had in 1846 sold articles 
 similar to those patented. A., in 
 reply, calls D. to prove that in 
 1850, C, when selling D. one of 
 such articles, said, " This is a 
 new article which I don't want 
 publicly known." Held that C.'s 
 statement was inadmissible (1) 
 to explain or disprove the sales 
 in 1846 ; and also (2) because the 
 sale in 1850, which it did accom- 
 pany and explain, was itself 
 irrelevant, being subsequent to 
 A.'s patent (Hyde v. Palmer, 
 32 Lr. J. Q. B. 126). 
 
 A. is charged with the murder 
 of B. An exclamation by B., 
 while rushing, with her throat 
 cut, out of a house B. had been 
 seen to enter a minute or two 
 before, of, " Oh, aunt, see what 
 A. has done to me!" held in- 
 aclmi.^sible, the transaction being 
 over [7?. v. Bedingfield, 14 Cox 
 341. This case, in which the 
 rule is sometimes thought to 
 have been applied too strictly, 
 was approved in R. v. Christie, 
 1914, A. C. 545; post, 75]. 
 
 (b) A. is charged with causing 
 B.'s death by an illegal opera- 
 tion; — statements by B., made 
 during her illness, that A. had 
 operated upon her, and that her 
 illness was caused thereby, are 
 inadmissible (R. v, Gloster, 16 
 Cox 471 ; post, 99) ; as also her 
 statements as to what her symp- 
 toms had been some days prior 
 to such statements (ibid.). So, 
 in a compensation case, a 
 
20 
 
 THE LAW OF EVIDENCE. 
 
 [book II. 
 
 Admissible. 
 
 tion on B. (deceased), a reply 
 by B. to her doctor that " A. 
 had massaged her " was ad- 
 mitted as a guide for her treat- 
 ment (fl. V. Pratt, 56 L. Jo. 73, 
 per Lush, J., sed qu.). 
 
 In an action on a policy on 
 the lile of A. (deceased), to 
 which the defence was that A. 
 had insured not for his own 
 benefit, but for that of B., his 
 son (also deceased), declarations 
 by A. that he intended to insure 
 for his own benefit, and by B. 
 that he, B., intended to insure 
 A.'s life for his, B.'s, benefit in 
 case of A.'s death; — Held ad- 
 missible for plaintiff and defen- 
 dant respectively (Shilling v. 
 Accidental Death Co., 1 F. & 
 v. 116 ; Newman v. Belsten, 
 76 L. T. Jo. 228, affd. 28 Sol. 
 Jo. 301, C. A.). 
 
 A., on behalf of B., her illegi- 
 timate child by C, sues C.'s 
 employer for damages for C.'s 
 death. Declarations by C. 
 acknowledging B.'s paternity, 
 and expressing his intention to 
 marry A. and support B. ;-^ 
 Held admissible as conduct to 
 prove B.'s paternity (Lloyd v. 
 Pojuell do Co., 1914, A. C. 
 733). 
 
 As to declarations of intent to 
 commit suicide, see post, 37. 
 
 - To show that A., when mak- 
 ing a certain payment, kneio 
 that he was insolvent ; state- 
 ments by him at the time, and 
 letters received by him in which 
 the writers refused him pecu- 
 niary help, are admissible, 
 though the letters are no evi- 
 dence of the truth of their con- 
 tents (Vacher v. Cocks, post, 
 41). 
 
 Inadmissible. 
 
 declaration by a deceased work- 
 man, on his return home, that 
 his symptoms were caused Dy 
 an accident while at work 
 (Gilbey v. G. W. Ry., 102 
 L. T. 202, C. A.; Amys v. 
 Barton, 1911, 1 K. B. 40, 
 C. A.). 
 
 A. lodges securities at a bank 
 in the names of himself and his 
 daughter. In a memo, fifteen 
 months later (found after his 
 death) he directs the securities 
 to be applied to other purposes. 
 Held, the memo, was not ad- 
 missible to show his intent en 
 the prior occasion (O'Brien v. 
 Shell, post, 206; cp. Peacock 
 V. Harris, 5 A. & E. 449, and 
 Re Gooch, 62 L. T. p. 387). 
 
 A., a priest, is charged with 
 blasphemously burning Bibles. 
 Sermons preached by him some 
 days before, on occasions not 
 connected with the burning, are 
 not admissible to show that be 
 int-ended only immoral books to 
 be burnt (R. v. Petcherini, 
 7 Cox 79; R. v. Cantwell, 
 120 C. C. C. Bess. Pap. 939). 
 
 As to declarations by the in- 
 jured party of intent to perform 
 an illegal operation, or to meet 
 the prisoner, see post, 37. 
 
 A. is charged with bigamy. 
 To prove that B., his first wife, 
 kneio, at the time of their mar- 
 riage, that she had been falsely 
 described in the banns, — a state- 
 ment made by B., after the 
 marriage, that she knew this 
 before it, is inadmissible ( R- v- 
 Kay, 16 Cox 292). 
 
(21 ) 
 
 CHAPTEE VI. 
 
 AGENCY. PARTNERSHIP. COMPANY. CONSPIRACY. 
 CO-TRESPASS, ETC. 
 
 [88-102.] 
 
 Whenever a party to the proceedings is, by the 
 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 evidence, for or against him, as if 
 they were his own. 
 
 Principle The last chapter dealt wiih the proof 
 
 that may be given of the main transaction ; the present 
 deals with the various persons who may be concerned 
 therein. The rule above stated, which is one rather of 
 substantive law than of evidence, is based on the 
 identity of interest subsisting between the party in 
 question and the various persons enumerated. 
 
 The particular relationship rendering such evidence 
 receivable must in all cases be proved aliimde to the 
 satisfaction of the judge, and cannot, except as against 
 themselves, be established by the declarations of such 
 third persons made out of Court. 
 
 Contracts and representations by agents, etc., which 
 are original evidence, must be distinguished from their 
 mere hearsay admissions, which are only receivable 
 against, but not in favour of, the principal {post, pp. 69- 
 72). 
 
 AGENCY {a). — In civil cases the acts, contracts, and 
 representations of the agent bind the principal when 
 they have been expressly or impliedly authorized, or 
 subsequently ratified, by him. And there is implied 
 
22 THE LAW OF EA'IDENCE. [book ir. 
 
 authority in the agent to conduct the principal's busi- 
 ness in the usual way — what is necessary for this 
 purpose being determined by the nature of the business, 
 and the practice of those engaged iu it; evidence on 
 both these points is therefore admissible (Re Cunning- 
 ham, 36 Ch. D. 532). Save by statute, however, u 
 party is not, in general, ciiininally responsible for the 
 acts or knowledge of others, unless such acts'have been 
 directed or assented to by him, i.e., unless a men.s rea 
 is clearly shown. 
 
 PARTNERSHIP.— A simUar rule holds in cases of 
 partnership, each partner being constituted the agent 
 of the others for all pui-poses within the scope of the 
 joint concern. Hence, after proof aJiunde of associa- 
 tion, the acts, contracts, and representations of each 
 partner which have been expressly authorized, or are 
 impliedly so {i.e., necessary for carrying on the part- 
 nership business in the usual way), or which have been 
 subsequently ratified, are admissible against the firm 
 (Partnership .Vft, 1890, ss. 5-8). So, as to Notice (ibid. 
 s. 16). 
 
 The declarations of a partner are not, however, 
 except as against liimself, admissible to' prove the 
 existence of the partnership ; nor, probably, the nature 
 and extent of the partnership business; nor the extent 
 of his own authority to bind the firm. These must be 
 established independently. 
 
 COMPANIES. — A ecmpany is liable for the acts, con- 
 tracts, and representations of its. directors, or other 
 lawful agents, w-hich are within the scope of their 
 authority; though not for acts which are w/lra vires, or 
 were done before its formation. 
 
 CONSPIRACY (f)).— 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 con- 
 spiracy, or the participation of the defendants be 
 proved first, though either element is nugatory without 
 the other. 
 
 The evidence is admissible, although the acts and 
 declai-ations proceeded from conspirators not included 
 
CHAP. VI.] AGENCY. PABTNERSHIP. CONSPIRACY. 23 
 
 in the indie tmeiit, or were clone or made in the absence 
 of the party against whom they are offered, or without 
 his knowledge, or even before he joined the combina- 
 tion. But acts and declarations by others, not in fur- 
 thei-ance of the common purpose {e.g., mere admissions 
 as to past events), or done or made after his connection 
 with the conspiracy has ceased, are not admissible 
 against a conspii*ator. 
 
 CO-TRESPASS, ETC.— Tlie acts and declarations 
 of co-trespassers, and indeed of all persons combined 
 for a common object, whether civil or criminal, are also 
 governed by the last-mentioned rules (Pilot v. Craze, 
 52 J. P. 311). 
 
 EXAMPLES. 
 
 Admissible. 
 
 Inadmissible. 
 
 (a) A. , a horse-dealer, instructs 
 B., his servant, to sell a horse 
 without a warranty ; B. sells the 
 horse with a warranty. The sale 
 and warranty bind A., as being 
 within the usual course of a 
 horse-dealer's business {Howard 
 V. Sheward, Jj. B. 2 C. P. 148). 
 
 (6) A. and B. conspire to 
 assault C. with their fists. In 
 the struggle C. is killed by a blow 
 from B. A. and B. are each 
 criminally responsible for C.'s 
 death (R. v. Caton, 12 Cox 624). 
 
 A. and B., employees at the 
 Custom House, are charged with 
 conspiring to pass goods through 
 the Custom House without pay- 
 ing full duty.— False entries 
 made in the books for the pur- 
 pose of carrying out the fraud 
 by A. are admissible against B. 
 (R. V. Blake, 6 Q. B. 126). 
 
 (a) A., a private owner, in- 
 structs B., his servant, to sell a 
 horse without a warranty to a 
 private purchaser ; B. sells the 
 horse with a warranty. The 
 sale, but not the warranty, binds 
 A., as B. had no express or 
 implied authority to give the 
 latter (Brady v. Todd, 9 C. B. 
 N. S. 592 ; aliter, perhaps, if the 
 horse were sold at a public fair 
 or mart). 
 
 (b) A. and B. conspire to 
 assault C. with their fists. In 
 the struggle B. catches up a 
 deadly weapon and kills C. — A. 
 is not responsible for B.'s act, 
 as it was not done in further- 
 ance of the common design {R. 
 v. Caton, opposite). 
 
 A. and B., employees at the 
 Custom House, are charged with 
 conspiring to pass goods through 
 the Custom House without pay- 
 ing full duty. — An entry made 
 by A. on the counterfoil of his 
 own cheque-book showing how 
 he had shared the proceeds of 
 the transaction with B. is not 
 admissible against the latter, not 
 being in furtherance of the com- 
 mon (muA^R. -v. Blake, opposite). 
 
24 
 
 THE LAW OP EVIDENCE. 
 
 [book ir. 
 
 Admissible. 
 
 A. and B. are indicted for oou- 
 spiracy. A letter written by A. 
 to B., but never received by B., 
 in whicli A. described the pro- 
 ceedings which had ahready been 
 taken a^ an encouragement to 
 B. to proceed in the concern, is 
 admissible against B. as an act 
 done in furtherance of the com- 
 mon plot (R. V. Hardy, 24 
 How St. Tr. 473-477). 
 
 Inadmissible. 
 
 A. and B. are indict«d tor 
 conspiracy. A letter written by 
 A. to C. (not a member of the 
 cofiepiracy) describing the pro- 
 ceedings already taken, and 
 enclosing songs composed by A, 
 and sung during them, is not 
 admissible against B. , not being 
 a transaction in support of the 
 conspiracy (R. v. Hardy, 24 
 How. St. Tr. 451-463). 
 
< 25 
 
 CHAPTER VII. 
 
 FACTS RELEVANT TO PROVE THE MAIN FACT. 
 
 [103-138.] 
 
 FACTS LOGICALLY PROBATIYE (a).— Facts which 
 are logically probative of the main fact, e.g., which are 
 only or chiefly consistent with its existence, may, in 
 general, be given in evidence in proof thereof; and in 
 disproof, those which are inconsistent, or show it to 
 have been impossible. But facts which, though not 
 wholly irrelevant, tend merely to confuse the jury by a 
 muliipUcity of issues, or to create prejudice, or waste 
 time may, and generally will, be rejected. 
 
 Relevant Statements. — The statements dealt with 
 in the present chapter are, like those in Chaps. V., VI., 
 and IX., receivable purely as original evidence, and not 
 as proving the truth of the facts asserted. They must, 
 to be admissible, comply not only with the requirement 
 of relevancy, but with the further conditions, if any, of 
 the respective heads under which they are tendered, e.g. , 
 as ancient documents, complaints, ka. {post, 27-9). 
 
 PREVIOUS AND SUBSEQUENT EXISTENCE 
 OP FACTS (6). — States of persons, mind, or things, 
 at a given time, may often be proved by showing their 
 previous, or even subsequent existence, in the same 
 state; there being a probability that certain conditions 
 and relationships continue — e.g., human life, marriage, 
 sanity, opinions, title, partnership, official character, 
 domicil. 
 
 This presumption of continuance , which is one of fact 
 and not of law, will, however, weaken with remoteness 
 of time, and only prevails till the contrary is shown, or 
 a different presumption arises from the nature of the 
 Ofiso, 
 
2G THE LAW OF EVIDENCE. [book ii. 
 
 COURSE OF BUSINESS (c).— To prove that an 
 act has been clone, it is admissible to prove any general 
 course of business or office, whether public or private, 
 according to which it would ordinarily have been done; 
 thei-e being a probability that the general course will be 
 followed in the particular case. 
 
 CUSTOM TO ANNEX INCIDENTS TO CON- 
 TRACTS, ETC. (d).— Proof of usage is admissible to 
 annex unexpressed incidents (not inconsistent with 
 those which are expressed) to oral or written contracts, 
 grants, or wills ; it being presumed that a party dealing 
 in a particular market or place intends to adopt its 
 established usages. If such usages be sufficiently 
 general and notorious, they will even bind parties con- 
 tracting in ignorance of them. 
 
 The party agaiilst whom the evidence is tendered 
 may, on his side, show that the usage does not exist, 
 or was expressly excluded, or is unreasonable, or illegal. 
 
 Custom or usage may be proved either by the direct 
 evidence of witnesses, or by a series of particular 
 instances in which it has been acted upon. When, 
 however, a custom has been frequently proved (whicli 
 may be shown by reported eases), it will be judicially 
 noticed without evidence {.ante, 8). — Usage is also 
 admissible as affording a standard of comparison 
 (infra); or to rebut fraud (po'st, 40); or to explain 
 technical terms (post, 194, 200). 
 
 STANDARDS OF COMPARISON (e). Conduot.- 
 On questions involving Negligence and other qualities of 
 conduct, when the criterion to be adopted is not clear, 
 the acts or precautions proper to be taken under the 
 circumstances, or even the general practice of the com- 
 munity on the subject, are admissible as affording a 
 standard by which the conduct in question may be 
 gauged. As to the standard for Drugs, see post, 115. 
 
 Handwriting. — So, when a party's handwi-iting is in 
 question, whether in civil or criminal proceedings, 
 " Comparison of a disputed writing with any writing 
 proved to the satisfaction of the judge to be genuine 
 shall be permitted to be made by witnesses; and such 
 writings, and the evidence of witnesses respecting the 
 
CHAi>. VII.] FACTS PKOBATIVE OF THE MAIN FACT. 27 
 
 same, may be submitted to the Court and jury as 
 evidence of the genuineness or otherwise, of the writing 
 in dispute " (28 & 29 Vict. c. 18, s. 8). The documents 
 used for comparison need not be relevant for any other 
 purpose; and the party himself may be required to 
 write in the judge's presence for this purpose. 
 
 ACTING IN A CAPACITY (/).— In some cases, 
 acting in a capacity or relationship may afford prhnd 
 facie evidence of title to it, even in favour of the party 
 so acting, the presumptions as to the regularity of acts, 
 and against misconduct and bad faith, applying (cp. 
 post, 205). 
 
 Thus, acting in a pwbUo (but not genei'ally in a 
 private) office is admissible, although the appointment 
 itself is required to be by deed {Dexter v. Hayes, 
 11 Ir. C. L. E. 106); trading as a public company is 
 evidence of incorporation {R. v. Langton, 13 Cox 349); 
 and cohabitation evidence of a valid inaniage, its 
 weight varying with the cii'cumstances. 
 
 Similarly, title to property may frequeutdy be inferred 
 from acts of oicmership — e.g., possession, i-eceipt of 
 rents and profits, and the discharge of the burdens or 
 repairs of the property; while, in rebuttal, proof is 
 admissible, that these acts were disputed, or done in 
 the absence of persons interested iii disputing them. 
 Acts of ownership are receivable not as admissions, for 
 they may be tendered as evidence by the party exercis- 
 ing them, but as showing possession and thus proving 
 title. 
 
 Ancient documents showing ancient Possession (g). 
 — Similarly, ancient documents (i.e., over thirty years 
 old) by which any right of property purports to have 
 been exercised (e.g., leases, licences, and grants) are 
 admissible, even in favour of the grantor or his succes- 
 sors, in proof of ancient possession. 
 
 The grounds of admission are twofold, — necessity, 
 ancient possession being incapable of direct proof by 
 witnesses; and the fact that such documents are them- 
 selves acts of oivnership, real transactions between man 
 and man, only intelligible upon the footing of title, or 
 at least of a bond fide belief in title, since in the ordinary 
 
28 THK LAW OF EVIDBNCB. [book u. 
 
 course of things men do not execute such documents 
 without acting upon them {Malcohnson v. O'Dea, 
 10 H. L. C. 593; Bristow v. Cormican, 3 App. Gas. 641, 
 668). They are not received, however, as proving the 
 truth of the facts stated, i.e., as exceptions to the hear- 
 say rule, but merely as presumptive evidence of posses- 
 sion. 
 
 (1) The documents should purport to constitute the 
 transactions which they effect; mere prior directions to 
 do the acts, or subsequent narratives of them, being 
 inadmissible (ibid.). Thus, though expired leases may 
 be tendered to show ancient possession of the property 
 demised, or reserved from the demise, recitals in such 
 leases of other documents or facts will be rejected, 
 except as admissions (Bristow v. Cormican, supra). 
 
 (2) Deeds of this nature must, to ensure genuineness, 
 be, like other ancient documents, produced from proper 
 custody (post, 160-1); and should, to be of any weight, 
 bo corroborated by proof within living memory of pay- 
 ments made, or enjoyment had, in pursuance of them. 
 The absence of evidence of modem enjoyment, however, 
 goes merely to weight and not to admissibility. 
 
 (3) Ancient documents, admissible as acts of oivner- 
 ship, may be tendered on questions either of public or, 
 private right; and must be distinguished from those 
 ancient documents which are received as evidence of ' 
 reputation, which latter may consist of bare assertions, 
 or recitals, of the right, but are confined to questione 
 of public and general interest (post, 89-90). 
 
 PARTIES' GOOD OR BAD FAITH (7i).— Facts 
 showing the bona fides of a party's claim or defence are 
 generally admissible in support of his own case; and 
 facts showing its mala fides admissible against him to 
 impeach it, although such good or bad faith is not in 
 issue (post, 32, 39). 
 
 COMPLAINTS. — In cases of rape, indecent assault, 
 and similar offences upon females (but in no others), the 
 fact that the prosecutrix made a complaint, shortly after 
 the outrage, of the matters Charged against the prisoner, 
 together with the particulars of the complaint, are 
 admissible as evidence in chief for the prosecution, not 
 
CHAP, vii.] FACTS PEOBATIVE OF THE MAIN FACT. £9 
 
 to prove the tnith of the matters, stated, but (1) to con- 
 firm her testimony and, (2) where consent is in issue, 
 to disprove consent (R. v. Osborne, 1905, 1 K. B. 551; 
 R. V. Lillyman, 1896, 2 Q. B. 167; in Steph. art. 8, 
 complaints arc said to be admissible in all criminal 
 c&ses, but this is not sustainable). 
 
 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. Formerly, when rules of evidence were in their 
 infancy, it was allowable to corroborate all witnesses by 
 proving that they had made prior statement similar 
 to, their testimony in court, and so were consistent 
 with themselves, but this rule no longer obt-ains {post, 
 156-7). 
 
 Scope. — Complaints are admissible although made in 
 the absence of the prisoner ; or at such an interval as not 
 to form part of the res gcsta; or even though the girl is 
 so young that disproof of her consent in unnecessary [R. 
 V. Osborne, supra). They must, however, have been 
 voluntary and spontaneous; and made at the first oppor- 
 tunity which reasonably offered (ibid.). 
 
 ADMISSIONS BY CONDUCT (i).— A party's ad- 
 missions by conduct as to material facts may generally 
 be pi'oved against him ; and evidence to explain or rebut 
 such admissions is receivable in his favour. 
 
 Principle. — Admissions by conduct are sometimes 
 considered as exceptions to the hearsay rule, i.e., as 
 equivalent to oral statements, and so inadmissible 
 except as against a party. Assertions or admissions by 
 conduct are, however, by no means convertible, as 
 regards admissibility, with those made orally, e.g., 
 acting in a capacity or relationship is receivable in 
 a party's own favour (ante, 27), while his mere declara- 
 tion that he was entitled to so act would not be (post, 
 62-3). Admissions by conduct are, in truth, 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 
 a@ relevant fact-s from which some fact in issue may be 
 
30 
 
 THE LAW Oi' EVIDENCE. [book ii. 
 
 infen-ed, as the fabrication or suppression of evidence to 
 show the identity of a criminal (post, 35). Moreover, 
 the admissions by conduct of third persons are some- 
 times receivable, which, unlike those of parties, could 
 not be said to fall under any exception to the hearsay 
 rule. As to admissions by conduct with reference to 
 statements made in a party's presence, or documents 
 in his possession, etc., see post, 73. 
 
 TREATMENT {k). — Ordinarily, acts of treatment, 
 either by parties or strangers, expressive merely of their 
 opinion or belief as to facts, are not receivable. 
 
 Principle. — Parke, B., once remarked, " A fact rele- 
 vant only as implying a statement or opinion of a third 
 person on the matter in issue, is inadmissible in all cases 
 where such statement or opinion, not on oath, would in 
 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 genei'al infirmity of hearsay 
 (Wright v. Tatham, 5 C. & F. pp. 738-9). This ground, 
 however, has not been generally adopted, the hearsay 
 rule being confined to statements and not extending to 
 conduct (post, 60). Exclusion or admission, here, 
 appears to be determined mainly by logical relevancy. 
 
 Exceptions. — Facts of the above class are sometimes 
 received even in a party's own favour, e.g., to show 
 title, or good faith ; and sometimes even in actions 
 between strangers. Thus, on questions of pedigree, 
 family conduct is admissible to prove relationship ; and 
 the treatment of friends and neighbours to prove 
 marriage (post, 96, 116). 
 
 EXAMPLES. 
 
 Admissible. Inadmissible, 
 
 (a) Thequestionbeing whether (a) The queation being whether 
 
 A. is the child of B. ; — evidence the pupils at a certain school 
 
 of the resemblance, or want of were badly fed and lodged :— 
 
 resemblance, of A. to B. is ad- the fact that they were badly 
 
 missible (Burnaby v. Baillie, educated is irrelevant (BoidTcn 
 
 42 Ch. D. 282; A.-G. v. Slings- v. Widdows, 1 C. & P. 65). 
 
 by, 33 T. L. R. 120, H. L.), ' 
 
CHAP. VII.] PACTS PEOBATIVE OF THE MAIN FACT. 81 
 
 Admissible. 
 
 (b) To prove the existence of 
 a partnership in 1838, evidence 
 is admissible that it existed in 
 1816 {Clark v. Alexander, 8 
 Scott. N. B. 161; BroiDii v. 
 >Freii,189S,lQ- B. 390). 
 
 To prove that A. did not be- 
 lieve in a Supreme Being when 
 taking >■ parliamentary oath; — 
 evidence may be given that A. 
 had no such belief four years 
 before his election [_A.-G. v. 
 Bradlaugh, 14 Q. B. D., pp. 
 699, 711. Such evidence is also 
 probably admissible for as well 
 as against a party, B. v. Hardy, 
 24 How. St. 1093-1094]. 
 
 (c) To prove the posting of a 
 letter ; — it is relevant to show 
 that it was delivered to a clerk 
 who, though he had no recollec- 
 tion of the particular letter, 
 habitually took all letters de- 
 livered to him to the post 
 .{Hetherington v. Kemp, 4 
 Camp. 193; Trotter v. Maclean, 
 13 Ch. D. 574). 
 
 To prove that a certain in- 
 dorsement had been made on a 
 (lost) licence entered at the Cus- 
 tom House ; — it is relevant to 
 show that the course of office 
 was, not to permit the eptry 
 without such indorsements 
 (Butler V. Allnntt, 1 Stark, 222). 
 
 (d) A., a veterinary, sues B. 
 for medicine and attendance, 
 under an oral contract which 
 only provided for the supply of 
 medicine; evidence of a usage 
 among veterinaries to charge for 
 attendance as well as medicine 
 is admissible (Sewell v. Corp, 
 1 C. & P. 392). 
 
 The question being whether 
 A., a broker, is personally liable 
 on a written contract made by 
 him for an undisclosed principal ; 
 — evidence may be given of a 
 usage that brokers who do not 
 
 Inadmissible, 
 
 To prove that A. did not be- 
 lieve in a Supreme Being when 
 taking a parliamentary oath ; — 
 evidence that he had no such 
 belief thirty years before is in- 
 admissible, for no reasonable 
 inference could be drawn there- 
 from {A.-G. v. Bradlaitgh, op- 
 posite). 
 
 (c) Where a statute provided 
 that both a bill of sale and its 
 accompanying affidavit should 
 be filed ; — a certificate stamped 
 on the former that " a copy 
 thereof was duly registered," 
 held no evidence that the affi- 
 davit also had been filed, since 
 the Act did not provide that one 
 could not be filed without the 
 other {Mason v. Wood, 1 
 C. P. D. 63). 
 
 (d) A., a veterinary, sues B. 
 on an oral contract 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). 
 
 The question being whether 
 B., an undisclosed principal, is 
 liable on a written contract made 
 for him by A., a broker and con- 
 tracting as such; — evidence of 
 a custom that where brokers do 
 
32 
 
 THE LAW OF EVIDENCE. 
 
 [book II. 
 
 Admissible, 
 
 disclose the names of their prin- 
 cipals are personally liable (Pike 
 V. Ongley, 18 Q. B. D. 708). 
 
 (e) The question being whether 
 the pupils at a certain school 
 were properly treated ; — evi- 
 dence is admissible 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 {Boldron v. Wid- 
 dows, 1 C. & P. 65). 
 
 if) A. is criminally charged, 
 with libelling the directors of a 
 bank ; — evidence by the prosecu- 
 tion that they acted as such is 
 sufficient proof against A. that 
 they were directors (iJ. v. 
 Boaler, 67 L. T. 354). 
 
 (3) The question being whether 
 a corporation is entitled to claim 
 tolls; — an ancient table of such 
 tolls kept by the town clerk of 
 the corporation, by which the 
 lessees of the tolls had always 
 been guided in their collections, 
 is admissible in favour of the 
 coi-poration (Brett v. Beales, M. 
 & M. 419). 
 
 (h) The question being whether 
 A. (the owner) or B. (the con- 
 tractor) is liable for work done 
 to a house by C, on B.s order; 
 — evidence that A. paid B. for 
 the work is admissible in A.'s 
 favoiir as showing the bona fides 
 of his defence, and that it was 
 not a mere attempt to avoid 
 payment (Gerish v. Chartier, 1 
 C. B. 13). 
 
 A. sues B. for libel in describ- 
 ing him as a swindler ; — a report 
 to the same effect made by the 
 French police, upon which A. 
 founded his statements, held 
 admissible to show the bona fides 
 
 Inadmissible. 
 
 not disclose the names of their 
 principals, the broker is solely 
 liable and the principal is dis- 
 charged, is inadmissible as con- 
 tradicting the contract (semble, 
 Pike V. Ongley, opposite). 
 
 (e) The question being whether 
 the pupils at a certain school 
 were properly treated ; — evidence 
 is not admissible of the compara- 
 tive treatment of boys at any 
 other particular school (Boldron 
 V. Widdows, opposite). 
 
 (g) The question being whether 
 a corporation is entitled to claim 
 tolls ; — ancient entries in the 
 books of the corporation, order- 
 ing powers of attorney to be 
 made out to its bailiffs authoriz- 
 ing them to receive the tolls, are 
 not admissible (Brett v. Beales j 
 opposite). 
 
 (h) Theexors.of A. (a deceased 
 stock-broker) sue B; for money 
 lent her by A. Defence that 
 the advance was a gift, not a 
 loan. The fact that A. entered it 
 in his books as a loan and debited 
 B. with interest : Held, not ad- 
 missible to show that A. had 
 bond fide treated it as such. 
 Tlie entries, being in A.'s inter- 
 est and not against it, were also 
 rejected as statements by a 
 deceased person (post, 83) 
 [Schwabacher v. Heimer, Nov. 
 29, 1907, C. A. Ex. rel.} 
 
CHAP. VII.] FACTS PROBATIVE OF THE MAIN FACT. 
 
 33 
 
 Admissible. 
 
 of A. 'a defence, though not to 
 justify the libel, or prove its 
 truth (B. V. Labouchere, 14 
 Cox 419). 
 
 (t) A. (a parishioner) pays a 
 sum of money as tithes to B. (a 
 rector). This is an admission 
 by conduct against A. that B. 
 is entitled to the tithes (James 
 V. Biou, 2 Sim. & St. 606). 
 
 A sues B. for injuries caused 
 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 had had no such fall is 
 admissible in rebuttal (Melliuish 
 v. Colter, 15 Q. B. 878). So, the 
 fact that A.'s husband and her 
 solicitor's clerk had conspired to 
 suborn false witnesses at the 
 trial is relevant as an admission 
 by conduct that A.'s claim is 
 bad (Moriarty v. L. C. <£• D. 
 El/., L. B. 5 Q. B. 314; R. v. 
 Watt, 70 J. P. Rep. 29). 
 
 (/c) The question being 
 whether A., at the date of her 
 marriage to B. in Oct. 1882, 
 was insane, — the fact that she 
 was everywhere received and 
 treated as an ordinary person 
 down to her engagement in 
 Aug. 1882, was admitted 
 (Durham v. Durham, 10 P. D. 
 80, 84, per Hannen, J. ; post, 
 124). 
 
 Inadmissible. 
 
 (i) 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 company adopted addi- 
 tional precautions after the Sixi- 
 dent is not an admission by 
 conduct of their previous negli- 
 gence [Hart V. L. tC Y. Ry., 21 
 L. T. 261. Bramwell, B., re- 
 marked : " People do not furnish 
 evidence against themselves 
 simply by adopting a new plan 
 to prevent the recurrence of an 
 accident. Because the world 
 gets wiser as it gets older, it was 
 not therefore foolish before "]. 
 
 (k) The question being 
 whether A. was insane at the 
 time of making his will, — 
 letters found in his possession 
 after his death, in which A. 
 was treated as sane, but which 
 were not connected with any 
 act done by him in relation 
 thereto; — Held inadmissible, 
 though the writers (since 
 deceased) had vouched for the 
 genuineness of the opinions by 
 sending the letters (Wright v. 
 Tatham, 1838, 5 C. & F. 670). 
 So, the fact that A.'s father 
 had left him property about the 
 date of A.'s will, and so 
 believed 'and treated him as 
 sane, was rejected (Sutton v. 
 Saddler, 3 C. B. N. S. 99-100, 
 per Cockburn, C.J. ; post, 124). 
 
( 34 ) 
 
 CHAPTER VIII. 
 
 FACTS RELEVANT TO SHOW IDENTITY, OR CONNECT 
 THE PARTIES WITH THE TRANSACTION. 
 
 [136-lM.] 
 
 Personal Characteristics. — When a party's identity 
 with an ascertained person is in issue it may be proved or 
 disproved not only by direct testimony, but presump- 
 tively by similarity or dissimilarity of characteristics, 
 e.g., age, appearance {ante, 30), handwriting {ante, 
 26), as well as by a comparison of address, occupation, 
 and other details of personal history. 
 
 Where, however, a party's identity is only material 
 as showing that he did some particular act, the range of 
 facts is much narrower. In civil cases, a party's iden- 
 tity most frequently comes in question as having exe- 
 cuted a particular document; and here identity of name 
 and handwriting will generally suffice. As to proof by 
 opinion evidence and photographs, see post, 121). 
 
 Previous and Subsequent Conduct. — When a criminal 
 act has been proved, the following facts are relevant to 
 connect the accused therewith : — 
 
 Previous Conduct and Capacity. Declarations and 
 Threats. — The presence or absence of facts showing 
 motive, means, and opportimity, preparation or pre- 
 vious attempts on his part to do the act ; his knowledge 
 of circumstances enabling him to do it ; and his declara- 
 tions of intention or threats uttered with the same view. 
 When the doing of the act requires any special know- 
 ledge, skill, or capacity, the party's possession or non- 
 possession thereof is also relevant. 
 
 Alibi. — So, the fact that he was in the neighbour- 
 hood, or elsewhere about the time of the act; or that 
 footmarks or finger-prints con-esponding to his o^vn, or 
 articles belonging to him, were found near the spot, are 
 relevant. 
 
CHAP, viii.] FACTS RELEVANT TO SHOW IDENTITY. 35 
 
 Subsequent Conduct. — The presence or absence of 
 facts showing his consciousness of having done the act 
 may also be proved — e.g., 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. — Tlie possession of property 
 connected with the transaction is generally a highly 
 incriminatory fact. Thus, recent possession of stolen 
 property, if not reasonably explained, raises a presump- 
 tion of fact, though not of law, that the possessor is 
 either the thief or the receiver, according to the circum- 
 stances. 
 
 Acts of Others. — On the other hand, it is relevant 
 for the accused to show that the act was more likely to 
 have been done by third persons, or by the injured party 
 himself, and the prosecution may rebut such evidence. 
 Neither the confessions {post, 79), nor the convictions 
 or acquittals {post, 131-2), of third persons are, how- 
 ever, evidence for or against tlie accused for the present 
 purpose. And although the doings of the injured party 
 are relevant to show the cause of his injury, his mere 
 declarations unconnected with the act have been 
 rejected {R. v. Thomson), post, 37). 
 
 EXAMPLES. 
 Admissible. Inadmissible. 
 
 A. is charged with the murder A. is charged with the murder 
 
 of B. The fact that shortly of B. The following facts are 
 
 before the murder, B. had given inadmissible ; — that A. was of 
 
 evidence against A. on a charge sinister appearance ; of bad 
 
 of theft, and the depositions character (post, 49) ; had nar- 
 
 containing B.'s testimony, are rowly escaped conviction for a 
 
 relevant as showing A.'s motive previous murder (cp. post, 43); 
 
 (R. V. Buckley, 13 Cox 293; the had been heard to declare in his 
 
 depositions would not bo evi- sleep that he had killed B. (post, 
 
 Hence that B.'s statements were 79) ; that great ill-feeling existed 
 
 true, post, 132). Tlie following between A.'s nation and B.'s 
 
 facts are also relevant as show- and that a year before one of the 
 
 ing A.'s identity ; — the fact that latter had been murdered by one 
 
 he had declared he would be of the former in the sarao 
 
 revenged on B. ; that he had manner and place (post, 43) : 
 
 purchased weapons similar to that all A. 's neighbours believed 
 
 those that caused B.'s death; liim guilty (post, 116); that C, 
 
 that foot-prints similar to A.'s on his death -bed had confessed 
 
THE LAW OF EVIDENCE. 
 
 [book II. 
 
 Admissible. 
 
 were found near the spot; that 
 he had also been seen in the 
 same vicinity ; that he absented 
 himself after the murder and 
 had given inconsistent accounts 
 of his doings at the time [Best, 
 ss. 91-92], 
 
 A. is charged with publishing 
 libellous letters about B. ; — Evi- 
 dence that after A.'s arrest fur- 
 ther libels in the same hand- 
 writing were published about B. 
 is admissible as tending to exon- 
 erate A. (fl. V. Brownhill, 8 Cr. 
 App. B. 258). 
 
 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. 
 (indicating hostility to B.) found 
 at A.'s lodgings after his arrest, 
 and bearing a memorandum in 
 A.'s handwriting, are admissible 
 against A. [Ji. v. Bernard, 1 F. 
 & F. 240 ; documents found in a 
 party's possession, though ad- 
 missible to show his knowledge 
 or complicity, are not per se 
 evidence of the truth of the state- 
 ments therein, see R. v. Plumer, 
 tC-c, post, 73, 75]. 
 
 A. is charged with wounding 
 a constable ; — it is competent 
 for A. to give in evidence facts 
 showing that B. C. & D. were 
 more likely to have committed 
 the crime than he; and B. C. 
 and D. may deny on oath the 
 facte alleged (R. v. Dytche, 17 
 Cox 39 ; in this case B. C. & 
 D. had been convicted and were 
 suffering imprisonment for the 
 crime). 
 
 A. is charged with the murder 
 of B. Evidence that B., before 
 her death had been melancholy 
 
 Inadmissible. 
 
 that he, and not A., had killed 
 B. (2)ost, 61, 99) [Best, ss. 91- 
 92]. 
 
 A. is charged with stealing and 
 receiving the goods of B. on 
 October 15. The fact that A. 
 evaded arrest when charged 
 with stealing and receiving the 
 goods of C. on October 26, is 
 inadmissible {R. v. Hampson, 
 11 Cr. App. R. 75, 77; cp., post, 
 49). 
 
 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 whicli he had 
 written" A. — private, "wasfound 
 in a bag which A. said belonged 
 to B., in a room in which they 
 botli lodged, — held inadmissible, 
 as the indorsement might have 
 been written prior to the enclo- 
 sure (R. V. Hare, 3 Cox 247; 
 sed qu., and see 2 Buss. Cr. 
 2100 n.). 
 
 To prove that A. (residing in 
 London) had fitted out a vessel 
 to be employed in the slave-trade 
 abroad ; — slave trading papers 
 found on board at one (not the 
 first) of the foreign ports at 
 which the vessel touched, but 
 which papers were not otherwise 
 traced to A.'s knowledge, held 
 inadmissible, as the papers 
 might have been introduced at 
 some intermediate port without 
 A.'s knowledge (R. v. Zulueta, 
 1 C. & K. 215). 
 
 A. is charged with procuring 
 an abortion on B., deceased. 
 Evidence that (1) a month 
 
CHAr. vin.] FACTS EELEVANT TO SHOW IDENTITY. 37 
 
 Admissible. 
 and depressed and had 
 threatened to take her own life ; 
 — Held •admissible (R. v. Cow- 
 per, 13 How. St. Tr. 1166-9; 
 R. V. Jessop, 16 Cox 204, per 
 Field, J.; cp. ante, 18, 20). 
 
 A. is charged with the mnrdcr 
 of B., his wife. A statement 
 by B. a week before the murder, 
 on going to a neighbonr and 
 handing the latter an axe and a 
 knife, of : " Please put these up 
 ... for A. 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, per Quain, 
 J. No reasons are given. Tlie 
 statement did not accompany 
 the murder, and the deposit, 
 which it did accompany, seems 
 irrelevant. The threats, also, 
 were past and not present ones. 
 This ease is doubted in Tay. 
 s. 584 n., and was cited but not 
 followei in R. v. Thomson, 
 supral. 
 
 Inadmissihle. 
 
 before B. expressed an inten- 
 tion of operating on herself ; and 
 (2) after the operation, said she 
 had done so; — Held, inadmis- 
 sible (R. V. Thomson, 1912, 3 
 K. B. 19, C. 0. K., by 3 judges ; 
 cp. ante, 18, 20). 
 
 A. is charged with the murder 
 of B. A statement by B. when 
 leaving her lodgings some hours 
 previous to the crime that she 
 was going to meet A. ; — Held 
 inadmissible [R. v. Wain- 
 wricjht, 18 Cox 171. Cockburn, 
 C.J. observed, " It was no part 
 of the act of leaving, but only an 
 incidental remark that might, or 
 might not have been carried 
 out. She would have gone 
 away in any circumstances." 
 A similar statement was rejected 
 by Bovill, C.J., in B. v. Pook, 
 id. 172 n. These cases were 
 apparentlv approved in R. v. 
 Christie, '19U, A. C. 545, 547, 
 and R. v. Thomson, supra. In 
 Bankruptcy, however, state- 
 ments by debtors, on leaving 
 home, have generally been ad- 
 mitted in proof of their intent to 
 defeat creditors]. 
 
( 38 ) 
 
 CHAPTER IX. 
 
 FACTS RELEVANT TO PROVE STATES OP MIND. 
 
 f 143-137.] 
 
 WiiEX the state of mind of a partj- with reference to 
 a transaction is material, all facts from which it 
 may be inferred, whether previous or subsequent 
 thereto, are, in general , admissible either for or 
 against him. Declarations tendered for this purpose 
 are, however, no evidence of the truth of the matters 
 stated, and are subject to the limitations noticed 
 ante, 18, 20, 37. 
 
 KNOWLEDGE AND NOTICE (a).— Actual know- 
 lodge may be inferred circumstantially from the fact 
 that a party had reaaonable means of knowledge — o.g., 
 possession of documents containing the information, 
 especially if he has answered, or othenvise acted upon, 
 them ; or from the fact that such documents, or notices, 
 properly addressed, have been delivered at, or posted to, 
 his residence. So, execution of documents, though not 
 mere attestation, will imply knowledge of their con- 
 tents. And knowledge may also be imputed where it 
 is a jjarty's duty to Icnoiv as distinguished from a mere 
 right to inspect ; as well as from the notoriety of the fact 
 in his calling or vicinity; while mere rumour or reputa- 
 tion is inadmissible. Access to documents may also, 
 sometimes, raise a presumption of knowledge — e.g., in 
 the case of the rules of a club, or books kept between 
 partners, banker and customer, and the like; though 
 this presumption does not extend to directors or share- 
 holders as to the books of a company. 
 
cH,\r. IX.] FACTS SHOWINO RTA'tlif? OV MIND. 3!) 
 
 Constructive Notice ia a presumption of knowledge 
 which will not be allowed to be rebutted ; and arises in 
 equity, where a party has had the means of knowledge 
 and might have obtained it, but for his own gross negli- 
 gence, or wilful abstention. In such cases what-ever is 
 sufficient to put a person of ordinary prudence on inquiry 
 is constructive notice of all to which that inquiry would 
 lead. Thus, claiming under, or contracting with, a 
 party who derives his title from an instrument is, in 
 equity, constructive notice of its contents ; so, notice of 
 a deed or trust, is notice of its terms. At common law, 
 however, and particularly in mercantile transactions, 
 this presumption is more restricted; here, therefore, 
 notice of a document is not necessarily notice of its 
 terms. 
 
 INTENTION. — A party's intention, with reference 
 to an act, may be proved, even in his own favour, not 
 only by his direct testimony in Court, or his declara- 
 tions out of Court (subject to the quaUfications, ante, 
 18, 20, 37), but also circumstantially by acts and events 
 prior or subsequent to the transaction; as well as, 
 against himself, by his own admissions. As to Similar 
 Facts to show intent, see post, 46-47. 
 
 GOOD AND BAD FAITH (6).— A party's, good faith 
 in doing an act may generally be inferred from any 
 facts which would justify its doing. In such cases the 
 information (whether true or false) on which he acted 
 will often be material. 
 
 So, to show the bona fides of a party's belief, it is 
 admissible to ^how the state of his knowledge, and that 
 he had reasonable grounds for such belief (Deny v. 
 Peek, 14 App. Cas. 337), e.g., that it was shared by the 
 community, or even by individuals similarly situated 
 to himself; 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, supra). 
 
 FRAUD. — 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 
 
40 
 
 THE LA\V OF EVIDKNCE. [book ii. 
 
 may, of course, be evidence of fraud without being in 
 law sufficient to constitute or establisih it (Deny v. 
 Peek, supra). Moreover, proof that they were custom- 
 ary may be tendered to rebut fraud {King v. Spencer, 
 20 Cox 692). 
 
 Concealment of Material Faots {e.g., tliose 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 a fortiori is a pur- 
 chaser bound to disclose facts which would increase its 
 value ; and where there is no obligation to divulge, the 
 passive aaquiescence of either in the other's mistake is 
 not evidence of fraud {Smith v. Hughes, L. K. 6 Q. B. 
 597). On the other hand, gross, but not shght, inade- 
 quacy of price may be. 
 
 Misrepresentation of Material Facts may of itself be 
 perfectly innocent, but it becomes fraudulent if niade 
 (1) linowingly , or (2) without belief in its trutli, or (3) 
 recldcssly without care whether true or false {Berry v. 
 Peek, supra). 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 sufficiejat to sustain 
 the former, while fraud in one of the three forms, 
 supra, must be proved in the latter {ibid.). 
 
 MALICE. — 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 rela- 
 tion to the Malicious Damage Act, 1861, and a third in 
 relation to libel {R. w Tohon, 23 Q. B. D. 168, 187). 
 It has generally, however, to be inferred from the pre- 
 vious and subsequent conduct of the parties, or the 
 terms upon which they have lived — e.g., previous 
 enmity, threats, quarrels, and violence; while in rebut- 
 tal previous expressions of good-will or acts of kindness 
 mav be shown. 
 
 EXAMPLES. 
 Admissible. Inadmissible. 
 
 (a) The question being whether (o)Thequestionbeingwhether 
 
 A., at the time of makmg a con- A. knew, at a certain time, that 
 tract with B., knew that the B. was insane ; — the fact that B. 
 latter was insane ;—e-viclenee of was generally reputed to be in- 
 
cuAi'. IX.] FACTS SHOWING STATES OF MIND. 
 
 41 
 
 Admissible. 
 
 B.'a conduct both before and 
 after the transaction is admis- 
 sible, as showing that his lunacy 
 was of such a character as must 
 have been apparent to A. 
 (Beaven v. McDonnell, 10 Ex. 
 184). 
 
 Tlie question being whether 
 A. , at the time of committing an 
 act of bankruptcy, knew that 
 he was insolvent — letters found 
 in his possession after the act of 
 bankruptcy, but bearing post- 
 marks before it, and containing 
 refusals to lend him money with 
 which to pay his debts, are ad- 
 missible to show his knowledge 
 of the state of his affairs, though 
 not the truth of the facts stated 
 {Vacher v. Cocks, M. & M. 353). 
 
 (6) The question being wh2ther 
 A. and ]§., the vendors of a 
 mine, acted in good faith in 
 representing its value to C. ; — 
 favourable statements made to 
 A. and B. by D., who sold them 
 the mine, and conversations 
 between A. and B. as to its con- 
 dition, though not in C.'s pre- 
 sence, are admissible in favour 
 of A. and B. ; and books kept 
 by their agent in the ordinary 
 course of duty, at the mine, 
 showing its inferior character, 
 are admissible against them 
 (Shrewsbury v. Blount, 2 M. & 
 Gr. 475). 
 
 The question being whether A. 
 acted in good faith m represent- 
 ing W., a tradesman, to be sol- 
 vent, whereby B. trusted W., 
 and suffered damage; — the fact 
 that W. had sold goods to A. 
 under cost i)rice is admissible, 
 as negativing A.'s good faith; 
 the fact that A.'s shopman, who 
 was cognizant of the transac- 
 tions between A. and W., 
 believed W. to be solvent ; and 
 that other individual tradesmen 
 
 Inadmissible. 
 
 sane in the neighbourhood in 
 which A. and B. lived at the 
 time in question is inadmissible 
 (Oreenslade v. Dare, 20 Beav. 
 284). 
 
 Eor a case in which suhse- 
 quent possession of documcnls 
 was held not admissible to 
 prove former knowledge of their 
 contents, see B. v. Zulueta, 
 ante, 36. 
 
 (b) In Shrewsbury v. Blount, 
 opposite, books kept by the 
 agent, but not in the regular 
 course of duty and the entries in 
 which might have been made 
 afterwards, were held not ad- 
 missible against A. and B. 
 
i-2 THE TjAW of F.VIDENCE. [book ii. 
 
 Admissible. Inadmissible. 
 
 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 
 that W. was solvent, are admis- 
 sible in A.'s favour to show his 
 good faith {Sheen v. Biimpstead, 
 '2 H. & C. 193). 
 
( )o , 
 
 CHAPTEE X. 
 
 SIMILAR PACTS. 
 
 [1S8-185.] 
 
 EXISTENCE OF MAIN FACT. CONNECTION OF 
 
 PARTIES.— Facts which are relevant merely from 
 their general similarity to the main fa-ct, and not from 
 some specific connection therewith, as shown below, 
 are not admissible to prove its existence. Nor, to 
 prove that a given party did an act, may evidence be 
 tendered of similar acts done either by himself, to show 
 a disposition, habit, or propensity to commit, and a con- 
 sequent probability of his having co'mmitted, tlie act in 
 question, or by others, though similarly circumstanced 
 to himself, to show that he would be likely to act as 
 they. 
 
 Principle of Exclusion. — ^Facts of this class, though 
 often logically relevant, are rejected as legal evidence on 
 grounds of convenience, since they tend to embarrass 
 the inquiry with collateral issues, prejudice the parties 
 with the jur'y, and encourage attacks without notice. 
 
 The maxim " Res inter alios actx alteri nocere nan 
 debent " is sometimes supposed to express the principle 
 of exclusion in such cases; but this is incorrect, for 
 similar transactions inter -partes would be equally inad- 
 missible in this relation. Indeed, Mr. Taylor's view 
 that this principle constitutes the most important test 
 of irrelevancy (s. 317), is quite indefensible, since most 
 of the facts relevant to prove the main fact, the identity 
 of the parties, or their states of mind are res inter alios, 
 while naany that are iiTelevant are res inter partes (see 
 ante, 25-42). The rejection of evidence as res inter 
 alios acta is now practically confined to the case of 
 judgments and testimony in former trials (post, 131- 
 132); though even where judgments, &c., are inter 
 
44 THE LAW 01'' EVIDENCE. [book n. 
 
 paries, that element alone will not suffice to ensure 
 their admission {post, 129, 132). 
 
 The admissibility of Similar Facts under the present 
 head is mainly a question of degree, or of our know- 
 ledge, of the causes of events ; and the similarity must 
 be sufficiently strong to outweigh the practical dangers 
 involved. 
 
 EXAMPLES. 
 
 General Similarity. 
 
 Admissible. Inadmissible. 
 
 The question being whether 
 an o'ostmction to a harbour was 
 caused by the erection of a sea- 
 wall in its vicinity, evidence 
 that similar obstructions oc- 
 curred at some (but not all) 
 other harbours on the same 
 coast which were in the vicinity 
 of sea-walls ; — Held inadmis- 
 sible (Folkes V. Chadd, 3 Doug. 
 157; post, 120). 
 
 The question being whether 
 beer sold by A., a brewer, to B., 
 a publican, was good, the fact 
 that beer sold by A. to other 
 publicans was good, — is inad- 
 missible {Holcotnbe v. Hewson, 2 
 Camp. 391. Aliter if all the beer 
 had been of the same brewing). 
 A. is charged with negligently 
 performing a surgical operation. 
 Evidence that in other similar 
 cases A. had been negligent or 
 skilful is inadmissible {R. v. 
 Whitehead, 3 C. & K. 302; 
 Brown v. E. <(■ M. By. 22 
 Q. B. D. p. 393). 
 
 The question being whether 
 A. had forged B.'s signature to a 
 bill of exchange ; — tire fact that 
 he had forged B.'s signature to 
 other bills is not admissible. 
 [Viney v. Barss, 1 Bsp. 293. 
 AUter if all the bills belonged to 
 the same collection : Griffith v. 
 Payne, 11 A. & E. 131]. 
 
 A., a tradesman, sues B. for 
 goods sold. Defence that credit 
 was given to C. (B.'s father-in- 
 
CHAP. X.] 
 
 SIMILAR FACTS. 
 
 ■15 
 
 Admissible. 
 
 Inadmissible. 
 
 law) ; — evidence that other 
 tradeameri had given credit to 
 C. for goods supplied to B., is 
 inadmissible (Smith v. Wilkins, 
 6 C. & P. 180). So, in a libel 
 case, the fact that the defen- 
 dant's informants were actuated 
 by malice is not admissible to 
 show that the defendant was so 
 (Hennessy v. Wright, 24 
 Q. B. D. 447 »). 
 
 Specikic Connection. 
 
 Adultery. — A. petitions for 
 divorce from B., his wife, on the 
 ground of her adultery with C. ; 
 — evidence of (1) ante-nuptial in- 
 continence by B. with C. (Can- 
 tello V. Cantello, Times, Feb. 1, 
 1896 •,Kingv.King,ibid.,JoLn.Q&, 
 1901) ; and (2) of post-nuptial acts 
 both prior (Harris v. Harris, 27 
 L. T. 428; Howard v. Howard, 
 Times, July 14, 1904) and subse- 
 quent (Wales V. Wales, 1900, 
 P. 63) to those charged, — is rele- 
 vant. See, also, as to charges of 
 Incest (R. v. Ball, 1911, A. C. 
 47). 
 
 Agency. — The question being 
 whether B., in fraudulently ob- 
 taining a certain premium from 
 C, acted as agent to A., an in- 
 surance company ; — the fact that 
 B. obtained similar premiums 
 from D., E. & F. to A.'s know- 
 ledge and for A.'s benefit, held 
 admissible (Blake v. Albion 
 Society, 4 C. P. D. 94 ; R. v. 
 Mean, 69 J. P. Eep. 27). 
 
 Title. — To prove that a slip of 
 waste land bordering a road be- 
 longed to the lord of the manor, 
 and not to the owner of the 
 adjacent land ; — the fact that 
 the lord owned other parts of 
 the slip bordering the same road 
 is admissible (Doe v. Kemp, 2 
 Bing. N. C. 102). 
 
 Adultery. — A. petitions for 
 divorce from B., her husband, 
 on the ground inter alia of his 
 adultery with C. Evidence that 
 B., the respondent, had com- 
 mitted adultery with D. and 
 was a man of habitually im- 
 moral habits, held inadmissible 
 IPollard V. Pollard, Times, 
 March 26, 1904 per Jeune, P. ; 
 contra, perhaps, as to the 
 general immoral character of C. 
 (Butchart v. B., Times, March 
 24, 1899, per the same Judge; 
 post, 51)]. 
 
 Agency. — A. sues B. on a bill 
 of exchange, indorsed to A. in 
 B.'s name by C. To disprove 
 C.'s authority to indorse, B. 
 tenders evidence that C. had ou 
 two previous occasions forged 
 letters from B. to other persons 
 stating that C. had B.'s authority 
 to indorse bills. Held inadmis- 
 sible (Prescott V. Flinn, 9 Bing. 
 19). 
 
 Title. — To prove that a slip of 
 waste land bordering a road be- 
 longed to the lord of the manor, 
 and not to the owner of the ad- 
 jacent land ; — acts of ownership 
 by the lord over waste lands 
 bordering other roads in the 
 same manor, are inadmissible 
 (Doe V. Kemp, opposite). 
 
46 
 
 THE LAW OF EVIDENCE. 
 
 [book II. 
 
 Admissible. 
 
 A. sues B. for work done to 
 certain houses on the orders of 
 C. ; — it is admissible in order to 
 prove that B. is the owner of the' 
 houses and the real principal, to 
 show that other persons had 
 (although unknown to A.) re- 
 ceived orders from B. for work 
 done to the same houses {Wood- 
 ward V. Buchanan, L. E. 5 Q. B. 
 285. Aliter as to orders for 
 work done at other houses). 
 
 Custom. — To prove that a 
 certain custom prevailed in the 
 cod-fisheries of Newfoundland ; 
 — the fact that the same custom 
 prevailed in the cod-fisheries of 
 Labrador is admissible (Noble 
 V. Kemioway, 2 Dong. 510). 
 
 Animals. — To prove that A. 'a 
 dog killed a sheep belonging to 
 B. ; — the fact that the same dog 
 had killed other sheep on difEer- 
 cnt occasions belonging to other 
 people is admissible (Lewis v. 
 Jones, 49 J. P. 198). 
 
 Condition of Places. — A. sues a 
 Dock Company for damages for 
 the death of her husband in the 
 dock ; — evidence that other 
 deaths had occurred at the same 
 dock is admissible to show its 
 dangerous character (Moore v. 
 Raiisome, 14 T. L. E. 539). 
 
 Inadmissible. 
 
 Animals. — To prove that A.'s 
 dog had a propensity to bite 
 human beings ; — evidence that it 
 had apropEUsity to bite animals 
 is irrelevant (Osborne v. Choc- 
 qiteel, 1896, 2 Q. B. 109). 
 
 Cotidition of Places. — 0/. 
 Folkes V. Chadd, ante, 44. 
 
 STATES OF MIND.— Similaj- facts, though gene- 
 rally inadmissible to prove the main, fact, cr the connec- 
 tion of the parties therewith, may, after proof of these 
 points., be tendered to show the state of mind of the 
 parties with reference to such fact. Thus, a party's 
 knowledge that a representation was false, or that 
 money passed was counterfeit, may be shown in this 
 manner. And on charges of receiving, to show scienter, 
 proof may be given (a) that other property, stolen within 
 12 months preceding the offence, was, or had been, in 
 liis possession ; and, after seven days' notice and proof of 
 
CHAP. X.J 
 
 SIMILAB FAOTB. 
 
 47 
 
 such possession (b) that he has, ^vithin five years preced- 
 ing the offence, been convicted of fraud or dishonesty 
 (Larceny Act, 1916, s. 43). So, a single similar act, 
 proximate in time and method, and a fortiori a sysiein, 
 is admissible to rebut a defence of accident^ mistake, or 
 innoceni intent. 
 
 EXAMPLES. 
 
 Admissible. 
 
 Inadmissible. 
 
 A. is charged with attempting 
 to obtain money from B. by 
 falsely pretending that a certain 
 ring was a diamond ring ; — evi- 
 dence that A. had previously at- 
 tempted to obtain money from 
 other persons by false represen- 
 tations as to the genuineness of 
 other rings and jewellery is ad- 
 missible to show his knowledge 
 that the ring in question was not 
 genuine (B. v. Francis, Jj. H. 2 
 C. C. R. 128). 
 
 A., a doctor, is charged with 
 using instruments on B. with 
 intent to procure abortion ; — 
 evidence that nine months 
 before (1) A. had performed a 
 similar, though unsuccessful, 
 operation on C, with the 
 avowed intention of procuring 
 her miscarriage ; and (2) had 
 then stated to C. that he was 
 in the habit of performing simi- 
 lar operations for the same pur- 
 pose ; — held admissible to show 
 intent ajai rebut the possible 
 suggestion that the instruments 
 were used for a lawful purpose 
 (R. V. Bond, 1906, 2 K.B. 389). 
 
 A. is charged with the murder 
 of B., an infant whom she had 
 promised to adopt and maintain 
 on receipt of a small premium 
 from B. 'smother, but whose body 
 was afterwards found buried in 
 A.'s garden; — evidence that A. 
 had received other infants from 
 their mothers on similar terms, 
 who had afterwards disappeared, 
 and that the bodies of unidenti- 
 
 A. is charged with obtaining 
 a pony and trap from B. by false 
 pretences. Evidence that A. 
 subsequently obtained different 
 goods (i.e., fodder) from C. by 
 a different false pretence, is in- 
 admissible (iJ V. Fisher, 1910, 
 1 K. B. 149. Channell, J., 
 remarked that swindling in a 
 particular manner could not be 
 shown by swindling in a differ- 
 ent manner). 
 
 A. is charged with using a 
 certain instrument on B. with 
 intent to procure abortion. Evi- 
 dence that four months later A. 
 had treated another married 
 woman in a similar manner, — 
 held inadmissible, since two 
 instances, especially where the 
 second is a subsequent one, could 
 not be relied on as proof of a 
 systematic course of action (R. 
 V. Hides, 39 L. J. 421). 
 
 In R. V. Bond, opposite, 
 Kennedy and Bray, JJ., thought 
 that evidence of (1) without 
 (2) would have been inadmis- 
 sible; the L.C.J, and Bidley, 
 J., though doubting whether (1) 
 and (2) were, in the circum- 
 stances i-eceivable, held that 
 mere proof of a single similar 
 act was not conclusive against 
 admissibility; and Jelf, J., held 
 that proof of system was un- 
 necessary and that a single 
 similar act merely affected 
 weight, not admissibility. Cp. 
 Perkins v. Jeffrey, infra. 
 
48 
 
 THE LAW OF EVIDENCE. 
 
 [book ir. 
 
 Admissible. 
 
 fied infants were found buried in 
 the gardens of other houses occu- 
 pied by A., is admissible to rebut 
 the defence that B.'s death was 
 accidental {Makin v. A.-G. of 
 N.S.W. ,169i, A. C.,57). 
 
 A. is charged with indecently 
 exposing himself, in July, to 
 B., a female, with intent to 
 insult. Held : A. might be 
 asked on cross - examination 
 whether he had not done the 
 same thing and about the same 
 hour, to B. in the previous May ; 
 and, on A.'s denial, that B. 
 might be called to rebut such 
 denial. The evidence was ad- 
 mitted (1) to show that B. was 
 not mistaken in her identifica- 
 tion of A. ; (2) to show that A.'s 
 act was wilful and not acci- 
 dental ; and (3) that it was 
 done with the intent charged 
 (Perkins v. Jeffrey, 1915, 
 2 K. B. 702). 
 
 Inadmissible. 
 
 A. is charged with burglary 
 with intent to ravish B. Evi- 
 dence that an hour later A. 
 entered another house, down 
 the chimney, and had connec- 
 tion with C, with C.'s consent; 
 — ^Held, not admissible to show 
 A.'s intent to ravish B. (R. v. 
 Bodley, 1913, 3 K. B. 468). 
 
 In Perkins v. Jeffrey, oppo- 
 site, evidence, by other wit- 
 nesses, of a systematic course 
 of similar conduct by A. to 
 females other than B. was not 
 admitted, since the dates of the 
 acts were not shown and it did 
 not clearly appear that the 
 defence that the act charged 
 was not wilful, nor with intent, 
 would be relied on [The latter 
 ground, however, appears to be 
 inconsistent with the admission 
 of (2) and (3) opposite]. 
 
(49 ) 
 
 CHAP'TEE XI. 
 
 CHARACTER. 
 
 [186-192.] 
 
 CHARACTER IN ISSUE.— When a party's general 
 character is itself in issue, proof must necessarily be 
 received of what that general character is, or is not. 
 Such proof may consist either of direct testimony as to 
 the character involved, or of particular instances in 
 which it has been manifested. 
 
 CHARACTER NOT IN ISSUE.— "When, however, 
 character is tendered in proof or disproof of some other 
 issue, it is usually excluded, not because logically irre- 
 levant, but on grounds of policy and fairness, since its 
 admission would cause surprise and prejudice to the 
 parties by raking up the wlhole of their careers, which 
 they could not be prepared to defend without notice. 
 
 Thus, in criminal cases, to pirove that the defendant 
 committed the crime charged, evidence may not be 
 given either that he bore a bad reputation in the com- 
 munity, or that he had a disposition to commit crimes 
 of that kind {R. v. Rowton, 1 L. & C. 520; ante, 43). 
 So, in divorce cases, the husband cannot, in disproof 
 of a particular act of cruelty, tender evidence of his 
 general character for humanity [Narracott v. Narracott, 
 33 L. J. P. & M. 61). 
 
 Exceptions. — To this exclusionary rule, however, 
 there are some exceptions, involving the character of 
 the parties; of third persons ; and of character as afiect- 
 ing damages and witnesses. 
 
 (a) Character of the Parties. 
 
 Prisoner's Character. — In criminal cases, the 
 prisoner is, on grounds of humanity, allowed the privi- 
 lege of proving his good character (either in chief, or by 
 
 L.E. 4 
 
50 THE LAW 03? EVIDENCE. [book ii. 
 
 cross-examination), for the purpose of raising a pre- 
 sumption of his innocenoe of the crime charged. 
 
 The character proved must be of the specific kind 
 impeciched — e.g., honesty where dishonesty is charged; 
 must refer to a date proximate to the charge ; and must 
 be general, and not relate to particular instances 
 (Taylor, s. 351). In strictness, also, it has been held, 
 the witness should depose not to his own individual 
 opinion of the prisoner's character, but to the latter's 
 reputation in the community. In practice, however, 
 the question always put is, "What is the prisoner's 
 character for honesty, morality, or humanity?" as the 
 case may be ; nor is the witness ever warned to confine 
 his testimony to the prisoner's general reputation 
 (Stephen, Dig. Note xxvi.). 
 
 Bad Character in Rebuttal. — Whenever the accused 
 gives evidence of good chai'aoter, either by cross- 
 examination, or by his own or others' testimony, the 
 prosecution may rebut it. Thus, the prisoner's wit- 
 nesses to character may (though this is not usual unless 
 on specific material), be cross-examined by the prosecu- 
 tion ; and, in rebuttal only, evidence may also be given 
 of the prisoner's general bad character (though this is 
 rarely tendered), as well as, in certain cases, and before 
 the jury return their verdict, of his previous conviction 
 for crime. [The cases are those in which (1) the 
 indictment charges any offence as having been com- 
 mitted after a pr'evious conviction, and the accused gives 
 evidence of his good character (Larceny Act, 1861, 
 s. 116, construed in Faulkner v. R., 1905, 2 K. B. 76, 
 to be of general application and so, in effect, to render 
 superfluous several statutory provisions on the subject) ; 
 or (2) the accused sets up his own good character, or 
 impeaches that of the witnesses for the prosecution, 
 or gives evidence against a co-defendant (Cr. Ev. Act, 
 1698, s. 1 (/). Though the Act speaks only of questions 
 put to the accused in cross-examination, the convictions 
 may either be elicited from him or his witnesses, or 
 proved independently; post, 137-8, 152, 170)]. 
 
 Previous Convictions GeneraUy. — Previous convic- 
 tions may not be proved before verdict, except io the 
 
CHAP. X.] CHAEACTBE. 51 
 
 following oases : (1) In rebuttal of good character, as 
 above ; (2) when forming an essential ingredient of the 
 offence, i.e., when the act is only an offence if done after 
 a previous conviction (R. v. Penfold, 1902, 1 K. B. 547 ; 
 Faullmcr v. R., supra); (3) when relevant to prove the 
 offence itself, e.g., to show scienter in receiving cases 
 {ante, 46-7), or intent under the Vagrancy Act, 1824 
 {Clark V. R., 14 Q. B. D. 92); (4) to contradict a witness 
 who has denied his previous conviction (post, 152) ; (5) to, 
 prove public rights {Petrie v. Nuttall, post, 131); (6) to 
 prove a plea of autrefois convict ; (7) to rebut a claim to 
 property made by or through the convict {R. v. Crippen, 
 post, 128). Previous convictions may also be proved 
 after verdict to increase punishment, e.g., to show that 
 the accused is an habitual criminal. 
 
 (6) Character of Others. — On charges of Rape, or 
 attempts to ravish, the general bad character of the 
 prosecutrix, who is not strictly a party to the proceed- 
 ings, is admissible in defence, whether she be or be not 
 cross-examined. And to show consent, she may be 
 cross-examined as to other immoral acts u-ith the 
 prisoner, and if she denies these they may be indepen- 
 dently proved (B. v. Rile^j, 18 Q. B. D. 481). She may 
 also be cross-examined as to such acts with other men, 
 but she may decline to answer, and if she deny them, 
 they cannot be independently proved {R. v. Cockwft, 
 11 Cox 410; R. V. Holmes, 12 Cox 137). On issues of 
 Legitimacy, the ill- fame of the child's mother may be 
 proved {Pendrell v. Pendrell, 2 Str. 924). So, perhaps, 
 in cases of Divorce, the general immoral character of 
 the woman with whom the husband's adultery is 
 charged {Butchart v. B., ante, 45). And on trials for 
 Murder, the character of the deceased, e.g., for violence 
 or depravity, is admissible in mitigation of the act {R. v. 
 Macarthy, 2 Euss. Cr., 7th ed., 2092 n. ; R. v. Biggin, 
 1920, 1 K. B. 213). 
 
 (c) Character as affecting Damages. — In civil 
 actions, good character being presumed, may not 
 (except in rebuttal) be proved in aggravation of 
 damages; but in cases of defamation and breach of pro- 
 mise the bad character of the plaintiff, and in actions for 
 
52 THE LAW OF EVIDENCE. [book ii. 
 
 seduction, and petitions tov damages for adultery, the 
 bad character of the woman betrayed, may be proved m 
 c/tic/ in reduction of damages. [Sir J. Stephen extends 
 this to all civil cases (art. 57) ; contra, Taylor, 8th ed. 
 s. 356; Mayne, Damages, 9th ed. 462-89; Arnold, 
 Damages, 2nd ed. 25 h., wiho confine it to the four cases 
 mentioned]. In defamation cases, ^-ihere the defen- 
 dant does not plead the truth of the imputation, such 
 evidence is only admissible by leave of the judge, or 
 after seven days' notice (0. 36, E. 37). 
 
 (d) Character of Witnesses. — The character of a wit- 
 ness, whether party or not, is always material as affect- 
 ing credit {post, 151-153). As to prisoner-witnesses, 
 however, see atite, 50, post, 137-8. 
 
( §3 ) 
 
 CHAPTER XII. 
 
 FACTS EXCLUDED BY PUBLIC POLICY OR PRIVILEGE. 
 
 [194-217.] 
 
 PUBLIC POLICY.— Evidence of the following 
 matters is excluded on grounds of public policy : — 
 (1) Afiairs of State; (2) Information given for the 
 detection of crime; (3) Judicial disclosures; and (4) 
 Statements by parents bastardising their offspring. 
 
 (1) Affairs of State. — ^Witnesses will not, without 
 the express leave of the head of the department, be 
 allowed to stat-e facts or produce documents, the dis- 
 closure of which would be prejudicial to the public 
 service, e.g., communications between the Governor of 
 a Colony and the Secretary of State, or a report by a 
 military court, to the commander-in-chief as to the 
 conduct of an ofiicer. 
 
 (2) Information for the Detection of Crime. — Nor, 
 in public prosecutions, informations for fraud committed 
 against the revenue laws, or civil proceedings arising 
 out of either, will they be allowed to disclose the 
 channels through which information has been obtained 
 by the executive, unless the judge considers that such 
 disclosur'e is necessary to show the innocence of the 
 accused {Marks v. Beyfus, 25 Q. B. D. 494). In 
 private prosecutions, the judge has a discretion to allow 
 such questions, if he considers them not injurious to 
 the, administration of justice (Steph. art. 113). 
 
 (3) Judicial Disclosures. — Judges of the superior 
 courts cannot be compelled to testify to matters which 
 
64 THE LAW OF EVIDENCE. [book n. 
 
 a/rose before them in their judicial capacity {R. v. 
 Gazard, 8 C. & P. 595) ; nor can Barristers be compelled 
 to disclose matters which were stated by them when 
 conducting a case (Curry v. Walter, 1 Esp. 456). And 
 neither grand, nor petty, jurors may testify as to what 
 passed before them in the discharge of their duties 
 (Steph. art. 114). Private Examinations in Bankruptcy, 
 Winding-up, and Lunacy, are also, in general, protected 
 from disclosure. 
 
 (4) Statements by Parents bastardising tlieir Off- 
 spring. — Where the legitimacy of a child bom in wed- 
 lock 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; 
 though either fact may be proved by ether means 
 (Poulett Peerage, 1903, A. C. 393). 
 
 This rule, however, is confined to direct issues of 
 legitimacy, and to the particular ground of access 
 during marriage : thus, questions as to access, or non- 
 access, may be put in divorce proceedings (Nottingham 
 Guardians v. Tovikinson, 4 C. P. D. 343). 
 
 PRIVILEGE.— The following matters are jn'otected 
 from disclosure on the grounds of privilege : — (1) Pro- 
 fessional confidences; (2) Title-deeds and Evidence; 
 (3) Matrimonial communications; (4) Criminating 
 questions ; and (5) Admissions of adultery in divorce 
 cases. 
 
 The privilege may be that either of the witness him- 
 self, or of another \vhom he represents; in the foraier 
 case he will not be compeUed, and in the latter he will 
 not be allowed (without the principal's consent), to 
 disclose the protected matter. The claim, which may 
 be made at any stage of the examination, its allowance 
 protecting the witness from all further answers, is deter- 
 minable by the judge, who may himself inspect an 
 alleged privileged document. If, however, the privi- 
 leged document, or secondary evidence thereof, has 
 been obtained by the opponent independently, even by 
 
CHAP. XII.] FACTS EXCLUDED BY PBIVILEGB. 55 
 
 illegal means, the evidence will, contrary to the rule 
 as to Public Policy, be received {Calcraft v. Guest, 
 1898, 1 Q. B. 759). 
 
 (1) Professional Confidences. — A client (whether 
 party or stranger) cannot be compelled, and a legal 
 adviser (whether barrister, sohcitor, or the clerk or 
 intermediate agent of either) will not be allowed, with- 
 out the express consent of his client, to disclose com- 
 munications, or to produce documents, passing between 
 them in professional confidence. 
 
 Scope of the Rule. — The privilege is strictly confined 
 to legal <advisers, and does not protect confidential com- 
 munications made to priests, doctors, agents, friends, 
 or servants. Nor does it extend to communications 
 passing before the relation existed, or after it has 
 ceased ; nor to those made to a lawyer consulted merely 
 as a friend {Smith v. Daniell, 44 L. J. Ch. 189). More- 
 over to be protected, the matter must be within the 
 ordinary scope of professional employment, though it 
 need not involve actual or prospective litigation. Thus, 
 communications in furtherance of a fraud or crime are 
 not privileged, even though the solicitor was ignorant of 
 the fraud (R. v. Cox, 14 Q. B. D. 153; WilUarns v. 
 Quebrada Ry., 1895, 2 Ch. 751). 
 
 Joint Interest. — No privilege, however, attaches as 
 against persons jointly interested with the client {e.g., 
 partners; directors and shareholders; or trustee and 
 beneficiary) ; nor between joint claimants, under the 
 same client. And where two clients employ the same 
 solicitor, only communications in the separate, and not 
 in the joint, capacity are privileged. 
 
 Duration of Privilege. Waioer. — A communication 
 or document ' ' once privileged is always privileged ' ' 
 {Calcraft v. Guest, 1898, 1 Q. B. p. 761). Thus, it is 
 not lost in future Ktigation ; on change of solicitors ; or 
 on death of the client. 
 
 It may, however, 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 other parts. 
 
56 
 
 THE LAW OF EVIDENCE. 
 
 [book II. 
 
 EXAMPLES, 
 (i) Client's Name, Address, Handwriting, Identity, Retainer. 
 
 Privileged. 
 A solicitor will not be allowed 
 to disclose his client's address if 
 it has been confidentially com- 
 municated to him for a lawful 
 purpose {Be Arnott, 60 L, T. 
 109). 
 
 Not Privileged. 
 A solicitor may be compelled 
 to prove his client's name, ^aitd- 
 writinji ,i(Je»ititj/, and thefact and 
 character of the retainer {Dwyer 
 V. Collins, 7 Ex. 646; Beckwith 
 Y. Benner, 6 C. & P. 682). 
 
 (ii) Legal Opinions, Drajts, and Communications. 
 
 Cases submitted to solicitor 
 or counsel, and opinions thereon 
 {Reece v. Trye, 9 Beav. 316); 
 drafts of agreement, etc. (ibid.) ; 
 notes of professional interviews ; 
 confidential correspondence for 
 the purpose of asking or giving 
 legal advice, or entries in Bills 
 of Costs relating thereto and 
 which are not mere records of 
 proceedings in Court {Ainsworth 
 V. Wilding, 1900, 2 Ch. 316). 
 
 Opinion of counsel, effect of 
 which is set out in pleadings {M. 
 of Bristol V. Cox, 26 Ch. T>. 678) ; 
 communications which are ?u)t 
 necessary for the purpose of the 
 employment — e.g. , aprosecutor's 
 remark that " he would give a 
 large sum to have his adversary 
 hanged" (Annesleyv. Anglesea, 
 17 St. Tr. 1224) ; or those relat- 
 ing to matters of fact, as dis- 
 tinguishing from legal advice 
 (Lyell V. Keixnedy, 9 App. Cas. 
 84). 
 
 (iii) Solicitor's or Client's Knowledge. Client's Documents. 
 
 Solicitor's or client's know- 
 ledge derived from privileged 
 communications (Lyell v. Ken- 
 nedy, 9 App. Cas. 81). 
 
 Solicitor's or client's know- 
 ledge derived from independent 
 sources (Wheatleyv . Williams, 1 
 M. & W. 533) ; or derived from 
 the employment, but as to mere 
 , facts patent to the senses {Lyell 
 
 V. Kennedy, opposite). 
 
 A solicitor is not entitled to 
 withhold his client's deeds unless 
 the client himself would be so 
 entitled (Bursill v. Tanner, 16 
 Q. B. D. 1), nor those which are 
 of apublicnature (B.v. Woodley, 
 1 M. & E. 390; nor those en- 
 trusted ^to him for extraneous 
 purposes, or which others were 
 also intended to see {Doe v. , 
 Hertford, 19 L. J. Q. B. 626). 
 
 (iv) Matters publici juris. Briefs and pleadings Communications 
 from Strangers. 
 
 Copies or extracts from records Records and registers, or mere 
 
 or registers, if these involve pro- copies thereof; for these are 
 
CHAP, xii.] FACTS EXCLUDED BY PEIVILEGE. 57 
 
 Privileged. Not Privileged. 
 
 fessional Bkill and would disclose publici juris (Lyell v. Kennedy, 
 
 the solicitor's view of the case opposite). 
 (Lyell V. Kennedy, 21 Ch. D. !.)■ 
 
 Indorsements on brief as to Indorsement on briefs of 
 
 private matters; or solicitor's orders of court; or contents of 
 
 instructions and witness' proofs brief when publici juris, e.g., 
 
 therein (Nicholl v. Jones, 2 H. copy of pleadings filed in former 
 
 & M. 588 ; Lamb v. Orton, 22 action (NiclioU v. Jones and 
 
 L. J. Ch. 713). Lamb v. Orton, opposite). 
 
 Eeports obtained from third Beports obtained from third 
 
 persons, either by the client for persons either by the client 
 
 submission to the solicitor otherwise than for submission to 
 
 (Southwark Co. v. Qui^k, 3 Q. the solicitor (Woolley v. N. L. 
 
 B. D. 315); or by the solicitor ijy., opj)Osi7e) ; or by the solicitor 
 
 for purposes of litigation (PTooZIej/ otherwise than for purposes of 
 
 V. N. L. Ry., L. E. i G. P. 602). litigation (Wheeler v. Le Mar- 
 chant, 17 Ch. D. 675). 
 
 (2) Title Deeds. Evidence. — A witness, if a 
 stranger, cannot be compelled to produce the title-deeds 
 of his property {Doe v. Date, 3 Q. B. 609); nor can a 
 party be compelled to produce documents which he 
 swears relate solely to his own title or case, and do not 
 tend to support the title or case of his adversary {Morris 
 V. Edwards, 15 App. Gas. 309; O'Rourke v. Dariishire, 
 1920, A. C. 581). 
 
 (3) Matrimonial Communications.—" No husband 
 is compellable to disclose any communication made to 
 him by his wife during the maniage, and no wife is com- 
 pellable to disclose any communication made to her by 
 her husband during the mai-riage " [16 & 17 Vict. c. 88, 
 s. 3 ; Criminal Evidence Act, 1898, s. 1 (d) ] . This rule, 
 based on the need of securing absolute confidence during 
 marriage, applies equally to parties and strangere; and 
 probably covers all communications made during, or 
 knowledge obtained by means of, the relationship, 
 W'hether confidential or not; and continues after the 
 marriage has been dissolved by death or divorce. But 
 no protection exists as to communications made before 
 marriage; or knowledge obtained during it, but from 
 extraneous sources; and the evidence if either volun- 
 tarily given, or proved by an independent witness who 
 overheard it, will be admissible. 
 
58 THE LAW OF EVIDENCE. [uook ii. 
 
 (4) Criminating Questions. — No witness (whether 
 party or stranger) is, except in the cases hereafter men- 
 tioned, compellalDle to answer any question (or to pro- 
 duce any document, Spolfes v. Grosvenor Hotel, 1897, 
 2 Q. B. 124), the tendency of which is to expose the 
 witness, or the wife or husband of the witness, to any 
 criviinal charge, penalty, or forfeiture; the maxim being 
 Nemo tenetiir prodere seipsum. 
 
 Scope of the Rule. — The witness is protected as to 
 crimes cognisable by foreign as well as by English law ; 
 and not only as to direct criminal acts, but as to per- 
 fectly innocent matters forming links in the chain of 
 proof. 
 
 Answers tending, however, merely to establish a debt, 
 or to subject to civil liability short of penalty or for- 
 feiture (46 Geo. III. c. 37) ; or implicating oo-defen- 
 danis {Kelly v. Colhoim, 1899, 2 I. E. 199), are not 
 protected. Nor is an incriminating public document 
 which is in tlhe witness' custody (Bradshaiv v. Murphy, 
 7 C. & P. 612). 
 
 Oath necessary, but iiot conclusive . — The oath of the 
 witness that he believes the answer will, or may, tend 
 to incriminate him is necessary, but not conclusive ; for 
 the Court must be satisfied from the circumstances of 
 the case, and the nature of the evidence the witness is 
 called to give, that reasonable danger exists [B,. v. 
 Boycs, 1 B. & S. 311; Ee Reynolds, 20 Ch. D. 294). 
 
 Privilege ceases with Liability. — If the time for pro- 
 ceeding has expired, or the penalty been waived, or the 
 witness already been convicted, acquitted, or pardoned, 
 the protection will cease. 
 
 Exceptions. — Under the Criminal Evidence Act, 
 1898, s. 1, sub-s. (e) : — A person charged and being a 
 witness in pursuance of this Act may be asked- any 
 question in cross-examination, notwithstanding that it 
 would tend to criminate him as to the offence charged; 
 but by sub-s. (/) he shall not be asked nor compelled 
 to answer questions tending to show that ihe has com- 
 mitted other offences, except under the conditions 
 stated, post, 137-8. So, under the Bankruptcy Acts, 
 1883, s. 17, and 1914, s. 15, debtors cannot refuse to 
 
CHAP. XII.] FACTS EXCLUDED BY PBIVILEGE. 59 
 
 answer questions touching tlieir conduct, dealings, or 
 property, on the ground of seli-crimination ; and then- 
 answers are evidence against them in subs^equent 
 ciuminal proceedings {R. v. Erdheim, 1896, 2'Q. B. 
 260). And under the Larceny Act, 1861, s. 43, and a 
 few other statutes, witnesses may be compelled to 
 answer criminating questions, subject to a certain 
 measure of indemnity in respect thereof. 
 
 (5) Admissions of Adultery in Divorce Cases. — ' ' In 
 proceedings instituted in consequence of adultery, the 
 parties and their husbands and wives are competent 
 witnesses, provided that no witness in any proceeding, 
 whether a party to the suit or not, shall be liable to be 
 asked or bound to answer any question tending to show 
 that he, or she, has been guilty of adultery, imless such 
 witness has already given evidence in the same proceed- 
 ing in disproof of his or her alleged adultery " (32 & 33 
 Vict. c. 68, s. 3). 
 
 Scope of the Rule. — The section refers only to divorce 
 proceedings {Nottingham Guardians v. Tomliinson, 4 
 C. P. D. 348); and the proviso affords no protection to 
 the witness in other cases {Evans v. Evans, 1904, P. 
 378). Moreover, even in divorce cases, if the witness 
 consents, the evidence will be receivable. 
 
{ 60 ) 
 
 CHAPTER XIII. 
 
 HEARSAY. 
 
 [218-226.] 
 
 Oral or written statements made by persons not 
 called as witnesses are not receivable to prove the 
 truth of the facts stated, except in the cases herein- 
 after mentioned. 
 
 Original Evidence and Hearsay distinguished. — 
 
 Statements by non-witnesses, may, as we have seen 
 {ante, xii., 2), be either original evidence — i.e., where 
 the statement is relevant independent of its truth, and 
 is not to be talven as any proof of the latter; or hearsay — 
 i.e., w'here the statement is offered to prove the truth 
 of the matter asserted ; the test being the purpose for 
 which it is tendered. 
 
 Under the former head fall the various declarations 
 hitherto treated of — viz., statements which are part of 
 the res gesta; statements amounting to acts of owner- 
 ship, as leases., licences, and grants-, the operative parts 
 being original evidence, but the recitals hearsay and 
 inadmissible except against the parties thereto; and 
 statements constituting motive, conveying notice, show- 
 ing good or bad faith, or corroborating or contradicting 
 the testimony of witnesses. To which may be added 
 conversations admitted to enable a witness to fix a date 
 and inquiries and answers tendered to the judge to 
 show reasonable search for a lost document or on 
 absent witness. 
 
 -The hearsay rule applies only to statements, and not, 
 according to the better opinion, to conduct {ante, 29, 
 30). 
 
 Grounds of Exclusion. — The grounds usually assigned 
 for the rejection of hearsay evidence are — (1) the irre- 
 sponsibility of the original declarant; (2) the deprecia- 
 tion of truth in the process of repetition ;" and (3) the 
 opportunities for fraud its admission would open; to 
 
CHAP, xm.] HEARSAY. 61 
 
 which is sometimes added (4) the tendencj' of such 
 evidence to protract legal inquiries, and encourage the 
 substitution of weaker for stronger proofs. The only 
 really essential objections, however, are the absence of 
 an oath and of cross-examination, the presence of the 
 witness being valuable mainly as a means of securing 
 these, and being in some cases waived without entailing 
 the exclusion of his testimony (post, 132, 143). Some 
 writers consider hearsay excluded on grounds of irre- 
 levancy'; but that term seems misapplied in the present 
 connection, since not only are the rules as to relevancy 
 and credibility essentially diSerent, but whereas the 
 former is admittedly based upon logical inference, the 
 latter is often considered to rest rather upon instinct 
 confirmed by experience, there being no known law 
 which entitles us to conclude that voluntary communi- 
 cations truthfully represent the Imowledge of tht- 
 speaker. In any case, hearsay, far from being generally 
 " irrelevant " or inaccurate, is, in the vast majority of 
 instances, inherently credible, although, on grounds of 
 caution, it is only admitted as legal evidence in excepted 
 cases and in its more cogent forms. 
 
 EXAMPLES. 
 
 In an action between A. and B. to prove that C, u. debtor, was 
 abroad at a certain time, a statement that he was so, made by C.'b 
 servant in answer to- inquiries at his house, is inadmissible 
 [Robinson v. Markis, 2 M. & B. 375; aliter as original evidence of 
 an unsuccessful search for C, Wyatt v. Bateman, 7 C. & P. 586]. 
 
 A. sues B. for goods sold, to which B. pleads infancy. An affi- 
 davit by B.'s father (deceased) stating the date of B.'s birth, and 
 made in a former action to which A. was not a party, is inadmis- 
 sible to prove B.'s age [Haines v. Gttfhn"e,13Q. B. D. 818. Such an 
 affidavit might have been admissible had the parties been the same 
 (post, 132; or had the question been one ot pedigree (post, 95, 97)]. 
 
 A., a post-office official, is charged with secreting a letter contain- 
 ing a bill of exchange, both found upon him. The letter, which 
 stated that the bill was enclosed, was held evidence against A. as 
 found in his possession, but not as proof that the bill was enclosed 
 (B. V. Plumer, E. & E. 264; post, 73, 75). 
 
 The question being whether a certain deed was forged ; — a state- 
 ment made by the attesting witness (deceased) that it was forged, is 
 inadmissible (Stobart v. Dryden, 1 M. & W. 615 ; post, 83). 
 
 A. is charged with the murder of B. ;— a death-bed confession 
 made by C. that he, and not A., had committed the murder, is 
 inadmissible (R. v. Gray, Ir. Cir. Eep. 76'; post, 79, 99). 
 
(62 ) 
 
 CHAPTER XIV. 
 
 EXCEPTIONS TO THE HEARSAY RULE. ADMISSIONS. 
 
 [227-236.] 
 
 The rule excluding hearsay is subject to three main 
 classes of exceptions: — (i) Admissions; Statements 
 made in the presence of a party; and Confessions; 
 (ii) Statements made by persons since deceased; and 
 (iii) Statements contained in public documents. 
 When falling within these exceptions, hearsay evi- 
 dence of facts is admissible, although direct 
 testimony as to such facts might have been obtained. 
 Similar evidence may, within certain limits, also be 
 received on a summons for directions (0. 30, r. 7), 
 in taking accounts (0. 3-3, r. 3), and in interlocutory 
 proceedings. 
 
 ADMISSIONS In civil cases, s.tatements made by 
 
 a party to the proceedings, or by a person connected 
 with him in any of the ways mentioned in chap. XV., 
 are admissible against, but n-ot in favour of, such party, 
 to prove the truth of the facts stated. 
 
 Principle. — The ground of reception is, not, as some- 
 times supposed, that such admissions constitute a 
 ^oaiver of proof, for this can only apply to those made 
 expressly with a view to trial {ante, 7); nor that they 
 were against interest when made, for his adversary may 
 prove them even if they were not so ; iior that they are 
 inconsistent with the case of the party making theni, 
 for they would be receivable for his adversary even if 
 consistent with the former's case; but simply that a 
 party's declarations may always be presumed to he true 
 as against himself. No presumption of truth, however, 
 
CHAP. XIV.] ADMISSIONS. 63 
 
 arises with regard to the declarations of a party or his 
 agents when tendered in his oivn favour, sometimes 
 called " making evidence lor himself," otherwise every 
 man if he were in a difficulty, or in view of one, might 
 make declarations to suit his own case; such declara- 
 tions, therefore, though often admissible for him as 
 original evidence, are excluded as evidence of the truth 
 of the facts stated. [As to admissions for dispensing 
 with proof at the trial, see ante, 7 ; and as to admissions 
 and confessions in criminal cases, post, 77. ] 
 
 Circumstances of the Admission. — The circumstances 
 of an admission may always be proved to impeach or 
 enhance its credibility. Thus, it may (unless amount- 
 ing to an estoppel) be shown by the party against whom 
 it is tendered, to be untrue ; or made under a mistake 
 of law or fact; or uttered in ignorance, levity, or an 
 abnormal condition of mind. On the other hand, its 
 weiglht increases with the deliberation of the speaker 
 and the solemnity of the occasion. When a party is 
 sued personalhj, an admission made by him in a repre- 
 sentative character is evidence against him, but not 
 vice versa. 
 
 Offers without PrejiiAice. — Offers of compromise 
 made expressly or impliedly " without prejudice " 
 cannot, on grounds of pubhc pohcy, be given in evidence 
 against a party, even on a question of costs (Walker \. 
 Wilsher, 23 Q. B. D. 335). Such offers, however, are 
 only protected if bond fide made with a view to a com- 
 promise (Be Daintrey, 1893, 2 Q. B. 116). Thus, a 
 letter " without prejudice " which contains a threat if 
 the offer be refused, is admissible to prove such threat 
 (Kurtz V. Spence, 58 L. T. 488). Moreover, 
 independent facts admitted during negotiations for a 
 settlement are receivable (Waldridge v. Kennison, 
 1 Esp. 148). And an admission made by a party, 
 without prejudice, but on a condition which he after- 
 wards violates, is evidence against him (Holdsivorth v. 
 Dimsdale, 19 W. R. 798). On the other hand, an 
 admission made upon one hypothesis of fact, will' not 
 bind a party upon a different one (Poivell v. MoGlvnn 
 1902, 2 I. E. 154, C. A.). ** ' 
 
64 
 
 THE LAW OF EVIDENCE. 
 
 [book II. 
 
 Whole Statement. — When an admission is tendered 
 against a party, he is entitled to prove so much of the 
 whole statement, document, oi- correspondence con- 
 taining, or referred to in, the admission, as is necessary 
 to explain the admission, and although such other 
 parts may be favourable to himself; but the jui-y may 
 attach different degrees of credit to the different parts. 
 Distinct matters, however, though relevant to the case, 
 cannot be so introduced (Prince v. Samo, 7 A. & E. 
 627;c/9.posi, 79, 84, 154). 
 
 An admission is receivable, although its weight may 
 be slight, which is founded on hearsay, or consists 
 merely of the declarant's apijiion or belief. 
 
 EXAMPLES. 
 
 Admissible. 
 
 Inadmissible. 
 
 A. sues B. for the price of 
 goods sold; — an entry in A.'s 
 shop-books debiting C. and not 
 B. with the goods, is evidence 
 against A. to disprove the debt 
 (Storr V. Scott, 6 C. & P. 241). 
 
 A., when defending a suit as 
 guardian for B., a minor, makes 
 an affidavit of certain facts. 
 This affidavit is evidence against 
 
 A. of the facts sworn to, in a 
 subsequent action against him 
 personally (Beasley v. Magrath , 
 2 Sch. & Lef. 34). 
 
 A. suesB. on a billof exchange. 
 
 B. during confidential negotia- 
 tions for a settlement, admits the 
 signature of the bill to be his. 
 This is receivable against B., 
 though the rest of the negotia- 
 tions are not (Waldridge v. 
 Kennison, 1 Esp. 143). So, 
 where B. wrote, " without pre- 
 judice," that he would waive 
 A.'s omission to give him notice 
 of dishonour, if A. would accejit 
 the debt without costs, and A. 
 accepted , but B. did not pay ; — 
 Held, in a fresh action, that 
 B.'s admission was receivable 
 (Holdsworth v. Dimsdale, 19 
 W. R. 798). 
 
 A. sues B. for the price of goods 
 sold; — an entry in A.'s shop- 
 books, debiting B. with the 
 goods, is not evidence for A. to 
 prove the debt (Smith v. Ander- 
 son, 7 C. B. 21). 
 
 A. makes an admission of cer- 
 tain facts. Afterwards A. is 
 appointed executor of B. In an 
 action brought by him as such 
 executor, his previous admission 
 is not receivable against him 
 (Legge v. Edmonds, 23 L. J. 
 Ch. 12S). 
 
 A. sues B. on a bill of 
 exchange. B., in a letter "with- 
 out prejudice," offers to pay the 
 debt without costs. A. refuses 
 the offer. B.'s letter is not re- 
 ceivable against him as an 
 admission of liability (practice). 
 
 A. sues B. for injuries caused 
 by B.'s horse when driven by 
 C, who was alleged to be B.'s 
 servant acting within the scope 
 of his employment. Evidence 
 being given that in answer to 
 a remark by A.'s daughter 
 made to B. that " she believed 
 he had lent the horse to C." 
 A. had replied, "Humph," 
 adding that if she would take 
 
CHAP. XIV.] ADMISSIONS. 63 
 
 Admissible. Inadmissible. 
 
 A. is oliargfid with being an A. home from the hospital, ho 
 
 liabitual criminal over the age (B.) would pay all expenses, 
 
 of 16. An admission by A. that Held, B.'s offer being made 
 
 he was over 16, or evidence of on the basis of his hav- 
 
 that fact, though necessarily ing lent the horse to C, could 
 
 founded on hearsay (R. v. not be used as a basis for C. 
 
 Turner, 1910, 1 K. B. 346). So, being his servant (Powell v. 
 
 an admission by A., deceased, McGlynn, 1902, 2 I. E. 154 — 
 
 that he was illegitimate, is C. A. 
 evidence of that fact against his 
 representatives in civil proceed- 
 ings (Re Perton, 53 L. T. 707). 
 
 L.E. 
 
( 66 ) 
 
 CHAPTEE XV. 
 
 PEESONS WHOSE ADMISSIONS MAY BE EVIDENCE AGAINST 
 A PARTY. 
 
 [237-254.] 
 
 A PAETY to the proceedings may be affected by the 
 admissions of those standing in the following rela- 
 tions to him : — 
 
 (A) Predecessors in title. 
 
 (B) Nominal and real parties. Representative 
 
 and principal. 
 
 (C) Partners, joint-contractors, and co-represen- 
 
 tatives. 
 
 (D) Agents, referees, etc. 
 
 Admissions made by such persons are (unless 
 amounting to estoppels) only prima facie evidence, and 
 may be contradicted or explained in the same way as 
 those made by the party himself. The admissions of 
 a party, however, are, as we have seen, generally 
 receivable against himself whenever made, while those 
 of others can only affect him when made during the 
 continuance of, and with reference to, the particular 
 chara-cter or interest entitling them tO' be proved. 
 
 Privity.— The eases in this chapter ar^e often referred 
 to under the head of Privity, a term which denotes 
 successive or mutual relationship to the same rights of 
 property. The grounds upon which admissions are 
 evidence against those in privity with the party making 
 them is., tlhat they are identified in interest. Privies 
 are of three classes : (1) privies in blood, as heir and 
 ancestor, co-parceners, or' co-heirs in gavelkind; 
 (2) privies in law, as e.xeoutor to testator, or adminis- 
 
CHAP. XV.] ADMieSIONS. 67 
 
 trator to intestate (sometimes called privies in repre- 
 sentation) ; husbands suing or defending in right of their 
 wives; lords by escheat; tenants by the curtesy, or in 
 dower; (3) privies in estate o-r interest, as vendor and 
 purchaser, grantor and grantee, donor and donee, lessor 
 and lessee, joint-tenants, successive bishops, rectors, 
 or vicars. 
 
 (A) Predecessors in Title. — Statements made by 
 pei-sons while in possession of property, qualifying or 
 affecting their title thereto, are receivable against a 
 party claiming through them by title subsequent to lihe 
 admission. 
 
 The rule is only co-extensive with the identity of 
 interest. Thus, admissions by the holder of a sub- 
 ordinate title are not receivable to affect the estate of 
 his superior, which he has no right to alienate or 
 encumber — e.g., those of an occupier, his landlord's 
 title; or those of a tenant for life, the title of the 
 remainderman or reversioner; although, when a tenant 
 for life, or in tail, can be regarded as representing the 
 inheritance, his admissions will be receivable against a 
 remainderman. 
 
 A distinction, however, must be taken between the 
 case of an assignee of land or other property, aild that 
 of an ordinary assignee of a negotiable instrument, the 
 former having in general no title in law or equity unless 
 his assignor had, while the latter may have a good title 
 though his assignor had none. Accordingly, unless the 
 plaintiff on a bOl or note stands on the title of the 
 former holder {e.g., by taking the bill when overdue, or 
 with notice, or without consideration), the declarations 
 of such holder are not evidence against him (Byles on 
 Bills, 17t.h ed. p. 432). 
 
 (B) Nominal and Real Parties. Representative and 
 Principal. — A nominal party may be affected by the 
 admissions of ajreal party, who, though not named on 
 the record, has a substantial interest in the result. 
 
 The admissions must, however, have been made 
 while the real party was actually interested; and are 
 only receivable so far as his own interests, or the 
 interests of those who claim through him, are con- 
 
68 THE LAW OF EVIDENCE. [book ii. 
 
 eerned. Thus, the admissions of a cestui que trust are 
 evidence against his trustee, so far as their interests 
 are identical (Harrison, v. VaUance, 1 Bing. 45); those 
 of a shipowner against the'master, in an action by the 
 latter for freight (Smith v. Lyon, 3 Camp. 465); and 
 those of the persons interested in a policy, against the 
 party in whose name the policy was effected (Bell v. 
 Ansleij, 16 East. 143). 
 
 Convcrselj', the admissions of a representative, while 
 sustaining that character, even though he be a mere 
 nominal party or bare trustee, are receivable against 
 his principal (Legge v. Edmonds, 25 L. J. Ch. 125; 
 News' Trustee v. Hunting, 1897, 2 Q. B. 19). This, 
 however, does not apply to a guar'dian or next friend, 
 who is merely an officer of the court, appointed for the 
 infant's protection ; moreover, the admissions af an 
 executor, though receivable against a legatee (Concha 
 V. Concha, 11 App. Cas. p. 553), are not so against the 
 heir or devisees (Putnam v. Bates, 3 Russ. 188). 
 
 (C) Partners, Joint-Contractors, Co-representatives, 
 &C. — An admission, or representation, made by any 
 partner concerning the partnership affairs and in the 
 ordinary course of its business, is evidence against the 
 firm (Partnership Act, 1890, s. 15); and an admission 
 by one of several joint-contractors, concerning the joint- 
 contract, is evidence against the rest, whether sued or 
 suing jointly or severally. 
 
 The interest m.ust be a joint, and not merely a com- 
 mon one. Thus, the admissions of joint-tenants and co- 
 partners are receivable against the others; but not 
 those of tenants in oommon ; or of co-part-owners of a 
 ship, as distinguished from co-partners therein (Jaggers 
 V. Binnings, 1 Stark. 64). And the admissions must 
 have been made during the existence of the joint 
 interest. Statutes of Li-initation. Where actions on 
 simple contracts have become barred by the St-atute of 
 Limitations, no joint-contractor, or his personal repre- 
 sentative, shall lose the benefit of the statute by reason 
 only of any written acknowledgment or promise signed 
 by any othei* joint-contractor or his representative 
 (9 Geo. IV. c. 14, s. 1); or by the duly authorized 
 
CUAP. sv.] ADMISSIONS BY AGENTS. fill 
 
 agent of either (19 & 20 Viet. c. 97, s.- 13). Nor shall 
 any co-contractor or co-debtor (or his pei'sonal repre- 
 sentative), whether bound jointly, or jointly and 
 severally (or severally only: Re Wolmcrhausen, 38 
 W. E. 537), lose the benefit of the statute by reason 
 only of any payment of any principal, interest, or other 
 money, by any other co-contractor, &c. (19 & 20 Vict, 
 c. 97, s. 14) ; even though such payment is made with 
 the knowledge and consent of the co-debtoi-s {Jackson 
 V. ^Voone^J, 27 L. J. Q. B. 181). 
 
 Principal and Surety. — Declarations by a principal 
 made during the transaction of the business for which 
 the suretj- is bound, so as to become part of the ren 
 geata, are evidence against the surety ; but his mere 
 admissions, subsequently made, are not, since, as the 
 surety contracts with the creditor, there is no privity 
 between the principal and himself {Bain v. Cooper, 
 9 M. & W. 701; Tay, ss. 785-6). 
 
 Co-representatives. — An admission of the receipt of 
 money by one of several trustees, who are personally 
 liable, will bind the others {Skaife v. Jackson, 3 B. & C. 
 421); though alitcr if not so liable {Jago v. Jago, 68 
 L. T. 654). So, the admissions of an executor made 
 in his representative character will bind his co- 
 executors in their representative, though not in their 
 personal, capacity {Re Macdonald, 1897, 2 Ch. 181; 
 Astbury v. Astbilry, 1898, 2 Ch. 111). 
 
 Co-dejendants. — The admissions of co-defendants, 
 merely as such, are not receivable against each other, 
 for there is no issue joined between them, and no 
 opportunity for cross-examination; besides which, the 
 plaintiff might, by joining a friend as defendant, gain 
 an unfair advantage (Tay, s. 754). Similarly the 
 admissions of a respondent are not receivable against 
 the co-respondent; so that a wife may, on proof of a 
 confession, be found to have committed adultery with 
 the co-respondent, but the latter not to have com- 
 mitted adultery with her {Craivford v. Crawford 11 
 P. D. 150). 
 
 (D) Agents, Referees, &c — The admissions of an 
 agent are receivable against his principal (1) when the 
 
70 THE LAW OF EVIDENCE. [book n. 
 
 agent is expressly authorized to make them; (2) vvhen 
 the agent is authorized to represent the principal in any 
 business, and the admissions relate to, and are made 
 in the ordinary course of, such business. 
 
 Past Transactions. Reports to Prindpal. — If the 
 agent's admissions were made concerning, and in the 
 ordinary course of, the principal's business, it is 
 immaterial whether they relate to past or present 
 events; though, if the business on which the agent is 
 employed is at an end, his subsequent admissions 
 regarding it will be rejected. An agent's reports to 
 his principal are not evidence against the latter as 
 admissions {Re Devala Co., 22 Ch. D. 593; Cooper v. 
 Met. B. of W., 25 Ch. D. 472), unless the principal has 
 replied thereto, when the letters of the latter will be 
 admissible as explanatory of the statements of the 
 former (Coatcs v. Bainhridge, 5 Bing. 58). 
 
 The following are some of the diief cases in which 
 principals may be affected by the admissions of their 
 agents : — 
 
 Corporations and their Officers. — The manager of a 
 banking company may make admissions against the 
 bank as to its practice in making loans to customers 
 {Simmons v. London Bank, 62 L. T. 427). So, the 
 directors of a company when acting for it in the course 
 of a transaction with a third person; but not in their 
 confidential reports to a meeting of the shareholders 
 {Re Devala Co., siLpra). 
 
 On the otheir hand, the secretary of a company 
 cannot (unless acting under the express orders of the 
 directors) make admissions against the company, even 
 ans to the receipt of a letter {Briiff v. 0. N. Ry., 1 F. & P. 
 345). The 'fidmissions of a station-master have been 
 held evidence against the company as to property lost 
 at his station when subsequently, in the couree of his 
 duty, giving information to the police as to such loss 
 {Kirstall v. Furn-ess Ry., L. E. 9 Q. B. 468); but not 
 those of a night-inspector {Q. W . Ry. v. Willis, 
 18 0. B. N. S. 748). 
 
 Contractor and Workman. — In an aotion against a 
 contractor for injury to his workman through the fall 
 
CHAT. XV.] ADMISSIONS BY AGENTS. 71 
 
 of a bucket, an admission bj' a fellow-workman that 
 the latter had not hooked the bucket securely because 
 he was in a hun'y, is not evidence against the con- 
 tractor (Johnson v. Lin-dsey, 53 J. P. 599). 
 
 Landlord and Agent. — The admissions of a land- 
 agent or rent-collector, though evidence to prove the 
 receipt of rent, are not receivable as to his landlord's title 
 (Ley V. Peier, 3 H. & X. 101), nor as to the ownership' 
 of a disputed fence {Hcnni'keT v. Howard, 90 L. T. 
 157). ■ 
 
 Husband and Wife. — A wife, merely as such, can- 
 not affect her husband by her admissions; though ho 
 may, of course, constitute her his agent for that 
 purpose either expressly or impliedly. Thus, where he 
 allowed her to conduct the business of his sbop in his 
 absence, her admissions in the ordinary course thereof 
 — e.g., as to the receipt of shop goods, are evidence 
 against him; though not her admissions outside the 
 scope of her agency — e.g., as to the terms of the 
 tenancy (Clifford v. Burton, 1 Bing. 199). 
 
 Sliipoavner and Ship's Officers. — The captain of a 
 ship may make admissions against the owners ; but not 
 the officers, crew, or pilot, except in the log (Tlie 
 Solway, 10 P. D. 137; The Earl of Dumfries, ibid. 31). 
 
 Client and Solicitor, Counsel, or Witnesses. — A 
 solicitor, or his managing clerk or agent has, jn civil, 
 but not in criminal, cases implied authority to make 
 admissions against his client during the actual progress 
 of litigation, either for the purpose of dispensing with 
 proof at the trial, in whidh case they are generally con- 
 clusive (ante, 7); or incidentally as to any of the facts 
 of the case, when they amount only to priyna facie 
 evidence. Such admissions may be made in court, in 
 chambers, or by documents or correspondence con- 
 nected with the proceedings. But admissions before 
 litigation has commenced (Wagstaff v. Watson, 4 B. 
 & Ad. 339), or during it, but in mere conversation 
 (Fetch V. Lyon, 9 Q. B. 147), or to third persons, and 
 not to the opposite party (Wilson v. Tui-ner, 1 Taunt. 
 398), are not evidence against the client. Admissions 
 by counsel stand upon a narrower footing, for while lihe 
 
72 THE LAW OP EVIDENCE. [book n. 
 
 attorney represents the client throughout the cause, 
 the former represents him only upon the particular 
 occasion for which he is briefed (Bwhardson v. Peto, 
 1 M. & Cr. 896; B. v. Greenwich, 15 Q. B. D. 58). The 
 testimony of a paiiy's imtncHses is not evidence against 
 him in subsequent trials as an admission, unless 
 expressly caused to be made, or kno^\-ingly used as true, 
 to prove some particular fact, when the statements so 
 used, but no other part of the testimony, \^-ill be 
 receivable (Richards v. Morgan, 4 B. & S. 641; pest, 
 74-6). Nor are pleadings in other actions evidence 
 against a party as admissions, unless signed, sworn, or 
 otherwise adopted by him. 
 
 Referrer and Referee. — When a party refers to a 
 third person for information or an opinion on a given 
 subject, the information or opinion so given is receivable 
 against the refeiTer. And it will be conclusive where 
 there has been an agreement to refer, or where the 
 position of the party tendering it has been altered 
 thereby. 
 
 It is immaterial ^vliether the disputed matter be one 
 of law or fact; whether the referee has, or has not, any 
 peculiar knowledge on the subject; or whether the 
 reference is made expressly, or by conduct evincing an 
 intention to rely on the statement as correct (Tay, 
 ss. 760;763). 
 
 Banlampt and Creditors. — The admissions of a debtor 
 made before his bankruptcy are receivable to prove the 
 petitioning creditor's debt (Coole v. BraUavi, 3 Ex. 
 183); but if made during it, e.g., in his statement of 
 affairs, or public examination, they are not evidence 
 against the trustee or the creditors, because of the 
 danger of fraud (Exp. ReveU, 13 Q. B. D. 720; Re 
 Brunner, 19 ibid. 572). 
 
 Sheriff and Under-sheriff. — The admissions, of an 
 under-sheriff in his official capacity are evidence against 
 the sheriff; but the relationship bet-ween them being 
 that of principal and deputy (or qitosJ-principal), and 
 not principal and agent, it is immaterial to inquire into 
 the scope of the deputy's authority, for no action lies 
 against him (S^xowball v. Goodriche, 4 B. & Ad. 541). 
 
( 73 ) 
 
 CHA.PTEI! XVI. 
 
 STATEMENTS IN THE PRESENC'K AND DOCfirEN'J'S IN THE 
 POSSESSION OF A PAUTY. 
 
 [255-262.] 
 
 STATEME^*TS luadc in the presence and hearing of a 
 party to the proceedings, and documents in his 
 possession, or to which he has access, are evidence 
 against him of the truth of the matters stated, if 
 hy his conduct or silence he has acquiesced in their 
 contents. 
 
 A party may, on similar grounds, be affected by the 
 acquiescence of his agents or of others for whose 
 admissions he is responsible {Hallcr v. Worman, 
 3 L. T. N. S. 741). 
 
 Principle. — The mere fact that statements have been 
 made in a party's presence, or documents found in his 
 possession, though it may render them admissible 
 against him as original evidence — eg-, as showing 
 knowledge or complicity — ^will afford no proof per se of 
 the truth of their contents; the ground of reception for 
 the latter purpose is that the party has, by his words, 
 conduct or silence, admitted the accuracy of the 
 assertions made {R. v. Christie, post, 75; R. v. Norton, 
 1910, 2 K. B. 496; R. v. Phimcr, post, 75). 
 
 STATEMENTS (a).— When statements made in a 
 party's presence have been replied to, they will be 
 evidence against him of the facts stated to the extent 
 that his answer directly or indirectly admits their 
 truth; while, where no admission can be infen-ed, it 
 is a rule of practice, though not perhaps of strict law, 
 that such statements should not be given in evidence 
 (ibid.). 
 
74 THE LAW 01' KVIDENCli. [book u. 
 
 So, a party's silence will render statements made in 
 hia presence (or hearing only : Neile y. Jackie, 2 C. & 
 K. 709) evidence again&t him of their truth, when he is 
 reasonably called on to reply (Wiedemann v. Walpole, 
 1891, 2 Q. B. p. 539). And even where the matter is 
 not within his knowledge, or the statement-s are not 
 directly addressed to him, the evidence is strictly 
 admissible, though its weight may be slight. But 
 when the circumstances are such that a reply cannot 
 properly be expected, the party's silence will afford no 
 inference of assent, e.g., when he is asleep, deaf, 
 intoxicated (Wright v. Tathmn, 5 C. & F. 701, 722), or 
 the statement is the mere officious observation of a 
 stranger (Child v. Grace, 2 C. & P. 193). So, state- 
 ments made in a party's presence during a trial are not 
 generally receivable against him merely on the ground 
 that he did not deny them, for the regularity of judicial 
 proceedings prevents the fi"ee interposition allowed in 
 ordinary conversation (R. v. T'um-er, 1 Moo. C. C. 347). 
 Even hei'e, however, cases may occur in which the 
 refusal of a party to repel a charge made in a court of 
 justice, or to cross-examine a witness, or reply to an 
 affidavit, may afford a strong presumption that the 
 imputations made against him are correct. 
 
 DOCUMENTS (h): — Documents in a party's posses- 
 sion which he has in, any way recognised, adopted, or 
 acted upon, are, generally speaking, evidence against 
 him of the truth of their contents. So, also, those 
 which he has caused to be made or knowingly used as 
 true in a judicial proceeding to prove some particular 
 fact (Richards v. Morgan, 4 B. & S. 641 ; ante, 72). 
 The mere faihi.re to ajisjvcr a- letter or object to an 
 account, however, will not generally imply an admis- 
 sion of its contents, as in the case of st-atements made 
 to a man's face ; though it is otherwise where the party 
 is entitled to a reply (Wiedemann, v. Walpole, supra). 
 
 EXAMPLES. 
 Admissible. Inadmissible, 
 
 (a) A. JB indicted for receiv- (a) A. is indicted for receiving 
 
 iug property alleged to have property alleged to have been 
 been stdleu by B. A confession stolen by B. A confession made 
 
CHAr. XVI.] STATEMENTS IiV A PARTY'S PBKSENCE. 75 
 
 Admissible. 
 
 made by B. to a constable, in 
 the presence of, and not denied 
 by. A., that he (B.) had stolen 
 the goods, is admissible against 
 A. to prove that fact (B. v. Cox, 
 1 F. & F. 90). ■ 
 
 A. sues B. for breach of pro- 
 mise of marriage ; an oral state- 
 ment made by A. lio B. before the 
 trial, "You know you always 
 promised to marry me, and now 
 you don't keep your word," to 
 which B. made no answer, is ad- 
 missible to prove the promise 
 (Bessela v. Stern, 2 C P. D. 
 265). 
 
 (b) In an action between A. 
 and B. an affidavit which A. had, 
 in a former suit between him- 
 self and C, knowingly used to 
 prove a certain fact, is evidence 
 
 Inadmissible. 
 
 by B. to a magistrate on the 
 hearing of the charge, in the 
 presence of, and not denied by, 
 A., that ho (B.) had stolen the 
 goods, is not admissible against 
 A. to prove that fact (fi. v. 
 Turner, 1 Moo. C. C. 347). 
 
 A. sues B; for breach of pro- 
 mise of marriage ; a letter writ- 
 ten by A. to B., stating that B. 
 had promised to marry her, to 
 which letter B. did not reply, is 
 not admissible either in proof or 
 corroboration of the promise 
 (Wiedemann v. Walpole, 1891, 
 2 Q. B. 534). 
 
 A. is charged with assaulting 
 B. — Evidence that, five minutes 
 after the alleged assault, B., 
 ''having identified A., made a 
 statement in A.'b presence to a 
 constable of the details of the 
 assault, to which A. replied " I 
 am innocent ' ' : — Held , not ad- 
 missible to prove the truth of 
 B.'s statement. [B. v. Christie, 
 1914, A. C. 545. The evidence 
 was also rejected (1) as part of 
 the res gesta {ante, 19) ; (2) as 
 corroboration (post, 157) ; or 
 (3) as part of the act of identi- 
 fication.] 
 
 A. is charged with secreting 
 a letter containing a bill of ex- 
 change. The letter, which 
 stated th^t the bill was en- 
 closed, was held evidence 
 against A. as found in his pos- 
 session, but not to prove that the 
 bill was enclosed [iJ. v. Plumer, 
 ante, 61. For a case in which 
 subsequent possession of docu- 
 ments was rejected to prove 
 former knowledge, see R. v. 
 Zulueta, ante, 36, 41]. 
 
 (b) In an action between A. 
 and B., an affidavit which had, 
 in A.'s absence and without his 
 knowledge, been made and used 
 by his attorney's clerk in an 
 
TC, THB LAW OF EVIDENCK. [boox ti. 
 
 Admissible. Inadmissible. 
 
 against A. o£ the same fact, earlier stage of the same action , 
 
 though the deponent is present is not admissible against A. in 
 
 in court and might be called as proof of the- facts stated (White 
 
 a witness (Brickell v. Hulse, 7 v. Bowling, 8 Ir. L. E. 128). 
 A. & E. 454). 
 
( 77 ) 
 
 CHAPTER XVII. 
 
 CONFESSIONS. 
 
 [263-275.] 
 
 In criminal cases, a confession made by tlie accused 
 ■voluntarily is evidence against liim of the facts 
 stated. But a confession made after suspicion has 
 attached to, or a charge been preferred against, 
 him, and which has been induced by any promise or 
 threat relating to the charge, and made by, or with 
 the sanction of, a person in authority, is deemed not 
 to he voluntary, and is inadmissible. 
 
 [Statements made by the accused before the crime,. 
 e.g., as to his motives and intentions, or the instru- 
 ments obtained to commit it, are receivable against 
 him either as original evidence {ante, 18, 34, or admis- 
 sions, irrespective of the above limitations. ] 
 
 Principle. — The ground of reception of voluntary 
 confessions is that they may be taken to be true as 
 against the accused himself {ante, 62). The ground of 
 rejection of confessions which are not voluntary is the 
 danger that he may have been induced, by hope or fear, 
 to criminate himself falsely {R. v. Baldry, 2 Den. C. C. 
 430; R. V. Thompson, 1893, 2 Q. B. 12). 
 
 Burden of Proof. Corroboration. — It lies upon the 
 prosecution to establish, and not upon the prisoner to 
 negative, the voluntariness of the confession {R. v. 
 Thompson, supra). And, except perhaps in cases of 
 murder, bigamy, or crimes involving title to property, 
 a confession duly made and satisfactorily proved is 
 sufficient to warrant a conviction without corroboration 
 {R. V. SvUimn, 16 Cox 347). 
 
T8 THE LAW OF EVIDBNOB. [book u. 
 
 Persons in Authority (a). — To exclude a confession, 
 the inducement must have been held out by a per&on in 
 authority — i.e., someone engaged in the arrest, deten- 
 tion, examination, or prosecution of the accused; or by 
 someone acting in the presence, and without the dissent, 
 of such a person; — e.g., a magistrate, constable, pro- 
 secutor, or the latter's wife or attorney; but not 
 (probably) the chaplain of the gaol, nor the captain of 
 the prisoner's ship, nor the wife of a constable. And a 
 confession made to, but not induced by, a person in 
 authority is admissible; while, conversely, a confession 
 induced by, though not made to, such a pereon will hi 
 rejected. « 
 
 Tlie Inducement (fc). — A promise or threat, in order 
 to exclude a confession, must relate to the charge — i.e., 
 must reasonably imply that the prisoner's position with 
 reference to it will be rendered better nr woi'se accord- 
 ing as he does or does not confess. It need not be 
 express, but may be implied from the conduct of the 
 person in authority, the declarations of the prisoner, or 
 the ciroumsfcances of the case {R. v, Gillis, 11 Cox 69); 
 nor need it be made directly to the prisoner; it is suffi- 
 cient if it may reasonably be presumed to have come to 
 his knowledge, e.g., by having been communicated to 
 his wife or relations, providing it appears to have 
 induced the confession (R. v. Thmnpson , supra; R. v. 
 Chappie, 17 Cox, 453). 
 
 A confession will not be excluded, however, which 
 has been obtained merely by an inducement relating to 
 some collateral matter unconnected with the charge ; 
 or by moral or reUgious exhortation (R. v. Jarvis, L. K. 
 1 C. C. E. 96; R. v. Reeve, ibid. 362); or, even by 
 questimis put by the police to the prisoner when in 
 custody, provided no promise or threat was employed, 
 though such a practice is improper and in extreme 
 cases may justify the rejection of the confession (2?. v. 
 Best, 1909, 1 K. B. 692; Ibrahim v. R., 1914, A. C. 
 599; R. V. Gardner, 1915, 85 L. J. K. B. 206). As to 
 questions to him at the trial under the Crim. Ev. Act, 
 1898, &c., see atite, 58-9, post, 137-8. And evidence 
 given on oath as a witness in a different (R. v. Coote, 
 
CHAP, xvii.] C0NFBS6I0NS. 79 
 
 L. E. 4 P. C^ 605), or earlier stage of the same (B. v. 
 Bird, 19 Cox 180), proceeding, is admissible against him 
 as a confession, unless his testimony was obtained by 
 improper inducement {R. v. Gillis, supra; R. v. Colpus, 
 1917, 1 K. B. 574), or he was unjustly compelled to 
 answer the criminating questions after claiming 
 privilege {R. v. Garbett, 1 Den. 236). 
 
 If the impression produced by a promise or threat is 
 clearly shown to have been removed — e.g., by lapse of 
 time, or an intervening caution by some person of 
 superior authoiity to that of the person who held out 
 the inducement — a subsequent confession will be 
 receivable. 
 
 Whole Statement. Confessions by Aocomplices, &c. 
 — ^As with admissions, the whole of a confession must 
 be taken, though parts may be favourable to the 
 prisoner (ante, 64). But the prisoner can only be 
 affected by the confessions of himself, and not by .those 
 of agents, accomplices , or strangers, unless made in his 
 presence or assented to by him (ante, 73-4). Nor, of 
 course, can such confessions be used in his favour (R. 
 V. Gray, cited ante, 61, and post, 99). 
 
 A confession has been received though made when 
 the ac-oused was drunk (R. v. Spilsbury, 7 C. & P. 187), 
 but not one made in his sleep (R. v. Sippet, cited Best, 
 s. 529n). 
 
 Facts discovered in Consequence of Inadmissible 
 Confessions (c). — The fact that property has been 
 delivered up in consequence of an inducement to con- 
 fess, or has been discovered through the help of an 
 inadmissible confession, may always be proved, 
 together with so much of the confession as strictly 
 relates tO' such fact, for these portions at least cannot 
 be untrue; but independent statements not qualifying 
 or explaining the fact, though made at the time, will 
 be rejected (R. v. Gould, 9 C. & P. 364). And if the 
 inadmissible confession be not confirmed by the finding 
 of the property, no proof either of the statements or 
 acts can be received ; for the influence which produces 
 a groundless confession may equally produce ground- 
 less Conduct (R. V. Jenlcins, E. &, E. 492). 
 
80 
 
 THii LAW OF EVIDENCE. 
 
 [DOOK II. 
 
 EXAMPLES. 
 
 Admissible. 
 
 Inadmissible. 
 
 (a) A., a maid-servant, being 
 charged with concealing the 
 birth of lier illegitimate child, < 
 makes a confession in con- 
 sequence of an inducement held 
 out by her mistress ; — the con- 
 fession is admissible, for the 
 mistress is not a person in 
 authority, the offence having no 
 connection with the manage- 
 ment of the house (B. v. Moore, 
 ■2 Den. 522). . 
 
 (fc) Confessions induced by the 
 following, from persons in 
 authority, havebeenadmitted : — 
 
 A promise to give the prisoner 
 a glass of spirits {R. v. Sexton, 
 cited Joy, 17-19, is contra, but is 
 not law, ibid. ; Tay. s. 880) ; or to 
 let him see his wife (R. v. Lloyd, 
 G C. & P. 393); for these are 
 matters collateral to the charge. 
 
 ' ' Be sure to tell the truth ' ' 
 (R. V. Court, 7 C. & P. 486); 
 " You liad better, as good boys, 
 tell the truth " (fl. v. Reeve, 
 L. E. 1 C. G. E. 362); "Don't 
 run your soul into more sin, 
 but tell the truth " (R. v. Slee- 
 man. Dears. 249); for these are 
 mere admonitions on moral or 
 religious grounds. 
 
 " I must know more about it " 
 (R. V. Reason, 12 Cox 228); 
 " You would not have told so 
 many falsehoods had you not 
 been concerned in it. Did any 
 one induce you to do it?" (R. 
 V. Thornton, 1 Lew. 49), — for 
 710 promise or tJireat is imported. 
 
 " What you say will be used 
 as evidence against yon," or 
 for or against you " (R. y. 
 Baldry, 2 Den. 430, overruling 
 several earlier cases; R. v. 
 Lang, 142 Sess. Pap. C. C. C. 
 1427-8), for such " 
 imports a mere caution. 
 
 (a) A., a maid-servant f being 
 charged with setting fire to her 
 master's house, makes a con- 
 fession in consequence of an in- 
 ducement held out by her 
 mistress : — the confession is in- 
 admissible, for the mistressis a 
 person in authority, the offence 
 relating to her husband's pro- 
 perty (R. V. Upehurch, 1 Moo. 
 C. C. 465). 
 
 (6) Confessions induced by the 
 following, from persons in 
 authority, have beenexcluded : — 
 
 " It is no use to deny it, for 
 there are the man and boy who 
 will swear they saw you do it " 
 (R. V. Mills, 6 C. & P. 146) ; " I 
 dare say you had a hand in it ; 
 you may as well tell me all about 
 it " {R. Y. Croydon, 2 Cox 67) ; 
 " The inspector tells me you 
 are making housebreaking imple- 
 ments ; if that is so, you had 
 better tell the truth " [B. v. 
 Fennell, 7 Q. B. D. 147. " The 
 words ' you had better ' seem to 
 have acquired a sort of technical 
 meaning," per Kelly, C.B., in fi. 
 V. Jarvis, L. E. 1 C. C. E. 96] ; 
 " It would have been better it 
 vou had told at first " (R. v. 
 'Walkley, 6 C. & P. 175). 
 
 ' ' If you tell me where my 
 goods are, I will be favourable 
 to you " (R. V. Cass, 1 Lea. 
 293,Ji.ote). A servant in the cus- 
 tody of a constable said to her 
 mistress, " If you forgive me, I 
 will tell the truth ;" the mistress 
 replied, "Anne, did you do it?" 
 (R. V. Mansfield, 14 Cox 689). 
 " Tell me what you know about 
 it; if you will not, of course we 
 can do nothing for you " (R. v. 
 Partridge, 7 C. & P. 551). " I 
 only want my money, if you 
 give me that, vou mav go to 
 
CHAP. XVII.] 
 
 CONFESSIONS. 
 
 81 
 
 Admissible. 
 
 In the following cases the 
 effect of the original inducement 
 washeldtohavebeenremoL'ed ani 
 theconfessiontobeadmissible : — 
 
 A constable having told a pri- 
 soner that it would be "better to 
 confess," the magistrate on the 
 following morning, before the 
 prisoner made any statement, 
 cautioned him " to say nothing 
 against himself ; " — a confession 
 subsequently made held admis- 
 sible (R. V. Lingate, 1 Phil. 
 Ev. 10th ed. 414; R. v. Bate, 
 11 Cox 686). 
 
 So, where a constable had 
 made a similar remark to the 
 prisoner, and the latter after- 
 wards asked the magistrate if 
 this was so? — to which the 
 magistrate replied that he would 
 not say that it was (fl. v. Rosier, 
 1 Phil. Ev. 10th ed. 414). 
 
 (c) A. is charged with burglary. 
 The fact that, after an improper 
 inducement, A. confessed to 
 having thrown a lantern into a 
 pond, and the fact that the lan- 
 tern was found there, are admis- 
 sible (B.v. Gould, 9 C. & P. 364 ; 
 R. V. Harris, and R. v. Thurtell, 
 cited Joy, 83-84. Aliter as to 
 other parts of the confession). 
 
 Inadmissible. 
 
 the devill" (R. v. Jones, E. & 
 E. 152). 
 
 In the following cases the 
 effect of the original inducement 
 tdas held not to have been 
 removed and the confession to 
 be inadmissible : — 
 
 A constable told a prisoner in 
 the morning that it would be 
 "better to tell the truth;" in 
 the evening another constable 
 cautioned the prisoner that 
 "anything he might say would 
 be used against him." A con- 
 fession afterwards made held 
 inadmissible \_R. v. Doherty, 13 
 Cox23 ; contra , Tay . s .i878 , citing 
 several earlier cases] . — A magis- 
 trate having told a prisoner that 
 if the latter would confess he 
 would do all he could for him, 
 the prisoner subsequently con- 
 fessed to a turnkey who did not 
 caution him. Confession held 
 inadmissible [E. v. Cooper, 5 C. 
 & P. 535. It would probably 
 have been inadmissible even if 
 the turnkey had cautioned him.] 
 
 (c) A. is charged with thelt. 
 The fact that, after an improper 
 inducement, A. confessed to the 
 theft ; and the fact that ke took 
 a constable to a house where, 
 and to persons to whom, he said 
 he had disposed of the property, 
 which persons, however, denied 
 the receipt of the property 
 which was never found, both 
 held inadmissible {R. v. Jen- 
 kins, E. & E. 492). 
 
 L.E. 
 
C8-2) 
 
 CHAPTEE XVIII. 
 
 STATEMENTS BY DECEASED PEKSONS. 
 
 [276-277.] ( 
 
 The second main class of exceptions to the hearsay- 
 rule consists of the declarations of persons .since 
 deceased, which are admissible in proof of the facts 
 declared in the nnder-mentioned cases, the truth of 
 the declarations being deemed to be jninid facie 
 guaranteed by the special conditions of admissibility 
 imjjosed : 
 
 (1) Declarations against interest. 
 
 (2) Declarations in the course of duty. 
 
 (3) Declarations as to public rights. 
 
 (4) Declarations as to pedigree. 
 
 (5) Dying declarations in caSes of homicide. 
 •(6) Declarations by testators as to their wills. 
 
 [In (1) and (2) the declarations are admissible upon 
 any issue; in (3) to (5) they are only admitted from 
 necessity, and in proof of the particular issues named ; 
 in (6) they are admitted upon special grounds. ] 
 
 Proof of Death, Identity, and Handwriting.— The 
 
 special conditions of admissibility must be proved 
 aliunde to the satisfaction of the judge; though after 
 seven years' unexplained absence the death of the 
 declarant may be presumed (Wills v. Palmer, 53 W. E. 
 169; post, 204), and in the ase of documents, after 
 thirty years, the death and generally the handwriting 
 of the writer (Wynne v. Tynohitt, 4 B. &, Aid. 376; 
 Doc V. Michael, 17 Q. B. 276). 
 
CHAi>. xvm.] DBCLABATIONS AGAINST INTEREST. 83 
 
 Competency and Credibility. — Sir J. Stephen states 
 that the credit of a deceased declarant may be 
 impeached or confirmed in the same manner as that of 
 a iriiness who has denied on cross-examination the 
 truth of the matter suggested (art. 135). This, how- 
 ever, is not altogether correct, for although incom- 
 petency excludes a dying declaration {R. v. Drumviond, 
 1 Lea. 338), it does not exclude a declai-ation against 
 interest {Gleadoio v. Atkin, 1 C. & M. 410). And 
 though previous inconsistent statements are admissible 
 to discredit a living witness, they have been rejected to 
 discredit the attestation of a document by a deceased 
 one {StobaH v. Dryden, ante, 61), as also in disparage- 
 ment of declarations made in the course of duty 
 {Sta-pjjlton V. Clough, 2 E. & B. 983; post, 88). 
 
 Miscellaneous. — The declarations may be either oral 
 or written ; they are receivable either for or against the 
 parties; and they are not rendered inadmissible by the 
 existence of better evidence of the same facts. 
 
 DECLARATIONS AGAINST INTEREST. — De- 
 clarations, oral or written, made by deceased per- 
 sons consciously against their pecuniary or proprietary 
 interests, are admissible in proof of the facts stated 
 1278-286]. 
 
 Principle. — The grounds of reception are (1) death; 
 and (2) the presumption that what aman states against 
 his interest is probably true. 
 
 Tlie Interest («). — The interest must be pecuniary or 
 proprietary ; no other, even though of a penal, kind will 
 suffice (Sussex Peerage, 11 C. & F. 108). Thus, 
 entries in books of account are against the declarant's 
 interest if they either acknowledge the payment of 
 money due to himself, or charge him with the receipt 
 of money for which he is accountable to a third person 
 (Tay. s. 673). But the declarations must have been 
 against interest at the time they were made; it is not 
 enough that they might possibly turn out to be so after- 
 wards {Exp. Edwards, 14 Q. B. D. 415). 
 
 Proprietary Interest. — So, declarations made by 
 deceased persons in disparagement of their title to land 
 
84 THE LAW OF EVIDENCE. [book ii. 
 
 are admissible if made while the declarant was in 
 possession of the property and as to matteiB within his 
 personal knowledge or belief {Trimlestown v. Kemniis, 
 9 C. & F. 780). And as, in the absence of other proof, 
 mere possession implies seisin in fee, any declaration 
 by an occupier tending to cut down, charge, or fetter 
 his presumably absolute interest, will be receivable 
 under this head. A distinction, however, exists 
 between statements which limit the declarant's ow7i 
 title, and those which go to abridge or encumber the 
 estate itself; the former being admissible even between 
 strangers, the latter being only so as against the 
 declarant and his privies (Papendick v. Bridgwater, 5 
 E. & B. 166). [Cp. admissions by predecessors in 
 title, ante, 67.] 
 
 Statutes of Limitation. — An acknowledgment made 
 by (or by the direction of) a deceased creditor of money 
 received on account of a debt or interest due to him 
 is receivable as a declaration against interest if made 
 before, but not after, the debt has become statute- 
 barred (Briggs v. Wilson, 5 De G. M. & G. 12). If, 
 however, such acknowledgment be merely indorsed 
 upon the instrument itself, this wiU. not be sufficient 
 proof of such payment to defeat the statute, in cases of 
 si'inple contract debts (9 Geo. IV. c. 14, s. 3). 
 
 Collateral Facts (6). — The declamtions are evidence 
 not only of the precise fact against interest, but of all 
 connected facts (though not against interest) which are 
 necessary to explain, or are expressly referred to by, 
 the declaration — and whether contained in the same or 
 other dociunents. Thus, accounts are admissible, 
 some items of which charge the declarant, though other 
 connected it-ems discharge him, or even show a balance 
 in his favour, for it is not to be presumed that a man 
 will charge himself falsely for the mei'e purpose of 
 getting a discharge, and in the latter case the debit 
 items would still be against interest, since they 
 diminish the balance in his favour; but disconnected 
 facts, though contained in the same document or state- 
 ment, are inadmissible (Taylor v. Witham, post, 87; 
 The Swiftsure, 82 L. T. 389; Tay. b. 674). 
 
CHAP, xvin.] DECLABATIOKS AGAINST ENTEBEST. 85 
 
 Personal Knowledge. Competency, &c.— The de- 
 clarations liave been admitted, though the declarant 
 had no personal knowledge of the facts, but received 
 them merely on hearsay {PeTcival v. Nanson, infra: 
 Crease v. Barrett, post, 86; Tay. s. 669; contra, Lloyd 
 V. PowcU, &c. Co., 1913, 2 K. B. 130, 137, C. A., where 
 however the above eases were not cited) ; though he had 
 a motive to misstate them {Taylor v. Wiiham, supra); 
 though he himself would have been incompetent as a 
 witness {Gleadow v. Atkin, 1 G. & J\I. 410); and though 
 they were not contemporaneous with the facts {Doe v. 
 Turford, 3 B. & Ad. 890) ; — these matters affect weight, 
 not admissibility. The declarations cannot, however, 
 be used to derogate from the declarant's own grant 
 {Lalor V. Lalor, 4 L. E. I. 678). 
 
 EXAMPLES. 
 
 Admissible 
 
 Iiiadfiiissible. 
 
 (a) Auentrymadeby a deceaBed 
 accoucheur in liis own books of 
 the payment of his charges for 
 attending a confinement, is evi- 
 dence of the date of the child's 
 birtli {Hiqliam v. Ridgway, 
 10 East 109); the name of its 
 parents, though only stated on 
 hearsay (Percival v. Nanson, 
 7 Ex. 1) ; and of the payment of 
 the charges, though the payer 
 was alive, and might have been 
 called (Middletoii v. Melton, 10 
 B. & C. 317). 
 
 To prove that A. (deceased) 
 was illegitimate ; — a statement 
 bvhim that he wasso, held receiv- 
 able as against pecuniary and 
 proprietary interest (Re Perton, 
 63 L. T. 707; cp. ante, 6-5; and 
 post, 95). 
 
 To prove that A. owned cer- 
 tan land ; — a statement of that 
 fact made by B. (deceased) 
 while felling timber on the land, 
 is admissible ; such act being a 
 sufficient assertion of ownership 
 to imply seisin in B., and so to 
 admit his declarations in deroga- 
 
 (a) To prove a contract by A. to 
 hire B. as u servant ; — an entry 
 in the diary of A. (deceased) as 
 follows : " April 4th. — B. camo 
 as a servant ; to have for the 
 half year £2;" is not admissible 
 as a statement against A.'s in- 
 terest, since the agreement could 
 not be presumed to be prejudi- 
 cial to either party (R. v. 
 
 Worth, i Q. B. 132 ; post, 88). 
 To prove the terms on which 
 A. sent goods to B. ; a letter 
 written to B. by his deceased 
 manager, statingthatA. had sent 
 
 the goods to the office on the 
 terms in question, is not admis- 
 sible ; — the possible liability of 
 B.'s manager to an action for 
 damages in case the goods were 
 lost being too remote a pecuniary 
 detriment (Smith v. Blakey, L. 
 R2Q;.R326;ojite,19:pQst,89). 
 An admission of debt ih a 
 bankrupt's statement of affairs, 
 is not a declaration against in- 
 terest at the time, though there 
 might turn out to be u, surplus 
 after payment of the creditors, 
 
80 
 
 THE LAW OF EVIDENCE. 
 
 [BOOK II. 
 
 Admissible. 
 
 tion of liis apparent litlc (Doe 
 V. ArkwTight, 5 C. & P. 575). 
 
 To prove the existence and 
 terms of a (lost) lease ; — an entry 
 made in a rent-book by a de- 
 ceased landlord that be had 
 " agreed to grant a lease for 
 thirty-one years at £96 rent, and 
 accept the old rent (£84) for one 
 year in consequence of the potato 
 famine;" — held admissible as 
 against pecuniary interest be- 
 cause of the abatement of the 
 fkst year's rent, although the 
 entry proved an increase in 
 the new rent ; and admissi- 
 ble against proprietury interest 
 because the agreement to grant 
 a lease tended to fetter the 
 landlord's absolute right of 
 ownership {Comior v. Fitz- 
 gerald, H L. B. Ir. 106). 
 
 A statement by a deceased 
 occupier of land that he held a 
 life-estate in it under a particu- 
 lar will of which C. and B. were 
 executors ; — is admissible to 
 prove the existence and execu- 
 tors of the will (lost), being 
 against proprietary interest on 
 account of its twofold limita- 
 tion of the declarant's estate to 
 a life-interest, and under a par- 
 ticular document (Sly v. Sly, 2 
 P. D. 91; post, 89, 166). 
 
 (b) To prove a loan of money 
 by A. to B. ; — an entry by A. 
 
 Inadmissible. 
 which would be diminished by 
 the amount admitted (Exp. 
 Edwards, 14 Q. B. D. 415). 
 
 To prove the marriage of A. 
 and B. ; — a statement by a de- 
 ceased clergyman that he had 
 performed the ceremony, the 
 circumstances being such as to 
 render him liable to a criminal 
 prosecution, held inadniissible, 
 not being against "pecuniary or 
 proprietary " interest (Sussex 
 Peerage, 11 C. & P. 103-114). 
 
 To prove that a certain spot 
 was not within the waste of a 
 manor; — a declaration by a 
 deceased lord that "he was 
 entitled to the waste up to a 
 certain point (which did not in- 
 clude the locus in quo), but no 
 further," is inadmissible — (1) 
 the lord not being in possession 
 of the locus; (2) as not being 
 against proprietary interest, be- 
 cause, though disclaiming as to 
 one part, he affirmed as to the 
 other [Creose v. Barrett, 1 
 C. M. & E. 919; cp. ante. 85]. 
 
 A., a dependant of C, de- 
 ceased, sues B. for injury to C, 
 by an accident. B. tenders a 
 statement by C. ascribing the 
 injury to a whitlow. Held, C.'s 
 statement was inadmissible, not 
 being to C.'s knowledge against 
 his interest, since no claim was 
 then made or anticipated (Tucker 
 V. Oldbury U. D. C, 1912, 2 
 K. B. 317, C. A. It was also 
 rejected as an admission, since 
 A. did not claim through C). 
 
 A statement by A. (deceased) 
 promising to marry a woman 
 and admitting the paternity of 
 her unborn child ; — held not 
 against A.'s interest (Lloyd v. 
 Powell Co., 1913, 2 K. B.' 130, 
 C. A.). 
 
 (b) An account kept by the de- 
 ceased steward of A., on one side 
 
CHAP, xvai.] DECLAEATIO'NS IN COURSE OV DUTY. 87 
 
 Admissible. Inadmissible. 
 
 (deceased), " B. paid me three ot which the steward debited 
 months' interest," followed by himself with rents received for 
 other entries connected there- A., but on the opposite side 
 with, and pointing to such a credited himeelf with certain 
 lo^n, are admissible, though disbursements and the tenants 
 forming the only evidence of with certain allowances; — held, 
 the loan (Taylor v. Witham, 3 inadmissible to prove the dis- 
 Ch. D. 605). bursements and allowances, the 
 
 debit and credit items not being 
 connected together by any spe- 
 cific reference \_Doe v. Beviss, 7 
 C. B. 456 ; so, where the debit 
 and credit items were merely 
 connected by a balance struck, 
 Wkaley v. Carlisle, 15 W. E. 
 1183; 17 Ir. C. L. R. 792]. 
 
 DECLARATIONS IN COURSE OF DUTY De- 
 clarations, oral or written, made by deceased persons 
 in the ordinary course of duty, contemporaneously 
 with the facts stated, and without motive to mis- 
 represent, are admissible in proof of their contents 
 [287-293]. 
 
 Principle. — The grounds of reception are (1) death; 
 and (2) the presumption of truth whiclh arises from the 
 mochanical and generally disinterested nature of entries 
 made in the routine of duty, and their constant liability, 
 if false, to be detected. 
 
 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 responsibility, is 
 insufficient {R. v. Worth, 4 Q. B. 132; Massey v. Allen, 
 13 Ch. D. 558). And the duty must not be a general 
 one, involving a variety of acts that may change from 
 time to time', but specific and two-foJd — i.e., to do a 
 particular act and to record or report it when done 
 (Smith V. Blakey, L. E. 2 Q. B. 326), though a rigid 
 enforcement of this condition would conflict with 
 several of the cases in which the evidence has been 
 received. 
 
88 THE LAW OF EVrDENCE. [book ii. 
 
 Contemporaneousness (b). — Tho declarations must 
 have been made contemporaneously with the facts 
 recorded {Doe v. Turford, 3 B. & Ad. 890; Smith v. 
 Blakcy, supra); which term, however, is not to be con- 
 strued in the Btrict sense applicable to declarations that 
 are a part of the res gesta {ante, 17) ; nor in the loose tfne 
 applicable to entries in public registers, or memoranda 
 to refresh the memory of a witness {post, 107, 148-9). 
 The entry should be made at, or near, the time of the act 
 — a record in the evening of an act done the same morn- 
 ing has been received {Price v. ToiTington, 1 Salk. 285) ; 
 while an interval of two days has sufficed to exclude 
 {The Henry Coxon, infra). 
 
 Collateral Facts, Personal Knowledge, Motive to 
 Misstate, Contradiction (c). — The declarations, unlike 
 those against interest, 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 {Chambers v. 
 Bcrnasconi, 1 C. M. & E. 347; Smithv. Blalcey, supra) ; 
 and a motive to misstate will exclude them {The Henry 
 Coxon, 3 P. i). 156). 
 
 The entries cannot be contradicted or explained by 
 subsequent declarations of the deceased {Stapylton x. 
 Clough, 2 E. & B. 933; cp. ante, 83). 
 
 EXAMPLES. 
 Admissible. Inadmissible. 
 
 (a) To prove-that A. deliyered (a) To prove the terms on 
 
 certain beer to B. ; — an entry of which A., a farmer, hired B., a 
 
 the delivery made in A. 'b booka labourer; — a. memorandum of 
 
 at night by his drayman (de- the transaction, made at the 
 
 ceased), whose duty it was to time by A. (deceased) in his own 
 
 deliver the beer during the day, books, andlaccording to his usual 
 
 and afterwards to make the custom, is inadmissible, there 
 
 entry, is admissible {Price v. being merely a .practice and not 
 
 Torrington, 1 Salk. 285). a duty to make the entries {R. 
 
 Entries made by a deceased v. Worth, ante, 85). 
 
 surveyor in his field-book for the To prove the terms on which 
 
 purpose, and at the time, of a A. sent goods to B. ; — a letter, 
 
 survey on which he was pro- stating the terms, and written 
 
 fessionally employed, held ad- by the deceased manager of tho 
 
 jnissible as in the discharge of branch at which the goods were 
 
CHAP, xvra.] DECLARATrONS IN COURSE OF DUTY. 
 
 89 
 
 Inadmissible. 
 
 received, in pursuance of a duly 
 to keep his principal informed of 
 nil business done at that branch, 
 is not admiBsiblo, the manager's 
 duty being a general and not a 
 specific one {Smith v. Blakey, 
 L. B. 2 Q. B. 326 ; ante, 19, 85). 
 
 To prove the purchase of 
 shares for a client; — an cnti-y 
 made by a deceased stockbroker 
 in his day-book that he had 
 bought the shares for the client, 
 is inadmissible, there being no 
 duty to make the entries (Massey 
 V. Allen, 13 Ch. D. 558). 
 
 (b) & (c) The question being 
 which of tw6 ships was to blame 
 for a collision occurring on a 
 certain Saturday;— an entry of 
 the circumstances of the collision 
 made by a deceased nflate in the 
 ship's log on the following 
 Monday — held inadmissible — 
 (1) The acts recorded having 
 ben done by third persons and 
 not by the deceased ; (2) the 
 entries not being contemporane- 
 ous ; and (3) it being in the 
 interest of the declarant to 
 represent the collision as occur- 
 ring through the fault of the 
 other ship (The Henry Coxon, 
 3 P. D. 156). 
 
 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 by 
 liim to the sheriff, held inadmis- 
 sible, on the ground that the 
 duty merely required the fact 
 and time, but not the place, of 
 the arrest to be returned 
 (Chambers v. Bernasconi, 1 
 C. M. & R. 347; cp. post. 111). 
 
 DECLARATIONS AS TO PUBLIC RIGHTS 
 
 Declarations by deceased persons of competent 
 
 Admissible. 
 
 professional duty (Mellor v. 
 Walmsley, 1903, 2 Ch. 104, 
 167-8, C. A.). 
 
 To prove service of a notice to 
 quit on A. 's tenant ; — an indorse- 
 ment 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 
 servo the notice, is admissible; 
 though not a subsequent oral 
 declaration that he had served it 
 on the wrong person [Stapyl- 
 ton V. Clough, 2 E. & B. 933]. 
 It has been doubted whether the 
 duty of a solicitor to his client 
 is within the rule, but the great 
 weight of authority is in the 
 affirmative. 
 
 To prove the contents of A.'s 
 lost will, — a copy thereof, made 
 by a deceased clerk of the solici- 
 tor to the executor of the will, 
 endorsed "A.'s will"; — held 
 admissible (Sly v. Sly, 2 P. D. 
 91; ante, 86; post, 166). 
 
 Entries made by a deccasjtd 
 surveyor in his field-book lor 
 the purposes and at the time of 
 a survey on which he was 
 employed (Mellor v. Walmsley, 
 cited supra), together with 
 his estimates and reports as to 
 the cost of roads, made to road- 
 trustees (North Staff. Ry. v. 
 Hanley, 26 T. L. B. 20);— are 
 evidence of the matters con- 
 tained. Aliter, perhaps, if the 
 reports consist mainly of matters 
 of opinion (Re Djambi Estates. 
 107 L. T. 631, C. A.). 
 
90 THE LAW OF EVIDENCE. [dock ii. 
 
 knowledge, made ante litem motam, arc admissible 
 ill proof of ancient rights of a public or general 
 nature [294-306]. 
 
 Principle. — The grounds of admission arc (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 tlie danger of misstatements 
 by exposing them to constant contradiction. Evidence 
 of this kind is often loosely referred to as Reputation 
 (post, 116). 
 
 What are matters of Public and General Interest (a). 
 — The right or interest involved must be of a pecuniary 
 or proprietary nature (R. v. Bedfordshiie, 4 E. & B. 
 535; cp. mite, 83). Public Rights 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 com- 
 munity — 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 com- 
 monly or correctly known, and are more liable to be 
 misrepresented. Where, however, the . question is, 
 whether a right is public or private (R. v. Bliss, 7 A. & 
 E. 550); or the private right is identical with a public 
 one (Thomas v. Jenkins, 6 A. & E. 525), such declara- 
 tions are receivable. 
 
 Competent Knowledge (b). — In the case of public 
 rights, all being concerned are 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, competency must be shown 
 oxtrinsically {Crease v. Barrett, 1 C. M. & R. 928-9), 
 e.g., by their connection with the locality, or by the 
 circumstances under which the declarations were made 
 {Freeman v. PhiUipps, 4 M. & S. 486). 
 
 Lis Mota and Interest (c). — To prevent bias, the 
 declarations must have been made ante litem motam — 
 
CHAP, xvni.] DECLABATIONS A3 TO PUBLIC EIGHTS. 91 
 
 I.e., before the commencement of any controversy, not 
 merely legal but actual, involving the same subject- 
 matter. Declarations made after such a dispute has 
 arisen are inadmissible, although the dispute was 
 unknoioi to the declarant {Berkeley Peerage, 4 Camp. 
 417); or waq fraudulently commenced with a view to 
 excluding the declarations [Sheddcn v. A.-G., 30 
 L. J. P. 217). 
 
 On the other hand, declarations as to the right will be 
 received though made for the express purpose of pre- 
 venting future disputes (Berkeley Peerage, sup-a); or 
 after a claim had been asserted, but finally abandoned 
 (Hubb. Ev. ef Sue. 668) ; or after the existence of non- 
 contentious legal proceedings involving the same right 
 (Brisco V. Lomax, 8 A. & E. 198) ; or after the existence 
 of contentious legal proceedings involving the same 
 right only collaterally and not directly [Freeman v. 
 Phillipps, supra). 
 
 Interest. — Declarations made in direct support of a 
 claim contemplated to be brougjht by the declarant, or 
 otherwise obviously to subserve his own interest, will be 
 rejected {Brocklebank v. Thompson, 1903, 2 Ch. 351-3; 
 cp. post, 96, 97); but if no dispute has arisen, or claim 
 been contemplated, the facts 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, affect only weight, not admissibility [Doe v. 
 Davies, 10 Q. B. 314). 
 
 Particular Facts (d). Corroboration.— The declara- 
 tions must relate to the general right, and not to parti- 
 cular facts which support or negative it; for the latter, 
 not being equally notorious, are liable to be misrepre- 
 sented or misunderstood, and may have been connected 
 with other facts which, if known, would qualify or 
 explain them. 
 
 Declarations have been received, however, which not 
 only directly negative a general right, but which 
 indirectly do so — e.g., by setting up an inconsistent 
 private claim, or by omitting all mention of it where 
 mention might reasonably be expected (Tay. a. 620). 
 
 Corroboration. — It is not essential to admissibility. 
 
92 THE LAW OP HVIDBNCB. [book ii. 
 
 though it is to weight, that the declarationa should be 
 eoiToborated by proof of the exercise of the right within 
 living memory {Crease v. Bairett, 1 C. M. & B. 919). 
 
 Form of the Declarations. — The declarations may 
 have been made in the form of oral statements ; deposi- 
 tions in former suits; old deeds and leases (copies, 
 though admissible as secondary evidence, are not 
 receivable per se, tlie contents of documents being in 
 the nature of a particular fact and so not provable by 
 reputation : Doe v. Whitcomb, 6 Ex. 601) ; private maps 
 if made by, or under the direction, or from the informa- 
 tion of, deceased persons of competent knowledge 
 (Smith V. Lister, 72 L. T. 20; Mercer v. Dome, 1905, 
 2 Ch. 561, 568; A.-G. v. Horner, 1913, 2 Ch. 140. 
 153-6) ; or used by such persons to define the general 
 right and not merely particular matters (Smyth v. 
 Lister, supra); and ancient, but git. modem, public 
 surveys made under competent pubhc authority (Free- 
 man v. Read,4:B. &. S. 174). 
 
 Manor Books and Presentments are also sometimes 
 received under this head (Roe v. Parker, 5 T. E. 31-2), 
 though more often as public documents (post, 109) or 
 acts of ownership (a?i<e, 27); as also are Verdicts and 
 Judgments, though not mei"e Aieards or unprosecuted 
 claims. 
 
 EXAMPLES. 
 Admissible. Inadmissible. 
 
 (a) The following have been (o) The following have been 
 
 held to be matters of fuhlic or held to be matters of a pncofe 
 general -interest : — nature : — 
 
 Questions as to the boundaries Questions as to the boundaries 
 
 of a county, town, parish, manor of two private estates ifilothicr 
 or hamlet (Nicholls v. Parker, v. C/iopma7i, 14 East 331 m.); or 
 14 East 331 n.). of a waste over which some 
 
 The question whether a cer- t^ants only of a manor claimed 
 tain road was a public highway a right of common {Dunraven v. 
 or not (B. v. Bliss, 7 A. & E. Llewellyn, 15 Q. B. 791); or of 
 550; R. v. Berger, 1894, 1 Q. B. a highway, on a charge against 
 p. 827). an adjoining landowner of ob- 
 
 struction \^R.\. Berger, opposite ; 
 here the question was not 
 whether the land obstructed was 
 a highway or not, but whether 
 it formed part of an admitted 
 
CHAP. XVIII.] DECLARATIONS AS TO PUBLIC RIGHTS. 93 
 
 Admissible. 
 
 A custom of electing the 
 churohwardena ot a parish 
 (Berry v. Banner, Pea. R. 156). 
 
 (b) To prove a custom of a 
 manor ; — declarations by de- 
 ceased tenants of, or even mere 
 residents in, the manor are ad- 
 missible (DunravenM. Llewellyn, 
 15 Q. B. 791).— So, to prove a 
 custom of mining, declarations 
 by deceased owners of the sur- 
 face, for though they had no 
 interest in the mines they were 
 more likely to become adven- 
 turers than those at a distance 
 (Crease v. Barrett, supra). 
 
 So, competent knowledge will 
 be presumed from the declarants 
 having been called as witnesses 
 in an ancient suit (Freeman v. 
 Phillipps, 4 M. & S. 486) ; or be- 
 coming parties to an Inclosure 
 Act (Carnarvon v. Villebois, 13 
 M. & W. 313). 
 
 (c) The question being as to 
 the boundaries between two 
 manors ; — a verdict in former 
 non-contentious proceedings on 
 the joint petition of previous 
 owners of the two manors al- 
 leging that disputes as to the 
 boundary were likely to arise, 
 is admissible (Brisco v. Lomax, 
 8 A. & E. 198; Gee v. Ward, 
 7 E. & B. 509). So, to prove 
 the mode of assessment of a 
 customary fine; — depositions in 
 an ancient suit against a former 
 lord, in which only the ainount 
 of the fine, and not its mode of 
 assessment, was in question, are 
 admissible, the lis mota being 
 different (Freeman v. Phillipps, 
 4 M. & S. 486). 
 
 (d) The question being whether 
 a road was public or private ; 
 — declarations by deceased resi- 
 
 Inadmissible. 
 
 highway, or was the private 
 property of the defendant]. 
 
 A custom of electing the 
 master of a grammar school 
 (Witlmell V. Gartham, 1 Esp. 
 322). 
 
 (b) 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 irre- 
 gular judicial inquiry, are in- 
 admissible (Rogers v. Wood, 2 
 B. & Ad. 245). 
 
 (c) The question being as to 
 a right of common in a manor; 
 — declarations as to the right 
 made by deceased manor tenants 
 during a former (although irre- 
 gular) inquiry, as to the same 
 right, are inadmissible, being 
 post litem motam (Richards v. 
 Bassett, 10 B. & C. 6S7). 
 
 (d) The question being whether 
 a road was public or pri- 
 vate ; — declarations by a 
 
m THE LAW OF EVIDENCE. [book ii. 
 
 Admissible. Inadmissible. 
 
 dents in the neighbourhood that deceased resident in the neigh- 
 it was public (Creose v. Barretf, hourhood that he had seen 
 1 C. M. & E. 928-9) ; or private repairs done upon it (fl. v. Bliss, 
 (Drinhwatefi.y. Porter, 7 C. k P. 7 A. & E. 550) ; or proof that he 
 181), are admissible. 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 
 
 {ibid.) ; — are inadmissible as 
 
 relating to particular facts. 
 
 To prove that the boundary of To prove that a town extended 
 
 a town extended to a certain to a certain spot, declarations 
 
 spot, declarations by deceased by deceased inhabitants that 
 
 inhabitants that it extended houses formerly stood at that 
 
 thither are receivable (Ireland spot, are inadmissible (Ireland 
 
 V. Powell, Pea. Ev. 16). v. Poioell, opposite). 
 
 DECLARATIONS AS TO PEDIGREE Declara- 
 tions made by deceased relatives, ante litem motam, 
 are admissible to prove matters of pedigree 
 [307-317]. 
 
 Principle. — The gi-ounds of reception are (1) death; 
 (2) 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, infonnation on sucli subjects 
 (Tay. s. 635). 
 
 What are matters of Pedigree (a). — The declarations 
 are only receivable when the facts involved ar-e required 
 to be proved for eofne genealogical purpose, i.e., when 
 the pedigree to which they relate is in issue, and not 
 merely relevant to the issue (Steph. art. 31). 
 
 The term ' ' matter of pedigree ' ' is thus confined pri- 
 marily, to issues involving family skcccss/ow (testate or 
 intestate), relationship, and legitimacy; and secondly, 
 to such particular incidents of family history as are 
 immediately connected with, and required for the proof 
 of, such issues — e.g., the birth, marriage, and death of 
 
CHAP, xviii.] DECLAEATIONS AS TO PBDIGKEE. f-S 
 
 members of the family, -with the respective dates and 
 places oE those events; their celibacy, issue or faihire of 
 issue; as well, probably, as occupation, residence, and 
 similar incidents of domestic history necessary to 
 identify them. 
 
 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 required for some genealogical pur- 
 pose (Hai7ics V. Guihrie, 13 Q. B. D. 818), they will be 
 rejected. 
 
 Declarants must have been Blood Relations or their 
 Consorts. — The declarations are only receivable from 
 persons who were legitimately connected by blood with 
 the family in question, or from tJheir husbands or wives 
 (whether the marriage was subsisting or not) ; and not 
 from mere relatives of the latter {Shrewsbury Peerage, 
 7 H. L. C. p. 23); nor from friends, sei-vants, or neigh- 
 bours of the family (Johnson v. Laic son, 2 Bing. 86). 
 Moreover it seems doubtful whether the legitimate 
 members of a family may, by their declarations, 
 impeach the legitimacy of their reputed relations, since 
 the latter, tihough de facto related, would be de jure 
 strangers (Crispin v. Doglioni, 32 L. J. P. & M. 109; 
 Plant V. Taylor^ 7 H. &. N. 211); declarations, however, 
 operating indirectly to this effect, e.g., by impeaching 
 the validity of the mairiage, or stating the birth to have 
 preceded it, are receivable (Murray v. Milner, 12 Ch. D. 
 849; Re Turner, 29 ibid. 985). Declarations by 
 deceased illegitimates are wholly inadmissible, for a 
 bastard being filius titiUius can have no relations (Doe 
 V. Barton., 2 M. & R. 28; Doe v. Davies, 10 Q. B. 814) ; 
 though if confined to his own illegitimacy they may be 
 evidence as admissions, or as statements against 
 interest (Re Perton, ante, 65, 85). 
 
 Competent Knowledge. Hearsay upon Hearsay. 
 Contemporaneousness (b). — It is not necessary that the 
 declarant should have had personal knowledge of the 
 facts stated ; it is sufficient if his information purported 
 to have been derived from other relatives, or general 
 family repute, or even " what he has heard," provided, 
 
96 THE LAW 03? EVIDENCE. [book it. 
 
 such ' ' hearsay upon hearsay ' ' does not directly appear 
 to have been derived from strangers (Sheddon. v. A.-G., 
 30 L. J. P. & M. 217; Davies v. Loumdes, 6 M. & G. 
 p. 527). Nor need the declarations refer to contem- 
 poraneous events; statements as to matters occumng 
 many generations before have been received (Davies v. 
 Lowndes, supra). 
 
 Lis Mota and Interest (c). — The declarations are in- 
 admissible if made post litem vfiotam (ante, 90), or 
 obviously to subserve interest (Plant v. Taylor, 7 H. & 
 N. 211). 
 
 Form of the Declarations. — The declarations may be 
 in the form of oral statements ; family correspondence ; 
 recitals or descriptions in 8ettleme7its and Wills (even if 
 cancelled or invalid, provided that in the case of wills 
 the original is produced, probate being here secondary 
 evidence only: post, 164); entries in Alman^ics and 
 Prayer-books; or inscriptions on tombstones, coffin- 
 plates, rings, portraits, and the like, which if proved to 
 have been made by a deceased relation, will be I'eceived 
 as his declarations, but if publicly exhibited, will be 
 admitted on the presumption of family acknowledg- 
 ment, though their authors be alive (Tay. s. 652). 
 
 Family Bibles stand upon a somewhat different foot- 
 ing, not because of the sacred nature of the volume, but 
 from the custom of using it as a family register. Entries 
 therein are receivable on the grounds of publicity and 
 family acknowledgment, without proof of identity, rela- 
 tionship, or (presiunably) death (Hubbard v. Lees, 
 L. E. 1 Ex. 255). Family repute and conduct, or even 
 in some cases the repute and conduct of strangers, are 
 also admissible (ante, 30); as well as old Ansu-cts in 
 Chancery provided the pedigree facts were not in dis- 
 pute, but merely incidentally mentioned (Lyell v. 
 Kennedy, 14 App. Cas. 437). 
 
 EXAMPLES. 
 
 Admissible. ' Inadmissible. 
 
 (o) B. claims freehold pro- (a) A. aa reversioner, sues B. 
 
 perty as heir-at-law to A. ; — who, as tenant pour autre vie 
 
 the death of A. and of any of bis had held over after the death of 
 
CHAP. XVIII.] DECLARATIONS AS TO PEDIGREE. 
 
 97 
 
 Admissible. 
 
 relations entitled in priority to 
 B., may be proved by family 
 repute as matters of pedigree 
 (Doe V. Griffin, 15 East 293). 
 The same proof is admissible on 
 an application by B. to adminis- 
 ter- the personal estate of A. (Be 
 Thompson, 12 P. D. 100).— So, 
 where A. had devised lands to 
 his son B. for life, then to B.'s 
 Fjons, C. , D . and E . in succession ; 
 ini an action by E. to recover 
 the lands, the deaths of B., C. 
 and D., may be similarly proved 
 (Palmer v. Palmer, 18 L. E. Ir. 
 192). 
 
 (6) To prove the descent of 
 A. ; — a pedigree in the hand- 
 writing o£ one of A.'s ancestors, 
 purporting to be derived partly 
 from personal knowledge and the 
 information of other deceased 
 relations, held admissible as to 
 such part -(Dajjies v. Lowndes, 6 
 M. & G. 522-9). So, a declaration 
 by A. (deceased) as .to his own age 
 or birthplace, is admissible, pro- 
 vided the matter be one of pedi- 
 gree, though such statements are 
 necessarily founded on hearsay 
 (Stttriav. Freccsa, 5 App. Gas. 641). 
 
 (c) In an action by B. to re- 
 cover land as heir-at-law to A. ; 
 — an affidavit stating B.'s rela- 
 tionship to A. and made by a. 
 deceased relative in a previous 
 non-contentious proceeding in 
 Chancery, in which an inquiry 
 was directed as to who was A.'s 
 heir and next-of-kin , held ' ad- 
 missible, such a proceeding not 
 constituting a lis inota (Gee v. 
 Ward, 7 E. & B. 509). 
 
 L.E. 
 
 Inadmissible. 
 
 C, the cestui que vie, tor use 
 and occupation. The death of C. 
 cannot be proved by the declara- 
 tions of deceased relatives, not 
 being a matter of pedigree 
 (Whittuck V. Waters, 4 C. & P. 
 375). 
 
 A. sues B. for goods sold, to 
 which B. pleads infancy; — B.'s 
 age cannot be proved by an 
 affidavit of the infant's, deceased 
 father made ' in a previous 
 Chancery action to which the 
 plaintiff was not a party (Haines 
 V. Guthrie, 18 Q. B. D. 818). 
 
 Inquiries as to the birth settle- 
 ment of a pauper (R. v. Erilh, 8 
 East 539); or the age of the 
 deceased in an action on a lite 
 policy (Splents V. Lefevre, 11 
 L. T. N. S. 117) are not ques- 
 tions of pedigree. 
 (b) To prove the descent of A. ; 
 — a pedigree in the handwriting 
 of one of A.'s ancestors, purport- 
 ing to be derived partly from 
 " parish registers, wills, monu- 
 mental inscriptions, family his- 
 tory and records " (not shown to 
 be lost), held inadmissible as 
 to such part (Davies v. Lowndes, 
 opposite). 
 
 To prove A.'s age : a report 
 by a Government committee as 
 to his fitness for a consulship, 
 which report mentioned his age, 
 is inadmissible (post. 111). 
 
 (c) The question being whether 
 B. was the legitimate son of 
 A. by his second wife, and proof 
 having been given that A.'s first 
 wife was alive at the time of his 
 second marriage, a declaration 
 by A. (deceased) that the hus- 
 band of his first wife was living 
 when A. married her, is inad- 
 missible, as obviously in A.'s 
 own interest (Plant'v. Taylor, 
 7 H. & N. 211 ; cp. Dysart Peer- 
 age, 6 App. Cas. 497-503). 
 
98 THE LAW OF BAaDENCB. [book ii. 
 
 DYING DECLARATIONS AS TO HOMICIDE — 
 
 In trials for murder or manslaughter the dying 
 declarations of the deceased, made under the sense 
 of impending death, are admissible to prove the 
 circumstances of the crime [318-323]. 
 
 Principle. — The grounds of admission are (1) death; 
 (2) necessity, for the victim being generally the only 
 eye-witness to such crimes, the exclusion of his. state- 
 ment might defeat the ends of justice ; and (3) the seji.sc 
 of impending death, which creates a sanction equal to 
 the obligations of an oath. 
 
 Homicide of Declarant (a). — The declarations are not 
 admissible upon charges other than homicide; or as to 
 homicides other than that of the declarant (B. v. Hind, 
 8 Cox 300). 
 
 Condition at Time of Declaration (b). — And the 
 deceased must be proved to the satisfaction of the judge 
 to have been, at the time of making the declaration, in 
 actual danger of death, and to have abandoned all hope 
 of recovery. If these conditions concur, it is imma- 
 terial that he lingeredfor some days, or even weeks {R. 
 V. Bernadotti, 11 Cox 316), or subsequently entertained 
 hope {R. V. Hubbard, 14 Cox 565). There must, how- 
 ever, have existed a " settled, hopeless, expectation of 
 death," not qualified by any prospect of recovery, how- 
 ever slight; and the weight of authority requires a 
 belief, not, indeed, in an immediate death, but in an 
 impending and imminent, as distinguished from a 
 deferred, one (R. v. Peny, 1909, 2 K. B. 697). 
 
 The declarant's mental condition may be infened 
 from his own statements at the time ; his conduct (as in 
 taking leave of his friends, giving directions for his 
 funeral, receiving extreme unction, &c.) ; the opinions 
 of medical or other attendants expressed to him; the 
 serious nature of the injury received, and other atten- 
 dant circumstances. 
 
 Competency and Credibility.— The declarant must 
 have been competent as a witness; thus, imbecility or 
 tender age will exclude the declaration (R. v. Dnim- 
 
CHAP, xvm.} DECLABATIONS AS TO HOMICIDB. 
 
 99 
 
 mond, 1 Leach C. C. 338). And his oredibihty may, 
 peiihaps, be impeached in the same manner as that of a 
 witness {ibid; see ante, 83). 
 Subjeot and Form, &o., of the Declarations. — The 
 
 declarations are only admissible to prove the cause of, 
 and circumstances of the ti'ansaction resuUing in, death, 
 and not previous or subsequent transactions, although 
 relevant to the issue (B. v. Mead, 2 B. & C. 605). Nor 
 may they include hearsay, or irrelevant matter (Tay. 
 s. 720); though opinions have been received {R. v. 
 Scaife, infra). They are not, however, incompetent, 
 through being made in response to leading questions 
 {R. V. Smith, 10 Cox 82), or taken as depositions and 
 proving invahd as such {R. v. Woodcoch, 1 East P. C. 
 856). 
 
 EXAMPLES. 
 
 (a) 
 
 Admissible. 
 A. is charged with the 
 
 murder of B. ; — a dying declara- 
 tion by B. that A. had murdered 
 him is admissible against A. 
 (B. V. Monley, 1 Moo. 97) ; and 
 one that "I don't think A. would 
 have struck me if I hadn't pro- 
 voked him," is admissible in 
 A.'s favour (R. v. Scaife, 1 
 Moo. & Bob. 551). 
 
 (b) Declarations have been 
 received after proof of the fol- 
 lowing expressions by the de- 
 ceased : — 
 
 " Be quick, or I shall die " (R. 
 V. Beriiadotti, 11 Cox 316). "I 
 am dying, look to my children " 
 (R. V. Goddard, 15 Cox 7). " I 
 have seen the surgeon to-day and 
 he has given me some little hope 
 that I am better; but I do not 
 myself believe that I shall ulti- 
 mately recover .... I cannot 
 recover." [ R . v . Reaney , 7 Coii 
 209. In this case much stress 
 was laid on the word "ulti- 
 mately" as a reason for reject- 
 ing the declaration ; but it was 
 held that it did not, under the 
 circumstances, import a belief 
 
 Iitadmissible. 
 
 (a) A. ia charged with the 
 murder of B. ; — a dying declara- 
 tion by C. that he and not A. 
 had murdered B., is inadmis- 
 sible (R. V. Gray, ants, 61, 79). 
 
 A. is charged with robbing 
 B. ; — a dying declaration by B. 
 as to the circumstances of tlio 
 robbery is inadmisaihle (R. v. 
 Lloyd, 4 0. & P. 233). 
 
 (b) Declarations have been 
 rejected after proof of the fol- 
 lowing expressions by the de- 
 ceased :. — 
 
 " I tliink myself in great 
 danger " (R. v. Errinqtmi, 2 
 Lew. C. C. 148). "I think I shall 
 not recover, as I am very ill " 
 {R. V. Spilsbury, 7 C. & P. 187). 
 " I hope I shall get well, but do 
 not think so. I give the follow- 
 ing directions in case I die " (R. 
 V. Gloster, 16 Cox 471 ; ante. 19). 
 " I have no hope of recovering, 
 unless i"- be the will cf God " (R. 
 V. Murphy, 1 Ar. M. & 0. 206). 
 
 The deceased, having made a 
 statement, which was taken 
 down ill writing by a third 
 person, concluded, " I make the 
 
100 THE LAW OF EVIDENCE. [book ir. 
 
 Admissible. Inadmissible. 
 
 in a deferred, as opposed to an above statement with the fear 
 impending, death.] of death before nie, and with no 
 The deceased himself had no,^. hope of recovery." Afterwards, 
 hope of recovery, though his on the statement being read over 
 doctor had a hope and had ex- to her, she altered it to, " with 
 pressed it to him. Declaration no hope at present of my re- 
 admitted (R. V. Mosley, 1 Moo. covery." Declarationrejected(B. 
 97 ; R. V. Peel, 2 F. & F. 21). v. Jenkins, L. E. 1 C. C. E. 187). 
 
 DECLARATIONS BY TESTATORS On ques- 
 tions involving the factum, contents, or interpre- 
 tation of a will, tlie declarations of the deceased 
 testator are admissible, not as evidence of the truth 
 of the matters asserted, but to show his state of 
 mind at the time [324-334]. 
 
 Principle. — The declarations included under this 
 head are treated in the present connection for conveni- 
 ence, and because they have sometimes been regarded 
 as forming an exception to the hearsay rule on account 
 of the (1) death, (2) peculiar vieans of l;nowledge, and 
 (3) absence of interest to misrepresent of the declarant 
 [Ros. N. P. 55; Steph. art. 29, on the authority of 
 Sugden v. St. Leonards, infra.]. This, however, is 
 incorrect, and it is to be observed that in no other case 
 will mere absence of interest, though coupled with 
 special means of knowledge, suffice to admit the 
 declai-ations of deceased persons as exceptions to the 
 rule. 
 
 Admissible as Original Evidence; Inadmissible as 
 Hearsay. — When, as most commonly happens, such 
 declarations are tendered not to prove the truth of the 
 facts stated, but to show the knowledge, intention, 
 sanity, or other mental state of the test-ator, it is mis- 
 leading to consider them as exceptions to the hearsay 
 rule. Their admissibility does not depend on all, or 
 any, of the conditions above mentioned. They are 
 original evidence receivable either (1) as part of the res 
 gesta (Johnson v. Lyford, L. R. 1 P. & D. 546), in 
 which case they must have been mEide cont>emporane- 
 ously with the testamentary act (ante, 17) ; or, more 
 
CHAP, xvm.] DBCLARATtONS BV TESTATOKS. tOl 
 
 usually in this coiinection, (2) as presumptive evidence 
 of the mental condition which they manifest (atUe, 18), 
 in which case it is, in general, immaterial to admissi- 
 bility as distinguished from N^eight, whether they were 
 made before, at, or after such act, or whether in fonn 
 they expressed a future intent, or assei-ted a past fact 
 {cp.Kecn v. Keen, post, 103). 
 
 On the other hand, declarations by testators, when 
 tendered to prove the testamentary facts asserted, e.g., 
 the execution, or revocation, of the will, or the date of 
 alterations therein, have, with the well-known excep- 
 tion mentioned below, been uniformly excluded as hear- 
 say {Doe V. Palmer, 16 Q. B. 747; Atkinson v. Morris, 
 1897, P. 40, C. A.). In Sugdcn v. St. Leonards, 1 P. D. 
 154, however, the majority of the C. A. held that post- 
 testamentary declarations were admissible to pro'Ve the 
 contents of a lost \^'in, as exceptions to the hearsay rule, 
 i.e., as statements by a deceased person with peouhar 
 means of knowledge, and without interest to misrepre- 
 sent. This ruling, which was dissented from by 
 Alellish, L.J., and subsequently doubted in Woodward 
 V. Gouhtone, 11 App. Cas. 469, and by the C. A. in 
 Atkinson v. Morris, supra,, seems contrary to principle; 
 though it is conceived that had such declarations been 
 tendered, not as direct hearsay proof of the contents of 
 the will, but merely as original evidence of a continuing 
 intention on the part of the testator, i.e., of his intent 
 remaining the same after, as before, its execution (see 
 Gould V. Lakes, infra 103), they might have been 
 received. Sugden v. St. Leonards has been criticized 
 by Prof. Thayer as a case " remarkable for many ill- 
 considered dicta as to the hearsay exceptions and the 
 rules of evidence in general " (2 Harv. Law Rev. 94). 
 
 Factum of Will : Execution, Identity, Validity, Re- 
 vocation (fl). — Declarations of intention, either before, 
 at, or after the execution, are admissible as original 
 evidence to support or rebut the inference of due execu- 
 tion, arising from a partial compliance with the statute 
 {Clarke v. Clarke, 5 L. E. Ir. 47), to identify the will 
 or its constituent papers {Gould v. Lakes, 6 P. D. 1), to 
 show whether it was signed animo tesiandi {Re Slinn, 
 
103 THK TjAW of EVIDENCE. [Book n. 
 
 15 P. D. 156}, or oircumstantially to impeaoli its validity 
 on the ground of fraud, etc. {Doe v. Hardy, 1 M. & E. 
 525). They are also receivable to show whether the 
 destruction of a will was done aninio revocandi (Giles v. 
 Warren, L. R. 2 P. & D. 401), as well as to rebut, or in 
 reply to support, the presumption of destruction cmimo 
 revocandi arising from the will not being forthcoming 
 at death {Keen v. Keen, L. R. 3 P. & D. 105). On the 
 other hand, direct assertions by the testator that he has 
 executed or revoked the will [Atkinson v. Morris, 1897, 
 P. 40), or that it was invalid because obtained by fraud, 
 etc. (Provis v. Reed, 5 Bing. 435) are inadmissible ns 
 hearsay. 
 
 Contents. Alterations and Mistakes (b). — Declara- 
 tions by testators hav(i, as we have seen, been received 
 as secondary evidence of the. contents of a lost will 
 {Sugden v. St. Leonards, ante, 101; post, 104); and to 
 rebut the presumption of law, that alterations in the 
 will were made after execution [Doe v. Palmer, supra); 
 \^'hile mere hearsay assertions by the testator to the 
 same effect would be inadmissible (ibid.). And declara- 
 tions showing the testator's ignorance of words mis- 
 takenly inserted in his will, are admissible on an 
 applicatioji to strike out such words (Morrell v. MorreU, 
 7 P. D. 68; post, 180). 
 
 Interpretation. — Tlie above two headings deal with 
 declarations by testators admitted as original evidence 
 or rejected as hearsay. Under the present head, a fur- 
 tlier distinction has to be observed between declarations 
 which are indirect or circumstantial evidence of int-en- 
 tion (i.e., showing merely the state of the testator's 
 knowledge, feelings, or habits of speech), and his direct 
 statements of intention, the former being admissible, 
 generally, in aid of interpretation, the latter being 
 receivable only to solve an equivocation [post, 187-8, 
 194. As to the admission of direct declarations to 
 rebut a presumption, see post, 205-6]. 
 
 EXAMPLES. 
 Admissible. Inadmissible, 
 
 (a) An attestation clause stated (a) Declarations by A. (de- 
 
 that the will was signed by A. ceased) that " she had executed 
 
cuAV. xviii.] DECLAKATLONS fiY TESTATOKS. 
 
 loa 
 
 Admissible. 
 
 " in the presence of two wit- 
 nesses." To prove that all three 
 were present together, declara- 
 tions by A. on his death-bed 
 acknowledging the validity of 
 the will, held admissible as pre- 
 sumptive evidence that, as he 
 knew of and had complied with 
 the other statutory formalities, 
 he probably knew, of and had 
 complied with this one (Chirhc 
 v. Clarke, 5 L. R. I. 47, C. A.). 
 
 So, declarations by A. that he 
 had burnt his will, are admis- 
 sible, not as evidence of destruc- 
 tion, but to show an intent to 
 destroy {Keen v. Keen, L. E. 3 
 P. & D. 105). 
 
 To prove that certain papers 
 formed part of A.'s will; — de- 
 clarations made by A. before exe- 
 cuting the will that he intended 
 to leave his property in a par- 
 ticular manner (which corre- 
 sponded with the disposifiona 
 contained in those papers) ; and 
 declarations after the execution 
 that he had so left his property ; 
 — Held admissible. [Gould v. 
 Lakes, 6 P. D. 1 ; the poit-testa- 
 mentary declarations were here 
 expressly received ' ' to show that 
 A.'s mind continued in the same 
 state after the will as before."] 
 
 A. propounds -, will by B. in 
 which B.'s property is left to A. 
 C. contests the will as obtained 
 by fraud. Declarations by B. 
 before executing the will that he 
 intended to leave his property to 
 A. or to C. (respectively) would 
 be admissible • to support or 
 impeach the will {Doe v. Hardy, 
 1 M. & B. 625). 
 
 (t) A devise by A. " to B. in 
 fee," having been altered to " B. 
 for life, then to C"; — declara- 
 tions by A. before executing the 
 
 Inadmissible. 
 
 her will in duplicate and had 
 destroyed one part with the in- 
 tention of revoking it;" — held 
 inadmissible, as hearsay, to 
 prove either the execution of 
 the duplicate, or its revocation 
 by destruction {Atkinson v. 
 Morris, 1897, P. 40, C. A.; 
 Keen v. Keen, opposite). 
 
 A., under a devise from B., 
 claims land held by C. as B.'s 
 heir-at-law. C.'s defence is that 
 B.'s will was not duly executed. 
 Declarations by B. that " A. 
 drew up a paper and got me to 
 sign it — but it isn't valid. My 
 land goes to C." are inadmis- 
 sible as hearsay to prove those 
 facts, although bothf A. and C. 
 claim under B. {Provis v. Reed, 
 5 Bing. 435). 
 
 (h) The question being whether 
 certain alterations appsaring on 
 the face of a will, were made 
 before or after its execution ; — 
 
104 
 
 THE LAW OF EVIDENCE. 
 
 [DOOK II. 
 
 'Admissible. 
 
 will that he "intended to provide 
 for C." — are admissible to rebut 
 the presumption that the altera- 
 tion was made after execution 
 (Doe V. Palmer, 16 Q. B. 747). 
 So, to show that the deletion of 
 a revocation clause in a second 
 testamentary document was 
 made before execution, — declara- 
 tion by the testator after execu- 
 tion, treating the first will and 
 its provisions as still subsisting, 
 are admissible (fie Tonge, 66 
 L. T. 60). 
 
 To prove the contents of a 
 lost will ; — verbal instructions 
 for the will given by the deceased 
 testator ; a draft authenticated 
 by him ; and declarations as to 
 the provisions he was about to 
 make in it : — Held admissible, in 
 corroboration of a witness who 
 had read the will, and as show- 
 ing that the testator probably 
 made the dispositions which his 
 declarations showed he intended 
 to make. Declfirations after the 
 execution of the will that his 
 daughter would be wealthy and 
 enjoy the same comforts as she 
 was then doing, also held ad- 
 missible as exceptions to the 
 hearsay rule. £Sugden v. St. 
 Leonards, 1 P. D. 154, C. A.; 
 but see ante, 101, as to the 
 second point.] 
 
 hiadmissible. 
 
 declarations by the testator after 
 the execution, that they had 
 been made before it, are inad- 
 missible [Doe V. Palmer, oppo- 
 site ; Re Hardy, 30 L. J. P. 
 142]. 
 
(105) 
 
 CHAPTER XIX. 
 
 STATEMENTS IX PUBLIC DOCUMENTS. 
 
 [335-338.] 
 
 The third class of exceptions to the hearsay rule 
 consists of statements contained in public or official 
 documents; which, subject to the qualifications 
 hereinafter specified, are admissible in proof 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 
 a^dhorized agents of the public in the course of official 
 duty; and (2) that the facts recorded are of public 
 interest or notoriety. To which may be added (3) neces- 
 sity, since it would not only be difficult, but often impos- 
 sible, to prove facts of a public nature by means of 
 actual witnesses examined upon oath (Tay. s. 1591). 
 
 The following are the principal documents of this 
 description: — 
 
 (1) Statutes, Parliamentary Journals, and 
 
 Gazettes. 
 
 (2) Public Registers and Records. 
 
 (3) Public Inquisitions, Surveys, Assessments, 
 
 and Reports. 
 
 (4) Official Certificates. 
 
 (5) Corporation, Company, and Bankers' 
 
 Books. 
 
 (6) Public Histories, Maps, Almanacs, Tables, 
 
 &c. 
 
10« THF. LAW Olf EVIDEJS'CR. [book ii. 
 
 STATUTES, PARLIAMENTARY JOURNALS, 
 
 AND GAZETTES.— Eeoitals of public matters con- 
 tained in any PubliG Stcirtute, Royal Proclamation, 
 Speech from the Throne, or Parliamentary Journal, 
 are prima facie evidence of such matters, even against 
 strangers (R. v. Sutton, -i M. & S. 532; R. v. FrancMin, 
 17 How. St. Tr. 636-8; A.-G. v. Bradlaugh, 14 Q. B. D. 
 667). But Private Acts, though judicially noticed, are 
 not evidence against strangers eitlier of the facts recited 
 (B&aufort v. Smith, 4 Ex. 450) or as notice thereof 
 {Ballard v. Way, 1 M. & W. 529). So, the Government 
 Gazettes of London, Edinburgh, and Dublin are prima 
 facie, and sometimes conchisive, evidence of the public, 
 though not of the private, matters contained. 
 
 PUBLIC REGISTERS AND RECORDS Official 
 
 registers and records are admissible in proof of the 
 facts recorded, even against strangers, when (1) the 
 book is one required by law to be kept for public 
 information or reference; and (2) the entry has been 
 made promptly, and by the proper officer [339-354]. 
 
 Principle. — Admissibility here depends on the public 
 duty of the person who keeps the regist-er 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 unofficial person can make 
 such entiles {Doe v. Andreivs, 15 Q. B. 756; Sturla v. 
 Freccia, 5 App. Cas. 623, 644). 
 
 Quallfioatlons — (1) Public Duty and Benefit. — There 
 must be a legal duty to keep the register for the benefit 
 or information of the public ; registers kept merely under 
 private atithority, or for private information, being 
 inadmissible {Sfurla- v. Freccia, sup.). Examples of 
 the former are parish registers, which are receivable as 
 kept formerly under the common law, and now under 
 statute. Examples of the latter are Non^fonfomiist 
 and other non-parochial registers which, until the last 
 century, were not kept under legal authority, and could 
 only be received in evidence if admissible upon other 
 
CHAP. XIX.] PUBLIC KEGISTKRS AND RECORDS. 107 
 
 grounds, e.g., as deolarations by deceased persons in 
 the course of duty. By 3 & 4 Vict. c. 92, and 21 & 22 
 Vict. c. 25, however, many of these early records were 
 rendered admissible upon pi'oof of deposit with the 
 Registrar-General, entry in his list, and notice to the 
 opposite pai-ty of the intention to us© them. Since 
 1836, the proof of births, marriages, and deaths of 
 Nonconformists has been regulated by general registra- 
 tion Acts. So, Colonial registers are receivable if kept 
 by tlie law either of their own or of this country ; and 
 Foreign registers if kept under pubho authority and 
 recognized by the local tribunals (Lyell v. Kennedy, 
 14App. Gas. '437). 
 
 (2) Proper Officer. Promptness. Originality. 
 Interest. — The entries must lliave been made by, or 
 under the direction of, the person whose duty it is to 
 make them at the time {Doe v. Bray, 8 B. & C. 813); 
 and promptly ; thus an entry more than a year after the 
 event has been rejected (ibid.). But originality is not 
 strictly essential, for many old registers were mere 
 periodical transcripts from current notes; and, generally 
 speaking, trifling eiTors, erasures, and irregularities 
 affect weight and not admissibility, as does the fact 
 that the entry operated in the interest of the officer or 
 body keeping the register (Sturla v. Frcccia, supra). 
 
 EXAMPLES. 
 Admissible. Inadmissible. 
 
 An entry in a vestry book is An entry in a parish book by 
 
 receivable to prove the election a parish officer as to the givjnij 
 of a parish officer and its regu- of a certificate whereby the 
 larity (R. v. Martin, 2 Camp. parish was relieved from Ihe 
 100). support of u pauper, held not 
 
 Eegisters of Births, MaiTiagf s admissible because the entry was 
 and Deaths kept under 6 & 7 not of a public nature, but con- 
 Will. IV. c. 86, es. 31, 38, are by cemed merely the particular 
 that Act made evidence of these parish and its rights with rela- 
 events and their dates. tion to another ; and also be- 
 
 cause the entry being private 
 was self-serving (R. v. Deben- 
 ham, 2 B. & Aid. 185). 
 
 Minute-books of meetings of A register of bankruptcy cer- 
 
 creditors, kept under the Bank- tificates, kept, under the old law, 
 ruptcy Act, 1914, and signed by in the office of the Secretary of 
 
108 
 
 THE LAW 01' EVIDENCE. 
 
 r.BOOK U. 
 
 Admissible. 
 
 the chairman either of that or of 
 the next ensuing meeting, are 
 evidence of the validity of the 
 meetings held and resolutions 
 passed (s. 138, sub-s. 1 and 2), 
 as well as of the correctness of 
 the chairman's decision on all 
 incidental questions arising 
 thereat (Re Indian Zoedone 
 Co., '26 Ch. D. 70). 
 
 The Eegisters of Merchant 
 Ships are prima facie evidence 
 of the matters stated, e.g., of 
 Nationality, Ownership, Ton- 
 nage (Merchant Shipping Act, 
 1894, ss. 64, 695). 
 
 University and college books 
 . are admissible to prove degrees 
 conferred and other collegiate 
 proceedings (Tracy Peerage, 
 Minutes of Evidence, 68). 
 Where the practice was not to 
 sign the entries, unsigned en- 
 tries are receivable (Lauderdale 
 Peerage, 10 App. Cas. 692, 700; 
 post, 113). 
 
 The Law List is primd facie 
 evidence of the qualification of 
 the solicitors and conveyancers 
 named therein (23 & 24 Vict. c. 
 127) ; and the absence of a name 
 evidence of non-qualification {R. 
 V. Wenham, 10 Cox 222). So, 
 the Medical Register is evidence 
 of the qualification of medical 
 men (21 &.22 Vict. c. 90, s. 27). 
 
 The Army List purporting to 
 be published by authority, and 
 either to be printed by a Govern- 
 ment printer or to be issued by 
 H.M. Stationery Office, is evi- 
 dence of the rank, appointments, 
 and corps of the officers named 
 [Army Act, 1881, s. 163, sub-s. 
 (rf). See post, 112]. 
 
 Inadmissible. 
 
 Bankrupts, but not under the 
 orders of the Lord Chancellor or 
 any public authority ; and the 
 entries in which were made in- 
 discriminately by any of the 
 clerks in the office as mere 
 private memoranda for the in- 
 formation of inquirers, held 
 inadmissible (Henry v. Leigh, 
 3 Camp. 449). 
 
 An attendance register kept by 
 the medical officer of a union 
 under the orders of the Poor 
 Law Commissioners, and in- 
 tended to operate as a cheek 
 upon himself, held inadmissible, 
 the entry not being of a public 
 nature (Merrick v. Wakley, 8 
 A. & E. 170; Irish Society \. 
 Derry, 12 C. & P. 641, per 
 Parke, B.). 
 
 To prove the marriage of a 
 fellow 'of a college — the practice 
 being for entries in college 
 books to be made and signed by 
 the registrar — unsigned entries 
 relating to the marriage, though 
 in a deceased registrar's hand- 
 writing, held inadmissible (Fox 
 Y. Bearblock, 17 Ch. D. 429). 
 
 The Law List has been held 
 not evidence of the date of a 
 solicitor's certificate (Raven v. 
 Stevetu, 3 T. L. E. 67). 
 
 Navy lists, clergy lists, uni- 
 versity calendars, peerages, 
 directories, court guides, and 
 similar unofficial publications 
 are not admissible (Tay. s. 1785 ; 
 Hubback, Evidence of Succes- 
 sion, 700-703). See, however, 
 as to certificates of naval and 
 military service, post, 112. 
 
CHAP. XIX.] PUBLIC iKQriSITION'&, SURVEYS, &c. 109 
 
 PUBLIC INQUISITIONS, SURVEYS, ASSESS- 
 MENTS, AND REPORTS — Tuquisitioiis, surveys, 
 assessments, and reports are admissible in proof of 
 tlieir contents, even against strangers, if made 
 under public authority, and iu relation to matters 
 of public interest or concern [355-362]. 
 
 Principle. — The ground of reception is that such 
 documents contain the results of inquiries made under 
 competent public authority and concerning matteis in 
 which the public are interested {Sturla v. Freccia, 5 
 App. Gas. 623). Many of them, indeed, partake as 
 much of the nature of opinion evidence or judgments, 
 as of hearsay as hitherto defined. Thus they resemble 
 judgmentsi in rem (post, 126-7), in being receivable 
 against strangers, but are distinguishable, not only in 
 seldom affording conclusive evidence of the matters 
 defceiTTiined, but in being in many instances, founded on 
 unsworn testimony. 
 
 Qualifications. — Public Authority and Purpose. — 
 There must be a judicial or quasi-judicial duty to inquire 
 by a public officer, and the matter inquired into must be 
 of a public nature, or required to be ascertained for a 
 public purpose (ibid.). Inquisitions to ascertain the 
 rights of the Crown in the estates of deceas.ed persons 
 are public, in this sense, if not made for a merely tem- 
 porary purpose (Mercer v. Denne, 1905, 2 Ch. 538). 
 Inquisitions, etc., made under public legal authority, 
 but for private purposes, e.g., judgments, may, of 
 course, be receivable between parties and privies ; and 
 those made under private authority and for private 
 purposes may be evidence against the party as admis- 
 sions. 
 
 Excess of Jurisdiction, Irregularity. Inicrest. — If 
 the inquiry be ultra vires (Evans v. Taylor, 7 A. & E. 
 617), or the proceedings irregular (Powis Peerage, 
 Cruise, o. 6, s. 60), the evidence will be rejected; 
 though, where an inquisition has been acted on, 
 regularity may be presumed (Hubback, 591). The fact 
 
110 
 
 THE LAW OF E\T:DENCE. 
 
 [book ii. 
 
 that the return operates in the interest of the officer 
 making it only affects weight, not admissibility (Irish 
 Society v. Derry, 12 C. & F. 641). 
 
 EXAMPLES. 
 
 Admissible. 
 
 Inadmissible. 
 
 Inquisitions and surveys of 
 manors belonging to the Duchies 
 of Cornwall andDaDcaster (while 
 the Dukes had sovereign rights) 
 are evidence of the manorial 
 customs and boundaries specified 
 therein [Beaufort v. Smith, 4 
 Exch. 450 ; they have also been 
 received as reputation, Smith v. 
 Brownlow, 9Eq. 341 ; ante, 92]. 
 
 Parliamentary surveys {i.e., 
 surveys of Church and Crown 
 lands made by commissioners 
 during the Commonwealth) are 
 evidence of the matters stated, 
 though only taken under the 
 de facto authority of a usurper 
 (Freemanv.Read,i'B. &8.n9). 
 
 A bishop's returns in obedience 
 to writs from the Exchequer, 
 slating the vacancies, &c., in his 
 diocese, are admissible as state- 
 ments by a public officer in dis- 
 charge of a public duty (Irish 
 Society v. Derry, 12 CI. & P. 
 641). So also, an incumbent's 
 return in answer to inquiries by 
 his bishop, for the information 
 of the governors of Queen Anne's 
 Bounty, being in the nature of an 
 inquisition in a public matter 
 (Carr v. Mostyn, S Ex. 69). 
 
 Land Tax Assessments are 
 evidence of the assessment upon 
 the person, and for the property 
 named, as well as of occupation 
 (Doe v. Seaton 2 A. & E. 171). 
 So, also. Poor-rate books of the 
 occupation or ownership of the 
 persons rated at any given time 
 (Smith v. Andrews, 1891, 2 Ch. 
 678). 
 
 The order of a Naval Court, 
 held under the Merchant Ship- 
 
 A survey made by the com- 
 missioners of the Earl of Leices- 
 ter of lands then his own, 
 but afterwards becoming Crown 
 lands, held inadmissible as made 
 under private authority although 
 preserved in a public office 
 (Daniel v. Wilkin, 7 Ex. 429). 
 
 A survey made by direction of 
 Oliver Cromwell, when Lord 
 General of the Parliamentary 
 forces, of lands granted to him 
 by Parliament, held inadmissible 
 as made under private authority 
 (Beaufort v. Smith, supra). 
 
 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 inadmissible, the statute 
 giving no power to ascertain 
 boundaries (Evans v. Taylor, 7 
 A. & E. 617). So, also, a return 
 to a commission not signed or 
 sealed, for non constat it was 
 not a draft (Slane Peerage, 5 
 C. & P. 23). 
 
 Land Tax Assessment Books 
 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 some family (Doe v. 
 Arkwright, 2 A. & E. 182 n.). 
 
 A Board of Trade inquiry 
 luider the Merchant Shipping 
 
OHA?. XIX.] 
 
 OFFICIAL CERTIFICATES 
 
 111 
 
 Admissible. 
 
 ping Act, 1894, discharging a 
 seaman from his ship for dis- 
 obedience, — held conclusive evi- 
 dence of such disobedience in an 
 action for wrongful dismissal by 
 the seaman against the ship- 
 owner, although the latter was 
 no party to the original proced- 
 ings {Huttmi \. Has, 1907, 2 
 K. B. 834). 
 
 Inadmissible. 
 
 Act, 1854, resulting iu the sus- 
 pension of a master's certificate 
 on the ground of negligence, 
 is inadmissible to prove such 
 negligence in an acticm against 
 the owners, although by a. 18 
 of the Act made pn'md facie 
 evidence of the truth of the 
 matters stated (M' A lluni v.Reid, 
 L. E. 3 Ad. & E. 57 )i.) So, 
 as to Wreck inquiries under the 
 same Act (Nothard v. Pepper, 
 17 C. B. N. S. 39). 
 
 The report of a committee, 
 appointed by a foreign State, as 
 to the fitness oC a candidate for 
 the post of Consul is not evi- 
 dence of his age, or other per- 
 sonal facts reported ; such an 
 authority not being a legal one 
 for a public purpose, nor the 
 matter inquired into one of a 
 public nature J^Sturla v. Freccia, 
 5 App. Cas. 623. It is also in- 
 admissible as n declaration by 
 deceased persons, either against 
 pecuniary interest, or in course 
 of duty, or as to pedigree : id., 
 at pp. 632, 638, 640-2]. 
 
 OFFICIAL CERTIFICATES— Tlie ceitificates of 
 public officers, intrusted by law with authority for 
 the purpose, are evidence of the facts authorized 
 to be certified, but not of extraneous matters. And 
 where it is part of the duty of an official to supply 
 copies of any document entrusted 'to his care, such 
 copies are admissible as secondary evidence of the 
 originals [363-371]. 
 
 At Common Law, a certificate of a mere matter of 
 fact not coupled with matter of law, is generally speak- 
 ing inadmissible, though given by a person in an official 
 position, or even, it has been said, by the Sovereign 
 und,er the sign-manual (Omichund v. Barker, Willes, 
 549-50; see, however, Mighell v. Johorc, infra, 112). If 
 
 The report, made by a com- 
 mittee of the General Medical 
 Council, finding a dentist guilty 
 of professional misconduct, has 
 been held prima facie evidence 
 of such misconduct in an action 
 by another dentist against the 
 dentist in question {Hill v. 
 Cliff, 1907, 2 Ch. 236, C.A.. 
 af&rmed on other grounds sub 
 nam. Clifford v. Timms, 1908, 
 A.C. 12. The order, based on 
 the report, striking him off the 
 register, was also held conclu- 
 sive of his disqualification.] 
 
112 
 
 THE LAW OF EVIDENCE. 
 
 [book II. 
 
 the person was 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 certi- 
 ficate being extra-judicial,- is merely the unsworn state- 
 ment of a private person and will be rejected (Tay. &. 
 1784). Some exceptions, however, have been allowed 
 to this rule partly, perhaps., in analogy to the early 
 trials by certificate, in which the certificates of certain 
 functionaries, e.g., those of a bishop as to marriage, or 
 of the Recorder as to the customs of London, wei'e con- 
 clusive; and partly on grounds of convenience. 
 
 By Statute, also, a variety of matters have been 
 rendered provable by the certificates of officials, either 
 generally, or for the special purposes of given Acts; the 
 certificates being sometimes made conclusive, and 
 sometimes prima facie, evidence of the matters certified. 
 
 EXAMPLES. 
 
 Admissible. 
 
 Inadmissible. 
 
 A certificate or letter from, or 
 on behalf of, a Secretary of State 
 in his official capacity is, at 
 Common Law, equivalent to a 
 certificate or letter from His 
 Majesty, and is conclusive evi- 
 dence of the matters stated, e.g., 
 the independence of a foreign 
 Sovereign (Miqhell v. Johore, 
 1894, 1 Q. B. 149). 
 
 The Dismissal of Charges of 
 Assault may be proved by the 
 justices' certificate stating the 
 fact of such dismissal (24 & 25 
 Vict.c.l00,ss.42, 43 i post, 170). 
 
 Incorporation of Joint Stock 
 Companies. — The Registrar's 
 certificate is conclusive evidence 
 that all requisitions in respect 
 of registration, or matters pre- 
 cedent or incidental thereto, 
 have been complied with, and 
 that the Company is authorized 
 to be, and has been, duly regis- 
 tered [Companies (Consolida- 
 tion) Act, 1908, s. 17]. 
 
 Proprietorship of Shares. — A 
 certificate under the common 
 
 An officer's certificate is not, 
 at Common Law, evidence of the 
 military service, &c. , of a sub- 
 ordinate [Mobinson'V.Buccleuch, 
 31 Sol. Jo. 329, C. A. ; though 
 aliter, now under the Army Ac"-. 
 1881, sec. 168, as to the certifi- 
 cate of an officer commanding 
 any portion of his Majesty's 
 foi'ces, or of any of his Majesty's 
 ships {ante, 108)]. 
 
CHAi'. x!x.] COKPOEATION AND BANKERS' BOOKS. 113 
 
 A dniissib le . Inadmissible . 
 seal of the .company ia primi 
 facie evidence of the title of a . 
 member to the shares specified 
 [Companies (Consolidation) Act, 
 1908, s. 2<i\. 
 
 Adulteration of Food. — Under Adulteration of Food. — A 
 
 the Sale of Food and Drugs Act , certificate obtained, under the 
 
 1875, s. 21, the analyst's certifi- Act opposite, in proceedings 
 
 cate is sufficient evidence against against a retail dealer is not 
 
 the defendant of the result of admissible on a subsequent 
 
 the analysis, unless he requires charge against the wholesale 
 
 the analyst to be called as a venAov (Tyler v. Kingham, 1900, 
 
 witness, or gives rebutting proof 2 Q. B. 413) ; nor even on a 
 
 (Hewitt V. Taylor, 1890, 1 second charge against the same 
 
 Q. B. 287). defendant (Fulham Council v. 
 
 Farmers' Co., 39 li. Jo. 195). 
 
 CORPORATION, COMPANY, AND BANKERS' 
 BOOKS. — Entries in the public books of a corpora- 
 tion, made by the proper oiBcer, are at common law 
 evidence, even against strangers, of the official acts 
 and proceedings of the corporation, and are by 
 staUcte often made evidence of private matters as 
 well [372-377]. 
 
 At Common Law, the books must have been publicly 
 kept as the corporation books (Shrewsbury v. Hart, 1 C. 
 & P. 113), and the entriesi made by the usual officer or 
 his substitute (R. v. Mothersell, Stra. 93). Where 
 there' has been a usage to sign, unsigned entries will be 
 rejected (Fox v. Beflrblock, ante, 108); though aliter, 
 where the usage was the other way (Lauderdale Peer- 
 age, ante, 108). Entries in the public books as to private 
 matters, and entries in the private books, are only 
 receivable as admissions against the corporation, or 
 members who have acquiesced in them (Hill v. Man- 
 chester Watenvorks, 5 B. & Ad. 866). Private entries 
 have, however, been received on questions of ancient 
 possession, not as evidence of the facts stated, but to 
 show acts of ownership (ante, 27-8, 32). 
 
 By Statute. — The books of corporations and public 
 companies are frequently rendered admissible by statute 
 
 L.E. 8 
 
m THE LAW OF EVIDENCE. [book ii. 
 
 in proof of their contents both as to public and private 
 matters. Thus the Minute-Books authorized to be 
 liept under the Municipal Corporations Act, 1882 (incor- 
 porated with the Local Government Act, 1888), s. 22, 
 are receivable in evidence without further proof; and 
 the Eegisters and Minute-Books of companies, subject 
 to the Companies Clauses Consolidation Act, 1845 
 (ss. 9, 98), or the Companies (Consolidation) Act, 1908 
 (ss. 25, 71), are also prima facie evidence of the matters 
 stated. 
 
 Bankers' Books. — Copies of entries in bankers' 
 books are receivable in all legal proceedings (for or 
 against any one, Harding v. Williams, 14 Ch. D. 197), 
 as prim,d 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 ; and (3) that the enti-y 
 was made in the ordinary course of business (Bankers' 
 Books Evidence Act, 1879, ss. 3 and 4). Such proof 
 may be given by a partner or officer of the bank, either 
 orally or by affidavit (s. 4). And the copy must be an 
 examined copy, proved orally or on affidavit by some 
 person (not necessarily a bank official, R. v. Albut, 
 6,Cr. App. E. 55) who has examined it with the original 
 entry (s. 5). 
 
 Production of Original Books. — No banker or officer 
 of a bank is, in any legal proceedings to which the bank 
 is not a partj', compellable to produce the bank books, 
 or to appear as a witness to prove their contents, unless 
 bj- order of a judge for special cause (s. 6). 
 
 Inspection. — A Court or judge may, on the applica- 
 tion of any party to a legal proceeding, empower such 
 party to inspect and take copies of entries of the 
 accounts, either of parties or strangers {Howard v. 
 Beall, 28 Q. B. D. 1; but see Pollock v. Garlc, 1898, 
 1 Ch. 1), for the purpose of the proceedings (s. 7). Such 
 order may be made ex parte (Anwtt v. Hayes, 36 Ch. D. 
 731), but must, unless otherwise directed, be served 
 upon the bank three clear days (exclusive of Sundays 
 and bank holidays) before it is to be obeyed. 
 
CHAP. XIX.] HISTORIES, MAPS, DICTIONAEIES, &c. 115 
 
 Pass-Boohs. — In actions between the bank and a 
 cuatomer the pass-book is evidence against either party 
 as an admission' {Gaden v. N eivfoundland Bank, 1899, 
 A. C. 281). 
 
 HISTORIES, MAPS, DICTIONARIES, 
 ALMANACS, TABLES, ETC. [378-381]. Histories. 
 
 — Approved public and general histories are admissible, 
 in the nature of public documents or reputation, to 
 prove ancient facts of a public, though not of a private 
 or local, nature {Read v. Bp. of Linaoln, 1892, A. C. 
 644, 653). Maps. — And published maps, generally 
 offered for public sale, are, on similar grounds, admis- 
 sible to show the relative positions of towns and 
 countries and other matters of general geographical 
 notoriety {R. v. Orton, cited Steph. art. 35 ; U. v. Jame- 
 son, Official Rep. 91-5). Maps and Surveys may be 
 admissible not only (1) under the above heading; but 
 also (2) as public documents {ante, 109); or (3) as 
 reputation {ante , 92). And (4) private maps and plans 
 may, of coui-se, be leceived aa .admissions against the 
 party under whose authority they were prepared, or his 
 successors in title {ante, 62, 67). Dictionaries. — 
 Standard dictionaries are admissible to show the mean- 
 ing of wc-ids, not merely as refreshing the memory of 
 the judge {ante, 8), but probably also as evidence po- 
 se {R. V. Peters, 16 Q. B. D. p. 641 ; Wigram, Extr. Ev. 
 s. 56). Scientific Worlis.— The Carlisle Tables have 
 been admitted as evidence of 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. Co., L. E. 8 Ex. 221) ; the British Pharma- 
 copoeia as evidence of the proper standard for drugs 
 {Dickins v. Randerson, 1901, 1 K. B. 437); and the 
 Almanac, annexed to the Book of Common Prayer, as 
 evidence of the matters contained therein {Tutton v. 
 Darke, 5 H. & N. 647). 
 
(116) 
 
 CHAPTER XX. 
 
 UEPOTATION, OPINION, AND BELIEF. 
 
 [382-903.] 
 
 Neithee the general reputation prevailing in the 
 comnumity, nor the opinions, inferences, or beliefs 
 of individuals (whether witnesses or not), are 
 admissible in proof of material facts. 
 
 Principle. — Evidence of this nature is sometimes said 
 to be excluded by the hearsay rule ; but it is in general 
 inadmissible whether dehvered on oath or not. The 
 grounds more commonly assigned for its rejection are 
 that opinions, in so far as they may be founded on no 
 evidence, or illegal evidence, ai'e worthless; and in so 
 far as. they may be founded on legal evidence, tend to 
 usurp the functions of the tribunal whose province alone 
 it is to draw conclusions of law or fact (Best, s. 511). 
 
 EXCEPTIONS. 
 
 (A) REPUTATION.— General reputation is admis- 
 sible, partly by reason of the difficulty of obtaining 
 better evidence, and partly because "the concurrence 
 of many voices ' ' among those most favourably situated 
 for knowing, raises a reasonable pres.umption that the 
 facte concurred in are true, in proof of Public Rights, 
 and Pedigree, the conditions being similar to those 
 govenaing hearsay on the same topics {ante, 89-92, 
 94-6). Evidence of general reputation (not confined, as 
 in pedigree cases, to family repute) is also receivable to 
 prove Marriage, though in cases of bigamy and divorce 
 it is not per se sufficient. The testimony, however, 
 must be general ; if based merely on the statements of 
 particular individuals, it ceases to be admissible under 
 this head, and can only be received as the declaration of 
 
CHAP. XX.] OPINIONS OF EXPEETS. U7 
 
 a deoeased relative and ou questions strictly of pedigree 
 {Shedden v. A.-O., 30 L. J. P. M. & A. 217). General 
 reputation is also so'metimes admitted on questions 
 of Identification ; thus, to prove that a libel referred to 
 the plaintiff, evidence that he was publicly jeered at in 
 consequence of the libel has been received {Cook v. 
 Ward, M. & P. 99). 
 
 (B) OPINIONS OF EXPERTS (a).— The opinions 
 of experts are admissible whenever the subject is one 
 upon which competency to form an opinion can only be 
 acquired by a cowse of special study or experience , e.g., 
 Science, Art, Trade, Tectinical Terms, Handwriting, or 
 Foreign Law. When (i) the subject is one upon which 
 the Comi; or jury is as capable of forming an opinion 
 as the witness, e.g., the meaning of legal terms, the 
 construction of documents, or disputed points of duty, 
 morality, or etiquette — or (ii) the Court is assisted by 
 Assessors, as in Admiralty cases involving questions of 
 nautical skill, the evidence is inadmissible. 
 
 Competency and Credit. — The competency of the 
 expert is a preliminary question for the judge ; though in 
 practice considerable laxity prevails on the point, and 
 the fact that the expert has not acquired his knowledge 
 professionally goes merely to weight and not to admis- 
 sibility (B. V. Silverlock, 1894, 2 Q. B. 766). Thus, 
 unqualified pra<;titioners, hospital students, and 
 dressers have been permitted to testify as medical 
 experts ; and accountants, familiar with the business of 
 life insurance, as actuaries. So, in foreign law, the 
 expert may be either a professional lawyer or a person 
 " peritus virtute officii," i.e., the holder of an official 
 situation' which requires, and therefore presumes, legal 
 knowledge {Sussex Peerage Case, 11 C. & F. 124); or 
 perhaps some other person who from his profession or 
 business has had peculiar means of becoming acquainted 
 with the law in question {Van der DoncM v. Thellusson , 
 8 C. B. 812). On the other hand, an, English bamsfer 
 who has only theoretically studied, but not practised, the 
 law of the foreign country, is incompetent {Re Turner, 
 1906, W. N. 27; Re BonelU, 1 P. D. 69). The credit 
 of the expert may be impeached by showing that he 
 
118 THE LAW OF EVrOENCB. [book n. 
 
 was not in a fit state to form aii opinion, or is interested, 
 or corrupt, or has expressed a contrary opinion at other 
 times (Alcock v. Royal Exchange Co., 12 Q. B. 292). 
 And where there is a conflict between direct testimony 
 as to facta, and mere speculative opinion, the former 
 should prevail (Poynion v. P., 37 Ir. L. T. 11. 54; 
 Aitken v. McMeckait, 1895, A. C. 310). 
 
 Scope of the Opinion. Hypothetical Questions (b). 
 — An expert may give his opinion upon facts which are 
 either admitted, or proved by himself, or other wit- 
 nesses io his hearing, at the trial ; or upon hypothesis 
 based upon the evidence. But his opinion is not admis- 
 sible upon materials which are not before the jury, or 
 which have merely been reported to him by hearsay 
 (Wright v. Tatham, 5 C. & F. 670, 690; R. v. Staunton, 
 Times, Sept. 26, 1877). And though, on questions of 
 professional skill, he may state what would be the 
 proper course to pursue under the circumstances proved 
 (Sills V. Brown. 9 C. & P. 604), he may not be asked 
 what he himself would liave done (Ramadge v. Ryan, 
 9 Bing. 333). 
 
 How far he niay be asked the very question which the 
 jury have to decide is somewhat doubtful, but the 
 weight of authority appears to be as follows : — 
 (a) Where the issue involves other elements besides the 
 purely scientific, the expert must confine himself to 
 the latter, and must not give his opinion upon' the legal 
 or general merits of the case (Seed v. Higgins, post, 
 119) ; (b) Where the issue is substantially one of 
 science or skill merely, the expert may, if he has himself 
 observed the facts, .be asked the very question which 
 the jury have to decide (Martin v. Johnston, IF. & F. 
 122) ; if, however, his opinion is based merely upon 
 facts proved by others, such a question is improper, for 
 it practically asks him to determine the truth of their 
 testimony, as well as to give an opinion upon it; the 
 coi-rect course is to put such facts to him hypothetically , 
 asking him t-o assume one or more of them to be true, 
 and to state his opinion upon those (R. v. Frances, post, 
 120; R. V. Mason, 28 T. L. R. 120). 
 
 Grounds of Opinion. Corroboration. Illustration. 
 
CHAr. XX. J 
 
 OPINIONS OF EXPERTS. 
 
 119 
 
 Experiments (c). — In all cases in which opinion 
 evidence is receivable, the grounds or reasoning upon 
 which the opinion is based may be inquired into ; and 
 facts and experiments, although otherwise irrelevant to 
 the issue, may be given in evidence in corroboration, 
 illustration, or rebuttal of the opinion. 
 
 Reference to Text-Books, Price Lists, &o. — An ex- 
 pert may refer to text-books to I'efresh his memory, or to 
 correct or confirm his opinion — e.g., a doctor to medical 
 treatises, a valuer to pric« lists, a foreign lawyer to 
 codes, text-writers, and reports. If he describe parti- 
 cular passages as accurately representing his views, 
 they may be read as part of his testimony, though such 
 books are not, of course, evidence, per se {Concha v. 
 Murietta, 40 Ch. D. 543). 
 
 EXAMPLES. 
 
 Admissible. 
 
 (a) The question being whether 
 a covenant in restraint of trade 
 was reasonable ; — evidence by 
 persons engaged in the trade 
 is admissible as to its nature, 
 what is customary in i^, any 
 particular dangers requiring 
 precautions, and the precautions 
 so required (Haynes v. Doman, 
 15 T. L. E. 354, C. A.). 
 
 In patent actions, experts 
 may give their opinions as to : 
 (1) The meaning of the technical 
 terms employed ; (2) the state of 
 scientific knowledge existing at 
 the time of the grant ; (3) the 
 nature, working, characteristic 
 features, and probable mechani- 
 cal results of an invention ; 
 together with what is old or 
 new in the specification and how 
 far any scientific advance has 
 been made thereby ; as well as 
 (4) in the case of rival inventions, 
 the similarities or differences 
 therein and how far these are 
 material or the reverse (Clark y. 
 Adie, 2 App. Cas. 423 ; Gadd v. 
 Manchester, 67 L. T. 569). 
 
 Iiiadmissible. 
 (a) The question being as to the 
 reasonableness of a covenant in 
 restraint of trade ; — the opinions 
 of persons engaged in the trade 
 that the covenant was, or was 
 not, reasonable, are inadmissi- 
 ble, this being a question of con- 
 struction and legal effect for the 
 Court {Haynes v. Doman, 
 opposite) . 
 
 In patent actions, experts may 
 not give their opinions upon 
 the construction of the specifi- 
 cation (Gadd v. Manchester, 
 opposite) ; nor as to whether 
 there is, or is not, a want of 
 novelty (Parkinson v. Simon, 
 11 R. P. C. 493, 506); nor 
 whether the defendant's inven- 
 tion infringes the plaintiff's 
 patent, or not (ibid.; Seed v. 
 Higgins, 8 H. L. C. p. 566). 
 
 The meaning of " Nominal 
 Rent," under the Income Tax 
 Acts, is not a subject on which 
 the opinions of surveyors, etc., 
 can be received (Camden v. 
 Commrs. of Income Tax, 136 
 L. T, Jo. 166, C. A.). 
 
120 
 
 THE LAW OF EVIDENCE. 
 
 [book II. 
 
 Admissible. 
 
 (b) The question being whe*;lier 
 A., tried for murder, was insane, 
 i.e.,incapableo£ judging between 
 right and wrong ; — a medical ' 
 witness who has examined A. 
 may give his opinion that A. was 
 insane {R. v. Layton, i Cox 149 ; 
 R. V. Richards, 1 E. & E. 87) ; 
 and that his insanity was of a 
 kind that usually prevents people 
 from judging between right and 
 wrong [Steph. art. 49, illustr. 
 (b)]. If the witness has merely 
 heard the evidence of other wit- 
 nesses as to A.'s condition, he 
 may be asked to take particular 
 facts, detailed by such witnesses, 
 and assuming them to be true, 
 to give his opinion as to A.'s 
 sanity (R. v. Frances, i Cox 57 ; 
 R. V. Mason, 28 T. L. E. 120). 
 
 The question being whether 
 a medical man had negligently 
 treated a patient ; — medical 
 witnesses may be asked whether, 
 assuming the facts proved to be 
 true, they consider there was 
 anything improper in the treat- 
 ment described {Rich v. Pier- 
 point, 3 E. & E. 35) ; or whether 
 such treatment is, or is not, 
 sanctioned by books of authority 
 (Collier v. Simpson, 5 C. & P. 
 73) ; or whether the result pro- 
 duced could have been avoided 
 by proper care (Fenwick v. Bell, 
 1 C. & E. 312, the case of a 
 nautical witness). 
 
 (c) The question being whether 
 an obstruction to a harbour was 
 caused by a neighbouring sea- 
 wall; — an engineer who has 
 given his opinion in the negative 
 may support it by proof that in 
 some cases harbours along the 
 same coast, but where there 
 were no sea-walls, were similarly 
 obstracted (Folkes v. Chadd, 3 
 Boug. 157 ; Metropolitan Asylum 
 District V. Hill, 47 L. T. 29). 
 
 Inadmissible. 
 
 (b) The question bsing whether 
 A., tried for murder, was insane, 
 i.e., incapable of judging be- 
 tween right and wrong ; — a 
 medical witness who has ex- 
 amined A. cannot bo asked 
 whether A. was capable of judg- 
 ing between right and wrong 
 (R. V. Layton, 4 Cox 149); or 
 was responsible for his acts (B. 
 V. Richards, 1 E. & E. 87) ; or 
 was guilty of murder (Jameson 
 v. Drinkald, 12 Moore, C. P. 148, 
 157). A medical witness who 
 has merely heard the evidence of 
 other witnesses as to A.'s con- 
 dition cannot be asked whether, 
 " having heard the evidence, he 
 considers A. is or is not insane ? ' ' 
 (R. V. MacNaghten, 10 C. & E. 
 200; R. V. Frances, opposite). 
 
 The question being whether 
 a medical man had negligently 
 treated a patient ; — a medical 
 witness cannot be asked whether 
 having heard the evidence he 
 considers there has been a want 
 of due care and skill (Rich v. 
 Pierpoint, opposite); nor whe- 
 ther, assuming the facts proved 
 to be true, they show negligence 
 (Malton v. Nesbit, 1 C. & P. 72 ; 
 Jameson v. Drinkald, 12 Moore 
 148, cases of nautical witnesses) ; 
 nor can he put in evidence 
 medical works to show what 
 treatment would be proper 
 (Collier v. Simpson, opposite). 
 
 (c) The question being whether 
 an obstruction to a harbour was 
 caused by a neighbouring sea- 
 wall; — proof that some other 
 harbours along the same coast 
 where there were such walls had 
 been similarly obstructed was 
 rejected, as. an attempt litem 
 lite resolvere (Folkes v. Chadd, 
 opposite; cited, also ante, 44). 
 
LHAP. XX.] OPINIONS OF N0N-EXPEET8. 121 
 
 (C) OPINIONS OF NON-EXPERTS.— The opinion 
 or belief of ordinary witnesseu is admissible in proof of 
 the following matters, on grounds of necessity, more 
 direct and positive evidence being frequently unattain- 
 able : — 
 
 Identity. Resemblance. Photographs. — Witnesses 
 may state their belief as to the identity of persons, 
 whether present or absent ; and they may also identify 
 absent persons hy photographs produced and proved by 
 any competent testimony, not necessarily that of the 
 photographer, to be accurate likenesses {R. v. Tolson, 
 4 F. & F. 103). In matrimonial cases, however, the 
 Court will not, unless under very special circumstances, 
 act upon identification by photograph alone (Frith v. 
 Frith, 1896, P. 74). So, they may give their opinion as 
 to the resemblance of an engraving to a picture not 
 produced (Lucas v. WilUams, 1892, 2 Q. B. p. 116); or 
 of a portrait, that is produced, to one of the parties in 
 court (Affiles v. Lamson, Times, October 29, 1892). 
 
 Libels. Threats (a). Reference to Plaintiff. — Tlie 
 opinion of witnesses is admissible to prove that a libel 
 (R. V. Barna^rd, post, 122), or threat (R. v. Hendy, 
 post, 123) refers to the complainant. Meaning of 
 Words. — So, their opinions are receivable to explain the 
 meaning of ordinary words used in a peculiar sense, as 
 where a slanderous meaning is imputed to apparently 
 innocent language ; provided a foundation be first laid by 
 asking the witness whether there was anything in the 
 circumstances of the case, or in the conduct or tone of 
 the speaker, to prevent the words from conveying their 
 ordinary meaning, the question may then be put, 
 " What did you understand by the words?" (Daines v. 
 Hartley, 3 Ex. 200). 
 
 Handwriting (&). — The genuineness of a party's 
 handwriting, or mark, may be similarly proved, the 
 standard of comparison being either some specimen 
 document produced at the trial and proved to the satis- 
 faction of the judge to be genuine (ante, 26-7), or, an 
 exemplar formed in the mind of the witness from his 
 previous knoidcdge of the party's handwriting. A 
 statement that the witness is acquainted with the 
 
la-i THE LAW OF EVIDENCE. [book u. 
 
 party's writing is sufficient in chief, it being for the 
 opponent to oix>ss-examine as to means and extent. 
 Such knowledge may be acquired: — (1) By having at 
 any time seen the party write ; or (2) by the receipt of 
 written communications purporting to be in his hand- 
 writing, in reply to documents addressed to him, by, or 
 on behalf of, the witnes,s; oi' (3) hy having observed, in 
 the ordinary course of business, documents purporting 
 to be in the party's handwriting. Such evidence is 
 primary and not secondary in its natvu-e, and will not be 
 inadmissible because the writer himself, or some one 
 who saw the document written, might have been called, 
 or because the document itself cannot be produced 
 {Lucas V. WiUiams, 1892, 2 Q. B. 113; ante, 12). The 
 witness {e.g., a constable), must not have aequii'ed his 
 knowledge for the express pirrpose of enabling him to 
 testify at the trial {R. v. Crouch, 4 Cox 163; R. v. 
 Richard, 18 Cr. Ap. K. 140). 
 
 Mental and Physical Conditions. Age. Value. 
 Rate of Speed. Interlocutory Proceedings (c). — "Wit- 
 nesses may, as we have seen, testify to their own 
 condition at a given time, though not to that of others, 
 the proper course being to state the facts from which 
 the latter may be inferred {ante, 17-8). Their opinions 
 as to age {R. v. Cox, 1898, 1 Q. B. 179), value {R. v. 
 Beckett, post, 124), and the rate of speed of motor cars, 
 etc. (Motor Car Act, 1903, s. 9), are also receivable. 
 And, in interlocutory proceedings, statements as to 
 information and belief ai'e admissible, . provided the 
 grounds thereof are set out, otherwise not {Re Young 
 Manufacturing Co., 1900, 2 Ch. 753). 
 
 EXAMPLES. 
 Admissible. Inadmissible. 
 
 (o) A. sues B. for libel. To 
 prove that the libel, which did 
 not mention A. by name, re- 
 ferred to him ; — both A. and his 
 friends may swear that, -upon 
 reading it, they understood it to 
 refer to him (R. v. Barnard, 43 
 J. P. 127). 
 
 A. sues B. for damages for 
 
CHAP. XX.] OPINIONS OF NON-EXPERTS. 
 
 123 
 
 Admissible. 
 
 destroying a picture called 
 " Beauty and the Beast." B.'s 
 defence is that the picture was 
 a libel on his sister and her 
 husband; — evidence was ad- 
 mitted of oxclaniationsol recog- 
 nition to that effect uttered by 
 spectators while looking at the 
 picture in a public gallery 
 (Dtt Bost V. Beresford, 2 Camp. 
 611, 512). 
 
 A. is charged with threatening 
 that if B. sold his farm to certain 
 persons he would " suffer as 
 before;" — B., after explaining 
 the circumstances, may state 
 that he xinderstood by the ex- 
 pression that A. intended to 
 burn his house down {R. v. 
 Hendy, i Cox 243). 
 
 (b) To prove A.'s handwriting, 
 the opinion of (1) B., who has 
 seen him write but once, and 
 then only bis surname {Lewis v. 
 Sapio, M. & M. 89); (2) of C, 
 who only saw him write twenty 
 years ago (R. v. Tooke, 2.5 How. 
 St. Tr. 71); (3) of D., A.'s ser- 
 vant, who has never seen him 
 write, but has habitually posted 
 his letters (Doe v. Suckermore, 
 5 A. & E. 703, per Ld. Den- 
 man); (4) of E., d, merchant 
 in London who lias written to, 
 and received answers purporting 
 to come from A. abroad (Carey 
 V. Pitt, Peake Add. Cas. 130); 
 (5) of P., E.'s clerk, who has 
 constantly read such letters ; 
 and (6) of G-., H.'s broker, who 
 has habitually seen and been 
 consulted about them, are admis- 
 sible ;— although neither E., F., 
 nor G. , ever saw A. write (Doe 
 \ . Suckermore, supra). 
 
 Iiiadinissible. 
 
 A. sues B. for libel in having 
 written that A. should " return 
 to his natural and sinister 
 obscurity." The opinions of 
 witnesses are not admissible to 
 explain these w-ords, there being 
 nothing to show that they were 
 not used in their ordinary sense 
 (Brunswick v. Harmer, 3 C. & 
 K. 10). 
 
 (b) To prove the handwriting 
 of A. (a prisoner) , the opinion of 
 a constable, who in order to ob- 
 tain 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 hand- 
 writing, 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. Hunter, 2 C. & P. 
 477. In Smith v. Sainsbury, 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 signa- 
 ture to another document from 
 merely having seen the signa- 
 ture to the affidavit. This case is 
 doubted by Mr. Taylor, 8th ed., 
 B. 1865 ; but is perhaps Aupport- 
 able on the ground of estoppel 
 {cp. also, ante, 74-6).] 
 
I'M 
 
 THE LAW OP EVIDENCB. 
 
 [book n. 
 
 Admissible. 
 
 (c) The qneslion being whether 
 A. at the date of her marriage 
 to B. in Oct. 1882, was insane, 
 — testimony not only of spe- 
 cialists, but of friends and 
 relations " that A., though shy, 
 was perfectly sane and intelli- 
 gent down to the date of her 
 engagement in Aug. 1882 ; — 
 was received {Durham v. 
 Durham, 10 P. D. 80, 84-5, per 
 Hannen, J. ; ante, 33). 
 
 In an action by a house-agent 
 to recover commission on the sale 
 of a house, the evidence of the 
 purchaser that " he thought he 
 should not have bought the 
 house, had it uot been for the 
 agent's card to view," is receiv- 
 able (Mansell v. Clements, 
 Ij. B. 9 C. P. 139). 
 
 A. is charged with malicious 
 damage of over £5 to a plate 
 glass window at a .post office. 
 The Acting Assistant Superin- 
 tendent 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 (iJ. v. Beckett, 8 
 Cr. App, E. 204). 
 
 Ivadmissible. 
 
 (c) The question being as to 
 the sanity of a testator, the 
 opinions of non-medical friends 
 called as witnesses (R. v. 
 Neville, Cr. & Dix Ab. Caa. 96), 
 and the opinions of deceased 
 friends expressed by their letters 
 and conduct ; or the fact that he 
 was publicly elected to a res- 
 ponsible office, are inadmissible 
 (Wright v. Tatham, 5 C. & F. 
 690, 721, 73S). So, the fact 
 that the testator's father had 
 left the latter property and so 
 intimated his opinion that Le 
 was sane, was rejected (Sultan 
 V. Sadler, 3 C. B. N. 8. 99-100, 
 ■per Cockburn, C.J. ; ante, 33). 
 
( 125 ) 
 
 CHAPTER XXI. 
 
 JUDGMENTS AND DEPOSITIONS IN FORMKR TRIALS. 
 
 [404-430.] 
 
 Judgments: General Rules. 
 
 The following rules apply to judgments of every 
 description : — 
 
 (1) All Judgments Conclusive of their Existence as 
 Distinguished from their Truth. — Every judgment is 
 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. 
 
 Principle. — The reason is, that a judgment being a 
 public transaction of a solemn nature must be presumed 
 to be faithfully recorded. But the" law attributes 
 unerring verity only to the substantive and not to the 
 judicial portions of the record (Best, s. 590; Tav. 
 s. 1667). 
 
 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 con- 
 clusive evidence of A.'s acquittal; but it is no proof 
 whatever that A. is innocent, or that B. was the prose- 
 cutor, or actuated by malice (Legatt v. TolleTvey, 14 
 East 302). So, 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). 
 
 (2) All Judgments Conclusive of their Truth in 
 Favour of the Judge. — For the purpose of prot-ecting 
 the judge who pronounced, and the officers who enforced 
 
126 THE LAW OF EVIDENCE. [book n. 
 
 it, a judgment of a Court of competent jurisdiction is 
 conclusive proof of the facts s-tated if, assuming such 
 facts to be true, they show that the judge had juris- 
 diction. 
 
 Principle. — The 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 
 offices (Tay. s. 1699). Thus, where a justice had 
 ordered the seizure of a boat under the provision of the 
 Bumboat Act (2 Geo. III. e. 28), the owner was pre- 
 cluded in an action against the justice from proving 
 that it \vas a vessel and not a boat (Brittain v. 
 Kimiaird, IB. & B. 432). 
 
 (3) All Judgments Impeachable on Certain Grounds. 
 — Every judgment, when tendered as evidence of the 
 facts decided, may be impeached on the ground that it 
 was (1) iwt final; or (2) not on the merits; or (3) with- 
 out jurisdiction; or (4) fraudulent, colhisive, or forged. 
 
 Judgments as Evidence of their Truth between 
 Parties, Privies, and Strangers. 
 
 The admissibility of judgments as evidence for this 
 purpose varies according as the judgment is in rem or 
 in person im; but no judgment is evidence of any fact 
 which merely came collaterally in question, or was 
 incidentally cognizable, or can only be inferred by 
 argument from the decision {R. v. Duchess of 
 Kingston, post, 127). A judgment in. rem is " an 
 adjudication upon the status of some particular subject- 
 matter by a tribunal having competent jurisdiction for 
 that purpose," e.g., a decree of divorce, a grant of pro- 
 bate, or an adjudication in bankruptcy (2 Smith's 
 L. C, 11th ed. 752). A judgment in personam (or as 
 it is sometimes called inter partes) is an ordinary judg- 
 ment between parties in cases of contract, tort, or 
 crime. 
 
 JUDGMENTS IN REM A judgment in rem is 
 
 conclusive evidence, for or against all persons, of the 
 matters actually decided. It is also, between parties 
 and privies, conclusive of the grounds of the decision 
 where these have been put in issue and decided; but aa 
 
CHAP. XXI.] JUDGMENTS AS APPECTING PARTIES. 127 
 
 between strangers, or a party and a stranger, it is no 
 evidence of such grounds except upon questions of 
 prize and in a few other cases. 
 
 Principle. — The principle of conclusiveness of judg- 
 ments in rem as regards fersons is, that public policy 
 for the peace of society requires that matters of social 
 status should not be left in continual doubt; and as 
 regards things, that generally speaking every one who 
 can be affected by the decision may protect his interests 
 by becoming a party to the proceedings. 
 
 EXAMPLES. 
 
 Admissible. 
 
 Inadmissible. 
 
 A. obtains probate of B.'s will 
 (which he has forged) and sues 
 C. for a debt due to B. ; — the 
 probate is conclusive evidence, 
 until revoked, that A. is B.'s 
 executor and has the right to 
 deal with his assets (Allen v. 
 Dundas, 3 T. R. 125). 
 
 In an action between a ship- 
 owner and an underwriter, the 
 question being whether the cargo 
 was neutral or enemy's property, 
 the sentence of a foreign prize 
 Court condemning the ship and 
 cargo on the ground that the 
 cargo was enemy's property, is 
 conclusive, though neither plain- 
 tiff nor defendant were parties 
 totheforeign proceedings (Geyer 
 V. AguiUr, 7 T. R. 681). 
 
 A. obtains probate of B.'s 
 will ; — in proceedings between 
 strangers the probate is neither 
 conclusive nor, perhaps, admis- 
 sible to show the genuineness 
 of the will (B. v. Buttery, R. & 
 B. 342), the sanity of the testa- 
 tor (Marriot v. Marriot, 1 Str. 
 671), his domicil {Concha v. 
 Cmicha, 11 App. Cas. 541), nor 
 his death (Tay. s. 1677). 
 
 A. is charged with bigamy in 
 marrying B. during the lifetiire 
 of C. ; — a decree obtained by A. 
 against C, in a suit for jactita- 
 tion of marriage, on the ground 
 that C. was not A.'s husband, 
 is not admissible in the bigamy 
 proceedings to disprove A.'s 
 marriage with C, since not 
 being in rem, the decree could 
 not be received inter alios (iJ. 
 V. Duchess of Kingston, 20 
 How. St. Tr. 537-45). 
 
 JUDGMENTS IN PERSONAM AS AFFECTING 
 PARTIES AND PRIYIES.— The judgment of a court 
 of competent jurisdiction is conclusive proof of the 
 matter actually decAded, as well as of the ground of the 
 decision, where these again come in controversy 
 between the same parties or their privies {R. v. 
 Duchess of Kingston, 20 How. St. Tr. 538; Priestman 
 V. Thomas, 9 P. D. 210). 
 
128 THE LAW OP EVIDE^fCB. [book n. 
 
 This rule appliea, iu general, equally to civil and 
 criminal proceedings, and to County Courts, as well as 
 to courts of summary jurisdiction. But judgments 
 are only conclusive as evidence where they are either 
 pleaded, or 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 contrai-y {Conradi v. Conradi L. E. 1 P. 
 & M. 514). 
 
 Principle. — The grounds upon which parties are pre- 
 cluded from re-litigating the same matter between 
 them are, first, that of public policy, it being in the 
 interest of the State that there should be an end of 
 litigation, interest rci publicx ut sit finis litium ; second, 
 that of hardship to the individual, that he should be 
 twice vexed for the same cause, nemo his vexari pro 
 eddem causa, nemo bis puniri pro uno delicto (Lockyer 
 V. Ferryman, 2 App. Cas. 519, per Lord Blackbum). 
 The grounds upon which privies are concluded are, not 
 only identity of interest, but also the principle g«i 
 sentit commodum, sentire debet et onus {Be hart, 
 1896, 2 Ch. 788, 795). 
 
 Same Parties or their Privies. Mutuality (a). — The 
 term parties embi-aces not only those named in the 
 record, but probably (in conformity with the rule as to 
 admission-s) all persons who are substantially interested 
 in the result (Tay . ss. 1687-8) ; though, in criminal 
 cases, this does not include the prosecutor (post, 163). 
 A pai-ty to be affected must, however, sue or defend in 
 the same right and character; thus, a judgment against 
 a man claiming ex parte patema will not bind him 
 claiming ex parte matemd; nor would a judgment 
 against him personally be evidence against him in a 
 representative capacity. So, a judgment in a criminal 
 trial 18 not generally admissible against the same 
 person in a civil action, nor vice versa, since the parties 
 are necessarily different {Castrique v. Imrie, post, 
 130, for an exception, see Re Crippen, 1911, P. 108, 
 cited ante, 51). 
 
CHAP. XXI.] JUDGMENTS AS AFFECTING PARTIES. r29 
 
 Judgments are also conclusive for or against privies 
 {ante, 66-7). Thu&, 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 grantees, mortgagees, and 
 assignees, provided their titles accrued subsequently to 
 the judgment (Doc v. Derby, 1 A. & E. 790; Tay. 
 e. 1689). — So, a judgment against a partner or joint 
 contractor is a bar to successive, but not toi the continu- 
 ance of joint, actions against the rest, though the judg- 
 ment ia unsatisfied (Kendall v. Hamilton, 4 App. Cas. 
 504, as modified by Jud. Act, 0. 13, E. 4; 0. 14, E. 5; 
 0. 27, EE. 2-3). But where the liability is joint and 
 several, it will not generally be so extinguished (Blyth 
 V. Fladgate, 1891, 1 Ch. 337, 852; cp. Goldrci v. Sin- 
 cUir, 1918, 1 K. B. 180, C. A.). 
 
 The rule requiring identity of parties is often 
 expressed in another form by the maxim estoppels 
 must be 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. McKenzie, 5 E. & B. 447). 
 
 Same Subject-matter and Object (b). — In order that 
 a former judgment should conclude the parties thereto 
 or their privies, the matter in dispute must be the same 
 in both proceedings; though it is not necessary that it 
 should be the only point determined in either. The 
 question of the identity of the issues, which is often one 
 of great nicety, must be determined by the judge on 
 reference to the pleadings in the former action, or, if 
 necessary, to the actual words, duly verified, of the 
 judgment itself. On the one hand, the issues may be 
 the same, though the form of action and the marshall- 
 ing 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 is to inquire 
 whether the same evidence would support both issues. 
 It is now settled, however, 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 
 
 L.E. 9 
 
130 
 
 THE LAW OP EVIDENCE. 
 
 [book II. 
 
 brouglit for a different purpose or object {Priestman v. 
 Thomas, 9 P. D. 210). 
 Criminal Cases (c). — Similar rules apply here. 
 
 EXAMPLES. 
 
 Admissible. 
 
 Inadmissible. 
 
 (a) A. sues B. for infringement 
 of patent. A. obtains judg- 
 ment on the ground that the 
 patent is valid. In a fresh action 
 by A. , for a subsequent infringe- 
 ment of the same patent, B. is 
 estopped from impeaching the 
 validity of the patent {Shoe 
 Max;hinerij Co. v. Ctttlan, 1896, 
 1 Ch. 667). 
 
 Certain tenants of a manor, 
 on behalf of themselves and all 
 other tenants, sue the lord in 
 respect of a manorial right. The 
 judgment in this suit is conclu- 
 sive in an action for the same 
 cause between a subsequent lord 
 and other tenants, the two sets 
 of parties being privy in estate 
 (Llanover v. Homfrey 19 Ch. 
 D. 224). 
 
 (b) A. recovers judgment 
 against B. for a debt, B. having 
 pleaded, but failed to prove, pay- 
 ment. This judgment is con- 
 clusive proof that the debt was 
 owing, in a subsequent action 
 brought by B. against A. to 
 recover the money, although 
 B. had since found and now pro- 
 duced A. 's receipt for its pay- 
 ment (Marriott v. Hampton, 2 
 Smith's L. C. 11th ed. 421). 
 
 (c) A. is charged with the 
 murder of B. and acquitted. 
 His acquittal is conclusive of 
 his innocence in a subsequent 
 charge for the manslaughter of 
 B., and probably vice versA (R. 
 V. Tancock, 13 Cox 217, 219; 
 Eos. Cr. Ev. 13th ed. 171). 
 
 (a) A. sues B. for infringement 
 of patent. B. obtains judgment 
 on the ground that the patent is 
 invalid. On a subsequent peti- 
 tion by B., for the revocation ot 
 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. is convicted of forging B.'s 
 signature to a bill of exchange. 
 B. is afterwards sued by C, to 
 whom A. has transferred the bill. 
 A.'s conviction is-not admissible 
 to prove the forgery (per Black- 
 burn, J., in Castrique v. Imrie, 
 L. E., 4 H. L. p. 434. For a 
 converse case, in which a civil 
 judgment was rejected in a 
 criminal trial, see R. v. Fon- 
 taine Moreau, 11 Q. B. 1028). 
 
 (b) A. sues B. for damages for 
 false imprisonment 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 con- 
 sider B.'s malicious conduct 
 (Guest V. Warren, 9 Ex. 379). 
 
 (c) A. is charged with the 
 murder of B. and acquitted. 
 His acquittal is no bar to a 
 subsequent charge of arson 
 causing B. 's deafth (R. v. Semi, 
 107 Sess. Pap. C. C. C. 418-9). 
 
CHAP. XXI.] JUDGMENTS AS AFFECTING STRANGEES. 131 
 
 JUDGMENTS IN PERSONAM AS AFFECTING 
 
 STRANGERS A judgment in personam is no 
 
 evidence of the truth, either of the decision, or of its 
 grounds, between strangers, or a paity and a stranger, 
 except (1) upon questions of public and general 
 interest; (2) in bankruptcy, administration, and 
 divorce, to a limited extent; (3) \^hen so operating by 
 contract or admission. 
 
 Principle. — Again^st Strangers. Such judgments, 
 when tendered against strangers, are sometimes said to 
 be excluded as opinion evidence (R. v. Fontaine Morcaii, 
 sw)f>.); sometimes as hearsay (Steph. art. 14), though it 
 may be remarked that even if the judge were called as 
 a witness he -would not be competent either to pro- 
 nounce or to prove his judgment; but more commonly 
 as res inter alios acta {ante, 43-4), it being unjust that 
 a man should be affected, and still more that he should 
 be bound, by proceedings in which he could not make 
 defence, cross-examine, or appeal. For strangers 
 against parties- Judgments in personam are not 
 evidence for a stranger even against a party, because 
 their operation would thus not be viutual. 
 
 EXAMPLES. 
 Adinissible. Inadmissible. 
 
 A. BuesB. for trespassing upon A. sues B., his servant, for 
 
 his land, B.'s defence being that negligently injuring C.'s horse, 
 
 the land was part of a highwaj- ; A judgment recovered by C. 
 
 — a previous conviction against against A. for such injury is 
 
 A. for nuisance in obstructing not admissible to prove B.'s 
 
 the highway at the spot in negligence [Green v. New River 
 
 question is primd facie evidence Co., i T. E. 590. Aliter to show 
 
 that such spot was part of the the amount recovered by C. ; 
 
 highway (Petrie v. Nuttall, 11 ante, 125]. 
 Ex. 569; ante, 51). 
 
 A. recovers a judgment for On the trial of A. as accessory 
 
 debt against B. , who afterwards to a felony committed by B., 
 
 becomes bankrupt; — the judg- the conviction of B., though 
 
 ment is primd facie evidence of admissible to prove that fact, is 
 
 the debt against B.'s trustee and no evidence of B.'s guilt. [See 
 
 creditors (Exp. Anderson, re R. v. Turner, 1 Moo. C. C. 347 ; 
 
 Tollemache, 14 Q. B. D. 606). 1 Lewin, 121; Steph. art. 44 
 
 Judgments are also evidence of illustr. d.] 
 debt in administration proceed- 
 
132 
 
 THE IiAW OP EVIDENCE. 
 
 [book II, 
 
 Admissible. 
 ings (Harvey v. Wilde, 14 Eq. 
 438). 
 
 In an administration action in 
 Chancery, A. acquiesces in the 
 distribution o£ the funds. A. is 
 barred thereby from afterwards 
 applying to revoke the Tjetters 
 of Administration {Mohan v. 
 Broughton, 1900, P. 56). ■ 
 
 A. petitions for divorce by 
 reason of his wife's adultery 
 with B., the petition being dis- 
 missed on the ground of A.'s 
 own adultery ; this dismissal is 
 conclusive to prove A. 's adultery • 
 in a second petition against liis 
 wife for adultery with C, in 
 which suit (neither the wife nor 
 C. appearing) the Queen's Proc- 
 tor had intervened {Conradi v. 
 Conradi, Jj. E. 1 P. & D. 540). 
 
 A pleads guilty to a crime 
 and is convicted ; the record of 
 judgment upon this plea is ad- 
 missible against him. in a civil 
 action, as a solemn judicial con- 
 fession of the fact (R. v. Fon- 
 taine Moreau, 11 Q. B., p. 1023). 
 
 Inadmissible. 
 
 A. obtains a decree nisi for n. 
 divorce against his wife, who 
 had pleaded, but failed to prove, 
 A.'s adultery. This decree does 
 not debar the Queen's Proctor 
 from proving A.'s adultery on 
 an intervention in which the 
 Queen's Proctor alleges the same 
 ■charges against A., supported 
 by fresh evidence (Harding v. 
 Harding, 34 L. J. Mat. 129; 
 Gladstone v. Gladstone, L. E. 
 3 P. & D. 260). 
 
 A. pleads not guilty to a 
 crime, but is convicted ; — the re- 
 cord of judgment upon this plea 
 is not receivable against A. in a 
 civil action as an admission to 
 prove his guilt (R. v. Wardsn 
 of the Fleet, 12 Mod. 339 ; ante, 
 125). 
 
 DEPOSITIONS IN FORMER TRIALS.— At 
 
 Common Law, testimony given by a witness in a c-ivil 
 or criminal proceeding is admissible in a subsequent (or 
 in a later stage of the same) trial in proof of the facts 
 stated, provided — (1) That the proceedings are between 
 the same parties or their privies; (2) that the same 
 issues are involved.; (3) that the party against whom, 
 or whose privy, the evidence is tendered had on the 
 former occasion a, full opportunity of crdss-examinaiion; 
 and (4) that tlie witness, is incapable of being (xdled on 
 the second trial, i.e., is dead, insane, seriously ill, kept 
 out of the way by the opposite side, or (in civil cases 
 only) is out of the jurisdiction, or cannot be found after 
 diligent search [336-3^0]. 
 
 Principle. — The admission of such evidence has been 
 thought (1) to form an exception to the hearsay rule 
 
cHAr. kxi.] DEPOSlTIOiNS IN FORMER TRIALS. 133 
 
 (Steph. art. 32) ; but since both oath and cross- 
 examination were present, the essential requirements 
 of thatrule aresatisfied {ante, 60-1). Indeed, in Wright 
 V. T^atham, 1 A. & E. p. 22, Tindal, C.J., remarked 
 that such evidence was "of as high a nature, and as 
 direct and immediate,, as viva voce testimony." — Its 
 weight, however, is of course afiected by the loss of the 
 demeanour of the witness. (2) Mr. Taylor considers it 
 admissible as an exception to the rule excluding 
 secondary evidence, holding that that rule excludes 
 secondary evidence not only of documents but of oral 
 testimony (s. 464; sed qu.). (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. 177). 
 
 The conditions of admissibility, it will be seen, are 
 analogous to those relating to judgments; and indeed 
 whenever a decree in one case would be evidence of the 
 facts decided when tendered in another, there the testi- 
 mony of a witness in the former trial who was liable to 
 cross-examination, but is incapable of being c-alled, is 
 receivable. So, as to mutuality, the evidence is not 
 admissible for, unless it would also be admissible 
 against, a party [Mwgan v. Nicholl, L. E. 2 C. P. 117). 
 Where, however, any of the four conditions above- 
 mentioned is absent the evidenc-e will be rejected as 
 res inter alios act<i (ante, 43, 131); though it may of 
 coiirse, be receivable on other grounds, e.g., as an 
 admission, or to contradict the same witness on the 
 second trial, or (after the deponent's death) to prove 
 public rights or pedigree. 
 
 Proof of, and objections to, the former Testimony. 
 — The testimony, if oral, may be proved from memory 
 or notes, by any one who can swear to its accuracy, 
 though not, unless at least by consent, by the judge's 
 notes (Conradi v. Conradi, L. E. 1 P. & D. 514) ; and, 
 if written, by office, certified, or examined copy. And 
 it is open to the same objections as to hearsay, leading 
 questions, and statements of the contents of unpro- 
 
131 
 
 THE LAW OF EVIDENCE. 
 
 [book n. 
 
 duced documente, as if the witness were personally 
 
 present. 
 
 EXAMPLES. 
 
 Admissible. 
 
 Inadmissible. 
 
 In an action by A. against D., 
 the depositions of a v/itness , since 
 deceased, taken in a prior action 
 involving the sa(me question, and 
 brought by A. B. and C. jointly 
 against D., are admissible 
 {Wright\. Tatham.lA. &¥j. 3). 
 
 So, in an action by A. as heir- 
 at-law of B. to recover certain 
 land form C, the depositions of 
 a witness, since deceased, taken 
 in a prior action by A. as heir 
 of B., against C, to recover 
 different lands, are admissible 
 (Doe V. Derby, 1 A. & E. 791 
 n.). 
 
 A. sues B., C, and D., and 
 also, in another action, C, D., 
 and E. The facts in both actions 
 are the same, but the relief 
 claimed is different. Held, that 
 A. might, on notice, read in the 
 second action the affidavits and 
 depositions taken in the first, 
 against such defendants as were 
 common to both (Brown "V. 
 White, 24 W. E. 456). 
 
 A. sues B. for damages for a 
 collision at sea caused by the 
 negligence of B.'s servants. 
 The deposition of a witness 
 taken before the Coroner, on an 
 inquest on A.'s son, whose 
 death was caused by the colli- 
 sion ; — Held admissible for B., 
 the deponent being out of the 
 jurisdiction {Sills v. Brown, 
 9 C. & P. 601 ; sed qu cp. post, 
 145). 
 
 In an action by A. to recover 
 land from C.'s son; the deposi- 
 tions of a witness, since de- 
 ceased, taken in a former action 
 brought by A.'s son as heir-at- 
 law of A. (whom he supposed to 
 be dead) against C. to recover 
 the same land, are inadmissible, 
 as A. did not claim through B., 
 though B. claimed through A. ; 
 and the evidence not being ad- 
 missible against, conld not be 
 admissible for, A. (Morgan v. 
 Nicholl, L. E. 2 C. P. 117). 
 
 A., a shareholder, being sued 
 by a company for calls, pleads 
 misrepresentation. Depositions 
 taken in u. prior action by the 
 company against B., another 
 shareholder, for calls, in which 
 B. had also pleaded misrepre- 
 sentation, are not admissible 
 against the company either at 
 common law, or under 0. 37, 
 r. 3 (Printing Co. v. Drucher, 
 1894, 2 Q. B. 801). 
 
 A., the widow of B., sues C, 
 B.'s employer, under Lord 
 Campbell's Act, for damages 
 for B.'s death. At the trial, a 
 transcript of the proceedings 
 before the Coroner was, ty 
 consent, put in. Held, the 
 depositions were inadmissible 
 and could only be used to cross- 
 examine the deponents (Cal- 
 mensOH v. Merchants' Ware- 
 housing Co., 65 Sol. Jo. 341, 
 H. L. ; ep, post, 145). 
 
( J35) 
 
 BOOK II. 
 ADMISSIBILITY OF EVIDENCE. 
 
 PART II.— WITNESSES. 
 
 CHAPTER XXII. 
 
 COMPETENCY. COMPELLABILITY. OATH AND 
 AFFIRMATION. 
 
 [449-463.] 
 
 COMPETENCY Formerly, the parties, their con- 
 sorts, and any other person having a pecuniary interest 
 in the case, as well as atheists, and those convicted of 
 crime, were incompetent as witnesses. Now, however, 
 with the two exceptions stated below, all persons are 
 competent to give evidence, and the above considera- 
 tions merely affect the weight, and not the admis- 
 sibility, of the testimony. 
 
 Objections to competency used to be decided by the 
 judge on the voir dire {i.e., vrai dire), the witness bein'^ 
 sworn to answer truly all such questions as the Court 
 should demand of him; but the modern practice is 
 either to interrogate the witness before swearing him, 
 or to elicit the facts upon the examination in chief, 
 when, if his incompetency appears, the evidence will 
 be rejected {R. v. Whitehead, L. R. 1 C. C. R. 33). 
 
 (1) Incompetency from Defective Intellect. — No wit- 
 ness is competent who is prevented from infancy, 
 lunacy, drunkenness and the like, from understanding 
 the nature of an oath, and from giving rational 
 testimony. 
 
13(1 • THE LAW OP EVIDENCE. [book ii. 
 
 But the incapacity is only co-extensive with the 
 defect; thus, a lunatic is competent during a lucid 
 interval, a mono-maniac upon all subjects save the one, 
 a drunkard upon his return to sobriety. And where 
 the 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. 
 
 (2) Incompetency in Criminal Proceedings. — Wit- 
 nesses 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 infra, 
 121-3); any person jointly indicted and jointly tried 
 with the accused (K. v. Payne, L. E. 1 C. C. E. 349); 
 and the wife or husband of such person (R. v. Sheriff, 
 35 L. Jo. 664; R. v. Thompson, L. E. 1 C. C. E. 877), 
 are incompetent as witnesses for the prosecution. To 
 render co-defendants or their consoi-ts competent to be 
 called by the prosecution, such co-defendants must be 
 tried separately (Windsor v. R., L. E. 1 Q. B. 390; 
 R. V. Sheriff, sup.), or have been acquitted, or have 
 obtained a nolle prosequi, or have pleaded guilty (B. v. 
 Tomey, 2 Or. App. E. 829). The wife of the 
 prosecutor is, of course, competent and compellable 
 either for the prosecution or the defence (R. v. Hulton, 
 Jebb, C. C. 24). 
 
 Witnesses for the Defence. — By the Criminal 
 Evidence Act, 1898 (see Appendix), which supereedes 
 various prior statutory provisions on the subject, but 
 does not apply to Ireland, — Every person charged with 
 an offence, whether solely or jointly, and the wife or 
 husband of such person is, by sec. 1, rendered a com- 
 petent witness for the defence at every stage of the 
 proceedings (though not before the Grand Jury, R. v. 
 Rhodes, 1899, 1 Q. B. 77; noa- after verdict, in 
 mitigation of punishment, R. v. Hodgldnson, 64 J. P. 
 808). The judge ought in all cases to inform accused 
 persons of tiieir right to give evidence, but his failure 
 to do so will not invalidate a conviction (R. v. 
 Saunders, 63 J. P. 24). Moreover, witnesses under 
 the Act ai-e, unless otherwise ordered, to testify from 
 
CHAP. XXII.] COMPETENCY OV WITNESSES. 137 
 
 the witness-box (sec. 1 (g)); but their failure to give 
 evidence is not to be made the subjec-t of any comment 
 by the prosecution (sec. 1 (5) ), though it may be by 
 the Court (R. v. Rhodes, sup.). 
 
 Evidence given under the Act is subject to the follo'W- 
 ing qualifications: — 
 
 (a) The Acoused. — By sec. 1 (a) the accused may 
 not be called as- a witness except upon his own applica- 
 tion. By sec. 1 (e) he may, when so called, be asked 
 any question upon cross-examination notwithstanding 
 that it would criminate him as to the offence charged; 
 but by sec. 1 (/) he may not be asked, and if aslced 
 shall not be required to answer, any question tending 
 to show that he has committed, or been convicted of, 
 at charged with, any other offence, or is of had 
 character, unless: — 
 
 (i) The proof that he has committed or been con- 
 victed of such other offence is admissible to 
 show that he is guilty of the offence charged 
 [e.g., proof of similar facts, if part of the same 
 transaction under chap. V., relevant under 
 chap. X., or corroborative under chap. XXIV., 
 as in R. v. Chitson, post, 157] ; or 
 (ii) He has personally or by his advocate asked 
 questions of the witnesses for the prosecution 
 to establish his own good character; or has 
 given evidence of his good character {ante, 
 50) ; 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 prosecutrix was 
 a drunken wastrel {R. v. Holmes, 43 Sol. Jo. 
 219) ; or that it was a witness for the prosecu- 
 tion, and not the prisoner, who committed the 
 offence (R. v. Marshall, 63 J. P. 36); but not 
 that the prosecutor was a liar, for this is a mere 
 abusive contradiction (R. v. Rouse, 1904, 
 IK. B. 184); nor that the accused was only 
 acting under the orders of a detective, for this 
 was merely developing the prisoner's defence 
 {R. V. Bridgivater. 1905, 1 K. B. 131, 135); or 
 
138 TiJE LAW OF EVIDENCE, [booe li. 
 
 (iii) He has given evidence against any otiier person 
 charged with the same offence {R. v. Hadiven, 
 1902, 1 K. B. 882). 
 (b) The iVife or Husband of the Accused. — By 
 sec. 1 (c) the wife or husband of the accused may not, 
 save in the cases mentioned below, be called as a 
 witness in pursuance of the Act, except upon the 
 accused's apphcation. By sec. 4 the wife or husband 
 of a person charged with an offence under any enact- 
 ment in the Schedule to the Act may be called as a 
 witness either by the prosecution or defence * and 
 without the consent of the accused; though, when so 
 called, communications made between them during 
 marriage are privileged (sec. 1 (d); ante, 57). The 
 scheduled offences affecting England under this, or 
 later. Acts are: — 
 
 (i) Neglect to maintain, or desertion of, wife or 
 
 family under the Vagrancy Act, 1824. 
 (ii) The fGllowing offences under the Offences against 
 the Person Act, 1861 — rape (s. 48); indecent 
 assault (s. 52); abduction of women or girls 
 (ss. 53-55 ; sections 49-51 have been repealed) ; 
 also in bigamy, but not the further offences 
 mentioned, the wife can be called without the 
 piisoner's consent (Or. Just. Am. Act, 1914, 
 s. 28; jR. V. Green, 63 J. P. 745)]. 
 (iii) Theft by husband or wife of each other's pro- 
 perty under the Mamed Women's Property 
 Act, 1882, ss. 12, 16. [Amended by the 
 Married Women's Pi-operty Act, 1884, s. 1, 
 under which either is, except when defendant, 
 a compellable witness (post, 140)]. 
 (iv) Offences against women and girls under the 
 Criminal Law Amendment Act, 1885 (whole 
 Act), 
 (v) Offences against children under the Prevention 
 of Cruelty to Children Act, 1894. [This Act 
 
 * This probably means not that =•■ prisoner's wife may be called 
 for his defence without his consent, but that he may call the wife 
 of hia Co-defendant without such co-defendant's consent (see 
 Spouse-Witnesses, by Herman Cohen, pp. 18-19, and Appendix). 
 
cuAi'. XXII.] COMPETENCY OF WITNESSES. 13!) 
 
 was repealed, but re-enaoted with amend- 
 ments, by the P. C. C. Act, 1904, by s. 12 of 
 which the accused, or the wife or husband of 
 the accused, is competent, but not com- 
 pellable, as to offences under the Act. Other 
 parts of the latter Act were repealed by the 
 Children Act, 1908.] 
 (vi) Offences under the Incest Act, 1908. 
 Moreover by sec. 4 (2) nothing in the Act is to affect 
 eases where the wife or liusband of the accused may at 
 Common Law be called without the latter's consent, 
 i.e., cases of personal injury to the former caused by 
 the violence or coercion of the latter [R. v. Lord Mayor, 
 16 Q. B. D. 775-6). 
 
 Summary. — The short effect of the above is, that the 
 consort of the accused is only competent for the pro- 
 secution in (1) the Common Law cases of personal 
 violeiice or coercion, and (2) those within the Schedule 
 to the Cr. Ev. Act, 1898, as amended by later Acts; 
 being compellable in the former, but not, save under 
 the Man-ied Women's Property Act, 1884, s. 1, supra, 
 in the latte^r {Leach v. R., 1912, A. C. 805). For the 
 defence, the consort is always competent on the 
 accused's application, but never compellable {id.; R. 
 V. Acaster, 106 L. T. 384). 
 
 (c) Co-Defendants and their Wives or Husbands. — 
 Under sec. 1, ante, 136-7, every person charged with an 
 offence jointly with another is a competent vs^itness for 
 the defence of either, but may only be called upon his 
 own application. When so called, he may be cross- 
 examined, not only by the prosecution, but; if his 
 evidence implicates his co-defendants, by the latter 
 both generally and as to other offences and bad 
 character under sec. 1 {r) and (/) [R. v. Hadwen, 1902, 
 1 K. B. 882; R. v. Paul, 1920, 2 K. B. 183]. 
 
 So, by sec. 1, the consort of a co-defendant is also 
 competent, though not compellable, for the defence. 
 Thus, if A. and B. are jointly charged, Mrs. A. may, on 
 A.'s application, be called for either A. or B. ; and she 
 may, probably, in the special cases scheduled in the 
 Act hft.called-bv B. without A.'s consent {ante, 138). 
 
11(1 THE LAW OF EVIDENCE. [cook ii. 
 
 COMPELLABILITY. — All witnesses competent to 
 give evidence are compellable to do so; except (1) the 
 Sovereign; (2) A^nhassadors o£ foreign States'; and 
 (3) prisoners and their tvives, with the qualifications, 
 supra-. [It is sometimes stated, e.g., Wills, Ev. 2nd 
 ed. 130-1, Cockle, L.C., on Ev. 2nd ed., 205, that the 
 parties in Breach of Promise and Divorce proceedings 
 are not compellable witnesses, since the Evidence Act, 
 1869, s. 1, uses the word " competent " onlj'; but the 
 contrary is clearly shown in Nottingham v. Tomlcinson, 
 4 C. P. D. p. 350, and Taylor, 8th ed. ss. 1353-5.] 
 Compellability to be sworn must, however, be dis- 
 tinguished from compellability ^^hen sworn to answer 
 questions; as to privilege in the latter case, see fully 
 ante, 53-9. 
 
 OATH AND AFFIRMATION.— Subject to the ex- 
 ceptions mentioned infra, 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. 
 
 Believers. — When it appears that a witness has a 
 religious belief he must either be sworn (in the usual 
 \:'a.y, or some other that he declares to be binding upon 
 him, see infra, Form of Oath); or " if he objects to be 
 sworn, and stat-es 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. C. 
 80; Nash v. Ali Khan, 8 Times L. B. 444); and if the 
 witness objects on grounds other than the above, or, 
 though not objecting to an oath, considers it not bind- 
 ing upon him, and will not state what fomi is binding, 
 he cannot affirm {Nash v. AH Khan, supra). 
 
 Atheists. — The testimony of an atheist is receivable 
 (1) if he has been sworn ivithout obiection (Oaths Act, 
 1888, 6. 3) ; or (2) " If he objects to be sworn, and states 
 as the ground of such objection that he has no religious 
 
CHAi-. XXII.] OATHS. 141 
 
 belief," in whicli case he will be alloived to affirm {ibid. 
 
 8.1). 
 
 Form of Oath. — Oaths are binding which are ad- 
 ministered in such 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 form is so 
 binding the judge should inquire from the witness him- 
 self before he is sworn (Tay. s. 1388). 
 
 Ustial Forvi. — The Oaths Act, 1909, s. 2, provides 
 that (1) The witness shall hold the New Testament, or, 
 in the case of a Jew, the Old, in his uplifted hand 
 and say after the officer : "I swear by Almighty God 
 that . . . ," followed by the words of the oath pre- 
 scribed by law ;* (2) The officer shall (unless the witness 
 objects to, or is incapable of, so taking the oath) 
 administer it as above without question ; — Provided that 
 where the witness is neither Christian nor Jow, the 
 oath may be administered in any manner now lawful. 
 If the witness so claims, he may still, as formerly, be 
 sworn by Kissing the Book. 
 
 The form of affirmation provided by the Oaths Act, 
 1888, s. 2, is as follows: — " I, -A.B., do solemnly, 
 sincerely, and truly declare and affirm, " and. then pro- 
 ceed with the words of the oath prescribed by law, 
 omitting any words of imprecation, or calling to 
 witness. 
 
 Scotch Form. — If a witness desires to swear with 
 uplifted hand in the form usual in Scotland, he shall be 
 permitted to do so, without further question (Oaths 
 Act, 1888, s. 5). In this case the witness, holding up 
 his right hand, repeats after the officer, no book 
 being used — " I swear by Almighty God that I will 
 speak the tmth, the whole truth, and nothing but the 
 truth." 
 
 * The prescribed words are in civil cases : — " The evidence that 
 I shall give to the Court (or Court and Jury) touching the matter 
 in question shall be the truth, the whole truth and nothing but 
 the truth"; in criminal cases, for the words italicised, are sub- 
 stituted " sworn before our Sovereign Lord the King and the 
 prisoner at the bar " '(or " Defendant," where the accused is not 
 in custody). 
 
142 THE LAW OF EVIDENCE. [book ii. 
 
 Other Forms. — Eoman Catholics (in Ireland) are 
 sworn upon the New Testament Mith a cross upon 
 it; Jews on tlie Pentateuch, with head covered; 
 jMahomedans on the Koran; Hindoos on the Vedas; 
 Parsees on the Zendavesta; the Chinese by breaking a 
 saucer, with the admonition, " You sliall 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 " (The Orianada, 1907, 122 L. T. Jo. 532, per 
 Bargrave Deane, J.). 
 
 Witnesses who need not Swear or Affirm.— 
 (1) Children. Under certain Acts, e.g., the Children 
 Act, 1908, s. 30, and now generally under the Cr. Just. 
 Amdt. Act, 1914, s. 28 (2), the unsworn evidence 
 of children of tender age is admissible when the Court 
 is satisfied that they " do not understand the nature of 
 an oath," but are " possessed of sufficient intelligence 
 to justify the reception of the evidence and to under- 
 stand the duty of speaking the truth." Such testi- 
 mony, however, must be corroborated , and i& punish- 
 able if false. As to their depositions, see post, 146. 
 
 (2) Witness merely producing Documents. — A wit- 
 ness called merely for the purpose of producing a 
 document need not be sworn {Perry v. Gibson, 1 A! & E. 
 48). 
 
 (3) Counsel and Judges. — The evidence of counsel, 
 when required merely to explain a case in which they 
 have acted as such, but not other\vise, may be given 
 from their places and without oath (Hickman v. 
 Bercns, 1895, 2 Ch. 638), though they may waive their 
 privilege and be sworn, examined, and cross-examined, 
 either in their places {Wilding v. Sanderson, 76 L. T. 
 346), or in the witness-box {Oxley v. Pitts, Times, 
 Dec. 1, 1904). The same rule applies to judges (40 
 L. Jo. 415). 
 
143 1 
 
 CHAPTER XXIII. 
 
 EVIDENCE TAKEN BEFORE OR AFTER TRIAL. — AFFIDAVITS, 
 COMMISSIONS, DEPOSITIONS, INTERROGATORIES. 
 
 [M5-513.] 
 
 CIVIL CASES. Before Trial.— In civil proceedings, 
 evidence may be given before trial in the following cases 
 and manner : — 
 
 AflSdavits. Commissions. (1) By Agreement. — The 
 parties may agree to try their case, either wholly or in 
 part, upon affidavit (0. 37, r. 1 ; 0. 38, rr. 25-30). Such 
 an agreement is equivalent to a consent to try before a 
 judge alone {Brooke v. Wigg, 8 Ch. D. 510) ; but either 
 party may require the production of an affidavit witness 
 at this trial for cross-examination, failing which the 
 affidavit will be rejected. Moreover the Court itself, 
 where the affidavits are unsatisfactory, or the interests 
 of justice require it, may exclude the affidavits and order 
 the witnesses to be examined orally (Lovcll v. WalUs, 
 53 L. J. Ch. 494). (2) By Order of the Court.— The 
 Court or a judge may at any time, for sufficient reason, 
 order (a) that any particular fact or facts may be proved 
 by affidavit; or, (b) that the affidavit of any witness may 
 be read at the hearing or trial, on such conditions as the 
 Court or a judge may think reasonable; or (c) that any 
 witness whose attendance in Court ought, for some 
 sufficient cause, to be dispensed with, be examined by 
 interrogatories or otherwise before a commissioner or 
 examiner; provided that where it appears to the Court 
 or a judge that the other party bond fide desires the 
 production of a witness for cross-examination , and that 
 such witnsss can be produced, no order shall be made 
 authorizing the evidence of such witnesses to be given 
 by affidavit (O. 37, r. 1 ; Adminstr. of Just. Act, 1920. 
 s. 15). 
 
144 THE LAW OF EVIDENCE. [book ii. 
 
 Depositions De Bene Esse. — Where a witness is 
 about to go abroad, or from age, illness, or infirmity is 
 unlikely to be able to attend the trial, he may be 
 examined on oath before an officer of the Court; but, 
 unless otherwise provided or directed, his depositions 
 cannot be given in evidence without the consent of the 
 opposite party unless the witness is dead or beyond the 
 jurisdiction, or incapacitated from attending by sickness 
 or other infirmity (0. 37, it. 5, 18; Warner v. Mosses, 
 16 Ch. D. 100). 
 
 Interrogatories.— Under 0. 31, r. 1, the plaintiff or 
 defendant, in any cause or matter not of a penal nature, 
 may by leave (and in actions for fraud or breach of 
 trust without leave) deliver interrogatories in writing 
 for the examination of the opposite party (i.e., one 
 between whom and the applicant an issue is joined, and 
 not a mere third party) as to any matter in question 
 between them, but not as to matters which would be 
 admissible only in cross-examination {Kennedy v. 
 Dodson, 1895, 1 Ch. 334). And by 0. 31, r. 24, any 
 party may at the trial use in evidence any one or more 
 of the answers, or any part of an answer of the opposite 
 party, without putting in the others, or the whole of 
 such answer, provided always that the judge may look 
 at the whole of the answers, and if he shall be of opinion 
 that any others of them are so connected with those put 
 in that the latter ought not to be used without them, 
 he may direct them to be put in. 
 
 After Trial. — All evidence taken, or used, at the 
 hearing of a case, may be used in any subsequent pro- 
 ceedings in the same case (0. 37, r. 25; 0. 38, r. 21); 
 and evidence taken subsequently to the hearing shall 
 be taken as nearly as may be to evidence taken thereat 
 (0. 37, r. 21). 
 
 CRIMINAL CASES In criminal proceedings oral 
 
 evidence taken before the trial is admissible thereon in 
 the cases mentioned below. 
 
 Depositions before Magistrates and Coroners.— 
 Witnesses for the Prosecution. — By 11 & 12 Vict. c. 42 
 (Jervis' Act), s. 17, it is provided that in all indictable 
 cases, the witnesses for the prosecution are to be 
 
CHAP. XXIII.] AFFIDAVITS AND DEPOSITIONS. 145 
 
 examined on oath and in the presence of the accused, 
 before a justice of the peace ; that their depositions are 
 to be read over to them and signed by them and by the 
 justice; and that afterwards, upon the trial of the 
 accused, if it be proved (1) that the deponent be dead, 
 or so ill as to be unable to travel; and (2) that the 
 accused or his counsel or attorney had full opportunity 
 of cross-examining the deponent; then" (3) if the deposi- 
 tion purport to be signed by the justice taking it, the 
 deposition shall be admissible in evidence, unless 
 proved not in fact to have been signed by such justice. 
 Witnesses for the Defence.— By 30 & 31 Vict. c. 35 
 (Russell Gurney's Act), s. 3, similar provisions apply to 
 depositions by witnesses for the defence. 
 
 So, under the Coroners Act, 1887, s. 4, the depositions 
 of witnesses taken before him are evidence against the 
 accused in cases of murder or manslaughter, (1) if the 
 witness is dead, etc. ; (2) if the deposition is signed by 
 the witness and the coroner; and (3) if the accused was 
 present and had full opportunity of cross-examiivation 
 {R. V. Cowle, 71 J. P. Eep. 152; B. v. Butcher, 64 
 ibid. 808). Hearsay and other inadmissible matter 
 therein will, however, be excluded (R. v. Cowle, supra). 
 As to their admissibility in other oases, see ante, 134. 
 
 Depositions to Perpetuate Testimony. — By 30 & 31 
 Vict. c. 35 (Russell Gurney's Act), s. 6, it is provided 
 that wlien any person able and willing to give informa- 
 tion as to an indictable offence is dangerously ill and in 
 the opinion of some registered medical practitioner not 
 likely to recover, and it is not practicable to take his 
 deposition under Jervis' Act, supra, it may be taken 
 out of Court by a justice under the present Act. And 
 afterwards, upon the trial of the accused, if it be proved 
 (1) that the deponent be dead, or that there is no 
 probability that he will ever be able to travel to give 
 evidence; (2) that reasonable notice was served on the 
 person (whether prosecutor or accused) against whom 
 the evidence is to be read, and that such person or his 
 counsel or attorney had, or might have had, if he had 
 chosen to be present, full opportunity of cross-examin- 
 ing the deponent; then (3) if the deposition purport to 
 
 It.Ti 10 
 
146 THE LAW OF EVIDENCE. [book ii. 
 
 be signed by the justice taking it, the deposition shall 
 be admissible either for or against the accused, as the 
 case may be. 
 
 Under the Children Act, 1908, ss. 28-29, similar pro- 
 visions apply to the depositions of children. 
 
 After Trial — The Criminal Appeal Act, 1907, s. 9, 
 provides for the admission of depositions taken after 
 trial. 
 
( 147 ) 
 
 CHAPTEE XXIV. 
 
 EVIDENCE TAKEN AT THE TRIAL. EXAMINATION, CROSS- 
 EXAMINATION. RE-EXAMINATION, ETC. NUMBER OF 
 WITNESSES. CORROBORATION. 
 
 [464-494.] 
 
 Witnesses at the trial of any action, assessment 
 of damages, or criminal charge, must be examined 
 viva voce and in open conrt. 
 
 EXAMINATION IN CHIEF. Object and Scope of. 
 
 —After the witness has been sworn or affiraied, 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 witness all such 
 facts as tend to prove that party's case and are within 
 the pergonal Icnoidedge of the witness. These may, as 
 we have seen, be facts in issue or relevant to the issiir 
 (provided fhey are not excluded by public policy or 
 privilege), and in certain cases hearsay and Ofinions as 
 to such facts. With regard to documents, he may, as 
 we shall hereafter see, testify to their execution and 
 identity, but not, in the first instance, to their contents; 
 and maj' prove facts, not to conti-adict or vary, but to 
 interpret, their terms. 
 
 Leading Questions.— Generally a party may not, 
 either in direct or re-examination, elicit the facts of his 
 case by means of leading questions — i.e., qviestions 
 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"; for, as the party 
 knows exactly what his witness can prove, such 
 evidence would obviously be open to suspicion, as being 
 irather the prearranged version of the former than the 
 
148 THE LAW OF EVIDENCE. [book ll. 
 
 spontaneous narrative of the latter. 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 (see ante, 16). 
 
 Exceptions. — The i-ule being merely, however, 
 intended to prevent' the examination from being con- 
 ducted unfairly, the judge has a discretion (which is not 
 open to review, Rice v. Howard, 16 Q. B. D. 681) to 
 relax it whenever he considers it necessary in the 
 interests of justice, and it is always relaxed in proving 
 introductory matter, or identification, or contradiction 
 (for here, unless the witness were asked directly 
 whether the particular statements were made, no con- 
 tradiction could be arrived at). Lead,ing questions are 
 also allowable if the witness is adverse (infra, 149-50) ; as 
 well as to assist his viemory, e.g., where he was called 
 to testify as to entries in the Bankruptcy List and the 
 Gazette, but had only mentioned the former, he was 
 allowed to be asked, "Was anything said about the 
 Gazette?" 
 
 Refreshing Memory A witness may refresh his 
 
 memory by any writing made or verified by himself con- 
 cerning, and contemporaneously with, the facts to 
 which he testifies ; but such writings are, of course, no 
 evidence per se of the matters recorded. [As to refresh- 
 ing tlie memory of judges, see ante, 8; and of experts, 
 ante, 119.] 
 
 By whom Documents Written. — The writing may have 
 been made either by the witness himself, or by others, 
 if read by him when the facts were fresh and he knew 
 them to be true. Thus, a witness may refer to' his own 
 diary, or to a newspaper report read by him at the time. 
 So, a log-book kept by the mate, and inspected by the 
 captain a week afterwards, is admissible to refresh the 
 memory of either (Anderson v. Whalley, 3 C. & K. 54). 
 
 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 (ibid.). A delay of a fortnight has been 
 held not fatal (R. v. Langton, 2 Q. B. D. 296; 13 Cox 
 
CHAP, sx.v.] EXAMINATION IN CHIEF. 149 
 
 349) ; but one of several weeka {R. v. Kinlocli, 25 How. 
 St. Tr. 934-7), or six months (Jones v. Stroud, 2 C. & V. 
 196), will be [C'p. ante, 17, 88, 107]. 
 
 Independent RecoUection is not essential. Thus, a 
 barrister may refer to notes on his brief, though he lias 
 forgotten all about the case (R. v. Guiiioci, Ir. Cir. E. 
 167) ; and an attesting witness, from seeing his own 
 signature to a deed, may say he is sure that the party 
 executed it {Maugham v. Huhbard, 8 B. & C. 14). 
 
 Originals and Copies. — Where the original can be 
 produced, and the witness has no recollection of the 
 facts otherwise than from it, a copy is inadmissible {R. 
 V. Harvey, 11 Cox 546). But where the original is lost 
 or destroyed, or the copy was verified by himself while 
 the facts were fresh, a copy may be used {Burton v. 
 Plummer, 2 A. & E. 841). 
 
 Inadmissiible documents may be used for this pur- 
 pose, e.g., an invalid lease {Bolton v. Tomlin, A. & E. 
 836), or an unstamped wi'iting {BirchaH v. Bullough, 
 1896, 1 Q. B. 325). 
 
 Inspection mid Cross-examination. — The opponent 
 has a right to inspect only those parts of the document 
 which refer to the subject-matter of the case {Burgess 
 V. Bennett, 20 W. E. 720). And he may cross-examine 
 thereon without making it evidence against himself, 
 though it is otherwise if he cross-examine upon inde- 
 pendent parts {Gregory v. Tavernor, 6 C. & P. 280-1). 
 
 Discrediting Party's own Witness.— Since the fact 
 of calling a witness is supposed to; represent him to the 
 Court as worthy of credit, it is provided that a " party 
 producing a witness shall not be allowed to impeach liis 
 credit by general evidence of bad character; 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 stntement inconsistent with his present 
 testimony ; but before such last-mentioned proof can 
 be given, the circumstances of the supposed statement, 
 sufficient to designate the particular occasion, must be 
 mentioned to the witness, and he must be asked 
 whothei' or not he has made such statement " (28 & 29 
 
150 THE LAW OF EVIDEKCE. [book ii. 
 
 Vict. c. 18, 8. 3). The wording of this statute would 
 imply that the witness must also be adverse before 
 he can be contradicted by " other evidence;" but this 
 is not necessary (Steph. Note XL VII.) [Post, 151-2.] 
 
 When tlic Witness is Adverse. — A witness is con- 
 sidered adverse when, in the opinion of the judge, he 
 bears a hostile feeling to the party calling him, and not 
 merely when his testimony contradicts his proof 
 {Grecno^gh v. EccJes, 5 C. B. N. S. 786; Tay. s. 1426; 
 Steph. art. 131). 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, 42 Ch. D. 372). 
 
 CROSS-EXAMINATION. Liability to.— When a 
 witness has been intentionally called and sworn by 
 either party, the opposite party has a right, if the 
 examination in chief is either waived or closed, to cross- 
 examine him. So, a defendant, whether in civil or 
 criminal proceedings, may cross-examine a co-defen- 
 dant, or any witness called by the latter, who has given 
 evidence against him (Allen v. Allen, 1894, P. 248; 
 R. V. Hadwen, 1902, 1 K. B. 882; see ante, 139). 
 
 But a witness called merely to prodvce a docuvient, 
 or to be identified, cannot be cross-examined; nor can 
 one who has been called by mistahe and whose examina- 
 tion has not substantially begun. And if a witness die, 
 or become permanently incapacitated, before cross- 
 examination, his evidence will be admissible, though its 
 weight may be impaired (R. v. Doolin, Jebb, C. C. 123). 
 
 Object and Scope of. — The object of cross-examina- 
 tion is twofold — 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 con- 
 fined to matters proved in chief, but may embrace all 
 facts which are in issue or relevant, as well as those 
 which, though otherwise irrelevant, tend to impeach 
 credit. Leading questions may also be put. On the 
 other hand, failure to cross-examine a witness will 
 generally amount to an acceptance of his version of a 
 transaction. As to the cross-examination of pnsoners, 
 see ante, 137-8. 
 
CHAP. XXIV.] CBOSS-EXAMINATION. CREDIT. 151 
 
 Credit. — The credibility of a witness depends upon 
 his knowledge of the facts — his disinterestedness — his 
 integrity — his veracity. Proportioned to these is the 
 degree of credit his testimony deserves from the Court 
 or jury (Archb. Cr. PI. 23rd ed. 403). 
 
 Under this head questions may be put to the witness 
 in order generally (1) to elicit his means of knowledge, 
 opportunities of observation, reasons for recollection or 
 belief, and any special circumstances affecting his 
 ability to speak to the particular case ; (2) to expose the 
 errors, omissions, inconsistencies, or improbabilities in 
 his story; as well as (3) to probe his character, ante- 
 cedents, associations, and mode of life ; while, in parti- 
 cular, the following matters may also be shown: — 
 
 (4) Previous Contradictory Statements. — Every wit- 
 ness upon cross-examination in any civil or criminal 
 proceeding may be asked whether he has made a former 
 statement 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- 
 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 designate 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). 
 
 If the inconsistent statement is in luriting, it need 
 not be shown to the witness, or proved in the first 
 instance; but where the intention is to contradict him 
 by the writing, his attention 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 
 writing 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. o. 18, s. 5; North AtistraUan 
 Co. V. Goldsborough Co., 1893, 2 Ch. p. 385). Where 
 the writing is lost, destroyed, or filed in another 
 court, secondary evidence will be admissible (Tay. 
 ss. 1447-8). 
 
 A party's oxL'n ivitness may, by leave of the judge, be 
 
152 THE LAW OF EVIDENCE. [book h. 
 
 similarly contradicted when, in tJie opinion of tho 
 judge (which is not open to review : Rice v. Howard, 
 16 Q. B. D. 681), such witness proves adverse (28 & 29 
 Vict. c. 18, s. 3) [ante, 149-50]. 
 
 (5) Bias. — Facts showing that the witness is biassed 
 or partial in relation to the parties or the cause may 
 be elicited on cross-examination; or, if denied, inde- 
 pendently proved {A.-G. v. Hitchcock, 1 Ex. E. 91), 
 e.g., that the witness is the kept mistress of the 
 opponent {Thomas v. David, 7 C. & P. .350; cp. Con- 
 tradiction, infra); or has quan-elled with, or expressed 
 hostility towards the cross-examining party [R. v. 
 Shaw, 16 Cox 508). 
 
 (6) Previous Conviction. — A witness 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). This applies also to a prisonei'- 
 witness if, by asserting his good character, he has let 
 in questions as to his previous conviction {ante, 50, 
 137-8). 
 
 (7) Reputation for Untruthfulness. — Independent 
 evidence may be given that an adversary's (but not a 
 party's own) witness 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. Broivn, 1 C. C. R. 
 70). 
 
 Judge may disallow Questions. — The judge may in 
 all cases disallow any question put in cross-examination 
 of any party or witness which may appear to him to be 
 vexatious, or not relevant to any matter proper to be 
 inquired into in the cause or matter (0. 36, r. 38; Tay. 
 s. 1460; Steph. General View of Cr. Law, 2nd ed. 207), 
 e.g., questions as to alleged improprieties of remoto 
 
CHAP. XXIV.] CONTIUDICTION. 153 
 
 date, or of such a nature as not seriously to affect 
 present credibility (Jbid.) ; or as to the witness'tj 
 religious belief {Darby v. Ouseley, 1 H. & N. 1); or aa 
 to disparaging comments made about him in other 
 trials {Seaman v. Ncilicrclift, 2 C. P. D. 53; though in 
 practice these are commonly allowed). 
 
 Compulsion to answer A witness is compellable to 
 
 answer every question put to him in cross-examination 
 which is relevant to the issue, unless protected by 
 public policy or privilege, or unless the case is one in 
 which oral evidence is excluded in rclaiion io docu- 
 ments. He is also in general compellable to answer 
 questions which are in-elevant except as affecting 
 credit; b\it here the judge has a discretion to excuse 
 an answer when the truth of the matter suggested 
 would not, in his opinion, affect the credibility of 
 \\itne8s as to the subject-matter of his testimony 
 {supra; Steph. art. 129; Tay. ss. 1460). 
 
 Contradiction. — Witnesses may be contradicted by 
 independent evidence on all matters relevant to the 
 issue; but their credit cannot be impeached by contra- 
 diction on irrelevant matters (and their answers thereon 
 will be conclusive) except in the case of (1) Bias ; or 
 
 (2) Previous conviction for crime {ante, 152). Thus, 
 whei'e a witness, who had given his evidence through 
 an interpreter, denied that he could speak English, it 
 was held that the matter ^^•as collateral, and could not 
 be contradicted {R. v. Burke, 8 Cox, 44). So a female 
 witness, who denies that she is a common prostitute 
 cannot be contradicted; though aliter that she is the 
 opponent's kept mis-tress, for this goes to show bias 
 {Thomas v. David, ante, 152). 
 
 Re-establishing Credit. Recrimination. — Where a 
 witness's reputation for veracity has been attacked, his 
 credit may be restored either (1) by cross-examining 
 the impeaching witness as to his means of knowledge, 
 hostility to the other, etc. ; or (2) by general evidence 
 that the impeached witness is worthy of credit; or 
 
 (3) by general evidence that the impeaching witness is 
 un^vorthy of credit, 
 
154 THE LAW OF B^'IDENCE. [book n. 
 
 RE-EXAMINATION.— Whenever there has be.eu 
 cross-examination, even upon inadmissible matters, 
 the right to re-examine exists. This must, however, 
 be confined to an explannation of matters arising in 
 cross-examination, and no new facts may be intro- 
 duced. Thus, where parts of a conversation had been 
 elicited on cross-examination, distinct matters, though 
 occurring in the same conversation, were rejected on 
 re-examination (Prince v. Sc^nio, 7 A. & B. 627; cp. 
 ante, 64). So, an accomplice, having admitted on 
 cross-examination, 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, the question not 
 arising out of the cross-examination (R. v. Fletcher, 
 
 1 Lew. C. C. 111). 
 
 EXAMINATION BY JUDGE AND JURY. RE- 
 CALLING WITNESS.— A judge may put all such 
 questions to a witness as the interests of justice 
 require, and may base such questions not only on 
 matters arising in the case, but on his own local cr 
 scientific knowledge (R. v. Antrim, 1895, 2 1. E. 603). 
 So, to a limited extent, may the jury. But neither 
 judge nor jury may ask inadmissible questions {R. v. 
 Ratclifjc, 14 Cr. App. E. 95; R. v. Lilhjman, 1896, 
 
 2 Q. B. p. 177). 
 
 The judge may also, for the discovery of truth, in 
 criminal and (with consent of all parties) civil cases, call 
 any witness himself, especially where the jury desire it. 
 Such witnesses may not, as of right, be cross-examined 
 by the parties; but where material evidence is given 
 against either, leave should be given to that party to 
 cross-examine {Re Enoch, 1910, 1 K. B. 327, 0. A). 
 And he may at any stage of the trial, either at his own 
 instance or that of a party, recall a witness for further 
 examination or cross-examination. 
 
 NUMBER OF WITNESSES. CORROBORATION. 
 — 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. & F. 592-3). 
 
CHAr. XXIV.] CORBOBOKATIUN OF WITNESSES. 155 
 
 But whenever there are circumstances of Buspicioii, or 
 the testimony of a witness is challenged by cross- 
 examination or otherwise, corroboration is allowed ; 
 and in certain cases no verdict can be obtained without 
 it. On the other hand, Courts have inherent 
 power to check an undue multiplicity of witnesses 
 (Best, ss. 47-8). 
 
 Exceptions. — To the rule that a single uncorroborated 
 witness will suffice, there ai'e the following exceptions : 
 — (1) Treason. In trials for high treason, or mis- 
 prision of treason (other than compassing the 
 Sovereign's death) two witnesses are essential, either 
 both to the same overt act, or o»e to one, and another 
 to another overt act of the same treason (Tay. ss. 952- 
 958; Steph. art. 122). (2) Personation at Elections 
 must also be proved by two credible witnesses (6 & 7 
 Vict. c. 18, s. 88; 35 & 86 Vict. c. 33, ss. 24, 27). 
 
 (3) Perjury. In trials for pei-jury the defendant 
 cannot be convicted solely on the evidence of one 
 witness (Perjury Act, 1911, s. 13). 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) ; and (5) in Bastardy that of the mother " in 
 some material particular by other testimony to the 
 satisfaction of the justices " (8 & 9 Vict. o. 10, s. 6; 35 
 & 36 Vict, c, 65, s. 4). Similar rules apply to 
 (6) Orders of Remo¥al (39 & 40 Viet. c. 61, s. 34), 
 (7), to offences under the Criminal Law Amendment 
 Act, 1885, ss. 2-4; and (8) to offences referred to in the 
 Children Act, 1908, s. 30, where the proof of the 
 offence rests on the unsworn testimony of children; a 
 provision now made general, whenever such testimony 
 is allowed, by the Cr. Just. Adm. Act, 1914 (ante, 142). 
 Moreover (9) under the Motor Car Act, 1903, s. 9, a 
 defendant may not be convicted merely on the opinion 
 of one witness as to the rate of speed. (10) It is also a 
 rule of practice, though not of strict law, that Courts 
 will not act upon the un<x>rroborated testimony of 
 Claimants to the property of deceased persons unless 
 convinced it is true (Rawlinson v. Scales, 79 L. T. 
 
156 THE LAW OF EVIDENCE. [bo6k ii. 
 
 350) ; nor (11) in criminal cases upon the unsupported 
 evidence of Aooomplioes {B. v. Baskcrville, 1916, 2 
 K. B. 658). Where coiToboration is required by law, 
 a conviction obtained without it, will be quashed; 
 where required merely by a rule of practice, although 
 the judge 7nust caution them, the jury may convict 
 without it (id.). There must be corroboration both as 
 to the crime and the identity of the prisoner; it must 
 also bo by independent evidence, and not merely by 
 his own wife, or another accomplice (R. v. Wilh's, 191G, 
 1 K. B. 933); and, where there are several prisoners, 
 the jury should be advised to acquit those against 
 whom there is none. .The testimony of an informer, 
 i.e., one who has joined a conspiracy as agent of the 
 police, or of either thief or receiver against the other, 
 or of children under fourteen, does not fall within the 
 rule. 
 
 Facts admissible in Corroboration. — Facta which 
 tend to render more probable the truth of a witness's 
 testimony on any material point, are admissible in 
 corroboration thereof, although otherwise irrelevant to 
 the issue, and although happening before the date of 
 the fact to be corroborated {Wilcox v. Gotfrey, 26 L. T. 
 N. S. 481; Cole v. Manmng, 2 Q. B. D. 611). But 
 facts which are not moi'e consistent with the truth of 
 such testimony than the reverse, are inadmissible. 
 The con-oborative facts and evidence must, however, 
 proceed from some one other than the witness to be 
 corroborated (R. v. Christie, post, 157); and the 
 question of their admissibility is one of law for the 
 judge, and not olie of fact for the jury {Bessela v. 
 Stern, 2 C. P. D. p. 267; Wiedemann v. Walpole, 
 1891, 2 Q. B. pp. 537, 539; contra, R. v. Gray, C. C. K. 
 68 J. P. Rep. 327, sed. qu.) 
 
 Previous similar Statements generally inadmissible. 
 — FoiTuerly, the fact that a witness had made a 
 previous statement similar to his testimony in court 
 could always be proved to confirm his testimony 
 (Lutterell v. Reynell, 1 Mod. 282, 283). But after- 
 wards the rule was changed, and such evidence is now 
 generally inadmissible either on direct examination to 
 
CHAP. XXIV.] COEEOBOEATION OF WITNESSES. 
 
 157 
 
 confirm his testimony, or on re-examination to re- 
 establish his credit when impeached by proof of a 
 previous contradictory statement {R. v. Parker, 3 
 Doug. 242; R. v. Coyh, 7 Cox 74; R. v. Coll, 24 L. E. 
 Iv. 522). Exceptions. — Such statements, however, 
 are receivable in the following cases, not to prove the 
 truth of the facts asserted, but merely to show that the 
 witness is consistent with himself : — (1) Where the 
 witness is charged with having recently fabricated the 
 story, e.g., from some motive of interest or friendship, 
 it may be shown that he made a similar statement 
 .before such motive existed (R. v. Coll, and R. v. Coyle, 
 supra) ; (2) On charges of Rape and similar offences 
 against females, the fact that the prosecutrix made a 
 complaint shortly after the outrage, together with its 
 particulars, are admissible to confirm her testimony and 
 disprove consent {ante, 28-9). 
 
 EXAMPLES. 
 
 Admissible. 
 
 Inadmissible. 
 
 A. sues B. for breach of pro- 
 mise of marriage. The fact that 
 B. in the presence of C, a wit- 
 ness , said to A. , who was attend- 
 ing B. in an ilhiess, " Who has a 
 better right to take care of me 
 than my wife?" is admissible in 
 corroboration of the alleged pro- 
 mise (Hickey v. Campion, 20 
 W. E. 752; cp. ante, 75). 
 
 A. is charged with carnal 
 knowledge of B. , a girl under 16. 
 
 B. swore that, after the act, A. 
 told her he had had similar 
 relations with C. and hoped she 
 would be as loving as C. — A. 
 having, in the box, denied the 
 
 C. incident, letters from C. to 
 A. bearing out the imputation ; 
 — Held admissible, under the 
 Cr. Ev. Act, 1898, s. 1, to 
 corroborate B.'s testimony and 
 prove A.'s guilt (R. v. CkiUon, 
 1909, 2 K. B. 945, cited ante, 
 137; R. V. Lovegrove, 1920, 3 
 K. B. 643). 
 
 A. sues B. for breach of pro- 
 mise of marriage. Letters by B. 
 to A. expressing affection and 
 admiration for her, and using 
 terms of endearment, but con- 
 taining no reference to marriage, 
 are not admissible in corrobora- 
 tion, being equally consistent 
 with B.'s having no intention 
 to marry A. {Kempshall v. Hol- 
 land, Times, Nov. 14th, 1895). 
 
 A. is charged with indecently 
 assaulting B., a boy of 5. The 
 fact that, shortly after the 
 assault, B., in A.'s presence, 
 made a statement to a constable 
 of ihe details of the assault, is 
 not admissible to corroborate 
 B. 'a subsequent testimony at the 
 trial, whether his former state- 
 ment be proved by himself, or 
 by other witnesses (R, v. 
 Christie, 1914, A. C. 515, cited 
 ante, 75). 
 
(158) 
 
 BOOK II. 
 ADMISSIBILITY OF EVIDENCE. 
 
 PAET III.— DOCUMENTS. 
 
 CHAPTEE XXV. 
 
 AUTHORSHIP AND EXECUTION : HANDWRITING, SEALING, 
 DELIVERY, ATTESTATION. ANCIENT DOCUMENTS. 
 ALTERATIONS AND BLANKS. STAMPS. 
 
 [514-532.] 
 
 PUBLIC AND JUDICIAL DOCUMENTS.— The 
 
 execution of public and judicial documents will be more 
 fully considered when dealing with their contents 
 • (post, Chap. XXVI.), since in most of the statutes pro- 
 viding for their proof the two subjects are treated 
 together. It will suffice, here, therefore, to say that 
 certain of such documents {e.g., Acts of Parhament) 
 being judicially noticed are admissible without any 
 authentication whatever; while others need no fuither 
 authentication than that of appearing in a Government 
 Gazette, or " pui-porting " to be printed by the official 
 printers, or " purporting " to be certified, stamped, 
 sealed, or signed by certain officers or departments, — 
 the effect being to render such documents prima facie 
 admissible so far as their genuineness and validity go, 
 and to throw upon the opponent the onus of impeach- 
 ing them if he can. 
 
 PRIYATE DOCUMENTS The execution of 
 
 private documents, whether produced or not, whose 
 
CHAP. XXV.] EXECUTION OE DOCUMENTS. 159 
 
 proof has not beon dispensed with as provided, ante, 7, 
 may be proved as foUoves : — 
 
 Handwriting and Signature. — The handwriting and 
 signature of unattested documents, or of attested ones 
 not legally requiring attestation (infra), may be proved 
 by calling (1) the writer; or (2) a witness who saw the 
 document signed; or (3) a witness who has acquired a 
 Icnoivledge of the loriting in any of the three ways 
 mentioned ante, 122; or by (4) compariscm oi the docu- 
 ment in dispute with others proved to be genuine as 
 provided ante, 26-7; or by (5) the admissions of the 
 party against whom the document is tendered; the 
 above methods being all equally primary and equally 
 admissible. As to lost documents, see post, 160. 
 
 Mode of Signatiire — Moreover, even where signature 
 is required by statute and for solemn documents, a 
 manual signing is not generally essential, any form in 
 which a person affixes his name, with intent that it 
 shall be treated as his signature, being sufficient; e.g., 
 deeds or wills are valid if signed by mark, stamp, or 
 initials. 
 
 Sealing and Delivery. — Signature, though usual, is 
 not necessary to the validity of a deed, unless under 
 a power requiring it, and forms no part of the execution. 
 But where signature is proved, and the attestation 
 clause is in the usual form, sealing and delivery may 
 be presumed. 
 
 To constitute sealing, neither wax, nor wafer, nor a 
 piece of paper, nor even an impression is necessary (Re 
 Sandilands, L. E. 6 C. P. 411) ; providing that, from the 
 testimony or circumstances, sealing may, in fact, be 
 inferred (Natl. Prov. Bank of England v. Jackson, 33 
 Ch. B. 1; Re Balkis, 58 L. T. 300). Delivery is 
 essential to a deed, and the deed takes effect therefrom . 
 No particular form, however, is necessary. Thus, 
 throwing it on the table \vith intent that the other 
 should take it up, or treating it as one's own, is 
 sufficient. 
 
 Attestation. — When a document; (1) is required by 
 law to be attested, it must (subject to the exceptions 
 mentioned below) be proved by calling the attesting 
 
160 THE LAW OF EVIDENCE. [book n. 
 
 witness, even though the document itself be lost, can- 
 celled, or destroyed. If there are several such wit- 
 nesses., one only need be called; but the absence of all 
 must be explained before other evidence can be 
 received. Where, however, the witness denies the 
 execution {Boivman v. Hodgso-n, L. E. 1 P. & D. 
 362), or refuses to testify {Re Ovens, 29 L. E. I. 451), 
 other evidence will be admissible. Where the attest- 
 ing witness is dead, insane, beyond the jurisdiction, or 
 cannot he found, secondary evidence of execution 
 must be given by proof of his handwriting; or if (but 
 only if) this is not obtainable, by presumptive or other 
 evidence {Clarke v. Clarice, 5 L. E. I. 47; Steph. 
 art. 66). When the document is lost and the names of 
 the witnesses are unknown, the execution may be 
 proved by the recollection of witnesses {Re Phibhs, 
 1917, P. 93), by admission, or otherwise, e.g., by the 
 parties having a<;ted on the document {R. v. Wording- 
 bridge, 27 L. J. M. C. 290), as if there were no attest- 
 ing witness. And when (2) attestation is not legally 
 required, similar proof to the last-mentioned may, 
 as with unattested documents, also become admissible 
 (28 & 29 Vict. c. 18, ss. 1, 7; ante, 159). 
 
 When attesting witness need not be called. — Even 
 though attestation be required by law, and the attest- 
 ing witness be available, he need not be called when 
 (1) the document is ancient, i.e., thirty years old 
 (infra) ; or (2) its execution has been admitted for the 
 purposes of the trial {ante, 7); or (3) the document is 
 in the possession of the adversary who refuses to pro- 
 duce it on notice {Cooke v. Tanswell, 8 Taunt. 450) ; or 
 who, though producing it, claims an interest under it in 
 the subject-matter of the cause {Pearcc v. Hooper, 8 
 Taunt. 60) or who, if a public officer bound by law to 
 procure its execution, has already treated it as valid 
 {Plumer v. Briscoe, 11 Q. B. 46). 
 
 Anoient Doouments. Proper Custody. — Documents 
 thirty years old, produced from proper custody, and 
 other^vise free from suspicion, prove themselves, and 
 no evidence of their execution need be given, though the 
 witnesses attesting them be alive and in Court. The 
 
CHAP. XXV.] EXECUTION OF DOCUMENTS. 161 
 
 proper custody of a document means its deposit with a 
 person and in a place where it might naturally and 
 reasonably be expected to be found, if authentic, even 
 though there be some other custody more strictly 
 proper (Tay. ss. 659-664). Thus, the proper custody of 
 parish registers is withi the incumbent or in the church , 
 and not, unless explained, witli the parish clerk [Doe v. 
 Fowler, 14 Q. B. 700) ; and that of family Bibles with a 
 member of the family (Hubbard v. Lees, L. E. 1 Ex. 
 255). On the other hand, an ancient grant, produced 
 from the British Museum, and not ft'om the custody of 
 persons interested in the property, has been rejected 
 [Swinnerton v. Stafford, 3 Taunt. 91). 
 
 Alterations. Blanks. — Unless made with the privity 
 of the party charged, any material alteration made in a 
 deed or written contract, after its execution, and while 
 in the control of the party enforcing it, even though 
 m£ide without the latter's knowledge or assent, renders 
 the instrument void [Davidson v. Cooper, 13 M. & W. 
 343). In the absence of evidence, however, alterations 
 in deeds are presumed to have been made before execu- 
 tion (Doe V. Catomore, 16 Q. B. 745), those in idlls 
 after execution (Doe v. Palmer, ibid. 747). 
 
 Blanks. — Immaterial matters (e.g., a mere Christian 
 name) may, by consent, be filled in after the execution 
 of a deed; but not essential ones (e.g., the name of a 
 transferee of shares, or their number), as to which the 
 deed must, after their insertion, be redelivered, or will 
 be void (Powell v. London and Provincial Bajik, 1893, 
 2 Ch. 555). 
 
 Stamps. — Except in criminal proceedings, no instru- 
 ment requiring a stamp " shall be given in evidence, or 
 be available for any purpose whatever," unless (1) it is 
 duly stamped in accordance with the law in force at the 
 time when it was first executed; or (2) if the instru- 
 ment is one which may be legally stamped after its 
 execution, unless on payment to the officer of the Court 
 of the unpaid duty, together with the penalty payable 
 on stamping the same, and of a further sum of one 
 pound (Stamp Act, 1891, s. 14). Stamp objections 
 are now taken by the Court (ibid.), and cannot be 
 
 L.E. 11 
 
162 THE LAW OP EVIDENCE. [book u. 
 
 waived by the parties {Boivher v. Williamson, 5 
 T. L. E. 382). 
 
 No new trial (0. 39, r. 8), oi" appeal {Blewitt v. 
 Tritton, 1892, 2 Q. B. 327), is allowed where the judge 
 has ruled that a stamp is sufficient, or not required. 
 But his ruling is final only when he decides that the 
 instrument is admissible (ibid.). 
 
 Where a document requiring a stamp is lost, or not 
 produced upon notice, it will, in the absence of 
 evidence to the contrary, be presumed to have been 
 duly stamped; but where it is shown to have been 
 unstamped, it will be presumed to have so continued 
 until the contrary is proved (Closmadeuc v. Carrel, 
 18 C. B. 36). 
 
( 163 ) 
 
 CHAPTEE XXVI. 
 
 CONTESTS OF DOCUMENTS GENERALLY : I>RIMA11Y AND 
 
 secondary evidence. contents of particular 
 documents: public, judicial, and private. 
 
 [533-S65.] 
 
 The contents of public or judicial documents, may, 
 in general, be proved either by primary or secondary 
 evidence ; the contents of private documents must 
 be proved by primary evidence, except in the cases 
 mentioned post, 166-7. 
 
 PRIMARY EYIDENCE.— Primary evidence of the 
 contents of a document may be given in the following 
 forms : — 
 
 (1) Production of the Original Document. — When an 
 original document 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 pui-ports to be. Duplicate Origin-ah are each 
 piimary evidence; Count erpaHs are primary against an 
 executing, but secondary only against a non-executing, 
 party. The original of a telegram is the one sent, not 
 the one received. 
 
 How prooured. — When a party desires to obtain an 
 original document which is in the hands of : (1) his 
 opponent, the latter may be served either ^^ith a notice 
 to produce (post, 167), under which production is 
 optional; or with a subpoena duces tecum, under which 
 it is compulsory. When it is in the hands of (2) a 
 stranger, a subpoena is the proper process, except in the 
 case of judicial documents, or bankers' books, when a 
 judge's order is necessary. In criminal cases, how- 
 ever, the prosecutor, not being strictly a party (ante, 
 
ir>4 THE LAW OF EVIDENCE. [book ii. 
 
 128), 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. PI. 24th ed. 375). 
 
 (2) Admissions. — Admissions of the contents of a 
 document made either orally, in writing, or by conduct, 
 by a pai-ty, are primary evidence against him, without 
 notice to produce, or accounting for the absence of, the 
 original, such proof not being open to the same objec- 
 tions as is parol evidence from other sources ; while the 
 sworn testimony as to its contents of witnesses who are 
 strangers, is only secondary evidence {Slatterie v. 
 Pooley, 6 M. & W. 664). So, copies, though usually 
 only secondary evidence, may become primary by 
 having been delivered by a party to his opponent as 
 correct, or othenvise dealt with by him as true (Price 
 V. Woodhouse, 3 Ex. 616). 
 
 (8) Copies made under Public Authority.— In a few 
 cases cx)pies 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, the original will not being even 
 admissible for this purpose (Finney v. Hunt, 6 Ch. D. 
 98) ; whUe, where proof is required of the declaration 
 of a testator, the will is primary evidence and the pro- 
 bate secondary only (ante, 96). 
 
 SECONDARY EYIDENCE. Forms of Secondary 
 Evidence. — The following are the various forms in 
 which secondary evidence of the contents of documents 
 may be tendered, the enumeration given in Stephen's 
 Digest, art. 70, being too hmited : — 
 
 (A) Copies, which may be (1) Government Printers, 
 or Government Gazette, ao'pies. (2) ExempUfications 
 (now obsolete), i.e., copies of a record set out either 
 under the Gi-eat Seal, or the seal of the Court in which 
 the record is presei'ved. (3) Examined copies, i.e., 
 those sworn to be true by a witness who has examined 
 them line by line with the originals, or who has 
 examined the copy while another person read the 
 original. Examined copies are the original and legiti- 
 mate common law method of proving every species of 
 
CHAK srxvi.] SECONDARY EVIDENCE OF DOCUMENTS. 1G5 
 
 document, but are not usually employed where the 
 simpler means of office or certified copies are available. 
 (4) Office copies, i.e., copies of judicial documents 
 made by the officer having charge of the originals, and 
 sealed with the seal of the office. Office copies of all 
 writs, records, pleadings, and other documents filed in 
 the High Court are admissible therein to the same 
 extent as the originals (0. 37, r. 4) ; but copies mads by 
 officers of other courts are only admissible in the same 
 court and cause. (5) Certified copies, i.e., those 
 signed and certified as true by the officer to whose 
 custody the original is entrusted. If purporting to be 
 verified in the manner pi^ovided 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 (Documentary Evidence 
 Act, 1845, 8. 1). Certified copies are th& usual means 
 of proving non-judicial public documents, e.g., 
 registers. (6) Printed, lithographed, or photographed 
 copies, are primary evidence of each other's contents, 
 but secondary evidence only of the common original. 
 (7) Drafts, Abstracts, and Memorials, are also some- 
 times received as secondary evidence of deeds, even 
 against strangers. 
 
 What Copies appropriate. — In the absence of specific 
 provision, the proper means of proving the contents of 
 pubUo documents is by certified copy, and of judicial 
 document by office copy; but in many cases alternative 
 means are also provided by statute (injra, 167-171). 
 The proper means of proving private documents is by 
 production, or failing this, examined copy. 
 
 (B) Oral Testimony. — Secondary evidence of 
 private, but not generally of public or judicial docu- 
 ments (post, 166), may also be given by the testimony 
 of witnesses who have read them ; or by — 
 
 (C) Presumptive Evidenoe, e.g., by the parties 
 interested having acted in accordance with the tenor 
 of the document {R. v. Fordingbridge, 27 L. J. M. C. 
 290) ; or by the— 
 
 (D) Statements or Entries by Deceased Persons, 
 admissible under exceptions to the hearsay rule. 
 
I(5f3 THE LAW OF EVICENCE. [book ii. 
 
 Thus, an entry against interest made in a rent-book by 
 a deceased landlord has been received as secondary 
 evidence of the contents of a lost lease {Connor v. 
 Fitzgerald, ante, 86); and a copy made in the course of 
 duty by a deceased clerk to a solicitor, as secondary 
 evidence of a lost will {Sly v. Sly, ante, 89). So, also, 
 for the latter purpose, the declarations of the testator 
 are admissible, not strictly as an exception to the hear- 
 say rule, but as original evidence {Svgden v. St. 
 Leonapds, an.te, 10-1). 
 
 Inadmissible Forms. Copies of Copies. — On the 
 other hand, copies of copies are not generally receiv- 
 able ; though if the second be compared with the first 
 and the first with the original, this objection goes only 
 to weight and not admissibility {Lafone v. Griffin, 25 
 T. L. K. 308 ; Re Halifax, 79 L. T. 183, 536). Not can 
 a document be ^Droved by a witness who merely heard 
 what purported to be its contents read out in a former 
 trial {Doe v. Ross, 7 M. & W. 102). 
 
 No Degrees of Secondary Evidence. — Formerly, 
 when the " Best Evidence " rule prevailed, secondary 
 evidence was strictly marshalled according to degree, 
 i.e., counterparts, then copies, then abstracts, then 
 parol evidence. Now, however, all classes are in 
 general equally admissible, subject to observation 
 where more satisfactory proof is withheld {Doc v. 
 Ross, 7 M. & W. 102). There is an exception to this 
 in the case of jmhlio or judicial documents, the 
 contents of which are provable by copies and not by 
 oral evidence {Breton v. Cope, 1 Peake, 48; Best, 
 s. 485;an;e,165). 
 
 Cases in which Secondary Evidence is Admissible. — 
 Secondary evidence of the contents of documents may, 
 provided the originals themselves would be admissible, 
 be g'ven in the following c^ses : (1) When the Original 
 is a Public or Judicial Document, or a private one 
 required to be registered or enrolled. (2) When the 
 original has bcen'lost or destroyed; but execution and 
 (where lost) search must first be proved independently. 
 (3) When its production is physically impossible or 
 highly inconvenient, e.g., in the case of tombstones. 
 
CHAv. XXVI.] PROOF OF PUBLIC DOCUMENTS. 167 
 
 public registers, or documents in foreign countries. 
 (4) When the anginal is in the possession of a stranger 
 who refuses to produce it, and is not compellable by 
 law to do so, e.g., when it is a title-deed, incriminating 
 document, or one which he holds as trustee, solicitor, 
 or mortgagee for another. (5) When the original is in 
 the possession of the adversary, who refuses to pro- 
 duce it either after No'tice to Produce, or when such 
 notice is excused. 
 
 Notice to Produce. — The object of a notice to pro- 
 duce 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, 7 Ex. 
 639, 647). If the document is produced and inspected 
 or used by the party calling for it, he thereby makes 
 it his own evidence {Sayer v. Kitchen, 1 Esp. 210) ; if 
 not produced, the non-producing party cannot after- 
 wards use it (Edmonds v. Challis, / C. B. 413). 
 
 Notice to produce is. excised when (a) the document 
 is itself a notice served on the adversary ; or (6) where 
 from the nature of the case the adversary is charged 
 with its possession, e.g., an action to recover the docu- 
 ment, or a charge of stealing it; or (c) where the 
 adversary has it in Court, or has himself admitted its 
 loss. 
 
 PUBLIC DOCUMENTS. Statutes Public Statutes 
 
 and all others passed since February 14, 1851, are 
 judicially noticed without evidence unless the contrary 
 is expressly declared (52 & 53 Vict. o. 63, s. 9). 
 Colonial Stetutes, and orders and regulations there- 
 under, are provable by copies purporting to be printed 
 by the Government printer of the colony (7 Ed. VII. 
 o. 16, s. 1; Gibson v. G., 37 T. L. E. 124). Foreign 
 law, written or unwritten, must be proved as matter 
 of fact to the judge, by experts [ante, 6, 8, 117). 
 
 Treaties, Charters, Letters-Patent, &o. — Ti-eaties, 
 charters, Crown grants, pardons, and commissions are 
 provable by production, or examined copy (Tay. 
 s. 152P.). Letters-patent sealed with the seal of the 
 
158 THE h\W OF EVIDENCE. [book n. 
 
 Patent Office are judicially noticed, and certified and 
 sealed copies thereof are also admissible (46 & 47 Vict, 
 c. 57, ss. 84, 89). Colonial or Foreign public proceed- 
 ing are provable by examined copy, or copy purport- 
 ing to bear the seal of the colony or state (14 & 15 Vict, 
 c. 99, s. 7). 
 
 Proclamations and Orders in Council are provable, 
 not only by the Common Law methods of production 
 or examined copy, but also by Gazette copy, Govern- 
 ment printer's copy, or copies purporting to be 
 certified by the heads, secretaries, or assistant 
 secretaries, of the particular public Board or Depart- 
 ment involved (Documentary Ev. Act, 1868, s. 2). 
 
 Parliamentary Journals are provable by copies pur- 
 porting to be printed by the Government printers 
 (8 & 9 Vict. c. 113, s. 3). 
 
 Tlie General Records of the Realm 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 keepers, and purporting to be sealed with the 
 seal of the Eecord Office (1 & 2 .Vict. c. 94, ss. 12-13). 
 
 Official Certificates, Corporation Bool(S, Public 
 Registers. — 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, by-laws, entries in registers and other 
 books shall be receivable in evidence of certain particu- 
 lars in courts of justice, provided they are respectively 
 authenticated in the manner prescribed by such 
 statutes. Whenever by any Act now or herafter in 
 force any such certificate, &c., ia 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 
 Vict. c. 113, s. 1). And whenever any book or other 
 document is of such a public nature as to be admissible 
 in evidence on its mere production from the proper 
 custody, and no statute exists which tenders its con- 
 tents provable by means of a copy, any copy thei'eof 
 
CHAP. X.XVI.] PIIOOF OF JUDICIAIj DOCUMKNTS. ISO 
 
 or extract therefrom shall be admissible provided it 
 be proved to be an examined copy or extract, or 
 •purport to be signed and certified as a true copy or 
 extract by the officer to whose custody the original is 
 entrusted (14 & 15 Vict. c. 99, s. 14). 
 
 English Registers are provable, as above, by copies 
 purporting to be duly certified. Indian registers, by 
 copies deposited at, and produced from, the India 
 Office {Westviacott v. W., 1899, P. 183). Foreign 
 registers by examined or certified copy (Bumaby v. 
 BaiUie, 42 Ch. D. 282; Lyell v. Kennedy, 14 App. Cas. 
 437). As, however, "production of an original register 
 cannot be enforced, the handivriting ol an entry may 
 be proved, without it, by oral testimony (Sayer v. 
 Glosso>p, 2 Ex. 49). As to proof of Bank Boohs, see 
 ante, 114-5. 
 
 Inquisitions, Surveys, Assessments, By-Laws, 
 Manor-Books. — Inquisitions and Surveys seem, not- 
 withstanding 14 & 15 Vict. c. 99, s. 14, supra, to be 
 provable by production of the original from proper 
 custody and not generally by copies, unless the 
 originals have been lost or destroyed (Tay. ss. 1582, 
 1585). Assessments of land-tax, poor-law valuations 
 in Ireland, and poor-rate books, are provable by pro- 
 duction, or examined or certified copy under 14 & 15 
 Vict. c. 99, s. 14. By-Laws under the Companies 
 Clauses Consolidation Act, 1845, s. 127, by copies 
 purporting to be sealed with the common seal of 
 the company; and Man-or-Books by production, or 
 examined copy duly stamped (Eos. N.P. 17th ed. 120). 
 
 JUDICIAL DOCUMENTS.— Superior Courts.— 
 Becords in the Supreme Court are provable by pro- 
 duction of the originals, for which the order of a judge 
 or master is now necessary (0. 61, r. 28) ; oroffice copy 
 (0. 37, rr. 2, 4). Probates and Letters by production, 
 when the seal wiU be judicially noticed ; or by examined 
 or certified copy of the Act-book or register (14 & 15 Vict, 
 c. 99, 8. 14). Bankruptcy Proceedings by production 
 of the order, &c., purporting to be duly signed, sealed, 
 or certified; or by Gazette copy (Bankruptcy Act, 
 1914, s. 139; B. v. Thomas, 11 Cox 535). 
 
170 THE LAW OF EVIDENCE. [book u. 
 
 County Courts. — By the County Courts Act, 1888, 
 s. 28, the registrar's book kept under the Act, or copies 
 o£ entries therein bearing the seal of the Court and- 
 purporting to be signed and certified aa true copies by 
 him, are evidence of the entries and proceedings 
 referred to and of the regularity of such proceedings 
 without any further proof. This clause does not seem 
 to dispense with proof of tlie seal, though perhaps this 
 is cured by 8 & 9 Vict. c. 113, s. 1, or 14 & 15 Vict, 
 c. 99, s. 14; cited ante, 168-9. 
 
 Criminal Proceedings. — The trial and conviction or 
 acquittal of any person charged with an indictable 
 offence may, without producing the record or a copy 
 thereof, be proved in any proceeding whatever by the 
 certificate (or a document pui'porting 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 (14 & 15 Vict. o. 99, s. 13). A 
 previous conviction may also, when required to dis- 
 credit a witness (28 & 29 Vict. c. 18, s. 6), or for any 
 other puipose (34 & 35 Vict. c. 112, s. 18), be proved 
 by a certificate, signed as above, of the substance and 
 effect only of the indictment and conviction, in 
 addition, of course, to evidence of identity {Cp. ante, 
 50-1). Summary convictions may now also be proved 
 by a copy of the register thereof (Cr. Just. Admin. Act, 
 1914, 8. 28) though not by oral evidence {Mash v. 
 Dai-lcij, 1914, 3 K. B. 1226, C. A.); dismissals of 
 assault by justice's certificate {a^ite, 112), and of other 
 charges by certified copy of the order of dismissal. 
 
 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 
 
CHAP. XXVI.] PROOF 01' PMA'ATE DOCUMENTS. 171 
 
 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. c. 99, s. 7). 
 
 Reciprocal AdmissihWity of Documents in England, 
 Ireland and the Colonics. — Every document which is 
 admissible in England or Wales in proof of any par- 
 ticular, without proof of the seal, stamp or signature 
 thereof, or of the judicial or official character of the 
 person appearing to have signed the same, is admis- 
 sible to the same extent and for the same pui-pose in 
 Ireland; and Irish documents are similarly admissible 
 in England and Wales. And documents admissible in 
 either are also admissible in the Colonies (14 & 15 Vict, 
 c. 99, ss. 9-11; cp. Admn. of Just. Act, 1920, s. 9). 
 
 AfiSdavits, Depositions, Pleadings, Writs. — ^Except 
 in cases of perjury, when the original should be pro- 
 duced under a master's or judge's order (0. 61, r. 28), 
 affidavits, depositions, writs, pleadings and other 
 documents filed in the High Court, may be proved bv 
 office copy (0. 37, r. 4; O. 38, r. 15; O. 05, r. 27, 
 sub-ss. 53, 54). As to depositions in criminal cases, see 
 ante, 132, 144-5 ; and in former trials, ante, 132-4. 
 
 PRIVATE DOCUIVIENTS, WHEN REGISTERED 
 OR ENROLLED. — The contents of private documents 
 must, as we have seen, be proved by the production of 
 the originals, secondary evidence, e.g., by examined 
 copy, not being admissible until the absence of these 
 is explained. Where, however, the document is 
 required to be registered or enrolled this does not 
 generally apply. Thus, Wills, except when required 
 to prove some declaration of the testator (ante, 96), 
 are provable by production of the probate (ante, 164); 
 and Bills of Sale and Deeds of Arrangement by office 
 copy (Bills of Sale Act, 1878, s. 16 ; Deeds of Arrange- 
 ment Act, 1914, ss. 5, C, 25). 
 
( 172 ) 
 
 CHAPTEE XXVII. 
 
 EXCLUSION OF EXTRINSIC EVIDENCE IN SUBSTITUTION 
 OF DOCUMENTS. 
 
 [566-573.] 
 
 When a transaction has been reduced into writing, 
 either by requirement of law, or agreement of the 
 parties, the writing becomes, in general, the exclu- 
 sive memorial thereof, and no evidence may be 
 given to prove the terms of the transaction, except 
 the document itself, or evidence of its contents as 
 provided in the last chapter. 
 
 The present rule, which excludes alternative parol 
 proof of the terms of the transaction, even where 
 identical with those of the document, must be distin- 
 guished from the rule in the next chapter which 
 excludes extrinsic evidence to contradict those terms. 
 
 The two rules are sometimes loosely referred to as 
 the " parol-evidence " rule (the term "parol" here 
 not being confined to oral testimony, but embracing 
 any species of evidence extrinsic to the document), and 
 in Sir J. Stephen's Digest they are dealt with under 
 one head (art. 90). In his Indian Evidence Act they 
 are more properly treated as separate rules (ss. 91-2), 
 for it wiU be seen that neither the excluding piinciples, 
 nor the exceptions engrafted on the rules, are really 
 identical. 
 
 Principle. — The present rule is commonly said to be 
 founded on the " best evidence " principle (ante, 12j; 
 but, like other alleged applications of tliat principle, 
 it is historically much older. It has been thought to 
 
CHAP, xxvij.] EVIDENCE TO SUPERSEDE DOCUMENTS. 173 
 
 be more properly a doctrine of the substantive law of 
 the Bubjeots to which it is applied, e.g., in. the case of 
 a written contract that all preceding and contem- 
 poraneous 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 
 (Thayer, Pr. Tr. Ev. 398; Wigmore, s. 2400). 
 
 Burden of Proof. — The party whose witnesses show 
 that the transaction was reduced to ^\riting must 
 produce, or explain the absence of, the instrument; 
 and the opponent, in order to ascertain the fact, may 
 either interpose in chief, or reserve the question for 
 cross-examination, and where it is denied may at once 
 prove the existence of the writing. If, however, the 
 pkintiff can establish a prima facie case without dis- 
 closing the document, he will not be prejudiced by the 
 defendant proviiig 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) as part of his own case, even though he has 
 served a notice to produce it on the plaintiff. 
 
 Examples. — ^As examples of the rule, the record, or 
 a copy thereof, is the proper evidence of a judicial pro- 
 ceeding; and the statutory deposition of a witness or 
 prisoner, the proper proof of what either has said 
 (Leach v. Simpson, 5 M. & W. 309), though where no 
 deposition, or an informal one, has been returned, 
 parol evidence will be admissible (R. v. Erdheivi, 
 1896, 2 Q. B. 260). So, where a private tisinsaction 
 is required by liaw 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 not so required, 
 has been 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 transaction 
 independently ; and this rule applies, although the real 
 terms had been acted on before reduction into writing 
 (Morris v. Delobbel-Flipo, 1892, 2 Ch. 352), and, 
 although the document itself is inadmissible, e.g., a 
 
17i THK LAW OF EVIDENCE. [Book ir. 
 
 bill of sale void for want of registration or stamp {Exp. 
 Parsons, 16 Q. B. D. 532, 542). 
 
 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 withdrawing the execution, the sheriff was not 
 allowed to ask the landlord the amount of rent due, it 
 appearing that there was a lease which might have 
 been produced {Angustien v. Challis, 1 Ex. 279). So, 
 in a settlement case, the applicants having proved that 
 a pauper occupied a tenement of £10 a year, 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 (B. v. 
 Rawden, 8 B. & C. 708). 
 
 EXCEPTIONS — (1) Public Documents are in 
 general given no exclusive authority by law as instru- 
 ments of evidence. Thus, an entry of marriage 
 (Evans v. Morgan, 2 C. & J. 453), or of the nationality 
 of a s:hip (R. V. Scbcrg, L. E. 1 C. C. E. 264) in a 
 public register, will not exclude independent proof of 
 these facts. (2) Judicial Documents. Although, as 
 we have seen (ante, 173), the record, or a copy thereof, 
 is the proper evidence of a judicial proceeding in all 
 oases where strict proof is required, yet for less formal 
 purposes alternative methods are allowed. Thus, 
 where a previous conviction forms part of an offence 
 charged, or is required to discredit a witness, a 
 certificate of its substance or effect merely, will sufBce; 
 though, if written memorials exist, the oral testimony 
 of a person who heard it will be rejected (ante, 170). 
 So, under the Prevention of Crime Act, 1908, though 
 the three statutory convictions necessary to constitute 
 the defendant " an habitual criminal " must be 
 strictly proved, yet additional convictions may be 
 shown less formally {R. v. Summers, 10 Cr. App. E. 
 11). (3) Private Documents when Collateral or 
 Informal. The rule, also, does not apply where the 
 document is collateral or informal. Thus, payment 
 
CHAP. Mvn.] EVIDENCE TO SUPEESEDE DOCUMENTS. 176 
 
 of a debt may be proved orally, although a cheque was 
 given and a receipt (produced) taken {Carmarthen By. 
 V. Manchester By., L. E. 8 C. P. 085). So a written 
 order for goods, insufficient under the Statute of 
 Frauds, will not exclude pai-ol evidence of the trans- 
 action {Lockett V. Nicklin, 2 Ex. 93). And (4) The 
 Existence as distinct from the terms of a transaction, 
 may be sho^vn without production of the document, 
 e.g., the existence of a partnership (Alderson v. Clay, 
 1 Stark. 405) ; so, evidence may be given of a person 
 having acted in a given capacity, without producing his 
 written appointment (aiitc, 27). 
 
( 176) 
 
 CHAPTER XXVIII. 
 
 EXCLUSION OF EXTRINSIC EVIDENCE TO CONTRADICT, 
 VARY, OR ADD TO DOCUMENTS. 
 
 [574-604.] 
 
 AVhen a transaction has been reduced into writing, 
 either by requirement of law, or agreement of the 
 parties, extrinsic evidence is, in general, inadmis- 
 sible to contradict, vary, add to, or subtract from,, 
 the terms of the document. 
 
 Principle. — The grounds of exclusion commonly 
 given are : (1) that when the law requires superior 
 evidence, to admit inferior would be to nullify the law ; 
 and (2) that when the parties have deliberately put 
 their agreement into writing, it is conclusively pre- 
 sumed between themselves and their privies that they 
 intended the writing to form a full and final stat-ement 
 of their intentions, and one which should be placed 
 beyond the reach of future conti'oversy, bad faith, or 
 treacherous memory. — The rule, however, is some- 
 times thought to be based on the " best evidence " 
 principle; sometimes on the doctrine of estoppel; and 
 sometimes on the subst-antive law. 
 
 EXCEPTIONS (1) Public Documents, but not 
 
 judicial records, may be contradicted by parol, e.g., 
 the tonnage of a ship as stated in the register (The 
 Recepta, 14 P. D. 131). So, also— 
 
 (2) Private Documents when informal, or inter 
 alios (a). — Thus, a receipt may be contradicted, unless 
 amounting to an estoppel (Lee v. L. & Y. By. 6 Ch. 
 527; post, 180). And where a transaction has been 
 reduced into writing merely by agreement of the 
 parties thereto, the document may be contradicted in 
 
CHAP, xxvin.] CONTRADICTION OF DOCUMENTS. 177 
 
 proceedings inter alios, for strangeria cannot be pre- 
 cluded from proving the truth by the ignorance, care- 
 lessness, or fraud of the parties ; nor, in cases between 
 a party and a stranger, will the former be precluded, 
 since there would thus be no ^mutuality. 
 
 (3) Private Formal Documents — Terms when may 
 be supplemented {h): — In three cases, the tejfns, even 
 of private formal- documents, may be supplemented, 
 although not contradicted, by parol. (i) Omitted 
 Terms. — Where a contract, not required by law to be 
 in writing, purports to be contained in a document 
 which the Court infers was not intended to express the 
 ivhole agreement between the parties, proof may be 
 given of any omitted term expressly or- impliedly 
 agreed between them before or at the same time, if it 
 be not inconsistent vidth the documentary terms 
 (Steph. art. 90; as to subsequent terms, see post, 
 180-1). [The question whether the writing was 
 intended to contain the full agreement may be deter- 
 mined either by the document, or extrinsic circum- 
 stances, and may be left to the jury. ] 
 
 (//) Collateral Agreements and Warranties. — More- 
 over, although there exists a contract purjDorting to be 
 fully expressed in writing, whether required by law to 
 be so or not, proof may be given of a prior or conteiTi- 
 poraneous oral agreement, or warranty, which forms 
 part of the consideration for the main contract and is 
 not inconsistent therewith {Heilbut v. Buckleton, 
 1913, A. C. 30, 47-51). And any affirmation made at 
 the time of the contract is a warranty if so intended; 
 but this intent must be deduced from the whole of the 
 evidence, there being no arbitraiy test {id.). The 
 collateral contract must be between the same parties, 
 and not include additional ones [HoUinshed v. Devane, 
 ,49 Ir. L. T. R. 87; Salmon v. Webb, post, 182). 
 
 (///) Terin,^ annexed by Usage or haw. — Usage is, as 
 we have seen, admissible to annex unexpressed 
 incidents, not inconsistent with those expressed, to 
 written contracts, grants, and wills, the presumption 
 being that the whole terms were not intended to be 
 (xpressed in the document, but that the customs of 
 
 I,..E. 12 
 
178 THE LAW OF EVIDENCE. [book ii. 
 
 the market or place were tacitly adopted (ante, 26). 
 Terms implied by laiv, 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, s. 55, such terms 
 may be negatived or varied by expre.ss agreement," or 
 the course of dealing between the parties, or by a usage 
 which binds them both. 
 
 (4) True Nature of Transaction, and Relationship of 
 Parties (c). — ^Extrinsic evidence (including, in some 
 oases, direct declarations of intention) may 'in general 
 be given to show the true nature of the transaction, or 
 the legal relationship of the parties, although such 
 evidence may contradict the instrument. Sale or 
 Mortgage. — Thus a sale, absolute on its face, may be 
 proved by extrinsic evidence to be a loan {Maas v. 
 Pepper, 1905, A. C. 102); a conveyance, merely a 
 mortgage (Re Dk. of Marlborough, 1894', 2 Ch. 133); ' v 
 a joint advance to operate in common {Re Jackson,, 34 
 Ch. D. 723). Trusts. — Again, although parol evidence 
 is not admissible to show that an express tiustee was 
 intended to take beneficially {Groom.c v. Croome, 
 59 L. T. 582; Re Huxtablc, past, 184), yet even where 
 the document expressly negatives a trust, extrinsic 
 evidence may generally be given to engraft one {Re 
 Spencer's Will, 57 L. T. 519). And although trusts 
 relating to land (other than resulting trusts) must by 
 the St. of Prauds be evidenced by writing, the statute 
 wiU not avail where retention of the land would be a 
 fraud on the trust {Re Dk. of Marlborough, 1894, 
 2 Ch. 133). So, notwithstanding the Wills Act, a 
 bequest absolute in teims 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 {Re Boycs, 26 Ch. 
 D. 531). Principal and Agent or Surety. — Where it 
 is doubtful whether a party signed a document as 
 agent or as charging himself as well, his own declara- 
 tions at the time are admissible {Young v. Schnler, 
 11 Q. B. D. 651). So, a party signing without quali- 
 
CHAP. XKViii.] CONTEADICTION OV DOCUMENTS. 179 
 
 fication could always in equity, and may now at law, 
 prove that he signed as surety only {Macdoruild v. 
 Whitfield, 8 App. Cas. 733). Parties to Bills.— 
 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 sign- 
 ing as makers or indorsers ; and inferences of fact may 
 be drawn to alter, qualify, or invert their relative 
 liabilities according to the law merchant. Thus, the 
 indorsees of a bill may be shown to be co-sureties, and 
 so jointly, and not successively, liable (ibid.). 
 
 (5) Conditional or Invalid Documents. Fraud. Mis- 
 talie. Want of Consideration (d). — Extrinsic evidence 
 is admissible to prove any matter which by the sub- 
 stantive law affects the validity of a document, or 
 entitles a party to any relief in respect thereof, not- 
 withstanding that such evidence tends in some cases 
 to contradict the writing — e.g., conditional or defective 
 execution, contractual incapacity, fraud, forgery, 
 duress, undue influence, illegality of subject-matter, 
 mistake, or want or failure of consideration. 
 
 Escrows. — Thus, a document may be shown to have 
 been delivered merely as an escrow and subject to a 
 condition through the non-fulfilment, or suspended 
 fulfilment, of which no contract has ever arisen (Pym 
 V. Campbell, 6 E. &. B. 370; Pattlr. v. Homibrooli, 
 1897, 1 Ch. 25). 
 
 Frdvd. — Fraud vitiates all instruments however 
 solemn. Thus, proof that a party's signature to a bill 
 was obtained by misrepresentation as to the nature of 
 the instrument, is a defence even against a bond fide 
 holder for value (Lewis v. Clay, 67 L. J. Q. B. 224). 
 
 Mistahc. Rectificition. — Mistake will in some, but 
 not all, cases let in extrinsic evidence. Thus, Judicial 
 Records, being presumed correct, cannot generally be 
 rectified by parol, the proper course being to apply to 
 amend the record (O. 28, r. 11). With regard to 
 Contracts, recitals and descriptions of formal matters, 
 or the date of execution of a deed, may generally be 
 corrected by parol (cp. post, 192, 197-8). So, it may 
 be shown that, by a mistake, the parties were never 
 
180 THE LAW OF EVIDENCE. [book it. 
 
 really ad idem, and so did not validly contract at all 
 (Raffles V. Wichelhaus, 2 H. & C. 906). And they 
 may now, under the equitable jurisdiction of the 
 Courts, and provided the claim be duly pleaded, apply, 
 where the mistake is unilateral, for rescission, or 
 where it is mutual, for rectification; parol evidence, 
 which at common law would be wholly rejected, being 
 for these purposes freely admissible (Paget v. 
 Marshall, 28 Ch. D. 255; Wilding v. Sanderson, 1897, 
 2 Ch. 534; Cotven v. Truefitt, 1899, 2 Ch. 309). A 
 party may now, also, prove mistake in the document 
 by parol, and in the same action obtain specific per- 
 formance of the contract so varied (Thompson v. Hick- 
 man, 1907, 1 Ch. 550). As to Wills, words inserted 
 without the knowledge of the testator may be struck 
 out by a Court of Probate (ante , 102), but omitted words 
 may not be supphed (Re Schott, 1901, P. 190). 
 
 Consideration. — Want or failure of consideration 
 may always be proved to impeach a written instrument 
 not under seal, even though the words " for value 
 received " are inserted. So, a past consideration may 
 be shown to be contemporaneous or future (Morrell v. 
 Cowan, 7 Ch. D. 131). And though a deed imports a 
 , consideration, yet where this fact comes in question it 
 is generally allowable to inquire into it, notwithstand- 
 ing any averment therein. Thus, where no considera- 
 tion, or a nominal one only, is expressed, a valuable 
 one may be proved (Re Holland, 1902, 2 Ch. p. 388; 
 Frith V. Frith, 94 L. T. 383). INIoreover, since the 
 Judicature Act, the equity rule prevails, and as 
 between the parties, the receipt for the consideration 
 in the body of the deed, or even that indorsed, may 
 alwaj's, unless the facts amount to an estoppel or a 
 waiver, be contradicted; though this does not apply 
 against transferees taking without notice and in 
 reliance on such receipt (Bickerton v. Walker, 31 
 Ch. D. 151; Bateman v. Hunt, 1904, 2 K. B. 530; 
 Equitable Office v. Ching, 76 L. J. P. C. 31; cp. Con- 
 veyancing Act, 1881, ss. 54-5). 
 
 (6) Subsequent Modification or Bescission of Trans- 
 action. — Written contracts not required bg law to be in 
 
CBAP. XXVIII.] CONTBADICTION OF 'DOCUMENTS. 181 
 
 wrifing may, at any time before breach, be modified 
 or rescinded by parol {Goss v. Nugent, 5 B. & Ad. 
 58, .65). A written contract required by law to he in 
 writing may also be ivholJy rescinded by a parol agree: 
 ment, though itself unenforceable because not in 
 writing, but cannot be partMly abandoned or varied 
 thereby {Mon-is v. Baron, 1918, A. C. 1; Noble v. 
 Ward, L. R. 2 Ex. 135). Contracts by deed could, at 
 common law, neither be rescinded nor varied by parol 
 (Steeds v. Steeds, 22 Q. B. D. p. 539). Now, how- 
 ever, deeds, though they cannot technically be 
 released, nor, it has been held, varied by parol {llellett 
 v. Stockport, 70 J. P. Rep. 154; contra Leake, Con- 
 tracts, 5th ed. 570), may be ivhoUy discharged by 
 oral agreement, if made for valuable consideration 
 {W'illiams v. Stem, 5 Q. B. D. 409). Bills and 
 Notes may be discharged by writing, or delivery up 
 (Bills of Exch. Act, 1882, ss. 62, 89); and Wills 
 revoked by destruction, or later wills (ante, 102). 
 
 EXAMPLES. 
 
 (a) Documents Inter Alios. 
 
 « Admissible. Inadmissible. 
 
 A. leaves a fund in trust to A. sues B. on a bond signed 
 
 pay the income to B. imtil he by B. as surety and C. as debtor, 
 
 should assign it. Afterwards B. Defence that A. had rdea'^ed C. 
 
 assigns the income to C. In an by deed. Evidence in reply that 
 
 action between the trus'-ecs and B. orally agreed with A. that 
 
 B. ; — held, extrinsic evidence O.'s release was not to discharge 
 
 was admissible to show that as B., Held inadmissible [Coc7« v. 
 
 between B. and C. the document, 'Nash, 9 Bing. p. 346; and cp. 
 
 although oh its face an assign- Merc. Bank of Sydney v. Taylcr, 
 
 ment, was not intended as such, post, 195. In Equity, however, 
 
 and that it would have been a this rule is not always followed], 
 fraud by C. to have so used it 
 (Re Sheward, 1893, 3 Ch. 502). 
 
 (b) Supplemental Terms. 
 
 Omitted Terms.— A. signs a Omitted Terms. — A. insures 
 
 railway note for the carriage of goods withB.,"Inship,orships, 
 
 his cattle to N. station, but does from Surinam to London;"— 
 
 not fill in the price. At the evidence of a concurrent oral 
 
 same time he orally agrees that agreement to except a particu'ar 
 
 the Company should carry the ship from the policy (Weston v. 
 
182 
 
 THE' LAW OF EVIDENCE. 
 
 [book II. 
 
 Admissible. 
 
 cattle to a further station for a 
 certain price. In an action 
 against • the company: Held, 
 that both the further journey 
 and the price could be proved, 
 since they were supp'.enien^al 
 to, and not contradictory of, the 
 document {Malpas v. L. S S. 
 W. Ry., L. B. 1 C. P. 336). 
 
 A. proposes to engage B. as 
 manager in a letter purporting 
 to specify " the exact terms of 
 the hiring." The only terns 
 named related to B.'s salary and 
 house-r.nt. B. accepts the offer 
 by letter. A. may prove a prior 
 oral agreement by which B. was 
 not to solicit A.'s customers, 
 since the document did not 
 purport to contain the whole 
 of the contract {Rohb v. Green, 
 1895, 1 Q. B. 1). 
 
 A. sues B. on a bill drawn by 
 
 A. and accepted by B. as exe- 
 cutrix of C, deceased. B. may 
 prove a separate document 
 signed by A. at the time : " Re- 
 ceived from B. an acceptance for 
 £i34:, due August 4 next, which 
 I promise to renew from time to 
 time until sufficient effects are 
 received from C.'s estate " 
 [Bowerbank v. Monte'ro, 4 
 Taunt. 844. Aliter, it the docu- 
 ment, though contemporaneors 
 with the bill, was not parcel of 
 the same agreement ; or was 
 made with other parties as well 
 (Webb V. Spicer, 13 Q. B. 894, 
 affid. sub nom. Salnun v. Webb, 
 8 H. L. C. 510)]. 
 
 Collateral Agreements. — A. 
 grants a lease of land to B., 
 reserving the sporting rights ; — 
 
 B. may prove a prior oral agree- 
 
 iHadmissible. 
 
 Ernes, 1 Taunt. 115) ; cr (o show 
 that the risk was only to. begin 
 from an intermediate port 
 (Kaines v. Knightly, Skin. 54); 
 or that B. knew of and assented 
 to, a deviation {Leduc v. Ward, 
 20 Q. B. D. 475), is inadmissibh'. 
 
 A. and B. agree in writing 
 that " B. shall enter A. 's service 
 as foreman at a salary ef i2 a 
 week." Held, a weekly hiring; 
 and evidence of an oral agree- 
 ment made at the time tbat it 
 was to be a yearly one, inadmis- 
 sible (Evans v. Ro£, L. R. 7 
 C. P. 138). 
 
 A. covenants to pay rent to 
 B., each quarter in advance. A 
 parol agreement, at the tine, 
 that the rent might be paid by 
 a three months' bill, is iniidi'i'a- 
 sible, being inconsistent with 
 the document, the word " pay- 
 ment." implying cash (Henderson 
 V. AHhur, 1907, 1 K. B. 10). 
 
 A. ,the indorsee of a bill drawn 
 by B., sues C, the acceptor. 
 Evidence tendered by C. that at 
 the time of accepting the bill it 
 was orally agreed between B. 
 and C. that if C. could net meet 
 it at maturity, B. would renew 
 it ; — held inadmissible, although 
 A. took the bill with notice' cf 
 the agreement (New London 
 Credit Syndicate v. Ncale, 1898, 
 2 Q. B. 487 ; and the case would 
 have been the same had the 
 action been by B. against C.) 
 So, also, an agreement not to 
 present the biU till C. was 
 twenty-five (Orsman v. Robin- 
 son, Times, Ap. 23, 1904). 
 
 Collateral Agreements. — A., 
 an actor, agrees in writing with 
 B., a mansiger, to act and under- 
 study on tour for twenty- five 
 
CHA}'. xxviii.] CONTRADICTION OF DOCUMENTS. 183 
 
 Adviissible. 
 
 mcjit by which A. promised to 
 keep down the rabbits if B. 
 would sign the lease. [Morgan 
 V. Griffith, L. E. 6 Ex. 70; 
 Erskine v. Adeane, 8 Ch. App. 
 756, where the Court remarked 
 that this was not a parol varia- 
 tion, but a distinct collateral 
 promise forming part of the con- 
 sideration for takiiig the lease, 
 which latter was not intended 
 to form the whole of the bargain 
 between the parties.] 
 
 A. lets a house to B., the 
 lease containing a covenant by 
 A. to do outside, and by B. to do 
 inside, repairs, but not mention- 
 ing the drains. At the time (f 
 completion B. had instrucied 
 his wife to refuse to hand over 
 the counterpart executed by 
 him unless A. guaraute d that 
 the drains were in good order. 
 A. thereupon stated that they 
 were so, and B. 's wile handed 
 over the counterpart. In a sub- 
 sequent action by B., the drains 
 having proved defective; — Held, 
 that evidence of A.'s repre- 
 sentation was admissible (1) as 
 amounting to a warranty which 
 had induced the tenancy; (2) 
 being collateral to the lease, i.e., 
 entirely independent cf what 
 was going to happen during the 
 tenancy, which was all that the 
 lease dealt with ; and (3) the 
 lease not covering the whole 
 contract between the parlies 
 {De Lassalle v. Guildford, 1901, 
 2 K. B. 215, C. A.). 
 
 Inadmissible. 
 
 weeks. A. may not prove an 
 oral promise by B. that A. shou'd 
 perform in certain parts during 
 the tour [Grimston v. Cunning- 
 ham, 1894, 1 Q. B. 125; and cp. 
 Emery v. Parry, post, 190, 
 Aliter, if such promise had 
 formed part of the consideration 
 for the contract, Newman v. 
 Gatti, 24 T. L. E. 18]. 
 
 A., the publisher of a, trade 
 paper, agrees toinsertB. 's adver- 
 tisemenjbs and accept in payment 
 goods manufactured by B. and 
 invoiced at his lowest prices and 
 discounts. Afterwards B. refuses 
 to deliver the goods unless A. 
 undertakes not to sell them in 
 the United Kingdom. In an 
 action by A. for non-delivery ; — 
 Held, that B. could not prove, as 
 a collateral agreement, that A.'s 
 agent had firally represented 
 that A. bnly required the goods 
 for shipment abroad or to the 
 colonies (Mercantile Agency v. 
 FUtwick Co., 14 T. L. E. 90, 
 H. L.). 
 
 (c) True Nature of Transaction. 
 
 Trusts^ — B. buys an estate and 
 takes an absolute conveyance 
 thereof to himself. In an action 
 against him by A., their own 
 oral testimony and letters be- 
 tween them before and after the 
 
 Trusts. — A., by will, leaves B. 
 " se4000 for the charitable pur- 
 poses agreed on between us." 
 Held, that though evidence by 
 B. stating what were the parti- 
 cular purposes agreed on, was 
 
184 
 
 THE LAW OF EVIDENCE. 
 
 [book It. 
 
 Admissible. 
 
 conveyance, held admissible to 
 show whether B. did, or did not, 
 buy the estate in trust for A. 
 (Rochefouca/uld v. Boustead, 
 1897, 1 Ch. 196). 
 
 Inadmissible. 
 admissible, yet evidence 
 
 (1) 
 
 that no purposes had been agreed 
 on ; or (2) that the income only, 
 and not the capital, of the 
 ^4000 was to be so devoted, — 
 was not, since this contradicted 
 the will (Re Huxlable, 1902, 1 
 Ch. 214 ; ibid. 2 Ch. 793). 
 
 (d) Conditional Instruments. Mistake. Consideration. 
 
 A. agrees in writing to buy 
 B.'s interest in a certain patent. 
 In an action by B. to enforce the 
 agreement, A. may prove that it 
 was orally agreed at the time 
 that no sale was to take place 
 unless A.'s engineer approved 
 the patent, and that he did not 
 approve it (Pym v. Camphe'l, 6 
 E. & B. 370). 
 
 B. signs an agreement in writ- 
 ing to take a lease of A . 's house. 
 A. afterwards signs tl^e agree- 
 ment, but hands it to his solici- 
 tor with instructione not to part 
 with it until B. obtains a respon- 
 sible person to join her in the 
 lease. In an .action against A., 
 he may prove these facts to show 
 that there was no conc'udcd 
 contract between them (Pattle 
 V. Homibrook, 1897, 1 Ch. 25). 
 
 A. lets B. a house misdescribed 
 as "38" Broad Street. In an 
 action by B. against A. for ex- 
 cessive distress, B., to prove the 
 correct rent produces the agree- 
 ment, in which " 38 " has been 
 altered (without A.'sJcnowledge, 
 though it is not shown by whom) 
 to " 35," the true number. Held, 
 that parol evidence was admis- 
 sible to show that 38 was a mis- 
 take for 35, which was the only 
 house owned by A. or let by him 
 
 A. makes a proposal to an 
 insurance company, who, having 
 accepted it, sign and seal a 
 policy which they retain in their 
 own possession until the j-re- 
 mium is paid. The policy recites 
 that the premium has been paid, 
 but contains a proviso that no 
 policy shall be valid until this 
 is done. A loss having oc- 
 curred, — Held, in an action on 
 the policy, that there was a 
 concluded, and not a merely 
 conditional, agreement ; and 
 that evidence to contradict the 
 recital of payment was inadm-s- 
 sible, since the company had 
 waived the condition as to 
 prepayment (Roberts \. Securiy 
 Co., 1897, 1 Q. B. Ill, C. A. 
 Contra, in Equitable Office v. 
 Ching, 76 L. J. P. C. .31, where 
 the Court held there was no 
 waiver ; no concluded contract 
 till premium paid ; and that 
 non-payment might be proved). 
 
 A., in writing, lets B. a house 
 at " Thirty-six pounds ten 
 shillings " a year, reservmg a 
 right of re-entry upon non-pay- 
 ment of " ^66 12«. 6d. a 
 quarter." Afterwards, B. be- 
 ing in arrears for a quarter, A. 
 distrains for ^£9 2s. 6d. In an 
 action by B. for excessive dis- 
 tress (no application being made 
 to rectify) ; — Held, conversa- 
 tions between A. and B. show- 
 ing the rent agreed was £26 10s. , 
 
CHAP, xxviii.] CONTEADICTION OF DOCUMENTS. 185 
 
 Admissible. 
 
 to B. ; that the alteration did 
 not invalidate the agreement, 
 and that even had it been void 
 for the purpose of B. taking an 
 interestormaintaining an action , 
 it would have been admissib'e to 
 prove a collateral fact such as 
 the amount of rent IHutchins v. 
 Scott, 2- M. & W. 809]. 
 
 Inadmissible. 
 
 not £36 10s. ; and proof that the 
 rent of adjoining houses w.is 
 £26 10s. ; — were inadmissible 
 [Villiers v. Skelton, 49 Sol. Jo. 
 204; since (1) A. relied on the 
 right to distrain, not the right 
 to re-enter ; and (2) the re-entry 
 clause, though inconsistent 
 with, did not affect, the cl.usc 
 defining the rent]. 
 
 (e) Subsequent Modification or Rescission. 
 
 A. having agreed in writing 
 to sell B. 500 pieces of cloth, 
 sues him for the price of 223 
 pieces delivered. The action is 
 compromised orally as follows : 
 "A.'s account to stand over for 
 3 months. B. to have option to 
 take balance of cloth." B. net 
 paying in 3 months, A. sues 
 again. B. admits A.'s c'aim,- 
 but counter-claims for non- 
 delivery of the 277 p:eces. Held, 
 that B.'s claim failed, since the 
 oral contract, being wholly in- 
 consistent with the written one, 
 was valid to rescind it, though 
 itself unenforceable because not 
 in writing {Morris v. Baron, 
 1918, A. C. 1). 
 
 A. lends B. money on a bill 
 of sale, to be repaid by instal- 
 ments. B. being unable to 
 repay one of the instalments, 
 A. agrees to give him a week's 
 grace, but on the third day 
 seizes and sells the goods. Held, 
 that, had* the oral agreement 
 been made for valuable con- 
 sideration, it would operate to 
 waive the default, otherwise, 
 which was the present case, it 
 did not (Wijliams v. Stern, 5 
 Q. B, D, 40^, C. A.), 
 
 A. agrees in writing to sell 
 B. certain goods and deliver the 
 same by a specified date. In 
 an action by A. for non- 
 acceptance, 13. proves that 
 before this date he and A. 
 orally agreed to extend the time 
 for delivery by a fortnight. 
 Held, as the second agreement 
 was unwritten, it was not 
 enforceable per se; and as the 
 intention was merely to vary 
 the firot contract, the second 
 was inoperative to rescind it 
 (Noble V. Ward, L. E. 2 Ex. 
 135. The parties had further 
 agreed wholly to rescind n, 
 third contract between them; to 
 that their intention as to second 
 was clearly only to vary). 
 
 A. agrees in writing to scUB. 
 certain lots of land and make a 
 good title, and B. pays a deposit. 
 Afterwards A. finds he cannot 
 made a good title to one lot, 
 whereupon B. verbally agrees to 
 waive this and accept ronv y- 
 ance of the whole. In an action 
 by A. for balance of purchase 
 money. Held, that proof cf the 
 parol waiver was inadmi-.sible 
 (Goss V. Nugent, 5 B. & Ad. 
 58 ; aliter if wriHng liad not 
 been required by law). 
 
( 186 ) 
 
 CHAPTER XXIX. 
 
 ADMISSION OF EXTRINSIC EVIDENCE IN AID OF 
 INTERPRETATION. 
 
 [605-665.] 
 
 WiiEEE the language of a document is clear and 
 applies without difficulty to the facts of the case, 
 extrinsic evidence is not admissible to affect its inter- 
 pretation; but where it is peculiar, or its applica- 
 tion to the facts is either ambiguous or inaccurate, 
 exti-insic evidence may, subject to the qualifications 
 hereinafter stated, be given to explain it. 
 
 Definition. — The temns. " interpretation " and " eon- 
 sti-uction " are in practice often used interchangeably 
 (Steph. art. 91) ; sometimes, however, interpretation 
 is considered to refer to the sense in which words have 
 been used, and construction to tlie 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 (Chatenay v. Brazilian 
 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 eSect, 
 the former being a question of fact and the latter a 
 question of law). 
 
 Object and Limits of Interpretation, — the Meaning 
 of the Words, or the Intention of the Writer? — 
 
 Two opposite theories are maintained as to the object 
 of interpretation. The first, and most widely held, 
 asserts that the question is, not what the writer meant, 
 but simply what is the meaning of his words (Wigram, 
 Extr. Ev. ss. 9, 104, 124; Richman v. Carstairs, 
 
CHAP. XXIX.] EVIDENCE IN AID OV INTERPRETATION. 187 
 
 5 B. & Ad. p. 668, per Denman, C.J. ; Ony v. Pearson, 
 
 6 H. L. C. p. 106, per Ld.Wensleydale). The second 
 regards the intention of the writer as tlie chief object 
 of concern, and the mere grammatical and lexico- 
 graphical meaning of the words as not strictly inter- 
 pretation i\t 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 tlie writer, that inter- 
 pretation, 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. Soo. Pap. 301-310, 
 330; Thayer, Pr. Tr. Ev. 405). This is, in effect, the 
 old controversy between the 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 would appear 
 to lie between the exti'emes. It has been well said 
 that the object of inquiry is not the meaning of the 
 words alone, nor the meaning of the \\-riter 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 circum- 
 stances under ^hich they were used; and not the 
 meaning of the 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 (Graves, 
 28 Am. L. Eev. p. 323). 
 
 As to the limits of interpretation : ' ' All latitude of 
 construction must submit to this restriction, that the 
 words may bear the setise 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. Miiiet, 1 H. Bl. p. 615, per Eyre, C. B.). 
 
 Explanatory Evidence and Evidence of Intention. — 
 Pursuant to his view that the object of enquiry is the 
 meaning of the words, and not the intention of the 
 writer. Sir J. Wigram divides extrinsic evidence into 
 two main classes: (1) Such as is " explanatory of the 
 words themselves," and (2) Such as is " applied to 
 prove intention itself as an independent fact;" and he 
 
183 THE LAW OF EVIDENCE. [book u. 
 
 lajs 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 ui 
 cases of equivocation (Extr. Ev. ss. 9-10, 212-211'). 
 Analysis shows, however, that this classification cannot 
 be maintained; that all interpretative evidence js, ;n 
 effect, evidence of intention, circumstantial or direct; 
 and that what Wigram calls " explanatory evidence " 
 is merely circumstantial evidence of intention under 
 another name. With this modification, it may be 
 accepted as true that, while circumstantial evidence 
 of intention is, with sundry exceptions, generally 
 admissible in aid of interpretation, direct declarations 
 of intention by the writer are never sO' except in cases 
 of equivocation [supra, Kule IV.; cp. ante, 102; post, 
 205-6). 
 
 The reasons for the exclusion of such declarations 
 are partly historical, and partly based on the dangers 
 of the evidence itself, owing to the ease witli which it 
 may be fabincated, retracted or niisreported, and the 
 aspect of rivalry it bears to the written document. Its 
 admission in the single case of equivocation is a sur- 
 \iAal of the ancient practice of allowing an averment 
 of intent in such cases because here alone " it would 
 stand \'\ith the words;" the modern reasons assigned 
 being that, although the document does not ascertain 
 the object intended, yet it does describe it ; the declara- 
 tions, therefore, do not varj' the instrument, but merely 
 enable the Court to reject one of the subjects or objects 
 in question by determining which of the two the writer 
 understood to be signified by the words he has used 
 (Doe V. Needs, 2 M. & W. 129; Wigram, s. 152; post, 
 194). 
 
 Ambiguities. Blanks. Equivocations. Inaccuracies. 
 — Bacon classed ambiguities as either patent or latent, 
 the former arising where the instnunent on its face is 
 unintelligible, the latter where the words of the instru- 
 ment are clear, but their application to the facts is 
 doubtful. 
 
 His famous rule that " amhiguitas patens is never 
 holpen by averment ; but that if it be amhiguitas latens 
 
CHAP. XXIX.] EVIDENCE IN AID OF INTERPRETATION. 189 
 
 then it is otherwise," which hud lelcTence merely to 
 pleading upon instruments vmder seal, became after- 
 wards erroneously propounded as a rule of evidence, 
 viz. that parol evidence is admissible to explain a 
 latent, but not a patent, ambiguity, and it is often so 
 stated at the present day {e.g., Eos. N. P. 32). The 
 latter part of the proposition, however, is not generally 
 true. Thus, although in a few cases of patent ambi- 
 guity extrinsic evidence is excluded, e.g., where the 
 name of a legatee is left wholly blank in a will {Baylis 
 V. A.-G. 2 Atk. 239), or a bill names one sura in figures 
 and another in woi'ds (Saimderson v. Piper, 5 Bing. 
 N. C. 425); yet, in the great majority, it is receivable, 
 e.g., in the case of partial blanks {Re De Kosaz, 2 P. D. 
 66), or of a legatee referred to merely by a- teiTn of 
 endearment' or initial {Sullivatv v. Sullivan, I. R. 4 Eq. 
 457), or where the amount of a legacy is expressed by a 
 cypher {Kell v. Ch'.irmer, 23 Beav. 195), or a document 
 beginning "I, A.,"' is signed "B." (Summers v. 
 Mourhoiisc, 13 Q. B. I). 388), or a legacy is left to " one 
 of the children of A. by her late husband B.," since 
 here it might be proved that A. had, to the knowledge 
 of the testator, only one son by B. (.Wigram, s. 79), or 
 a gift is made to " my nephew John or Thomas," lV;r 
 the evidence might show that the nephew was known to 
 the testator bv both these names (Elphinstone, Deeds, 
 104). 
 
 The term, latent ambiguity, though sometimes used 
 as synonymous with equivocation, i.e., where the words 
 apply to two or more objects equally, as where a legacy 
 is given to " my niece Jane," and the testator has two 
 nieces of that' name (post, 193), is now generally 
 employed to include all cases of doubtful meaning 
 whether arising from vagueness or generality (Rule I.), 
 inaccuracy (Rule III.), equivocation (Rule IV.), or 
 peculiarity of user (Rule V.). 
 
 Strictly speaking, however, an inaccuracy is distin- 
 guishable from an ambiguity, 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 ambiguous without being 
 
190 THE LAW. OF EVIDENCE. [book II. 
 
 inaccurate, as in the above case of a legacy to his " niece. 
 Jane," where he had two nieces of that name; or both 
 ambiguous and inaccurate, as where a testator, having 
 only two nephews, Jqhn Smith and James Smith, 
 leaves a legacy to his " nephew WiDiam Smith." 
 
 RULES AS TO EXTRINSIC EYIDENCE.— 
 Extrinsic evidence to interpret documents may be given 
 in accordance with the following rules, which apply, in 
 general, equally to wills and documents inter vivos 
 (Tay. s. 1131 n.). 
 
 RULE I. {Surrounding Circumstances). — In order to 
 show the identity or extent of the persons or property 
 referred to in a document, or the sense in which parti- 
 cular words have been used therein, evidence of the 
 knowledge and surrounding circumstances of the 
 writer, as well as of his treatment of, and habits of 
 speech concerning, such persons or property (but not 
 of his direct declarations of intention) may be received . 
 Such evidence, however, is not admissible (1) where 
 the words are unambiguous, or the ambiguity is merely 
 a grammatical one ; (2) where the langviage is so vague 
 or imperfect that to admit extrinsic evidence would be, 
 not to interpret the document, but virtually to make 
 a new one ; or (3) where the meaning or application 
 sought to be proved would conflict with some rule of 
 law or construction [Wigram Prop. V. (in 1st ed.. 
 Prop. I.); Tay. ss. 1194-1200; Steph. art. 91 (4)]. 
 
 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 pos- 
 sible in the same situation as the writer {Charter v. 
 Charter, L. E. 7 H. L. 364). While, as to the degree 
 of certainty required, the maxim is that, id cerium est 
 quod certum reddi potest. 
 
 RULE II. {Primary and Secondary Meanings. 
 Correct und Less Correct Names and Descriptions). — 
 (a) When the words of a document, in their primary or 
 ordinary sense, are applicable to the facts, and are not 
 modified by the context, extrinsic evidence cannot be 
 given to show that they Were not used in that sense ; but 
 
CHAP. XXIX.] EVIDENCE IN AID OF INTERPRETATION. 191 
 
 (b) where it is clear, either from the context or the facts, 
 that such meaning cannot have been intended, extrin- 
 sic evidence (including surrounding circumstances, 
 treatment, and habits of speech, but not direct declara- 
 tions of intention) may be given to show that they 
 were used in some secondary or less ordinary sense, 
 provided it is one which the words can properly bear. 
 [Wigram, Props. II. & III.; Steph. art. 91 (2) and (5).] 
 Scope. — Eule I. included cases where the words, 
 being vague or general, were equally capable of a wide 
 or a naiTow meaning. The pressnt rule deals with 
 words having a proper axid also a less proper sense or 
 application. Thus, evidence is not receivable to 
 explain statutory words of weight, measure, or quan- 
 tity {Smith V. Wilson, 3 B. & Ad. 728, 731). So, in 
 the case of persons, words of relationship import legiti- 
 mate relationship; if, therefore, legitimate members 
 exist, evidence cannot, in general, be given that 
 illegitimates were intended {Hill v. Crooh, L. R. 6 
 H. L. 265; Be Pearce, 1914, 1 Ch. 254, C. A.); though 
 if none do, or can, exist {id.; Dorin v. D., L. E. 7 
 H. L. 568), or if, though some exist, the context may 
 include the latter, such evidence will be receivable. 
 Again, if a given person, known to the- testator, 
 accurately fulfils the wordsi in the will, and there is no 
 one else in competition, evidence cannot be given to 
 show that such person was not intended {Sherratt v. 
 Mo7intford, L. E. 8 Ch. 928); and, if one of two com- 
 petitors accurately fulfils the woi'ds, and the other does 
 not, evidence in favour of the latter will be rejected 
 unless the presumption in his favour is extra- 
 ordinarily strong {National Soc. v. Scottish Natiotial 
 Soc, 1915, A. C. 207). So, in the case of property, 
 where proof has been given of a subject-matter satisfy- 
 ing all the temis of a written description, the maxim 
 non accipi dehent verba in falsam dcmonstrationcm 
 quce competunt in limitationem veram apphes, and 
 extrinsic evidence cannot be given to show that some- 
 thing more or less extensive was intended {Horwood v. 
 Gri§.th, 4 De G. M. & G. 700, 708; Hardwich v. Hard- 
 wick, 16 Eq. 168, 175; Be Seal, 1894, 1 Ch. 316). 
 
192 THE LAW OF EVIDENCE. [book n. 
 
 RULE III. (Insoirect Descriptions). — When the 
 words of a document apply in part correctly, and in 
 part incorrectly, to some single subject-matter, 
 extrinsic evidence (including surrounding circum- 
 stances, treatment, and habits of speech, but noi 
 direct declarations of intention) may be given to show 
 whether they were, or were not, intended by the writer 
 to apply, thereto ; and when the words apply partly to 
 one subject-matter, and partly to another, but cor- 
 rectly to neither, similar evidence may be given to show 
 which of the two was intended [Wigra.m, Prop. HI. ; 
 Prop, v., s. 100; and see ss. 212-4; Steph. art. 91 (7)]. 
 
 Principle and Scope. — The principle of the rule is 
 expressed in the maxims — Veritas nominis tollit erroreni 
 demonstrationem ; nihil facit error nominis citm de cor- 
 pore constat; falsa demonstratio non nocet ciim de 
 corpore constat. Thus, where the identity or extent 
 of the subject-matter is in question, evideiice of the 
 kind indicated above is admissible, not merely that a 
 person or thing exists to which the document might, 
 refer, but also that such person or thing was in fact 
 intended by the writer ; and this applies whether a 
 single subject-matter only is involved, e.g., a legatee 
 whose name is correct but description incorrect, or 
 vice vctsd (Theobald, Wills, 7th ed., 268; Si'mwionrf.s 
 V. Woodn-ard, 1892, A. C. 100, 105-6) ; or whether there 
 are several in competition, e.g., two legatees answer- 
 ing different parts of the same name or description, or 
 Que answering the name and the other the description 
 (Charter v. Charter, L. K. 7 H. L. 364; Cloak v. 
 Hammond, 34 Ch. D. 255). So, in the case of property. 
 Thus, a devise of " freeholds " will pass leaseholds, if 
 that is all the testator had. But where the extent is 
 doubtful, the test of whether the words are a limitation 
 under Kule II., or a false demonstration under the 
 present Rule, has been stated as follows: " If all the 
 terms of description fit some particular property, you 
 cannot enlarge them by extrinsic evidence. But if 
 they do not fit with accuracy, the whole thing must be 
 looked at fairly to see what are the leading words of 
 description, and what is the subordinate matter, and 
 
CHAP. XXIX.] EVIDENCE IN AID OF INTEBPEETATION. 1»3 
 
 for this purpose extrinsic evidence is admissible " 
 (Ha-ndwick v. Hardwich, 16 Eq. 168, 175, per Lord 
 Selborne). 
 
 RULE lY. (Equivocations). — When tlie language of 
 a document, though intended to apply to one person or 
 thing only, applies equally to two or more, and it is 
 impossible to gather from the context which was 
 intended, an equivocation arises, and, in addition to 
 the evidence admissible under former rules, direct 
 declarations of the writer's intention may be given to 
 solve the ambiguity [Wigram, Prop. VII.; Steph. art. 
 91 (8); ante, 187-8]. 
 
 What are Equivocations. — An equivocation may 
 arise where the same name or description. (1) fits two 
 persons or things accurately; or (2) fits one accurately 
 and the other popularly, but less accurately, e.g., the 
 same name borne by both father and son (Jones v. New- 
 man, 1 W. Bl. 60), or by one accurately, and the other 
 in a transposed order (Henderson v. H., 1905, 1 I. E. 
 353, 362), or by one solely, and the other together with 
 additional names (Ben-nett v. Marshall, 2 K. & J. 740), 
 or, perhaps, in the case of a nephew or niece, where 
 one is related by blood, and the other by marriage 
 (Grant v. Gratit, L. E. 5 C. P. 727; sed qu.), the 
 distinction between such cases and those falling under 
 Eule II. being often very slight ; or (3) where it fits two 
 objects equally, but subject to a common inaccuracy, 
 provided that the inaccuracy be a mere blank, or applic- 
 able to no other person or thing, for then the Court can 
 reject the inaccuracy as falsa demonstratio and the 
 residue wiU form a true equivocation (Doe v. Hisoocks, 
 5 M. & W. 863, 370; Be Hubbuck, 1905, P. 129, 135). 
 On the other hand, there is no equivocation (1) where 
 there are legitimate and illegitimate relations of the 
 same degree (Re Fish, 1894, 2 Ch. 83); for the case 
 then falls imder Eule II. ; nor (2) where part of a name 
 or description applies to one subject and the remainder 
 to another (Doe v. Hiscocka, supra) ; for the case then 
 falls under Eule III. 
 
 L.E. 13 
 
194 
 
 THE LAW OF EVIDENCE. [book ii. 
 
 Declarations of hitention. — Though the intention to 
 be proved is that existing at the time of the execution 
 of the document, the declarations themselves may have 
 been made either before, at, or after the execution of 
 the document, although contemporaneous declara- 
 tions, will, of course, be entitled to the most weight 
 {Doe V. Hiscocks, 5 M. & W. p. 368). Such evidence, 
 however, is not receivable when the equivocation can 
 be solved eitlier by the context alone (Doe v. Westlalce, 
 4 B. & Aid. 57); or, perhaps, by the surrounding cir- 
 cumstances without recourse to the declarations 
 {Healy v. Healy, I. E. 9 Eq. 418; contra Phelan v. 
 Slattery, 19 L. R. I. 177); and it is probably only 
 receivable to show wliich of the subjects was intended, 
 and not that both or all were, since this would vary the 
 document {Richardson v. Watson, 4 B. & Ad. 787). 
 [Cp. ante, 187-8.] 
 
 RULE Y. — Usage. Course of Dealing. Experts. 
 Dictionaries. — Where particular terms have a double 
 meaning, the one common, and the other local or 
 peculiar, evidence of the latter is admissible, provided 
 the context or surrounding circumstances point to such 
 a user by the parties {Holt v. Collyer, 16 Ch. D. 718 ; 
 Dashwood v. Magniac, 1891, 3 Ch. 306). So, where 
 the meaning of a document is doubtful, but not when it 
 is plain, the course of dealing between the parties, as 
 well as, whether the docimient be ancient or modem, 
 conteniporanea expositio, are admissible to explain it 
 {N.E. By. V. Hastings, 1900, A. C. 260; Van Diemen's 
 Land. Co. v. Table Ca.pe Board, 1906, A. C. 92). And 
 the testimony of experts {ante, 117), or reference to 
 accredited dictionaries {ante, 115), is similarly admis- 
 sible to explain technical, local, or foreign terms. 
 
 RULE YI. — Where the language of a document, 
 aided as above by extrinsic evidence, is insufficient to 
 determine the writer's meaning, the document will, 
 unless the defect can be cured by construction or elec- 
 tion, be void for uncertainty [Steph. art. 91 (3); 
 Wigram, Prop. VI.; Elphinstone, Deeds, 105]. 
 
CHAP, xxis.] EVIDENCE IN AID OP INTEBPEETATION. 195 
 
 EXAMPLES. 
 
 EULE I. 
 
 Surrounding Circumstances. 
 
 Admissible. 
 
 A. appoints as his executor 
 
 " Percival , of Brighton, 
 
 Esq., the father." Evidence 
 that A. knew two persons called 
 Percival Boxall, father and son, 
 both of whom lived at Brighton , 
 was admitted, probate being 
 granted to the former [i?e De 
 Rosaz, 2 P. D. 66 ; if the words 
 " the father " had been omitted, 
 an equivocation would have 
 arisen and declarations of intent 
 have been also receivable under 
 Eule IV., ■post; cp. Re Hub- 
 buck, post, 199]. 
 
 A., a farmer, sues B. for non- 
 acceptance under a contract 
 signed by B. to take " your wool 
 at 16i. a stone." B.'s defence 
 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 he had 
 sold part of his own clip, but 
 was promised other wool which 
 would go with bis own, were 
 admissible to show that, in the 
 contemplation of the parties, 
 "your wool" included both 
 classes (Macdonald v. Long- 
 bottom, 1 E. & B. 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 
 i£35,000 if he succeeded in re- 
 ducing the total cost of the works 
 below ^£30,000." A. succeeded 
 in reducing the total cost of the 
 works,hnt not of both works and 
 
 Inadmissible. 
 
 A. leaves a legacy to " Mr. 
 
 ," and another to " Lady 
 
 ;" extrinsic evidence is not 
 
 admissible to fill up the blanks 
 (Re De Rosaz, opposite, and 
 cases cited). 
 
 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 which B. had 
 guaranteed to the bank for A. — 
 In an action by the bank 
 against B. on this 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 one secured by 
 B. [Merc. Bank of Sydney v. 
 Taylor, 1893, A. C. 317; see 
 Cocks V. Nash, ante, 181]. 
 
 A. being owned money by B. 
 for printing a certain periodical, 
 declines to bring out the next 
 number unless with C. 's guaran- 
 tee. C. thereupon sighs and 
 gives A. the following docu- 
 ment ; — " 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 indebt- 
 
196 
 
 THE LAW OF EVIDENCE. 
 
 [BOOK ri. 
 
 Inadmissible. 
 
 edueas might be proved aa 
 surrounding circum stances, 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. Odham, 75 I/. T. 
 602, H. L.). 
 
 A., a manager, engages B., 
 an actor, at f 10 a week during 
 the run of the piece. Evidence 
 that before the contract A. 
 agreed to make the run of the 
 piece eight weeks at least, held 
 inadmissible to explain the 
 phrase \^Emery v. Parry, 17 
 L. T. 162; cp. Grimston v. 
 Cunningham, ante, 183]. 
 
 Rule II. 
 Primary Mearcings. Correct Names and Descriptions. 
 
 Admissible. 
 
 land together, below ^£30,000. 
 Held, that conversations and 
 letters between A. and B. before 
 the contract, and a prior cir- 
 cular issued by B. to the public 
 and shown to A. inviting capital 
 on the basis of " the estimated 
 cost of the line being £35,000," 
 were admissible, not to vary the 
 contract, but to show that the 
 subject-matter referred to by 
 the parties embraced both works 
 and land [_Bank of N. Zealand 
 V. Simpson, 1900, A. C. 182]. 
 
 Admissible. 
 
 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 that they were entitled to 
 the property (Re Jeans, 72 
 L. T. 835). 
 
 A testator appointed his 
 " nephew George Ashton " to 
 be his executor. He had both 
 a legitimate and 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 evidence was admissible 
 to show that the illegitimate 
 nephew was intended [Re Ash- 
 
 Inadmissible. 
 
 A testator leaves a legacy to 
 " his children," having at the 
 date of the will both legitimate 
 and illegitimate children. The 
 former alone take, and extrinsic 
 evidence to show that he in,- 
 tended the latter is inadmis- 
 sible (Ellis V. Houston, 10 Ch. 
 D. 236). 
 
 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 un- 
 friendly treatment by A., or of 
 direct declarations by him that 
 they were not intended, was in- 
 admissible (Sherratt v. Mount- 
 ford, Jj. R. 8 Ch. 928). 
 
 A. left property to "his niece 
 B. W." Neither A. nor his wife 
 had any nieces, but his wife had 
 two grandnieces called E. W. , 
 one of whom was legitimate and 
 
CHAr. XXIX.] KVIDENGB IN AID OF INTBEPBBTATION. 107 
 
 Inadmissible. 
 the other illegitimate. — ^Held, 
 that, there being no equivoca- 
 tion, the legitimate one took, 
 and evidence that the other 
 lived in the honse with A, and 
 ■was habitually called by him 
 " his niece," was not receivable 
 (Re Fish, 1894, 2 Ch. 83 C. A.). 
 
 A. who had illegitimate chil- 
 dren by B., afterwards married 
 her and then by will left his 
 property to B. for life and then 
 to his " children by B." A. died 
 soon after, having no other 
 children. Held, that the illegi- 
 timates could not take, as, at 
 the date of the will, there 
 was a possibility of legitimate 
 children (Dorin v. D., L. B. 
 7 H. L. 265 ; Re Pearce, 1914, 
 1 Ch. 254, 0. A.). 
 
 A. leaves a legacy to the 
 " National Society for Pre- 
 vention of Cruelty to Children." 
 There was an English society 
 precisely so named, .and a 
 Sootclj one with • the prefix 
 " Scottish " to the same title. 
 Held , the former took ; and evi- 
 dence,' that A. was a domiciled 
 Scotchman, whose will was in 
 Scotch form, and all the other 
 legacies were to Scotch charities, 
 that his brother was a director 
 of the Scotch society and that 
 the English one did not operate 
 in Scotland, nor was it appar- 
 ently known to A., was, even 
 if admissible, insufficient to 
 oust the correct title (National 
 Society v. Scottish National 
 Society, 1915, A. C. 207). 
 
 Bulb III. 
 
 Incorrect Names and Descriptions. 
 
 Admissible. Inadmissible. 
 
 A voting-paper beginning '' I, 
 the undersigned A." was signed 
 "B." Evidence by the town 
 
 Admissible, 
 ton, 1892, P. 83; following 
 Seal-Hayne v. Jodrell, 1891, 
 A. C. 304, where, however, no 
 question of evidence arose]. 
 
 A. left an annuity to his 
 " brother Edward Parsons for 
 life, and afterwards equally to 
 his children by his present 
 wife." A brother, Edward Par- 
 sons, and his wife, had to A.'s 
 knowledge both died before the 
 date of the will, and their chil- 
 dren took other legacies there- 
 under, but another brother, 
 Samuel Parsons, who had a 
 wife and children, claimed the 
 annuity — Held, evidence that 
 he was the only brother 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. Parsons, 1 Ves. J. 
 265 ; cp. Charter v. Charter, 
 <tc., post, 198). 
 
198 
 
 THE LAW OF EVIDENCE. 
 
 [book It. 
 
 Admissible. 
 
 clerk that he gave A. 'a paper by 
 mistake to B., who signed it 
 without noticing the mistake, 
 was admitted to explain the 
 patent ambiguity and validate 
 the vote {Summers v. Moor- 
 house, 13 Q. B. D. 388). 
 
 A. leaves ij legacy to "the 
 daughters of my late friend 
 Ignatius Scoles, deceased." — A. 
 had no deceased friend of that 
 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 daughters were both known 
 to A., and so inferentially that 
 the latter, though misdescribed, 
 were intended (Re WaUer, 80 
 L. T. 701, C.A. ; Re Ofner, 
 1909, 1 Ch. 60, C. A.). 
 
 A. appointed his " son Forster 
 Charter "his executor. One of 
 A.'s sons, who had died before 
 the execution of the will, had 
 been so called; but A.'s only 
 living sons were William 
 Forster Charter and Charles 
 Charter. Evidence that William 
 Forster had quarrelled with his 
 father and for 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. Charter, 
 L. E. 7 H. L. 364 ; Stringer v. 
 Gardiner, 4 De G. & J. 468). 
 
 Inadmissible. 
 
 In Re WaUer, opposite, the 
 former wills were rejected as 
 declarations of intention by A. 
 to benefit the daughters of 
 Joseph Scoles. 
 
 A. devises land to "John His- 
 cocks, the eldest son of John 
 Hiscocks." The latter had two 
 sons, Simon his eldest, and 
 John, his second son, who, how- 
 ever, was the eldest son by a 
 second marriage. Held, that 
 though the circumstances of the 
 family might be proved, yet, as 
 there was no equivocation, evi- 
 dence of instructions given by 
 A. for his will, and declarations 
 made by him after its execu- 
 tion, were not admissible to 
 show which of the two was 
 intended [_Doe v. Hiscocks, 5 
 M. & W. 363. Similar declara- 
 tions were rejected in Charter 
 V. Charter, opposite]. 
 
CHAV. sxix.] EVIDENCE IN AID OF INTERPRETATION. 199 
 
 Edle IV. 
 E(imvocations. 
 
 Admissible. 
 
 Inadmissible, 
 
 A. Bold goods to B. " to arrivo 
 ex Peerless from Bombay." 
 Evidence wag admitted that 
 there were two ships of that 
 name, and that A. intended one 
 and B. the other [Raffles v. 
 Wichelliaus, 2 H. & C. 906; 
 here, the parties not being ad 
 idem, it was held no contract]. 
 
 A. devises property to " my 
 grandson Robert William Hen- 
 derson." A. had two grandsons, 
 one Robert William Henderson 
 and the other William Robert 
 Henderson. Held, that an 
 equivocation arose, and declara- 
 tions of intent by A. were ad- 
 missible to show to which he 
 referred (Henderson v. Hender- 
 son, 1905, 1 I. E. 353). 
 
 A. devised property to " Wil- 
 liam Marshall, my second 
 cousin." The testator had no 
 second cousin of that name, but 
 had two first cousins once re- 
 moved, one called William Mar- 
 shall, and the other William 
 J. R. B. MarshaU. Held, de- 
 clarations of intention were 
 admissible to remove the doubt 
 (Bennett v. Marshall, 2 K. & 
 J. 740). 
 
 A. appointed as her executrix 
 
 " my granddaughter ." A. 
 
 had at the date of her will and 
 death three granddaughters. 
 Held, that as the case involved 
 only a partial, and not a com- 
 plete, blank, extrinsic evidence, 
 including declarations of intent 
 by A. was admissible to identify 
 the particular granddaughter 
 referred to [iJe Hubbuck, 1905, 
 P. 129 ; cp. Re De Rosaz, ante, 
 195]. 
 
 A. sues B. for non-delivery of 
 "60 tons of Ware potatoes at 
 £5 a ton " which B. had con- 
 tracted to sell him. Evidence 
 of persona in the trade that 
 " Wares " were the largest and 
 best potato6S( in the trade, having 
 been received, further evidence, 
 viz., that A. had contracted for 
 " Regent's " wares, whereas B. 
 had tendered an inferior kind 
 called ' ' kidney ' ' wares , was 
 rejected, there being no equivoca- 
 tion, since " wares " meant only 
 one sort, the best, and not two 
 sorts (Smith v. Jeffryes, 15 M. 
 & W. 561). 
 
 A. devisedl to ' ' Matthew West- 
 lake, my brother, and to Simon 
 Westlake, my brother's son, my 
 house called S., jointly and 
 severally." It was proved that 
 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,^4here was no ambiguity 
 and evidence of A.'s declara- 
 tions in favour of Richard's son 
 was inadmissible (Doe v. West- 
 lake, 4 B. & Aid. 57). 
 
 A. devised land to " my wife 
 Alice for life , and after her death 
 to Margaret M. ; and I give the 
 use of £'500 stock for 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 construction, that it referred 
 to the wife (Castledon v. Turner, 
 3 Atkyns, 257). 
 
200 
 
 THE LAW OF EVIDENCE. 
 
 [BOOK II, 
 
 Rule V. 
 Usage. Course of Dealing. Experts. 
 
 Admissible. 
 Usage. — Evidenceofuaagehas 
 been held admissible to inter- 
 pret the following words : — The 
 usages of thg-House of Commons, 
 to explain the meaning of, and 
 formalities involved in, taking 
 an oath ' ' solemnly and publicly ' ' 
 pursuant to the Parliamentary 
 Oaths Act, 1866 {A.-G. v. 
 Bradlaugh, 14 Q. B. J>. 667, 
 C. A.); a theatrical usage to 
 show that the word " year " in a 
 contract means 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 calen- 
 dar and not lunar months (Jolly 
 V. Young, 1 Bsp. 186; Simpson 
 V. Margitson, 11 Q. B. 23); or 
 that " October " in a contract of 
 marine insurance, meant from 
 the 25th to the Slst of that 
 month (Chaurfmd v. Angerstein, 
 Peake Eep. 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. 
 728). 
 
 A, devises an estate to B. 
 together with " a power to cut 
 timber for the repairs of the 
 estate." Evidence of local usage 
 is admissible not only (1) to show 
 what trees are included in the 
 term ' ' timber ' ' in that locality ; 
 but also (2) to show that such 
 a power includes a power to cut 
 and sell timber for the personal 
 benefit of B. (Dashwood v. 
 Magniac, 1891, 8 Oh. 306, C. A.). 
 
 Inadmissible. 
 Usage. — Evidence of usage 
 has been held inadmissible to 
 interpret the following words : — 
 That words of weight, measure, 
 or number, having a statutory 
 meaning attached to them, were 
 not used in that meaning (Smith 
 V. Wilson, 3 B. & Ad. 728, 
 731-4; O'Donnell v. O'Donnell, 
 13 L. E. I. 226; the statutory 
 meaning may, however, be ex- 
 cluded by the express terms of 
 the document, Tay. 6. 1165). 
 So, evidence of local usage is 
 inadmissible to show that the 
 terms " Liady Day," or " Mich- 
 aelmas," in a lease (made since 
 the Act for altering the style) 
 relate not to March 25 and Sep- 
 tember 29, but to the old style 
 (Doe V. Lea,, 11 East, 312; Doe 
 V. Benson, 4 B. & Aid. 588). 
 
 A. let B. a shop, the latter 
 covenanting not to use it as " a 
 public-house, tavern, or beer- 
 house." B. used it principally 
 as a grocery, but also sold beer 
 to be drunk off the premises. In 
 an action by A. for breach of 
 covenant, evidence of a usage in 
 the trade that " beer-house " in- 
 cluded such a shop : Held, inad- 
 missible, the lea^e being an 
 ordinary one, and not a trade in- 
 strument between brewers and 
 publicans (Holt v. Collyer, 16 
 Ch. D. 718). 
 
 A testator, in several places in 
 his will, used the word " close " 
 in its ordinary sense of " in- 
 closure " ; held, evidence was 
 not admissible of a usage in 
 that part of the country that 
 close meant "farm " [_Richard- 
 son V. Watson, 4 B. & Ad. 787, 
 799; aliter, if the context had 
 not so limited its meaning]. 
 
CHAr. XXIX.] EVIDBNCK IN AID OF INTERPRETATION. 201 
 
 Admissihle. 
 
 Course of Dealing. — A. sues B. 
 for non-delivery of goods which 
 B. had contracted by bill of 
 lading " to deliver sutely at the 
 porfiofLondontoA." Thegoods 
 having been lost by fire after 
 landing, but before receipt by A. , 
 evidence is tendered by A. that, 
 in previous transactions betwesu 
 them, the course of dealing had 
 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 con- 
 strue the word deliver, in anti- 
 cipation of a case which , though 
 not in fact pleaded, might be 
 made by B., that by a custom of 
 the port mere landing was a 
 good delivery \_Bourne v. Gatliff, 
 11 C. & r. 45, 70-1]. 
 
 The question being as to the 
 meaning of ' ' Pacific ports ' ' in 
 a policy of marine insurance ; — 
 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, 
 is admissible (Royal Exchange 
 Co. V. Tod, 8 T. L. E. 669). 
 
 Experts. — The question being 
 whether a legacy of a sculptor's 
 " mod tools for carving " meant 
 modelling tools for carving, or 
 moulds, ormodels ; — theopinion* 
 of statuaries were admitted to 
 prove that there were no such 
 tools known as modelling tools 
 for carving, and that the word 
 " mod " would be understood 
 by a sculptor as an abbreviation 
 for models (Goblet v. Beechey, 
 3 Sim. 24; 2 Bus. & Myl. 624). 
 
 Inadmissihle. 
 
 Course of Dealing.— A. by 
 deed in 1854 granted leave to B. 
 (a railway company) to make a 
 rjfilway through his land, B. 
 agreeing to pay a certain rent on 
 all coal carried over " any part 
 of the railways comprehended in 
 their Act and shipped at C." — 
 In an action by A. for such rent : 
 Held, the words being unam- 
 biguous, evidence that for forty 
 years B. had paid and A. ac- 
 cepted rent only on such coal, 
 shipped at C. , as passed over A. 's 
 land, was not admissible, to dis- 
 entitle A. to rent on all coal, 
 shipped at C, over parts of B.'b 
 railways not passing over A.'s 
 land (N.E. Ry. Co. v. Hastings, 
 1900, A. 0. 260). 
 
 The question being whether 
 an Act, which provided for 
 " daily " testings of gas-meters, 
 was intended to include Sunday 
 testings, evidence of a practice 
 by the parties only to test on 
 weekdays, held inadmissible 
 (L.C.C. V. South Met. Gas. Co., 
 1904, 1 Ch. 76). 
 
 Experts. — The question being 
 as to what lands acquired by a 
 railway company were " deline- 
 ated" upon statutory plans; — 
 the opinums of engineers on the 
 point are not admissible, the 
 word being intelligible to ordin- 
 ary readers (Doivling v. Ponty- 
 pool Co., 18 Bq. 714). Nor are 
 the opinions of surveyors ad- 
 missible as to the meaning of 
 ' ' nominal rent ' ' under the In- 
 come Tax Acts (Camden v. Com- 
 mrs. of Income Tax, ante, 119). 
 
( 202 ) 
 
 BOOK III. 
 EFFECT OF EVIDENCE. 
 
 CHAPTER XXX. 
 
 WEIGHT OF EVIDENCE. PRESUMPTIONS. ESTOPPELS. 
 
 [676-687.] 
 
 WEIGHT OF EVIDENCE.— The weight of evidence 
 cannot, like its admissibility, be determined by 
 arbitrary rules, since it depends on common sense, 
 logic and experience. But valuable aid in this con- 
 nection is often provided by the rules as to burden of 
 proof; e.g., where the scales are even, the plaintiff or 
 prosecutor, and not the defendant, must lose, since 
 he will have failed to establish his case by a preponder- 
 ance of probability, or beyond reasonable doubt, as the 
 case may be; so, where either party has a presump- 
 tion of law in his favour, he must win unless his 
 opponent is able to rebut it {ante, 5, 10-11). Juries 
 also derive important assistance fi'om the judge's 
 direction as to when corroboration is required {an-te, 
 154-7) ; that statements may be evidence for some 
 purposes and not for others (ante, 17, 25, 38, 60); 
 that direct testimony is to be preferred to speculative 
 opinion (ante, 118; as to the relative cogency of direct 
 and circumstantial evidence, see ante, 2); and that 
 facts not cross-examined to may, in general, be taken 
 as admitted {aide, 150). 
 
CHAP. XXX.] PRESUMPTIONS. 203 
 
 PRESUMPTIONS Presumptions are, as. we have 
 
 seen, either of law or fact; and when of law, may be 
 either conclusive, prxsumptiones juris et de jure, or 
 rebuttable, prxsumptiojies jxiris, but when of fact, 
 priBSumption.es Jiominis, are always rebuttable {ante, 
 4). Mixed presumptions are those which are partly 
 of law and pai-tly of fact. Conflicting presumptions 
 neutralize each other, and the ca^se must then be 
 deteimined solely on the evidence adduced {ante, 11). 
 
 ConclusiTA Presumptions of Law. — The modem ten- 
 dency being to contract the range of all arbitrary rules 
 affectmg the weight of evidence, and to leave 
 questions of fact to be determined by the probabilities 
 of the particular case, many presumptions of law, 
 which in early times were considered indisputable, 
 have since been relegated to the category either of 
 rebuttable presumptions of law, or of mere presump- 
 tions or inferences of fact (Best, s. 307). Indeed, it 
 has been doubted whether there can, in strictness, be 
 such a thing as a conclusive presumption, or whether 
 a perfect specimen of the class exists. In many cases, 
 at all events, these so-called presumptions are rules 
 which belong, properly speaking, to the 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 law is no excuse for crime), 
 belong to the criminal law. 
 
 Rebuttable Presumptions of Law.^-Disputable pre- 
 sumptions of law differ from presumptions, of fact in 
 that they (1) derive their force from laiv and not from 
 logic ; (2) are drawn by the Court and not by the iury ; 
 and (3) apply to a class and not to individual cases. 
 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; indeed, 
 the same judges not infrequently place the same 
 presumption in different categories at different times. 
 The principal function of a rebuttable presumption of 
 
201 THE LAW or EVIDENCE. [book m. 
 
 law is to determine upon whom the burden of proof 
 rests, using that term in the sense of introduc5ing 
 evidence {ante, 11). 
 
 The following are some of the chief presumptions 
 usually included under this head: — 
 
 Legitimacy. — It is a rebuttable presumption of law 
 that a child, proved to have been bom' during lawful 
 wedlock, is legitimate; and this presumption can only 
 be displaced by a strong preponderance of evidence, 
 and not by a more balance of probabilities (Bosvile v. 
 A.-G., 12 P. D. 177; Bumahij v. Baillie, 42 Ch. D. 
 282). Proof that access between husband and wife at 
 the necessary time was impossible, or highly impro- 
 bable, will rebut the presumption (ibid.); but neither 
 the testimony, nor declarations out of Court of the 
 parents, can be received for this purpose {ante, 54) ; 
 unless indeed the latter be tendered merely as a part 
 of their general conduct, and not as evidence of the 
 facts stated {Aylesford Peerage, 11 App. Gas. 1). 
 
 Marriage. — A primd facie presumption of an equally 
 strong character is, except in cases of bigamy or 
 divorce, made by law in favour of the validity of a 
 marriage proved to have been celebrated de facto 
 {Sasti-y Velaider v. Sembecutty, 6 App. Cas. 364); 
 and mere co-habitation may raise such a presumption, 
 unless the contrary be clearly proved {Re Shepherd, 
 1904, 1 Ch. 456). 
 
 Life. Death. Survivorship. Issue. There is no 
 presumption of laiv as to the continuance of life {ante, 
 25) ; but a person proved to have been alive at a given 
 date may, if nothing further is shown, be presumed 
 as a fact to have continued so for a reasonable time 
 afterwards, e.g., eleven years {R. v. WiUshire, 
 6 Q. B. D. 366). On the other hand, if proved not to 
 have been heard of for seven years by those who, if 
 he had been alive, would be likely to have heard of 
 him, he is presumed by law to be dead; though there 
 is no presumption as to the time during the seven 
 years at which he died {Re Phene's Trusts, 5 Ch. App. 
 139; Wills V. Palmer, 58 W. R. 169); nor that he 
 
CHAP, rxx.] PRE8DMPTI0NS. 205 
 
 died without issue {Re Jackson, 1907, 2 Ch. 334); nor 
 as to survivorship in. the case of oornmonentes , i.e., 
 two or more persona wlio have perished in a common 
 disaster (Wing v. Angrave, 8 H. L. C. 183; Re 
 Beynon, -1901, P. 141). 
 
 Innocence. — In the absence of evidence, innocence 
 of crime is said to be presumed by law; at all events, 
 the burden of proof is cast upon the party asserting 
 criminality. Children under seven are incapable of 
 committing a felony; but between seven and fourteen, 
 there is merely a rebuttable presumption of innocence-, 
 since here maliiia supplet xtatem (R. v. LocMey, 47 
 Sol. Jo. 123). 
 
 Omnia frxsumuniur rite esse acta. — This presump- 
 tion, 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 service from 
 an early period in a chapel raises a presumption of its 
 due consecration (R. v. Cresswell, 1 Q. B. D. 446). 
 
 Probable Consequences of Acts. — It is a presumption 
 of law, generally rebuttable but sometimes conclusive, 
 that sane persons intend the probable consequences of 
 their acts (R. v. Beard, 1920, A. C. 479; R. v. Meade, 
 1900, 1 K. B. 895); though this applies only to inten- 
 tional, and not to accidental, acts (R. v. Davies, 
 29 T. L. E. 150). 
 
 Presumptions affecting Documents. — Date: It is a 
 presumption, though merely a prima facie one, dis- 
 provable by evidence, that all documents were made 
 on the day they bear date {ante, 179). As to the pre- 
 sumptions respecting sealing, delivery, attestation and 
 alterations, see ante, 159-61). 
 
 Rebutting Presumptions (a). — Where any presump- 
 tion, legal or equitable, arises against the apparent 
 intention of a document, extrinsic evidence (including 
 ' declarations of intention by the author) is admissible 
 to rebut, or, in answer to such rebutting evidence only, 
 to support the presumption [666-675]. 
 
206 
 
 THE LAW OF EVIDENCE. 
 
 [BOOK m. 
 
 EXAMPLES. 
 
 Admissible. 
 
 Inadmissible. 
 
 (a) A., testator, haviug made 
 a Bettlement upon his daughter 
 at her marriage, subsequently 
 leaves her a legacy by his will. 
 To rebut the presumption 
 against double portions, declara- 
 tions by the testator that he 
 intended the legacy to be in 
 addition to, and not in satisfac- 
 tion of, the provisions in the 
 settlement are admissible (Be 
 Tussaud, 9 Ch. D. 363, C. A.). 
 
 (o) A. lodges certain securities 
 at a bank in the joint name of 
 himself and his daughter. After 
 his death a memorandum, dated 
 fifteen /months subsequently to 
 the deposit, is found, in which 
 he directs the securities to be 
 applied for other purposes. This 
 memorandum is not admissible 
 to rebut the presumption that 
 the money is a gift (O'Brien v. 
 Sheil, Ir. E. 7 Eq. 2-55 ; Williams 
 V. Williams, 32 Beav. 370 ; aliter 
 if the declarations had been 
 made contemporaneously with 
 the deposit, since the question 
 was what was the intention at 
 the time of the transaction, not 
 what it was subsequently. It 
 should be remembered, however, 
 that a party's intention at a 
 given time may generally be 
 proved by his prior or subse- 
 quent acts (ante, 39), and 
 sometimes by his prior or subse- 
 quent declarations (ante, 100-1). 
 
 • Presumptions of Fact. — Presumptions of fact are, as 
 we have seen, simply logical inferences of the 
 existence of one fact from the proof of another. They 
 are the inferences or presumptions which render cir- 
 cumstantial evidence admissible, and have already 
 been considered under the head of relevancy and 
 relevant facts. — Presumptions of fact of the more 
 cogent kind will, as we have seen, shift the burden 
 of proof, no less than rebuttable presumptions of law 
 (ante, 11). 
 
 ESTOPPELS. — An estoppel is a rule whereby a 
 party is precluded from denying the existence of some 
 state of facts which he has previously asserted. 
 
 It is sometimes said to be a rule of evidence, since 
 an action cannot be founded thereon; but as a defence 
 can, it often has the effect of a rule of law; moreover, 
 estoppels must be pleaded, and evidence must not. 
 
CHAP. XXX.] ESTOPPELS. 207 
 
 Estoppels have also been variously treated as con- 
 clusive presumptions of law (Tay. s. 89); as solemn 
 admissions (2 Sm. L. C. 11th ed. 744); and as con- 
 clusive evidence. They are, however, distinguishable 
 from the first, in that an estoppel may be waived, 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 some rule of law, it operates against 
 strangers as well as against parties. Estoppels may 
 arise (1) By Eecord; (2) By Deed; (3) By agreement; 
 or (4) By Conduct, i.e., Misrepresentation or Negli- 
 gence. 
 
 (1) Estoppels by Record. — The chief of these are 
 Judgments (ante, chap. XXI.) and Letters Patent 
 {Cropper wSmith, 26 Ch. D. 712-13). 
 
 (2) Estoppels by Deed. — Where a party has entered 
 into a solemn engagement by deed as to certain facts, 
 neither he, nor his privies, are permitted to deny them. 
 
 This only applies, however, in actions on the deed, 
 and with respect to recitals and descriptions which are 
 material and intended to bind. And no estoppel 
 arises where the deed is fraudulent or invalid. 
 
 (3) Estoppels by Agreement. — The- following are 
 common examples of this class of estoppel :—Land- 
 lord and Tenant.-. — A landlord who has granted a lease, 
 whether by deed or not, is estopped from alleging his 
 want of title to the premises. 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, or the latter's heirs (Weeks v. 
 Birch, 69 L. T. 759). But the tenant may show that 
 such title has expired (Serjeant v. Nash, 1903, 2 K. B. 
 304) ; or that a parcel of land about which he and the 
 lessor are disputing was never comprised in the lease 
 at all (Clark v. Adie, 2 App. Cas. p. 435) ; or that he 
 has been evicted by title paramount to his landlord's 
 (Gouldsworth v. Knights, 11 M. & W. p. 344). Mere 
 receipt or payment of rent, however, though raising 
 
208 THE LAW OF tlVIDBNCE. [book hi. 
 
 a strong presumption of tenancy, does not of itself 
 operate as an estoppel {Serjeant v. Nash, supra). 
 
 Bailor and Bailee. — A bailee is estopped from deny- 
 ing that his bailor had, ab the time of the bailment, 
 authority to make it (Gosling v. Birnie, 7 Bing. 339); 
 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 {Rogers v. Lambert, 24 Q. B. D. 
 573). 
 
 Licensor and Licensee. — A hcensee of a patent can- 
 not dispute the validity of the patent as against the 
 licensor. But he may show its expiry {Muirliead v. 
 Commercial Co., 29 L. Jo. 298) ; or that what he has 
 done does nob fall within the scope of the patent if 
 properly construed {Clark v. Adie, 2 App. Cas. 423). 
 
 (4) Estoppels by Conduct: Misrepresentation, Neg- 
 ligence. — An estoppel by conduct may arise from an 
 untrue representation of fact, not only when fraudu- 
 lently, bub even when innocently, made {Vagliano v. 
 Bank of England, 1891, A. C. 107). 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 {ibid.; Freeman v. Cooke, 
 2 Ex. 654). 
 
 In order to raise such an estoppel there must have 
 been a clear and unambiguous statement of fact; an 
 intention that the injured party should act thereon; 
 and a detriment suffered as the natural consequence of 
 so acting {ibid.; Re Lewis, 1904, 2 Ch. 655). 
 
( 209 ) 
 
 APPENDIX.* 
 
 CRIMINAL EVIDENCE ACT, 1898. 
 (61 & 62 VrcT. Ch. 36.) 
 
 An Act to amend the Law of Evidence. 
 
 [August 12, 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 Parliament 
 assembled, and by the authority of the same, as follows : 
 
 1 . Every person charged with an offence, and the wife or Com- 
 husband, as the case may be, of the person so charged, shall ^i'nesLs* 
 be a competent witness for the defence at every stage of the in criminal 
 proceedings, whether the person so charged is charged solely ''^^''■ 
 or jointly with any other person. 
 
 (o) A person so charged shall not be called as a witness 
 in pursuance of this Act except upon his own 
 application. 
 (6) The failure of any person charged with an offence, or 
 of 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 prosecution : 
 
 (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 compellable 
 
 to disclose any communication made to him by his 
 wife 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 pursuance 
 
 of this Act may be asked any question in cross- 
 
 * The various provisions of this Act are fully treated in 
 the text at pp. 136-40. 
 
 L.E. 14 
 
210 
 
 THE LAW OP EVIDENCE. 
 
 [app. 
 
 examination notwithstanding that it would tend to 
 criminate him as to the offence charged : 
 (/) 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 of bad character, unless — 
 (i) the proof that he has committed or been con- 
 victed of such other offence is admissible 
 evidence to show that he is guilty of the 
 offence wherewith he is then charged ; or 
 (ii) he has personally or by his advocate asked 
 questions of the witnesses for the prosecu- 
 tion 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 
 (iii) he has given evidence against any other 
 person charged with the same offence. 
 (;;) Every person called as a witness in pursuance of this 
 Act shall, unless otherwise ordered by the court, give 
 his evidence from the witness box or other place 
 from which the other witnesses give their evidence : 
 11&12 (/i) Nothing in this Act shall affect the provisions of sec- 
 
 ^''•^^ "■ i-i- lion eighteen of the Indictable Offences Act, 1848, 
 
 or any right of the person charged to make a state- 
 ment without being sworn. 
 Evidence 2. Where the only witness to the facts of the case called 
 
 charged" ^^ *^® defence is the person charged, he shall be called as 
 a witness immediately after the close of the evidence for the 
 prosecution. 
 Bight of 3, In cases 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 the prosecution the right of reply. 
 Calling of 4, — (1) The wife or husband of a person charged with an 
 husband in offence under any enactment mentioned in the schedule to 
 certain this Act may be called as a witness either for the prose- 
 "''°'' cution or defence, and without the consent of the person 
 
 charged. 
 
 (2) Nothing in this Act shall affect a case where the 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. 
 
APP.] 
 
 CRIMINAL EVIDENCE ACT, 1898. 
 
 211 
 
 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 proceedings, 
 notwithstanding any enactment in force at the commence- 
 ment 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 — 
 
 (o) as to courts martial under the Naval Discipline Act, 
 by general orders made in pursuance of section 
 sixty-five of that Act; and 
 
 (h) as to courts martial under the 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 expiration 
 of two months from the passing thereof. 
 
 (3) This. Act mav be cited as the Criminal Evidence Act, 
 1898. 
 
 SCHEDULE. 
 
 Applica- 
 tion of Act 
 to Scot- 
 land. 
 
 60&S1 
 Vict. c. 35. 
 
 Provision 
 as to pre- 
 vious Acts. 
 40&il 
 Vid. c. U. 
 
 S!9&30 
 Vict. c. 
 109. 
 
 U&iS 
 Vict. c. 58. 
 
 Extent, 
 commence- 
 ment, and 
 short title. 
 
 Section 1. 
 
 E 
 
 KACTMENTS REFERRED 
 
 TO. 
 
 Session and Chapter. 
 
 Short title. 
 
 Enactments referred to. 
 
 5Geo.IV. e. 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 (Soot- 
 land) Act, 1845. 
 
 Section eighty. 
 
 24 & 25 Vict. c. 100 
 
 The OBences against 
 
 Sections forty-eight to 
 
 
 the Person Act, 
 
 fifty-five. 
 
 
 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- 
 
 The whole Act. 
 
 
 dren Act, 1894. 
 
 
(212) 
 
 OATHS ACT, 1909. 
 
 (9 Edw. 7, c. 39.) 
 
 An Act to amend the Law as to Oaths. 
 
 [25th November, 1909.] 
 Be it enacted by the King's most Excellent Majesty, by 
 and with the advice and consent of the Lords Spiritual and 
 Temporal, and Commons, in this present Parliament 
 assembled, and by the authority of the same, as follows : — 
 
 1. This Act may be cited for all purposes as the Oaths 
 Act, 1909 ; and the Oaths Act, 1888, and this Act may be 
 cited together as the Oaths Act, 1888 and 1909. 
 
 2. — (1) Any oath may be administered and taken in the 
 form and manner following : — 
 The person taking the oath shall hold the New Testament, 
 or, in the case of a Jew, the Old Testament, in his up- 
 lifted 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. 
 (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. 
 
 3. In this Act the word "officer" shall mean and include 
 any and every person duly authorized to administer oaths. 
 
 4.- — (1) This Act shall come into oiieration on the first day 
 of January nineteen hundred and ten. 
 (2) This Act shall not apply to Scotland. 
 
( 313 ) 
 
 INDEX. 
 
 Absence, party's death presumed after seven years of, 11, 204 
 
 Absent witness, depositions of, 132, 143 — 6 
 
 Abstracts, admissible as secondary evidence, 163 
 
 Acceptor of bill, parol agreement with, when admissible to modify 
 
 bOl, 182. See Bills 
 Access, statements by parents as to, when inadmissible, 54, 204 
 to documents, when implies a knowledge of their contents, 38, 
 73 
 Accessory, conviction of principal when evidence against, 131 
 Accompanying Facts, when admissible as part of transaction, 17 — 20. 
 
 See Res Gesta 
 Accomplice, testimony of, generally requires corroboration, 156 
 confession by, not evidence against prisoner, 79 
 wife of, when competent, or compellable, 139, 156 
 Account-Books, are evidence in taking accounts, 62. See Shop- 
 Books 
 knowledge of, is implied between partners, banker and 
 
 customer, &c., 38 
 of deceased agents, stewai'ds, &c., admissibility of, 86 — 9 
 accounts sent to party, are admissions when not objected to, 74 
 Accused. See Pkisonee' 
 
 Acquiescence by conduct or silence in another's statement is an 
 admission, 73 
 in judgments, makes them evidence against a party, 131 — 2 
 Acquittals of Criminal charge, when evidence in other cases, 125, 
 130 
 proof of, by certificate, 170 
 Acting in a Capacity, admissible to prove yuhlic, but not generally 
 private, appointmsnts , 27, 32 
 so, acting in pursuance of documents is evidence of their 
 existence and contents, 165 
 Acts of Ownership, admissible to prove title, 27 — 8, 32. See Title 
 Acts of Parliament. See Statutes 
 Administration, Letters of. See Fbobates 
 
 Admiralty, when Court assisted by assessors, expert evidence in- 
 admissible, 117. See Navy, Ship 
 Admissibility, distinguished from relevancy, 14 — 15 
 
 facts showing, are determinable by judge, 3 — 6 
 Admissions for dispensing with proof at trial, 7 
 
 as evidence against a party at the trial, 7, 62 — 5 
 of prosecutor, not receivable, he not being a party, 51. See 
 Pbosbcutok 
 
214 INDEX. 
 
 Admissions— continue (i 
 
 offers without prejudice, how far protected, 63 
 
 persons whose admissioua may affect a party : — 
 
 (o) predecessors in title; (b) nominal and real parties; 
 (c) partners, &c.; (d) agent6, referees, &c., 66 — 73 
 
 by acquiescence in statements or documents, 73^ — 4 
 
 of adultery in divorce cases, how far allowable, 59 
 
 judgments, when operate as, 131 — 2 
 Adulteration of Food, analyst's certificate is evidence of, 113 
 Adultery, similar facts relevant lo prove, 45. See Divorce 
 
 questions as to, how far allowable in divorce cases, 59 
 
 character of wife, admissible' as affecting damages, 51 
 
 testimony of parents not receivable to bastardise child, 54 
 Adverse Witness, what constitutes, 149 — 50. See Witness 
 
 may be asked leading questions, 148 
 
 may bo contradicted, 149 — 50, 151 — 2 
 Advocates. See CouNSEii 
 
 Affairs of State, evidence as to, excluded by public policy, 53 
 Affidavits, when evidence may bo taken by, 143 — 4 
 
 how proved, 171 
 
 failure to reply to, may amount to an admission, 74 
 
 statements of deponent's information and belief, when ad- 
 missible in, 122 
 Affirmation. See Oaths 
 Age, when may bo proved by inspection, 4 
 
 opinion of witnesses admissible to prove, 122 
 
 registers of births, &e., as proof of, 107 
 
 in pedigree cases, only, is provable by hearsay, 61, 94, 97 
 Agency, proof of, 21 — 2 
 Agent, acts and representations of, when bind principal, 21 — 4 
 
 admissions of, when bind "principal, 66, 69—72 
 
 parol evidence admissible to show personal liability of, 178 
 Agreements. See Costhacts 
 Alibi, relevant to rebut accused's identity, 34 
 Almanac is evidence as public document of matters contained, 115 
 
 judge may refer to, to refresh memory, 8 
 Alterations in documents, when invalidate, 161 
 
 presumptions as to date of, in deeds and wills, 161 
 
 declarations of testator to rebut such presumptions, 102, 103 — 4 
 Ambassadors, not compellable as witnesses, 140 
 Ambiguities, patent and latent, 188 — 90 
 
 extrinsic evidence, how far admissible to explain, 186, 190 — 4 
 Analyst's certificate is evidence of adulteration, 113 
 Ancient Documents, from proper custody, prove themselves, 160 — 1 
 
 when admissible to show ancient possession, 27 — 8, 32 
 Ancient possession may be proved by ancient documents, 27 — 8, 32 
 Animals, conduct and propensities of, how proved, 46 
 Ante litem motam, declarations when must be, 90—1, 96 
 Army List is evidence of matters contained, 108 
 Art, opinions of experts admissible on questions of, 117 
 Assault, dismissal of charges of, however proved, 112, 170 
 
INDEX. 215 
 
 AsBessments, admissible as public documeuts, 109, 110 
 Assessors, expert evidence not admissible when cases tried with, 117 
 Assignee, admissions of assignor, when evidence against, 67 
 Atheists are now competent witnesses, 135 
 
 how sworn, 140 — 1 
 Attestation, documents requiring, or not, how proved, 159 — 60 
 
 when attesting witness need not be called, 160 
 Awards, not admissible as evidence of reputation, 92 
 
 Bailee is estopped from denying his bailor's title, 208 
 Banlters' Books, admissibility of, 114 — 15 
 
 production and inspection of, 114 
 Bankrupt, admissions by, how far receivable, 72, 85 — 
 
 is compellable to answer as to his affairs, 5& — 9 
 
 letters to, admissible to prove knowledge of his affairs, 20, 41 
 Bankruptcy, private examinations in, are protected, 54 
 
 judgments in, are evidence to prove debt, 131 
 Baptism, registers of, are evidence of that fact, 107 
 Barristers. See Codssel 
 Bastardising Offspring, statements by parents not receivable for 
 
 purpose of, 64 
 Bastardy, corroboration required in cases of, 155 
 Belief. See Opinions 
 Believers, how sworn, 140 
 Best Evidence, maxim as to, discussed, 12 — 13 
 
 strict proof when now required, 13 
 
 principle sometimes applied to parol evidence, 172, 176 
 Bias of witness, provable to discredit him, 152 
 Bible, entries in family, receivable to prove pedigrees, 96 
 
 what is proper custody of, 161 
 Bigamy, reputation insufficient to prove marriage on charges of, 116 
 Bills of Exchange, burden of proof in actions on, 11 
 
 extrinsic evidence how far receivable to affect, 179, 182 
 
 patent ambiguity in, 189 
 
 effect of indorsements on, by deceased holder, 84 
 Bills of Sale, provable by office copy, 171 
 
 filing of affidavit accompanying, proof of, 31 
 Birth. See Aoe 
 
 Bishop's returns to Exchequer, are evidence of contents, 110 
 Blanks in documents, evidence to fill, 161, 188—9, 193, 195, 199 
 Bona Fides, facts relevant to show, 28, 32, 39, 41 
 Books. See AcconNT-BooKS , BANXBais' Books, Company and 
 
 COEPOEATION BOOKSj PARTNERSHIP BoOKS, SHOP-BoOKS 
 
 Boundary, declarations of deceased persons, admissible to prove, 
 90, 92 
 surveys and reports as to, when admissible, 110 
 
 Breach of Promise, plaintiff is compellable witness, 140 
 must only state what defendant wrote or said, 10 
 plaintiff's testimony requires corroboration, 155 
 what facts admissible to corroborate, 75, 157 
 plaintiff's bad character provable to reduce damages, 52 
 
216 INDEX. 
 
 Broker, usage admisBible to show liability of, 31 — 2 
 Burden of Proof, rules as to, 10 — 12 
 
 presumptions shift, 11, 203 — 4 
 Burial, registers of, are evideiioe of that fact, 107 
 Business, course of, is relevant to prove act done, 26, 31 
 By-laws, how proved, 169 
 
 Certificates, Official, admissibility at Common Law and by Statute 
 to prove facts certified, 111 — 113 
 proof of, 168 
 Certiiied Copies, defined, 165 
 
 what documents provable by, 165, 168 — 9, 170 
 Cestui que trust, admissions by, are evidence against trustee, 68 
 Cestui que vie, death of, not a matter of pedigree, 96 — 7 
 Character of parties and others, when in issue, may be proved, 49 
 but not when not in issue, 49 
 
 except that of prisoners, of the prosecutrix in cases of 
 rape, and in legitimacy, divorce, and murder 
 cases to a limited extent, 49 — 51 
 or, to affect damages, 51 
 of witnesses, always provable as affecting credit, 53, 151 — 3 
 of places, things, or animals, 44, 46 
 Charts. See Maps 
 Child, age of, how proved. See Age 
 
 resemblance of, to parent, is proof of paternity, 30 
 legitimacy of, testimony of parents not admissible as to, 54 
 
 may be proved presumptively by familv treat- 
 ment, 30, 54, 95 
 or by statements of deceased relatives, 94, 95 — 7 
 competency of, as witness, 135 
 when unsworn testimony of, admissible, 142 
 such testimony must be corroborated, 142, 155 
 statutory depositions by, 146 
 dying declarations by, 98 
 under seven, presumed incapable of crime, 205 
 evidence to explain meaning of word " child," in will, 196 — 7 
 Circumstantial Evidence, distinguished from direct, 2, 206 
 Claims against estates of Deceased, should be corroborated, 155 
 Clergy, confidential communications to, not privileged, 55, 78 
 Co-contractors, admissions by, when bind each other, 68 — 9 
 
 judgments against, effect of, 129 
 Co-defendants, admissions and confessions by, 69, 79 
 may cross-examine each other, 150 
 when competent in criminal cases, 136, 139 
 judgments against, when bind each other, 129 
 Cohabitation is some evidence of marriage, 27, 204 
 Collateral Agreements, when may be added bv parol to written 
 
 contracts, 177, 182—3 
 College Books, are evidence as public documents, 108 
 Collision, what statements are part of res gesta in cases of, 18 
 Collusion, may be proved to impeach judgments, 12Ci 
 
INDEX. 217 
 
 Colonies, laws of, how provable, G, 8, 167 
 
 judgments by Courts of, how provable, 170 — 1 
 English documents, when admissible in, 171 
 registers of, how provable, 107, 169 
 Commissioners tor Oatlis, seals and signatures of, judicially 
 
 noticed, 9 
 Common, rights of, provable by declarations of deceased persons, 
 
 89—90, 92—3 
 Common Object or Purpose, pioof of, will let in evidence against 
 
 conspirators, and co-trespassers, 22 — 4 
 Commorientes, presumption as to survivorship between, 203 
 Company, incorporation may be proved by trading, or certificate, 
 32, 112. See Cohpoeation 
 title to shares in, provable by certificate, 112 — 13 
 when liable for the acts and representations of its directors, 
 
 &c.,22 
 admissions by officers of, when bind, 70 
 knowledge of books of, not imputed to directors or share- 
 holders, 38 
 registers and minute-books of, are evidence of contents, 
 
 113—14 
 private examinations in winding-up of, are privileged, 54 
 Comparison of handwriting, when allowed, 26 — 7, 159 
 
 of personal characteristics, &c., admissible to prove identity, 
 30, 34 
 Compellability of Witnesses, rules as to, 140, 153 
 Competency of Witnesses, all persons, in general, competent, 135 
 exceptions (1) as to defective intellect, 135 — 6 
 
 (2) as to criminal proceedings, 136 — 9 
 of experts, 117 
 Complaints by prosecutrix, admissible in cases of rape, 28 — 9 
 Compromise, offers of, made without prejudice, are protected, 63 
 Compulsion of witness to answer questions, 140, 153 
 Concealment of Facts, when evidence of fraud, 40 
 Conclusive Evidence, certificates when are, 112 
 judgments when, 125 — 8 
 estoppels distinguished from, 207 
 Conclusive Presumptions, 8 — 4, 203 
 Conditional Execution of docmnents, as escrows, 179, 184 
 Conditions of Mind or Body. See Mental and Physical Con- 
 ditions 
 Conduct of accused or others, when relevant to show his identity, 
 34—7 
 admissions by, 29 — 30, 33, 73 — 6. See Statements in 
 
 Presence 
 estoppels by, 206 
 Confessions, induced by promise or threat of person in authority 
 inadmissible, 77—81 
 who are persons in authority, 78, 80 
 nature of inducement, 78 — 80 
 removal of inducement, 79 — 61 
 
218 INDEX. 
 
 Contesslons — continued 
 
 whole confession must be proved, 79 
 by accomplices, inadmissible, 79 
 facts discovered through, when admissible, 79, 81 
 Confidential Communicattons. See Frivii^eoe 
 Connection of Party with transaction, facts relevant to show, 34 — 7 
 Consent, may be proved without calling consenting party, 12 
 rules of evidence may be relaxed by, in civil cases, 4 
 in cases of rape, complaints may be proved to rebut, 28 — 9 
 Consideration, for deed, etc., may be disproved by parol, 180, 184 
 
 burden of disproof is on party impeaching, 11 
 Conspirators, acts and declarations of, when admissible, 22 — 4 
 
 admissions by, inadmissible against rest, 22 — i 
 Constituent Facts admissible as part of res gesta, 16 
 Constitutional Matters are judicially noticed, 9 
 Construction of Documents. See Interpretation 
 Constructive Notice, defined, 39 
 Contempormiea Expositio, admissible to interpret documents, 194, 
 
 200 
 Contemporaneousness of declarations that are part of res gesta, 17 
 of declarations in course of duty, 88 
 of declarations as to pedigree, 95 
 of entries in public registers, 107 
 of documents used to refresh memory, 148 
 Continuance, presumption of, 25 
 
 Contractors, joint, admissions and judgments by, 68, 129 
 Contracts, extrinsic evidence not admissible to supersede written, 
 
 172 
 nor generally to contradict or vary, 
 
 176 
 exceptions, 176 — 85 
 extrinsic evidence, when admissible to interpret, 186, 190 — 201 
 material alterations in, invalidate, 161 
 Contradiction of adversary's witnesses, when allowed, 151 — 3 
 
 of party's own witnesses, when allowed, 149 — 50, 
 151—2 
 Conviction, previous, of party, when res judicata, 130, 131 
 
 of witness, admissible to discredit, 152, 170, 
 174 
 proof of, 170, 174 
 Tyhen admissible before, or after, verdict, 
 50—1 
 Copies of documents, are secondary evidence of contents, 164 — 5 
 and sometimes primary evidence against a party, 164 
 various Isinds of: — Government Printers' or Gazette, copies; 
 exemplifications; examined, office and certified, copies; 
 printed, &c., copies; drafts, abstracts and memorials, 
 164—5 
 inadmissible kinds : copies of copies , &c. , 166 
 public, judicial, and private, documents when provable bv 
 165, 167—71 ^' 
 
INDEX. 219 
 
 Co-respondent, admissions by, not evidence against respondent, 69 
 
 judgments against petitioner, admissible for, 131 — 2 
 Coroners, depositions before, when admissible, 145 
 Corporation, books of, when admissible, 108, 113 — a See CosirANV 
 
 books of, how proved, 168 
 
 by-laws of, how proved, 169 
 
 acts and representation of officers of, when bind, 22 
 
 admissions by officers of, when affect, 70 
 
 directors, &c., not presumed to know contents of books of, 38 
 Corroboration of witnesses, when allowed, 154 
 
 when required by law, 156 
 
 when required by rule of practice, 156 
 
 what facts admissible for purpose of, 156 — 7 
 
 prior statements by witnesses not generally admissible, 
 156 
 
 confessions, when require, 77 
 
 ancient documents, how far require, 28 
 
 of opinion of experts, 119 
 Co-trespassers, acts and declarations of, when affect each other, 23 
 Counsel, cannot be compelled to disclose former statements in 
 Court, 54 
 
 nor confidential communications with client, 55 — 7 
 
 admissions by, how far affect client, 71 — 2 
 
 when testimony of, may be given without oath, 142 
 Counterparts, when primary and when secondary evidence, 163 
 County Courts, judgments of, may be res jiidicaia, 128 
 
 proof of proceedings in, 170 
 Course of Business, or office, relevant to prove act done, 26, 31 
 Course of Dealing, admissible to interpret documents, 194, 201 
 Course of Duty, declarations by deceased persons in, admissible, 
 
 87—9 
 Credit of Witness, facts which affect, 151—2 
 
 when party may discredit own witness, 149 — 50, 151 — 2 
 
 re-establishing, 153 
 Crime, information for detection of, protected by public policy, 63 
 
 communications to solicitor in furtherance of, not privileged, 55 
 
 acquittals or convictions of, are evidence of fact of acquittal 
 or conviction, 125 
 how far evidence of innocence or guilt in other cases, 50 — 1, 
 125, 130, 131—2, 152 
 
 proof of acquittals and convictions, 170 
 
 previous convictions for, when admissible before or after 
 verdict, 51 
 Criminal Cases, rules of proof in civil and, compared, 4 — 5 
 Criminal Evidence Act, 1898, 136 — 9, and Appendix 
 Criminating Questions, when answers to, privileged, 68 — 9 
 Cross-examination, liability to, and scope of, 150 
 
 to credit, what facts admissible on, 151 — 3 
 
 judge may disallow questions on, 152 — 3 
 
 compulsion to answer questions on, 153 
 
 answers elicited on, when may be contradicted, 151 — 8 
 
 of prosecutrix in cases of rape, 51 
 
220 INDEX. 
 
 Crown. See Soveiuiion 
 
 Cruelty, specific acta of, cannot be disproved by general character 
 
 for humanity, 49 
 Cumulative instances admissible to prove custom, trading, &c. , 17 
 Custody, what is proper, of dacuments, 160 — 1 
 Custom and Usage, when judicially noticed, 8 
 how may be proved, 17, 26 
 
 admissible to annex unexpressed incidents to contracts, 26, 
 31—2 
 also to explain meaning of words in documents, 194, 200 
 
 Damages, character when provable to affect, 51 — 2 
 Date of Documents, presumed to be correct, 205 
 
 but may be rebutted, 179 
 
 of alteration in documents, presumptions as to, 161 
 
 these presumptions may be rebutted, 102 — i 
 Death, registers admissible to prove, 107 
 
 probates not admissible to prove, 127 
 
 declarations by deceased relative admissible to prove, in cases 
 of pedigree, 94 
 
 dying declarations admissible to prove cause of, in cases of 
 homicide, 98—100 
 
 presumption of, from seven years' absence, 11, 204 
 Debtor. See BANKuuri 
 Deceased Persons, claims to estates of, should be corroborated, 156 
 
 depositions by, when receivable, 132 — 4, 144 — 6 
 
 declarations by, admissible when made — 
 
 (1) against interest, 83 — 7 
 
 (2) in course of duty, 87 — 9 
 
 (3) as to public rights, 89—94 
 
 (4) as to pedigree, 94^7 
 
 (5) as to cause of death, in cases of homicide, 98 — 100 
 
 (6) as to their own wills, by testators, 100 — 4, 190 — 4. 
 
 See Declarations 
 Declarations, admissible when part of res gesta, 16 — ^18 
 
 of when expressive of mental or physical conditions, 17 — 18 
 or to show knowledge, good faith, fraud, or malice, 38 — 9 
 by testators, 100—4, 190—4 
 of intention, when admissible to affect wills and contracts, 
 
 100—4, 178, 187—8, 194, 199, 205—6 
 Deed, execution, sealing, delivery and attestation of, 159 — 60 
 
 alterations and mistakes in, 161, 179 — 80, 184 — 5, 192 — 3, 
 
 197—8 
 proof of, when enrolled or registered, 171 
 stamps on, 161 — 2 
 
 consideration for, may be impeached by parol, 180, 184 
 how far can be rescinded or varied by parol, 180 — 1, 185 
 recitals in, when admissible, 28, 207 
 memorials are secondary evidence of, 165 
 interpretation of. See iNTERtEETATiON 
 estoppels by, 207. See Estoppels 
 
INDEX. 321 
 
 Depositions, in former trials, when admissible, 132 — 4 
 
 in earlier stage of same trials, 132—4, 143 — 6 
 Dictionaries are evidence of meaning of words, 115, 194 
 
 judge may refresh his memory by, 8 
 Direct Evidence, distinguished from circumstantial, 2 
 Directors, acts of, bind company, 22 
 
 admissions of, when bind company, 70 
 not presumed to know contents of company's books, 38 
 Disoliarge of Bills and Notes, 181 
 Discrediting Witness. See Credit 
 Dismissal of Charge of Assault, how proved, 112, 170 
 Divorce, admissions of adultery in cases of, protected, 59. See 
 Adultery 
 admissions of respondent are not evidence against 
 
 co-respondent, 69 
 judgments in cases of, when admissible against strangers, 
 131—2 
 Doctors. See Medical Man 
 Documents, execution of, 158 — 62 
 date of, 179, 205. See Date 
 handwriting, sealing, etc., of private, 159 
 attestation of, 159 — 60 
 ancient, 160 — 1 
 proper custody of, 160 — 1 
 alterations in, 161 
 stamps on, 161 — 2 
 contents of, 163—171 
 
 primary evidence of, 163 — 4. See Peimaey Evidenxe 
 secondary evidence of, 164 — 7. See Secondary Evidpate 
 admissibility of, to prove truth of contents : 
 of public documents, 105—115 
 of judicial documents, 125 — 132 
 
 of private documents, by admissions or confessions of 
 parties or privies, 62 — 81 
 by declarations of deceased 
 persons, 82 — 104 
 admissibility of extrinsic (parol) evidence to affect, 172 — 201 
 to supersede, 172 — 5 
 to contradict, vary, or add to, 176 — 85 
 to interpret, 186—201 
 Dogs. See Animals 
 Domicil, party's, presumed to continue, 25 
 
 probate is not evidence of testator's, 127 
 Drafts, when are secondary evidence of documents, 165 
 Drugs, pharmacopoeia is evidence of proper standard of, 115 
 
 analyst's certificate as to, under Food and Drugs Act, 1875, 
 113 
 Duty, declarations by deceased persons in course of, 87 — 9 
 Dying declarations, when admissible to prove cause of death, 
 98—100 
 
222 INDEX. 
 
 Enrolment, secondary evidence is admissible of docnments 
 
 requiring, 166, 171 
 Equivocation, defined, 189, 193 ,. • i. t 
 
 parol evidence, including direct declarations of intent, 
 admissible to explain, 102, 193, 199 
 Escrows, documents when delivered as, 179, 184 
 Estoppels, definition of, 206 — 7 
 
 by record, by deed, by agreement, or by conduct, 207—8 
 Evidence, defined, 1 
 
 direct and circumstantial, 2 
 original and hearsay, 2, 60 
 primary and secondary, 2, 163 — 6 
 Book i. — Pboduction of Evidence 
 
 proof in civil and criminal cases, 4 — 5 
 
 functions of judge and jury, 5 — 6 
 
 evidence unnecessary of matters admitted or judicially 
 
 noticed, 7 — 9 
 burden of proof, 10 — 12 
 rule requiring the Best Evidence, 12—13 
 Book ii. — Admissibility of Evidence 
 
 Part I. — Facts 
 
 facts in issue, relevancy, admissibility, 14 — 15 
 the fact or transaction in issne, res gesta, 16 — 20 
 agency, partnership, company, conspiracy, 21 — 4 
 facts relevant to prove the main fact, 26 — 83 
 facts relevant to show identity, or connect the parties 
 
 with the transaction, 34 — 7 
 facts relevant to show states of mind, 38 — 42 
 similar facts, 43 — 8 
 character, 49^52 
 
 facts excluded by public policy, or i>rivilege, 53 — 9 
 Hearsay as to facts generally inadmissible, 60 — 1 
 Exceptions : — (a) Admissions and Confessions, 
 62—81 
 
 (b) Statements by deceased persons, 
 
 82—104 
 
 (c) Statements in public docu- 
 
 ments , ,105 — 15 
 Reputation, Opinion and Belief, as to facts, generally 
 inadmissible, 116 
 exceptions, 116 — 24 
 Judgments and Testitrwny in former trials, as to 
 facts, when admissible, 125 — 34 
 Part II. ^Witnesses 
 
 competency, compellability, oath and affirmation, 
 
 135—42 
 evidence taken before or after trial : affidavits, com- 
 missions, depositions, interrogatories, 143 — 6 
 evidence talien at trial : examination, cross-examina- 
 tion, re-examination, number of witnesses, corro- 
 boration, 147—157 
 
INDEX, 223 
 
 Evidence — continued 
 
 Book ii. — Admissibilitx of Bvidbsce 
 Part III. — Documents 
 
 authorship and execution : handwriting, sealing, 
 delivery, attestation, ancient documents ; altera- 
 tions; stamps, 158—62 
 contents: primary and secondary evidence; contents 
 
 of public, judicial, and private documents, 163 — 71 
 exclusion of extrinsic evidence to supersede documents, 
 
 172—5 
 to contradict or vary 
 documents, 176 — 85 
 admission of extrinsic evidence to interpret docu- 
 ments, 186—201 
 Book hi. — Effect of EviDBaxE 
 ■weight of evidence, 202 
 presumptions, 203—6 
 estoppels, 206 — 8 
 Examination in Chief, object and scope of, 147 
 leading questions, 147 — 8 
 refreshing memory, 148 — 9 
 discrediting party's own witness, 149—50 
 examination of witnesses by judge and jury, 164 
 Examined Copies, defined, 164 — 5 
 Examiner, when evidence can be taken before, 143 — 4 
 Exchange. See Bill of Exchange 
 Execution of Documents. See Doccments 
 
 Executor, admissions by, are evidence against legatee, but not 
 against heir, or devisee, 68 
 how far admissions by, bind co-executors, 69 
 judgment against testator binds, 129 
 Exemplifications. See Copies 
 
 Experiments, admissible to illustrate opinion of experts, 119 
 Experts, opinion of, when admissible, 117, 119, 194, 201 
 competency and credit of, 117 — 8 
 scope of opinion, hypothetical questions, 118 
 grounds of opinion, corroboration, illustration, experiments, 
 
 119 
 reference to text-books, price-lists, &c., 119 
 Extrinsic Evidence to affect documents. See Docujients 
 
 Fabrication, etc., of Evidence, provable to connect accused with 
 
 crime, 35 
 Facts. See Evidenxb 
 
 in issue, and relevant to issue, defined, 14 
 relevancy and admissibility of, distinguished, 14 — 15 
 Failure of Issue is a question of pedigree, 95 
 
 no presumption of law as to, 204 
 Falsa demonstratio, maxim applied to interpretation of do(Suments, 
 192 
 
224 INDEX. 
 
 False Pretences, similar facts when provable in cases of, 47 
 
 Family Bibles. See Bibles 
 
 Family Treatment and repute admissible to show relationship, 
 
 30, 96 
 Foreign law is provable, as a fact, by experts, 6, 8, 117 
 
 who are competent as experts, 117 
 
 is determinable by judge, not jury, 6, 8 
 
 registers, admissibility of, 107; proof of, 169 
 
 judgments, etc., how proved, 170 — 1 
 Former Trials, judgments in, 125 — 32 
 
 depositions in, 132 — 4 
 Fraud, facts relevant to show, 39 — 40 
 
 may be proved to impeach judgments, 126 
 
 and all other documents, however solemn, 179 
 
 Statute of Frauds will not avail in cases of, 178 
 
 Gazettes, Government, are judicially noticed, 9, 106 
 
 are evidence of public, but not private, matters therein, 106 
 Geographical divisions of Great Britain, judicially noticed, 9 
 
 maps and charts when admissible, 92, 109, 115 
 Good Faith, party's, provable, though not in issue, 28, 39 
 
 facts relevant to show, 32, 41 — 2 
 
 declarations showing, are original evidence, not hearsay, 60 
 Grand Jurors, disclosures by, excluded, 54 
 Guarantee. See Suekty 
 
 parol evidence admissible to add party to, 178 
 
 how far admissible to explain, 195- — 6 
 Guardians, admissions by, do not bind ward, 68 
 
 Habits of party not provable to show authorship of act, 43 — 4 
 
 of animals, when provable, 46 
 Habitual Criminal, previous convictions admissible, after verdict, 
 
 to prove defendant is an, 51 
 Handwriting, how proved, 117, 121—2, 159 
 
 comparison with genuine specimens of, permitted, 26 — 7, 159 
 Hearsay generally inadmissible, 60 — 2 
 
 original evidence and hearsay distinguished, xxii, 2, 60 
 
 grounds of exclusion, 60 — 1 
 
 EXCEPTIOKS — 
 
 (o) admissions, statements in presence of partv, confessions, 
 62—81 
 
 (b) statements by deceased persons, 82 — 104 
 
 (c) statements in public documents, 105 — 115 
 History, facts of general, judicially noticed, 9 
 
 statements in public, admissible to prove public facts, 115 
 Homicide, dying declarations admissible in cases of, 98 — 100 
 Houses of Parliament, Journals of, are evidence of facts stated, 106 
 
 Journals of, how proved, 168 
 
 usages of, admissible to explain parliamentary phrases, 200 
 
IKDBX. 225 
 
 Husband and Wife. See Marriage, Divorce, Access 
 communications between, privileged, 57, 118 
 when wife's admissions bind husband, 71 
 when competent as witnesses for or against each other in 
 
 criminal cases, 136, 138 — 9 
 when compellable, 138 — 9 
 in divorce cases, not bound to answer as to adultery, 59 
 
 Id ee-rtum est, application of maxim to interpretation of documents, 
 
 190 
 Identity of persons, facta relevant to show, 34 — 7 
 
 of person or property referred to in document, 190 — 4, 195 — 9 
 
 of issues, in judgments, 129; in depositions, 132 
 Iltegitimac;. See Legitimacy 
 linpeaching Credit. See Credit 
 Incompetency. See Competency 
 Inconsistent Statements, prior, provable to discredit witness, 151 — 2 
 
 how far provable to discredit deceased declarants, 83 
 
 not provable to discredit deceased attesting witness, 61 
 Indian registers, admissibility of, 107 
 
 proof of, 169 
 Inducement. See Confessiox 
 Infancy. See Age 
 Infant. See Child 
 Infidel. See Atheist 
 Information for detection of crime, privileged, 53 
 
 and belief of witness, admissible in interlocutory proceedings, 
 62, 122 
 Informer, testimony of, does not require corroboration, 156 
 Initials, signature by, generally valid, 159 
 Innocence, presumption of, 205 
 
 Inquisitions, public, are evidence of public facts contained, 109 — 111 
 Insanity. See Sanity 
 
 how far renders witness incompetent, 135 — 6 
 
 how far opinions of expert or ordinary witness as to others, 
 is admissible, 17—18, 120, 124 
 
 facts relevant to show party's knowledge of another's, 40 — 1 
 Inspection, defined, 4 
 
 when allowed ,4. See Age 
 Insurance. See Policy 
 Intention, party's own testimony admissible to prove his, 17 — 18 
 
 declarations out of court, when part of an act, are admissible. 
 See Declabatiojjs 
 
 previous and subsequent acts admissible to show, 39, 46 — 7 
 
 previous and subsequent declarations admissible, on the 
 presumption of continuance, in civil, but not generally in 
 criminal, cases, 18, 20, 37, 47, 100—2, 187—8, 194 
 
 system admissible to rebut innocent, 46 — 7 
 Interest, formerly disqualified witnesses, 135 
 
 party's own declarations out of court against, but not for, 
 himself, are admissible, 62 — 3 
 
 L.E. 15 
 
226 IKDEX. 
 
 Interest — continued 
 
 declarations by deceased person against, admissible, 83 — 7 
 
 declarations by deceased in own, inadmissible, 88, 91, 96 — 7 
 Interpretation of Documents, and construction, distinguished, 186 
 
 object and limits of, 186 — 7 
 
 explanatory evidence and evidence of intention, distinction 
 discussed, 187 — 8 
 
 ambiguities, blanks, equivocations, and inaccuracies, 188 — 9 
 
 direct declarations of intent only admissible to solve equivoca- 
 tions, 102, 188, 193—4, 199 
 
 rules as to admission of extrinsic evidence to aid, 190 — 4 
 Interrogatories, rules as to admission of, 144 
 Issue, facts in, or relevant to. See Facts 
 
 identity of, in cases of judgments and depositions, 129, 132 
 
 statements by parents bastardising their, inadmissible, 54 
 
 no presumption as to failure of, 204 — 5 
 
 Jews, how sworn, 142 
 
 Joint Contractors. See Co-coxteactors 
 
 Joint Defendants. See Co-defendants 
 
 Journals, parliamentary. See Houses of Paeliament 
 
 Judge, functions of, as to evidence, 5 — 6, 54, 202 
 
 notice of facts by, dispenses with proof, 7 — 9. See Judicial 
 
 Notice 
 must not act on private knowledge, 8 
 when may testify without being sworn, 142 
 privileged as to matters which have passed before him, 53 — 4 
 should inform accused of his right to testify, 136 
 and may comment on failure of latter to do so, 137 
 notes of, are not admissible to prove testimony of witnesses, 133 
 may examine, or recall, witnesses himself, 154 
 Judgments, conclusive of their existence, as distinct from truth, 
 125 
 
 conclusive of their truth in favour of judge, 125 — 6 
 
 always impeachable on certain grounds, i.e., as not final, not 
 
 on merits, without jurisdiction, or fraudulent, 126 
 as evidence of their truth between parties, privies, and . 
 strangers, 126 — 32 
 judgments in rem, 126 — 7 
 
 principle of admission, 127 
 judgments in personam as affecting parties, 127 — 30 
 
 must involve (1) same parties or their privies, 
 128—9; and 
 (2) same subject-niatter, 129 — 30 
 judgments in personani as affecting strangers, 131 — 2 
 Judicial Notice defined, 4, 7 
 scope of rule as to, 7 — 8 
 classes of facts which are subjects of — 
 
 (1) Law, procedure, custom, 8 • 
 
 (2) Constitutional, political and administrative matter?, 9 
 (8) Territorial and geographical divisions, 9 
 
INDEX. 227 
 
 Judicial HotieA— continued 
 
 claaaes of facta which are subjects of — continued 
 ■ (4) Official gazettes, 9 
 
 (5) Official seals and signatures, 9 
 
 (6) Notorious facts, 9 
 
 Jurisdiction, extent of Britiah, judicially noticed, 9 
 Jury, functions of, with regard to evidence, 5 
 
 may notice matters of common, but jiot of private, knowledge 
 without proof, 5 
 
 may ask admissible, but not inadmissible, questions, 154 
 
 deliberations of grand or petty, protected from disclosure, 54^ 
 
 when should be sworn as witnesses, 8 
 
 Kissing the Book, form of oath by, 141 
 
 Knowledge and Notice, party's, provable by his own testimony, 
 17—18 
 
 when provable by his declarations out of court, 18, 20 
 when by statements in his presence, 73 — 4 
 
 by documents in his possession, 38, 73 — 4 
 by notoriety, or rumour, 38 
 by occurrence of similar facts, 46 — 7 
 by party's duty to know, 38 
 constructive notice, defined and explained, 39 
 public, but not private, Acts are admissible to show, 106 
 witness may only testify to facts within his personal, 147 
 
 Land. See Owneeship, Title, Lease 
 Landlord and tenant, admissions by, how far evidence, 67 
 estoppels between, 207 — 8 
 
 acts of ownership are evidence of title to property, 27 — 8, 32 
 and agent, admissions by latter when evidence against former, 
 71 
 Land Tax Assessments, admissibility of, as public documents, 110 
 Law, substantive and adjective, distinguished, 1 
 and fact, distinguished, 5 
 questions of, are determinable by judge, 5 
 of the land, is judicially noticed, 8 
 foreign and colonial, must be proved as facts by experts to 
 
 the judge, 6, 8j 117 
 foreign and colonial judgments, &c., provable by copies, 170 
 Law List, is evidence of qualification of solicitor, 108 
 Leading Questions, when allowable in chief, 147 — 8 
 
 allowable in cross-examination, 150 
 Lease, expired, admissible to show ancient possession, 27 — 8 
 counterparts when primary or secondary evidence, 163 
 terms of, cannot be proved by parol, even between strangers, 
 173—4 
 nor be contradicted thereby, 177—81 
 collateral agreement or warranty, may be annexed by parol 
 to, 177, 182—3 
 
228 INDEX. 
 
 Legacy, parol evidence admissible to identify object of, 190 — 3, 
 
 195—9 
 Legal AdYiser. See Counsel, Solicitor 
 Legitimacy. See Access, Child 
 
 of child born during wedlock presumed, 204 
 
 testimony, etc., of parents not admissible to prove nonraccess, 
 U 
 
 non-access may be p^pved presumptively, 54 
 
 declarations of deceased relatives admissible on questions of, 
 94—5, 97 
 
 family treatment and repute admissible to prove, 30, 96 
 Letters, posting of, how proved, 31 
 Letters ot Administratioii. See Probate 
 Letters-patents. See Patent 
 Libel, province of judge and jury as to, 5 
 
 reference to plaintiff and meaning of words, provable by 
 opinion of friends, etc., 121, 122 
 
 malice of defendant, proof or disproof of, 40 
 
 bad character of plaintiff provable in reduction of damages, 
 51—2 
 Licensor and Licensee, estoppels between, 208 
 Life, continuance of, how far presumed, 11, 21, 204 — 5 
 Limitation, Statutes of, acknowledgment of payments by deceased 
 
 creditor, is a declaration against interest, 84 
 Lis mota, declarations when must be before, 90 — 1, 96 
 Log-books, entries in, are evidence against owners, 71 
 
 nautical witness may refresh memory by, 148 
 Lords. See Houses of Parliament 
 Lost Documents, presumed to be duly stamped, 162 
 
 secondary evidence admissible of, 166 
 
 notice to produce unnecessary if adversary admits loss, 167 
 
 proof of, when attested, 160 
 Lunacy. See Insanity 
 
 private examinations in, privileged, 54 
 
 Magistrates, depositions before, 144 — 6 
 
 Malice, facts relevant to show, 40, 46 — 7 
 
 Malicious Prosecution, functions of judge and jury as to, 5 
 
 Manor, boundaries or customs of, provable by reputation, 90, 92 
 
 books of, on what grounds receivable, 92 — 3 
 
 proof of books of, 169 
 
 inquisitions and snrvevs of, admissible as public documents. 
 110 
 
 proof of inquisitions, &c., of, 169 
 
 presentments of, admissible on various grounds, 92 
 Maps, Surveys, Charts, when admissible as public documents, 
 109, 115 
 
 when as reputation, 92, 115 
 
 when as admissions, 115 
 Marks, signature by, when valid, 159 
 
INDEX. 22a 
 
 Marriage, proof of, by public registers, 107 
 by reputation, 116 
 
 by treatment of friends and neighbours , 30 
 by co-habitation, 27, 204 
 
 in cases of pedigree, by declaration of deceased relatives, 94, 97 
 strict proof of, required in cases of bigamy and divorce, 13, 116 
 commimications between husband and wife during, privileged, 
 57, 118 
 Married Woman. See Husband and Wipb, Marriage 
 Matrimonial Communications, privileged, 57, 118 
 Meaning of Words, if peculiar or technical, is generally a question 
 for jury, 5 
 experts may explain technical terms, 117, 194, 201 
 non-experts, when may explain, 121 
 
 extrinsic evidence admissible to explain, in document, 190 — 4 
 Medical Man, qualification of, provable by register, 108 
 
 attendance register of Poor Law Union, kept by, not admis- 
 sible, 108 
 report of Medical Council, how far evidence of conduct of. 111 
 competency of, as expert, 117 
 opinions of, when receivable, 98, 100, 117 
 may refer to medical treatises, 119 
 communications by patients to, not privileged, 55 
 Memorials of Deeds are admissible as secondary evidence, 165 
 Memory, witness may refresh, by contemporaneous documents, 
 148—9 
 reasons for witness remembering, may be cross-examined 
 upon, 151 
 Mens rea, must be proved to affect principal with guilt of agent, 22 
 Mental and Physical Conditions, party may testify as to his own, 
 17—20, 122, 124. See States of Mind 
 
 declarations out of Court, when evidence of, 17 — 20 
 collateral facts and statements, when admissible to show, 
 
 38—42 
 similar facts, when admissible to show party's, 46 — 8 
 opinions of experts and non-experts as to, when admissible, 
 
 120, 122—4 
 once proved, presumed to continue, 25, 31 
 Minute-books of companies, admissible, 114 
 proof of, 168 
 
 of meetings of creditors are evidence of matters recorded, 
 107—8 
 Misnomer and Misdescription, extrinsic evidence to correct, 192 — 3, 
 
 197—8 
 Misrepresentation, when evidence of fraud, 40 
 
 similar facts provable to show knowledge of falsity of, 46 — 7 . 
 Mistake, similar facts admissible to rebut defence of, 47 
 
 in documents, when may be corrected by parol, 102 — 4, 
 179—80, 184—5, 192, 197—8 
 Mortgage, conveyance may be shown by parol to be a, 178 
 
230 INDEX. 
 
 Motive, witness may testify directly as to his own, 17 
 when relevant to connect party with act, 34 — 5 
 similar facts admissible to show party's, 46 — 7 
 Motor-car, speed of, provable by opinion of witness, 122 
 
 but such opinion not sufficient without corroboration, 155 
 Murder, what statements admissible as part of res gesta, 19 
 what facts admissible to identify accused, 34 — 7 
 similar facts admissible to rebut defence of accident, etc., 
 
 46—8 
 dying declarations by deceased, admissible to prove cause of 
 death, in trials for, 98 — 100 
 Mutnality, necessary in cases of judgments and depositions, 
 128—30, 132—3 
 and also in applying rules as to parol evidence, 176 — 7 
 
 Name, identity of, as evidence of defendant executing document, 
 34 
 
 of client, is not privileged from disclosure by solicitor, 66 
 
 omissions, mistakes, etc., as to, in documents, when curable by 
 parol. See Mistake 
 Nature, ordinary course of, judicially noticed, 9 
 Naatical Assessors, expert evidence not admissible when case tried 
 
 with, 117 
 Naval Court, order of, how far evidence, 110 — 1 
 Navy, certificates of service in, are evidence of that fact, 112 
 Navy List not admissible as public register, 108 
 Negligeiuse, functions of judge and jury, as to, 5 
 
 practice of others, when admissible in cases of, 26, 32 
 
 similar facts not admissible to prove party's, 44 
 Nemo tenetur prodere seipsum, 58. See Criminating Questions 
 Next Friend, admissions by, do not bind infant, 68 
 Nihil facit error nominis, 192. See Name, Mistake 
 Nominal and Real Parties, admissions by, 67 
 
 judgments, for or against, 128 — 9 
 Notice. See Knowledge 
 
 actual and constructive distinguished, 38 — 39 
 
 to partner binds firm, 20 
 Notice to Produce, rules as to, 167 
 
 Notoriety of facts, admissible to show party's knowledge, 38 
 Notorious Facts, are judicially noticed, 9 
 Number, statutory words of, cannot be varied by parol, 191 
 
 ordinary words of, may be so varied, 194, 200—1 
 
 of witnesses, required or allowed, 154 — 5 
 
 Oaths and Affirmations, 140—2 
 
 generally all witnesses must testify under, 140 
 
 how believers and atheists testify, 140 — 1 
 
 forms of : usual form. Kissing the bode still allowable, 141 
 
 Scotch and other forms of, 141 — 2 
 
 what witnesses need not testify under, 142 
 
INDEX. 231 
 
 Offera, made " without prejudice " protected, 63 
 
 Office Copies, defined, 165 
 
 Official Capacity, title to, provable by acting therein, 27, 32 
 
 Official Certificates, admissibility of. 111 — 13 
 
 proof of, 168 
 Official Gazettes, judicially noticed, 9 
 
 admissibility of statements in. 111 — 3 
 Official Seals, judicially noticed, 9 
 Omnia prcesumuntur rite esse acta, 205 
 Onus proband!. See Burden of Proof 
 
 Opinion of community (reputation) , or of individuals, whether 
 witnesses or not, generally inadmissible, 116 
 exceptions — 
 
 (a) reputation, when admissible, 90, 116 — 7 
 (6) opinions of experts, when admissible, 117 — 20, 194, 201 
 (c) opinions of non-experts, when admissible, 121 — i 
 Oral Evidence. See Withesses 
 
 Original Evidence, distinguished from Hearsay, xxvii, 2, 60 
 Ownership, acts of, are evidence of party's title to property, 27, 32 
 similar acts, in places uther than locus in quo, when admis- 
 sible 45 
 
 Parents. See Child, Access, Legitimacy 
 
 Parish, boundaries of, are " public matters," letting in declara- 
 tions by deceased persons, and reputation, 90, 92, 116 
 Parliament. See Houses of Parliament 
 Parol Evidence, what it includes, 172. See Documents 
 Partiality of Witness, provable to discredit him, 152. See Bias, 
 
 Credit 
 Parties, the term defined, 128 
 
 admissions by nominal and real, 62, 67 — 8 
 
 statements in presence of the, when evidence against them, 
 
 73—6 
 judgments for, or apainst, 127 — 30 
 prosecutor, not strictly one of the, 51, 128, 164. See 
 
 PROSBCnOH 
 
 Partners, acts and representatives of, and notice to, bind 
 co-partners, 23 
 
 also admissions by, 68 
 and judgments for or against, 129 
 notice to, binds firm, 22 
 
 when knowledge of partnership books is imputed to, 38 
 existence of partnership may be proved by parol, spite of deed, 
 175 
 Pass-books, bankers', are evidence, as admissions, against either 
 
 bank or customer, 115 
 Patents, grant of, is an estoppel by record, 207 
 
 in actions for infringement of, what statements not part of the 
 
 res ge^ta, 16, 19 
 judgments as to, when conclusive between parties, 130 
 how far expert evidence is admissible as to, 119 
 registers of, are evidence of matters stated, 108 
 
232 INDEX. 
 
 Paternity, See Child, Legitimacy, Access 
 
 Pauper, terms of conveyance to, cannot be proved by parol, 174 
 
 Payment may be proved by parol, though cheque given, 174 — 5 
 
 or may be contradicted, though recited in deed, 180, 184 
 Pedigree, declarations by deceased relatives admissible to prove, 
 61, 94—7 
 family treatment, conduct, and repute admissible to prove, 
 
 30,96 
 reputation admissible to prove, 94 — 7, 116 
 Peerages, court guides, etc., not admissible as public registers, 108 
 Perjury, number of witnesses required to prove, 155 
 Persons in Autliority, -who are, in cases of confession, 78, 80 
 Petty Jurors. See Jury 
 
 Pharmacopoeia, is evidence as standard for drugs, 115 
 Photographs, identification by, 121 
 Physicians. See Medical Man 
 
 Pleadings, statements in, when admissions against party, 7, 72 
 Policy, course of dealing provable to explain words in insurance, 
 
 194, 201 
 Political matters, when judicially noticed, 9 
 Poor-rate Books admissible as public documents, 110 
 Portraits, likeness to sitter may be proved by opinions, 121 
 Possession, ancient, may be proved by expired leases, etc., 27 — 8, 
 32. See Lease, Ownership, Title 
 of property, relevant to prove title, 27 
 of property, relevant to ccmnect accused with crime, 35 
 of documents, relevant to show party's knowledge, 38, 73 
 Post litem motam, when declarations inadmissible if, 90 — 1, 96 
 Posting of letters, proof of, 31 
 Predecessors in Title, admissions by, bind successors, 67 
 
 judgments against, bind successors, 129 
 Prejudice, offers made without, are privileged, 63 
 Presumptions of Law and Fact, defined, 3, 203 — 6 
 when shift burden of proof, 11, 203—4, 206 
 conflicting, effect of, 11, 203 
 rebuttable, explained, 203 — 4 
 of continuance, 25 
 of legitimacy, 204 
 of marriage, 204 
 
 of life, death, survivorship and issue, 204 — 5 
 of innocence, 205 
 
 omnia prcesumuntur rite esse acta, 205 
 of probable consequence of acts, 205 
 affecting documents, 159 — 63, 205 
 evidence to rebut, 205 — 6 
 Previous Conduct, relevant to connect accused with crime, 34 
 
 to show state of mind, 34, 38, 46—8 
 Previous Convictions, when admissible before or after verdict, 
 50 — 1. See Conviction 
 how provable, 152, 170, 174 
 Previous Existence of Facts, relevant to prove present existence, 25 
 
INDEX. 233 
 
 Previous Similar Statements, when admissible to corroborate 
 
 witness, 29, 156—7 
 Price lists, admissible t6 refresh memory of expert, 119 
 Priest, confessions to, not privileged, 55, 78. See Confessioks 
 Primary Evidence, defined, 3 
 
 forms of (a) production of original document, 163 
 (6) admissions, 164 
 
 (c) copies made under public authority, 164 
 Principal and Agent. See Agent 
 Principal and Surety. See SmtEXY 
 
 Prisoner, his wife, and co-defendants, when competent as 
 witnesses, 136 — 9 
 confessions by, when admissible, 77 — 81. See- Cokfessions 
 facts relevant, to connect, with crime, 34 — 7 
 to show guilty intent, 39, 46 — 8 
 character of, when provable, 49 — 51 
 previous convictions against, when provable before, or after, 
 
 verdict, 50 — 1 
 previous conviction or acquittal, whejj res judicata, 130, 132 
 testimony of accomplices of, must be corroborated, 156 
 Private Acts. See Statutes 
 Private Documents. See Documents 
 Private Examinations, in bankruptcy, winding up, and lunacy, 
 
 are privileged, 54 
 Privilege, facts protected on ground of, 54 — 9 
 
 (1) Professional confidences, 55 — 7 
 
 (2) Title-deeds and evidence, 57 , 
 
 (3) Matrimonial communications, 57, 138 
 
 (4) Criminating questions, 58 — 9 
 
 (5) Admissions of adultery in divorce cases, 59 
 Privity, defined, 66. See Paetibs 
 
 admissions by person in, 66 — 72 
 
 judgments for or against person in, 129 
 
 depositions by persons in, 132 
 Probable Consequences of Acts, are presumed to have been 
 
 intended, 205 
 Probates, are judgments in rem, 126 — 7 
 
 are generally primary evidence of will, 164 
 
 when mav be secondary evidence only, 96, 164, 171 
 
 proof of, 169, 171 
 
 of what facts evidence, 127 
 Proclamations, Eoyal, admissible to prove matters contained, 106 
 
 proof of, 168 
 Production of evidence. See Evidence 
 
 of documents, is primary evidence of their contents, 163 
 
 how procured, when in hands of party, or stranger, 163 
 
 notice to produce, object of, and rules as to, 167 ' 
 
 witness called to produce document need not be sworn, 142 
 
 what documents are privileged from, 54 — 7 
 Professional Confidences, confined to legal advisers, 55 
 
 scope of rule protecting, 55 
 
 not protected as to matters of joint interest, 55 
 
234 INDEX. 
 
 Professional Confidences — continued 
 
 duration of this privilege and waiver tliereof, 55 
 
 examples of, 66 — 7 
 Promissory Notes. See Bills of Exchange 
 Proper Custody of documents, what is, 160 — 1 
 
 required of ancient documents, 28, 160 — 1 
 Prosecutor, not strictly a party to the proceedings, 51, 128, 164 
 
 promise or threat by, will exclude prisoner's confession, 66 
 
 wife of, is competent and compellable witness, 120 
 Prosecutrix, character of, when admissible, 51 
 
 complaint by, admissible on charge of rape, 24, 138 
 Public Documents, defined, 105 
 
 ground of admission, 105 
 
 admissibility to prove their truth ; and their genuineness and 
 oontents ; — 
 
 (1) statutes, parliamentary iournals and gazettes, 105 — 6, 
 
 167—8 
 
 (2) public registers and records, 106 — 8, 169 
 
 (3) public inquisitions, surveys, assessments and reports, 
 
 109—11, 169 
 
 (4) official certificates, 111—13, 168—9 
 
 (5) corporation, company, and bankers' books, 113 — IS, 
 
 168—9 
 
 (6) public histories, maps, almanacs, tables, etc., 113 
 Public Policy, facts excluded by: (1) affairs of State; (2) informa- 
 tion for detection of crime ; (3) judicial disclosures ; (4) state- 
 ments bastardising offspring, 63 — 4 
 
 Public Begisters, Inquisitions, Surveys, Reports. See Begistehs, 
 
 etc. 
 Public Rights, declarations by deceased persons as to, 89 — 94 
 
 Qui sentit commodum, sentire debet et onus, 128 
 
 Rape, complaints by prosecutrix admissible in cases of, 28—9, 157 
 
 character of prosecutrix admissible in cases of, 51 
 Rate-books, admissible as public documents, 110 
 Reasonable and Probable Cause, is question for judge, 5 
 Rebutting Evidence, when good character is proved, 50 
 Rebutting Presumptions, what evidence admissible for, 205—6 
 Recalling Witnesses, judge may allow, 154 
 Receipt, does not exclude other evidence of payment, 174 — 5 
 
 may be contradicted by parol, 176, 180, 184 
 
 unstamped, admissible to refresh memory of witness, 149. 
 See Stamps 
 
 by deceased agent, is a declaration against interest, 83 
 Ro^ver, testimony of, against thief, need not be corroborated, 156 
 
 guilty knowledge of, may be prpved by possession of other 
 stolen property, 46 — 7 
 Recitals, in deed, when estop, 207 
 
 respective effect of operative part of deeds, and, 28, 60 
 
 of formal matters, may be corrected by parol. See Mistake 
 
INDEX. 285 
 
 Recrimination, rules as to, 153 
 Re-establisliing Credit, 153. See Credit 
 Be-examination of witnesses, rules as to, 154 
 Referee, admissions by, are evidenceargainst referrer, 72 
 Refreshing Memory, rules as to, 148 — 9 
 
 Registers, public, but not private, are evidence of truth of their 
 contents, 106 
 
 principle of admission, and qualifications, 106 
 
 examples, 107 — 8 
 Registration of Deeds, renders secondarv evidence admissible, 166, 
 .171 
 
 Regularity of Acts, presumed, 27, 205 
 Relationship. See Pedigree 
 
 Release of deeds, parol evidence when admissible to prove, 181 
 ReleYancy, defined, 14 — 15 
 
 distinguished from admissibility, 15 — 16 
 
 examples of facts relevant for various purposes, 25 — 52 
 Religious Opinions, presumed to continue, 25, 31 
 
 of witness, how far affect talcing of oath, 140 — 1; and credit, 
 153 
 Rent, receipt or payment of, evidence of title, or tenancy, 27, 
 207—8 
 
 amount of, not provable by parol, where lease exists, 174 
 
 nor can amount of, in lease, be contradicted by parol, 184 — 5 
 Repairs, doing of, is evidence of ownership, 27 
 Reports, when receivable as public documents, 109, 111 
 
 by police, admitted to show party's bona fides, 33 
 Reputetion, generally inadmissible to prove , facts, 116. See 
 Chabacteb 
 
 exceptions, 49, 90, 116 
 
 of witness, for untruthfulness, admissible to discredit, 152 
 Rescission of documents by parol evidence, when admissible, 
 
 180—1, 185 
 Resemblance, witnesses' opinion admissible on question of, 121 
 
 of child to parent, is evidence of paternity, 30 
 Res gesta, what facts admissible as parts of, 16 — 20 
 
 declarations when admissible as parts of, 17 — 20 
 Res inter alios acta, maxim criticised, 43 
 
 application of principle to judgments and depositions, 43, 131, 
 133 
 
 application to parol evidence, 176 — 7 
 Res judicata. See Jttdgments 
 ReTOCation of wills, parol evidence when admissible as to, 101 — 3, 
 
 181 
 Roman Catholics, how sworn, 142 
 Royal Proclamations. See Fboclamations 
 Rumour, is no evidence of a party's knowledge, 38 
 
 Sale, bills of, how proved, 171 
 
 of Goods Act, 1893, contracts uuder, may be varied by parol, 
 178 
 
236 INDEX. 
 
 Sanity, presumed by law, 11. See Insanity 
 opinions of experts as to, 17 — 8, 120 
 opinions of non-experts as to, 17 — 8, 124 
 Science, opinions of experts admissible in questions of, 117 
 works of, when admissible as public documents, 115 
 when to refresh memory of experts, 119 
 Scienter. See Knowledge 
 
 Seals, Royal and Official, when judicially noticed, 9 
 Sealing and Delijery of deeds, rules as to, 159 
 Secondary Evidence, defined, 2 — 3 
 
 forms of a) copies; (2) oral testimony; (3) presumptive 
 evidence ; (4) statements or entries by deceased persons, 
 164—6 
 inadmissible forms: copies of copies, etc., 166 
 generally no degrees in ; exceptions, 166 
 when is admissible, 166 — 7 
 Secrets, professional, when privileged. See Privilege 
 Secret Trusts, provable by parol, though negatived in will, 178, 
 
 183—4 
 Secrets of State, evidence of, inadmissible, 53 
 Seduction, character of girl, admissible to reduce damages for, 52 
 Seisin in Fee, presumed from mere possession of land, 84, 85 — 6 
 Self-Crimination. See Criminating Questions 
 Seven Years' Absence, death when presumed from, 11, 204 
 Shareholders, not presumed to know contents of company books, 
 38. See Company 
 share certificate is evidence of title of, 112 — 14. See 
 Certificate 
 Sheriff and Under-Sheriff, admissions by latter, evidence against 
 
 former, 72 
 Ship, what facts are part of res gesta in collision cases, 18 
 
 entries in log-books of, are evidence against owner, 71. See 
 
 LoG-BOOKS 
 so, also, statemeuts-by captain, but not by pilot or crew, 71 
 owners of, when affected with knowledge of ship's papers, .36 
 registers of merchant, is prima facie evidence of matters 
 
 contained, 108 
 order of Naval Court is conclusive of seaman's disobedience, 
 111. See Admiralty, Navy 
 Shop-books, entries in, when evidence for, or against, a party, 62, 
 64, 86—7, 88—9. See Account Books 
 may be used to refresh memory of witness, 149 
 Signature, proof of, 159. See Handwp.iting 
 Silence, admissions by, 73 — 5. See St.atements in Presence 
 Similar Facts, when inadmissible to prove (1) existence of main 
 fact ; or (2) connection of parties therewith-, 43 — 5 
 when admissible, 45 — 6 
 
 generally admissible (3) to prove states of mind, 46 — 8 
 Similar Statements, inadmissible to corroborate witness, 29, 
 166—7 
 exceptions, 157 
 
INDEX. 237 
 
 Slander. See Libel 
 
 utterance of, may be directly asserted, or denied, 16 
 Solicitop and Client, communications between, privileged, 55 — 7 
 
 admissions by former, when bind latter, 71 
 Sovereign, accession of English, and existence and titles of foreign, 
 judicially noticed, 9 
 
 certificates by, how far admissible. 111, 112 
 
 is not compellable witness, 140 
 
 admissibility of proclamations and speeches by, 106 
 
 proof of various public documents issued by, 167—8 
 Speech from Throne, in evidence of facts stated, 106 
 Speed of motor cars, may be proved by opinion of witness, 122, 135 
 Stamps, rules and presumptions as to, 161 — 2 
 Standards of Comparison, admissible to gauge negligence, &c., 26 
 
 to test handwriting, 26 — 7 
 
 British Pharmacopoeia is standard to test drugs, 115 
 State, Affairs of, evidence as to, when excluded, 53 
 Statements accompanying acts, when provable, 17, 18 — 20. See 
 Res Gesta 
 
 by party for, or against, interest, when admissible, 62 — 3 
 
 in presence of party, when admissible, 73 — 6 
 
 by deceased persons, 82 — 104. See Deceased Peesons 
 
 in Public Documents, 105 — 115. See Public Documents 
 States of mind may be proved by party's own testimony, 17 — 20, 
 122, 124. See Mental Cokditions 
 
 or his declarations out of Court, 17 — 20 
 
 or by prior or subseguent facts and statements, 38 — 42 
 
 or by similar facts, 46 — 8 
 
 once proved, are presumed to continue, 25, 31 
 Statutes, existence and terms of, judicially noticed, 8, 167 
 
 recitals in public, are evidence of facts stated, 106 
 
 in private, are not evidence of facts, or as notice, 106 
 
 colonial and 'foreign, how proved, 117, 167. See Fobeigx 
 Law 
 
 meaning of words in, cannot be varied by parol, 119, 191, 201 
 Statute of Frauds, contracts under, not provable by parol, 173 
 
 trusts under, when provable by parol, 178, 183 
 
 signature under, may be by mark, initials, or stamp, 159 
 Statute of Limitations, what acknowledgments take case out of, 
 
 68,84 
 Surety, admissions by principal, when affect, 69 
 
 payments by principal, when affect, 69 
 
 judgments against, how far evidence against principal, 125 
 
 parol evidence admissible to prove party merely a, 178—9 
 Surgeon. See Medical Man 
 Surrounding circumstances, admissible to interpret document, 
 
 190, 195—6 
 Surveys, admissible as public documents, 109 — 11 
 Survivorship, presumption as to, 205 
 System, is relevant to rebut defence of accident or mistake, 47 — 8 
 
238 INDEX. 
 
 Tables, mathematical, are evidence of truth of contents, 115 
 Taking accounts, hearsay admissible in, 62. See Accodxt-books 
 Technical terms, meaning of, is for jury, 5 
 
 in documents, may be explained by expert and other evidence, 
 117, 194, 201 
 Telegram, original of, is one sent, not one received, 163 
 Tenant, admissions by, not evidence against landlord,. 67, 71 
 or against co-tenant, 68 
 
 estopped from disputing landlord's title, 207 
 Testator, admissions by, are evidence against executor, 66 — 7 
 
 and vice versi, 68 
 
 judgments against, bind executor, 129 
 
 declarations by, as to his will, admissible, 100 — 4, 190 — 4, 
 195—200 
 Text-books, not evidence per se, but may be referred to by experts, 
 
 119—20 
 Threats, relevant to connect accused with crime, 34 
 
 or to show malice, 40 
 
 opinion of witnesses admissible to explain, 121 
 
 will invalidate confession, 77 — 81 
 Title, acts of ownership admissible to prove, 27 — 8, 32 
 
 similar acts, in connected places, admissible to show, 45 
 
 admissions by predecessors in, 67 
 
 declarations of deceased persons in disparagement of their, 
 83—7 
 Title-deeds, witness privileged from producing his, 57 
 Transaction, what facts are part of, 16-— 24. See Res Gesta 
 Treason, two witnesses required in cases of, 155 
 Treaties, proof of, 167 
 Treatment, acts of, generally inadmissible, 30 
 
 exceptions, 30, 96 
 
 when admissible to interpret documents, 190 — 3, 196 — 8 
 Trust, may be proved by parol, though document silent, 178, 183 — 4 
 
 fraud may be proved to impeach written, 179 
 Trustee, has no privilege as against beneficiary, 55 
 
 admissions by, are evidence against latter, 68 
 
 and conversely, 68 
 
 but admissions by bankrupt , are not evidence against his , 72 
 
 Under-sheriff. See Sheriff 
 
 Uni¥ersity Books, when admissible as public documents, 108 
 Unsworn Eyidence, when admissible, 142. See Oaths, Witness 
 Usage. See Custom 
 
 Verdicts. See Judgments 
 
 admissible against strangers as reputation, 92 
 Veritas nominis tollit errorem, 192 
 Yestry-books, admissible as public documents, 107 
 Vivd voce, evidence must generally be given, 147 
 Voir dire, examination on, former practice as to, 135 
 
INDEX. 239 
 
 Voluntary Confessions, what are. See Confessions 
 Voting-paper, mistakes in, may be corrected by parol, 197 — 8 
 
 War, existence of, when judicially noticed, 9 
 
 Warranty, parol, may be added to written contract, 177, 183 
 
 Wliole statement, of admission or confession, is provable, 6t, 79 
 
 or of interrogatories, 144 
 Wife. See Husb.4nd and Wife 
 Wills, proof of. See Probates 
 
 declarations by testators as to their, 100 — 4. See TestatoES 
 
 alterations in, 102, 103 — 4, 161 
 
 parol evidence to affect. See Documemts 
 
 revocation of, 101 — 2, 181 
 Winding-up of company, private examinations in, privileged, 54 
 Without prejudice, offers of compromise made, privileged, 63 
 Witnesses, competency of, 135 — 9 
 
 compellability of, 140 
 
 oath and affirmation by, 140 — 2 
 
 when unsworn testimony admissible, 142 
 
 testimony of, before trial; affidavits, depositions, etc., 132 — 4, 
 143—6 
 
 testimony of, at trial : examination, cross-examination, 
 re-examination, etc., 147 — 57 
 
 credit of. 5ee Ceedit 
 
 number and corroboration of, 154 — 7 
 
 privilege of. See Public Policy, Peivilbgb 
 
 attesting, rules as to, 159 — 60 
 Words, meaning of, if common, judicially noticed, 9 
 
 technical, may be proved by experts, 117, 119, 194, 201 
 
 interpretation of, in documents. See Interpretation 
 
 The Eastern Press, Ltd., London and Reading. 
 
LIST D. September. 1921. 
 
 BOOKS FOR LAW STUDENTS. 
 
 SUBJECT INDEX. Pagi 
 
 Admiralty- 4 
 
 Agency ■- - - -4 
 
 Arbitration - 4 
 
 Banlcing; - - .... 5 
 
 Banlcruptcy - 5 
 
 Bills of Exchange 6 
 
 Carriers ...... .-6 
 
 Common Law 7, 8, 9 
 
 Companies 9, 10 
 
 Conflict of Laws - 10 
 
 Constitutional Law - - - - 10,11,12 
 
 Contracts 12 
 
 Conveyancing - 12, 13 
 
 Criminal Law - -----14 
 
 Basements ... ....15 
 
 Ecclesiastical Law - - - - - - 15 
 
 Equity 15, 16, 17 
 
 Evidence 17, 18, 19 
 
 Examination Guides 19 
 
 Executors - ... . . 20 
 
 Insurance La'w ...... 20 
 
 International Law 20, 2 1 
 
 Jurisprudence - ... . . 21 
 
 Latin 22, 23 
 
 Legal History ... - - 21,22 
 
 Legal Maxims - - - - - 22, 23 
 
 Local Government - - .... 23 
 
 Mercantile Law 24 
 
 Mortgages ... .-.-24 
 
 Partnership - - - - - 25 
 
 Personal Property - - - - 25, 26 
 
 Procedure ---- ....26, 
 
 Real Property - - - - - - 27, 28 
 
 Receivers - - - - - - - 28 
 
 Roman Law - - - 28, 29, 30 
 
 Sale of Goods 30 
 
 Statutes - 30,31 
 
 Torts- - 31,32 
 
 Wills - - 32 
 
 SWEET & MAXWELL, LIMITED, ^^^^^o^^^w^T""' 
 
Suggested Course of Reading for the 
 Bar Examinations. 
 
 ROMAN LAW. 
 
 Hunter's Introduction or Kelke's Primer or Epitome. 
 Advisable also is Sandars' Justinian. 
 
 CONSTITUTIONAL LAW. 
 
 Chalmers & Asquith. Thomas's Leading Cases. 
 Hammond's Legal History. 
 
 CRIMINAL LAW AND PROCEDURE. 
 
 Odgers' Common Law, or Harris's Criminal Law, and 
 Wilshere's Leading Cases. 
 
 REAL PROPERTY. 
 
 Williams (with Wilshere's Analysis), or Edwards. For 
 revision, Kelke's Epitome. 
 
 CONVEYANCING. 
 
 Deane & Spurling's Introduction, and Clark's Students' 
 Precedents. Or Elphinstone's Introduction. 
 
 COMMON LAW. 
 
 Odgers' - Common Law (with Wilshere's Analysis), or 
 Indermaur's Common Law ; or Carter on Contracts, and 
 Eraser on Torts. Cockle's Leading Cases. 
 
 EVIDENCE AND PROCEDURE. 
 
 Odgers' Common Law, Phipson's Manual of Evidence, 
 Cockle on Evidence, Wilshere's Procedure. 
 
 EQUITY. 
 
 Snell or Wilshere. For revision, Blyth's Analysis. 
 
 COMPANY LAW. 
 
 Smith's Summary. 
 
 r 9 1 
 
Suggested Course of Reading for the 
 Solicitors' Final Examination. 
 
 For detailed Courses see Indermaur's Self-Preparation for 
 the Pinal Examination. 
 
 COMMON LAW. 
 
 Indermaur's Principles of the Common Law. 
 Anson or Pollock on Contracts. 
 RiNGWooD or Salmond on Torts. 
 
 Smith's Leading Cases, with Indermaur's Epitome, or 
 Cockle & Hibbert's Leading Cases. 
 
 EQUITY. 
 
 Snell's Principles of Equity. 
 
 Blyth's Analysis of Snell. 
 
 White & Tudor's Leading Cases, with Indermaur's 
 
 Epitome. 
 Strahan on Partnership. 
 Underbill on Trusts. 
 
 REAL AND PERSONAL PROPERTY AND 
 
 CONVEYANCING. 
 
 Williams or Edwards on Real Property. 
 
 Williams or Goodeve on Personal Property. 
 
 Wilshere's Analysis of Williams. 
 
 Elphinstone's or Deane's Introduction to Conveyancing. 
 
 Indermaur''s Epitome of Conveyancing Cases. 
 
 PRACTICE OF THE COURTS. 
 
 Indermaur's Manual of Practice. 
 
 BANKRUPTCY. 
 
 Ringwood's Principles of Bankruptcy. 
 
 CRIMINAL LAW. 
 
 Harris's Principles of Criminal Law. 
 Wilshere's Leading Cases. 
 
 PROBATE, DIVORCE, AND ADMIRALTY. 
 
 Gibson's Probate, Divorce, and Admiralty. 
 
 ECCLESIASTICAL LAW. 
 
 (la Smith's Summary. 
 
 COMPANIES. 
 
 Smith's Summary. 
 
 [ 3 ] 
 
NOTICE. — In consequence ot fluctuation in cost of printing 
 and materials, prices are subject to alteration without 
 notice. 
 
 ADMIRALTY. 
 
 SMITH'S Law and Practice in Admiralty. For the 
 
 use of Students. By Eustace Smith, of the Inner 
 Temple. Fourth Edition. 232 pages. Price los. net. 
 
 " The book is well arranged, and forms a good introduction to 
 the subject." — Solicitors' Journal. 
 
 "It is, however, in our opinion, a well and carefully written 
 little work, and should be in the hands of every student who is 
 taking up Admiralty Law at the Final." — Law Students' Journal. 
 
 " Mr. Smith has a happy knack of compressing a large amount 
 of useful matter in a small compass. The present work will 
 doubtless be received with satisfaction equal to that with which 
 his previous ' Summary ' has been met." — Oxford arid Cambridge 
 Undergraduates' Journal. 
 
 AGENCY. 
 
 BOWSTEAD'S Digest of the Law of Agency. .By 
 
 W. BowsTEAD, Barrister-at-Law. .Sixth Edition. 
 485 pages. Price £1 7s. 6d. net. 
 
 " The Digest will be a useful addition to any law library, and / 
 will be especially serviceable to practitioners who have to advise 
 mercantile clients or to conduct their litigation, as well as to 
 students, such as candidates for the Bar Final Examination and 
 for the Consular Service, who have occasion to make the law of 
 agency a subject of special study." — Law Quarterly Review. 
 
 ARBITRATION. 
 
 SLATER'S Law of Arbitration and Awards. With 
 Appendix containing the Statutes relating to Arbi- 
 tration, and a collection of Forms and Index. Fifth 
 Edition. By Joshua Slater, Barrister-at-Law. 215 
 pages. Price 5s. net. 
 
 \ i ^ 
 
BANKING. 
 
 RINQWOOD'S Outlines of the Law of Banking. 
 
 igo6. 19 1 pages. Price 5s. net. 
 
 " . . . The book is in a most convenient and portable form, 
 and we can heartily commend the latest production of this well- 
 known writer to the attention of the business community." — 
 Financial Times. 
 
 BANKRUPTCY. 
 
 MANSON'S Sliort View of Bankruptcy Law. By 
 
 Edward Manson, Barrister-at-Law. Third Edition. 
 351 pages. Price 15s. net. 
 
 A book of 350 pages, giving the salient points of the law. The 
 author follows the order of proceedings in their historical sequence, 
 illustrating each step by forms and by some of the more important 
 cases. 
 
 " It makes a thorough manual for a student, and a very handy 
 book of reference to a practitioner." — Law Magazine. 
 
 RINQWOOD'S Principles of Bankruptcy. Embodying 
 the Bankruptcy Acts ; Leading Cases on Bankruptcy 
 and Bills of Sale ; Deeds of Arrangement Act ; 
 Bankruptcy Rules ; Deeds of Arrangement Rules, 
 1915 ; Bills of Sale Acts, and the Rules, etc. 
 Thirteenth Edition. 431 pages. Price £1 5s. net. 
 
 " We welcome a new edition of this excellent student's book. 
 We have written favourably of it in reviewing previous editions, 
 and every good word we have written we would now reiterate and 
 perhaps even more so. . . . In conclusion, we congratulate 
 Mi:. Ringwood on this edition, and have no hesitation in saying 
 that it is a capital student's book." — Law Students' Journal. 
 
 " The author deals with the whole history of a bankruptcy from 
 the initial act of bankruptcy down to the discharge of the bankrupt, 
 and a cursory perusal of his work gives the impression that the 
 book will prove useful to practitioners as well as to students. 
 The appendix also contains much matter that will be useful 
 to practitioners, including the Schedules, the Bankruptcy Rules, 
 the Rules of the Supreme Court as to Bills of Sale, and various 
 Acts of Parliament bearing upon the subject. The Index is 
 •copious." — Accountants' Magazine. 
 
 [ 5 ] 
 
BILLS OF EXCHANGE. 
 
 JACOBS on Bills of Exchange, Cheques, Promissory 
 Notes, and Negotiable Instruments Generally, in- 
 cluding a digest of cases and a large number of 
 representative forms, and a note on I O U's and Bills 
 of Lading. By Bertram Jacobs, Barrister-at-Law. 
 284 pages. Price 7s. 6d. net. 
 
 OPINIONS OF TUTORS. 
 
 " It appears to me to be a most excellent piece of work." 
 
 "After perusing portions of it I have come to the conclusion that 
 it is a learned and exhaustive treatise on the subject, and I shall 
 certainly bring it to the notice of my pupils." 
 
 WILLIS'S Negotiable Securities. Contained in a 
 Course of Six Lectures delivered by William Willis, 
 Esq., K.C., at the request of the Council of Legal 
 Education. Third Edition, by Joseph Hurst, Bar- 
 rister-at-Law. 226 pages. Price 7s. 6d. net. 
 
 " No one can fail to benefit by a careful perusal of this volume." 
 — Irish Law Times. 
 
 "We heartily commend them, not only to the student, but to 
 everybody — lawyer and commercial man alike." — The Accountant. 
 
 " Mr. Willis is an authority second to none on the subject, and 
 in these lectures he summarized for the benefit not only of his 
 confreres but of the lay public the knowledge he has gained 
 through close study and lengthy experience." 
 
 CARRIERS. 
 
 WILLIAMS' Epitome of Railway Law. Part I. The 
 Carriage of Goods. Part II. The Carriage of 
 Passengers. By E. E. G. Williams, Barrister-at- 
 Law. Second Edition. 231 pages. Price los. net. 
 
 A useful book for the Bar and Railway Examinations. 
 
 [ 6 1 
 
COMMON LAW. 
 
 (See also Broom's Legal Maxims post). 
 
 ODQERS on the Common Law of England. By W. 
 
 Blake Odgers, K.C, LL.D., Director of Legal Educa- 
 tion at the Inns of Court, and Walter Blake Odgers, 
 Barrister-at-Law. Second Edition. 2 vols. 1,474 
 pages. Price £^ los. net. 
 
 Odgers on the Common Law deals with Contracts, Torts, 
 Criminal Law and Procedure, Civil Procedure, the Courts, and 
 the Law of Persons. 
 
 The Student who masters it can pass the following Bar Examina- 
 tions : — 
 
 (1) Criminal Law and Procedure. 
 
 (2) Common Law. 
 
 (3) General Paper— Part A. 
 
 And (with Cockle's Cases and Statutes on Evidence) 
 
 (4) Law of Evidence and Civil Procedure. 
 
 (5) General Paper— Part 111. 
 
 SOME OPINIONS OF PROFESSORS AND TUTORS. 
 
 I . The Bar. — " I have most carefully examined the work, and 
 shall most certainly recommend it to all students reading with me 
 for the Bar Examinations.'' 
 
 " It appears to me to be an invaluable book to a student who 
 desires to do well in his examinations. The sections dealing with 
 Criminal Law and Procedure are, in my opinion, especially 
 valuable. They deal with these difficult subjects in a manner 
 exactly fitt ed to the examinations ; and in this the work differs 
 from any other book I know." 
 
 " I have been reading through Dr. Odgers' Common Law, and 
 find it a most excellent work for the Bar Final, also for the Bar 
 Criminal Law." 
 
 2. The Universities. — " I consider it to be a useful and 
 comprehensive work on a very wide subject, more especially from 
 
 [ 7 T 
 
Common Law — continued. 
 
 the point of view of a law student. I shall be glad to recommend 
 it to the favourable attention of law students of the University." 
 
 3. Solicitors. — The Book for the Solicitors' Final. — "Once 
 the Intermediate is over, the articled clerk has some latitude 
 allowed as to his course of study. And, without the slightest 
 hesitation, we say that the first book he should tackle after 
 negotiating the Intermediate is 'Odgers on the Common Law.' 
 The volumes may seem a somewhat ' hefty task,' but these two 
 volumes give one less trouble to read than any single volume of 
 any legal text-book of our acquaintance. They cover, moreover, 
 all that is most interesting in the wide field of legal studies in a 
 manner more interesting than it has ever been treated before." 
 
 INDERMAUR'S Principles of the Common Law. 
 
 Intended for the use of Students and the Profession. 
 Thirteenth Edition. By A. M. Wilshere, Barrister- 
 at-Law. [To be published December, 1921 . 
 
 " Mr. Indermaur renders even law light reading. He not only 
 possesses the faculty of judicious selection, but of lucid exposition 
 and felicitous illustration. And while his works are all thus 
 characterised, his ' Principles of the Common Law ' especially 
 displays those features." — Irish Law Times. 
 
 " It seems, so far as we can judge from the parts we have 
 examined, to be a careful and clear outline of the principles of the 
 common law. It is very readable ; and not only students, but 
 many practitioners and the public, might benefit by a perusal of 
 its pages." — Solicitors' Journal. 
 
 INDERMAUR'S Leading: Common Law Cases ; with 
 some short notes thereon. Chiefly intended as a 
 Guide to " Smith's Leading Cases." Tenth Edition, 
 by E. A. Jelf, Master of the Supreme Court. With 
 six illustirations by E. T. Reed. 
 
 [To be published December, 1921. 
 
 Mr. Reed's humorous illustrations will help to impress the facts 
 of the cases on the memory of the student. 
 
 COCKLE & HIBBERT'S Leading Cases in Common 
 Law. With Notes, Explanatory and Connective, 
 
 [ 8 ] 
 
Common Law — continued. 
 
 presenting a Systematic View of the whole Subject. 
 By E. Cockle and W. Nembhard Hibbert, LL.D., 
 Barristers-at-Law. 962 pages. Price £2 2s. net. 
 
 This book is on the same lines as Cockle's Cases on Evidence. 
 Following is a short summary of its contents : — 
 
 Nature of the Common Void, etc., Contracts, Negotiable Instru-' 
 
 Law. Quasi-contracts. ments. 
 
 Common Law Rights and Agency. Partnership. 
 
 Duties, Bailments. Sale of Goods. 
 
 Contract, including Con- Carriers, Torts, 
 
 tracts of Record, Landlord and Tenant, Damages, 
 
 Specialty Contracts. Master and Servant, Law of Persons, 
 
 Simple Contracts. Conflict of Laws, 
 
 SMITH'S Leading: Cases. A Selection of Leading 
 Cases in various Branches of the Law, with Notes. 
 Twelfth Edition. By T, Willes Chitty, a Master 
 of the Supreme Court, J. H. Williams, and W. H. 
 Griffith, Barristers-at-Law. 2 vols. Price £^ net. 
 
 This work presents a number of cases illustrating and explaining 
 the leading principles of the common law, accompanied by 
 exhaustive notes showing how those principles have been applied 
 in subsequent cases. 
 
 J ELF'S Fifteen Decisive Battles of the Law. By 
 
 E. A. Jelf, Master of the Supreme Court. Second 
 Edition. Price 6s. 6d. net. 
 
 Mr. Jelf narrates with light and skilful touch the incidents and 
 results of fifteen of the most important decisions ever given by the 
 judges, and he shows the effect which each decision has had upon 
 the general body of English Law. 
 
 COMPANIES. 
 
 KELKE'S Epitome of Company Law. Second Edi- 
 tion. 255 pages. Price 6s. 
 
 "No clearer or more concise statement of the law as regards 
 companies could be found than is contained in this work, and any 
 student who thoroughly masters it need have no fear of not 
 passing his examination." — Juridical Review. 
 
 [ 9 ] 
 
Companies — continued. 
 
 , SMITH'S Summary of the Law of Companies. By 
 
 T. Eustace Smith, Barrister-at-Law. Twelfth 
 Edition, by the Author, and C. H. Hicks. 376 
 pages. Price 7s. 6d. net. 
 
 " The author of this handbook tells us that when an articled 
 student reading for the final ejfamination, he felt the want of such 
 a work as that before us, wherein could be found the main 
 principles of a law relating to joint-stock companies. . . Law 
 students may well read it ; for Mr. Smith has very wisely been at 
 the pains of giving his authority for all his statements of the law 
 or of practice, as applied to joint-stock company business usually 
 transacted in solicitors' chambers. In fact, Mr. Smith has by his 
 little book offered a fresh inducement to students to make them- 
 selves — at all events, to some extent — acquainted with company 
 law as a separate branch of study." — Law Times. 
 
 " These pages give, in the words of the Preface, ' as briefly and 
 concisely as possible a general view both of the principles and 
 practice of the law affecting companies.' The work is excellently 
 printed, and authorities are cited ; but in no case is the language 
 of the statutes copied. The plan is good, and shows \)oth grasp 
 and neatness, and, both amongst students and laymen, Mr. Smith's 
 book ought to meet a ready sale." — Law Journal. 
 
 CONFLICT OF LAWS. 
 
 WESTLAKE'S Treatise on Private International 
 Law, with Principal , Reference to its Practice in 
 England. Sixth Edition. By Norman Bentwich, 
 Barrister-at-Law. [In the press. 
 
 FOOTE'S Private International Jurisprudence. Based 
 on the Decisions in the English Courts. Fourth 
 Edition. By Coleman Phillipson, LL.D., Barrister- 
 at-Law. 574. pages. Price £1 5s. net. 
 
 CONSTITUTIONAL LAW AND 
 HISTORY. 
 
 KELKE'S Epitome of Constitutional Law and Cases. 
 
 185 pages. Price 5s. 
 
 " We think that Bar Students would derive much benefit from a 
 perusal of its pages before dealing with the standard text-books, 
 and as a final refresher."- — Law Students' Journal. 
 
 [ 10 ] 
 
Constitutional Law and History — amtinued. 
 
 CHALMERS' & ASQUITH'S Outlines of Constitutional 
 and Administrative Law. By D. Chalmers and 
 Cyril Asquith, Barristers-at-Law. Second Edition. 
 Price los. 6d. net. 
 
 This book has been re-written, with a special view to its use for 
 the Bar examinations. 
 
 THOMAS'S Leading: Cases in Constitutional Law. 
 
 Briefly stated, with Introduction and Notes. By 
 Ernest C. Thomas, Bacon Scholar of the Hon. 
 Society of Gray's Inn, late Scholar of Trinity College, 
 Oxford. Fifth Edition. By Frank Carr, LL.D. 
 
 [In the press. 
 
 TASWELL-LANQMEAD'S English Constitutional 
 History. From the Teutonic Invasion to the Present 
 Time. Designed as a Text-book for Students and 
 others. By T. P. Taswell-Langmead, B.C.L., of 
 Lincoln's Inn, Barrister-at-Law, formerly Vinerian 
 Scholar in the University and late Professor 
 of Constitutional Law and History, University 
 College, London. Eighth Edition. By Coleman 
 Phillipson, LL.D. 854 pages. Price 21s. net. 
 
 " ' Taswell-Langmead ' has long been popular with candidates 
 for examination in Constitutional History, and the present edition 
 should render it even more so. It is now, in our opinion, the ideal 
 students' book upon the subject." — Law Notes. 
 
 " The work will continue to hold the field as the best classbook 
 on the subject.'' — Contemporary Review. 
 
 " The work before us it would be hardly possible to praise too 
 highly. In style, arrangement, clearness, and size it would be 
 difficult to find anything better on the real history of England, 
 the history of its constitutional growth as a complete story, than 
 this volume." — Boston {U.S.) Literary World. 
 
 WILSHERE'S Analysis of Taswell-Langmead's Con- 
 stitutional History. By A. M. Wilshere, LL.B., 
 Barrister-at-Law. 115 pages. Price 6s. 6d. net. 
 
 I 11 ] 
 
Constitutional Law and History — continued. 
 
 HAMMOND'S Short English Constitutional History 
 
 for Law Students. By Edgar Hammond, B.A. 163 
 pages. Price 7s. 6d. net. 
 
 An excellent book for the purpose of refreshing one's knowledge 
 preparatory to taking an examination. 
 
 " An excellent cram-book and a little more. The tabulation of 
 the matter is excellent." — Lam Times. 
 
 CONTRACTS. 
 
 ODGERS on the Common Law. See page 7. 
 
 WILSHERE'S Analysis of Contracts and Torts, 
 
 being an Analysis of Books III. and IV. of Odgers on 
 the Common Law. By A. M. Wilshere and Douglas 
 RoBB, Barristers-at-Law. 172 pages. Price 5s. net. 
 
 It is designed as an assistance to the memory of the Student who 
 has read the parent work. 
 
 CARTER on Contracts. Elements of the Law of Con- 
 tracts. By A. T. Carter, of the Inner Temple, 
 Barrister-at-Law, Reader to the Council of Legal 
 Education. Fourth Edition. 272 pages. Price 
 8s. 6d. 
 
 " We have here an excellent book for those who are beginning 
 to read law." — Law Magazine. 
 
 CONVEYANCING. 
 
 ELPHINSTONE'S Introduction to Conveyancinff. 
 
 By Sir Howard Warburton Elphinstone, Bart. 
 Seventh Edition, by F. Trentham Maw, Barrister- 
 at-Law, Editor of Key and Elphinstone's Precedents 
 in Conveyancing. 694 pages. Price 25s. net. 
 
 " Incomparably the best introduction to the art of conveyancing 
 that has appeared in this generation. It contains much that is 
 useful to the experienced practitioner." — Law Times. 
 
 [ 12 ] 
 
Conveyancing— continwed. 
 
 " In our opinion no better work on the subject with which it 
 deals was ever written for students and young practitioners." — 
 Law Notes. 
 
 " . . . from a somewhat critical examination of it we have 
 come to the conclusion that it would be difficult to place in a 
 student's hand a better work of its kind." — Law Students' Journal. 
 
 DEANE & SPURLINQ'S Introduction to Convey- 
 ancinsf, with an Appendix of Students' Precedents. 
 Third Edition, by Cuthbeet Spurling, Barrister-at- 
 Law. Price £i is. net. 
 
 This book is complementary to and extends the information in 
 " Williams." It is clearly and attractively written and the text 
 extends to 273 pages. The reader is taken through the component 
 parts of Purchase Deeds, Leases, Mortgage Deeds, Settlements and 
 Wills, and the way in which these instruments are prepared is 
 explained. Previous to this is a short history of Conveyancing, 
 and a chapter on Contracts for Sale of Land dealing with the 
 statutory requisites, the form, particulars and conditions of sale, 
 the abstract of title, requisitions, etc., and finally there is a chapter 
 on conveyance by registration. The second part of the book, 
 covering about 100 pages, contains Clark's Students' Precedents 
 IN Conveyancing, illustrating the various documents referred to 
 in the first part. It is the only book containing a representative 
 collection of precedents for students. 
 
 " It is readable and clear and will be of interest even to those 
 students who are not specialising in questions of real property." — 
 Cambridge Law Journal. 
 
 ^ " The style is singularly lucid and the writer has deliberately 
 • formed the opinion that this book should form part of the course 
 of every student who desires a real practical acquaintance with 
 modern conveyancing. . . . Properly used, the writer's opinion is 
 that Deane and Spurling should be one of the first books studied 
 after the Intermediate has been negotiated." — Sittings Review. 
 
 INDERMAUR'S Leading: Conveyancing and Equity 
 
 Cases. With some short notes thereon, for the use 
 of Students. By John Indermaur, Solicitor. Tenth 
 Edition by C. Thwaites. 206 pages. Price 6s. net. 
 
 " The Epitome well deserves the continued patronage of the 
 class — Students — for whom it is especially intended. Mr. Inder- 
 maur will soon be known as the ' Student's Friend.' " — Canada 
 Law Journal. 
 
 [ 13 1 
 
CRIMINAL LAW AND PROCEDURE. 
 
 ODQERS on the Common Law. See page 7. 
 
 HARRIS'S Principles of tlie Criminal Law. Intended 
 as a Lucid Exposition of the subject for the use of 
 Students and the Profession. Thirteenth Edition. 
 By A. M. WiLSHERE, Barrister-at-Law. 520 pages. 
 Price i6s. net. 
 
 " This Standard Text-book of the Criminal Law is as' good a 
 book on the subject as the ordinary student will find on the 
 library shelves .... The book is very clearly and simply 
 written. No previous legal knowledge is taken for granted, and 
 everything is explained in such a manner that no student ought 
 to have much difficulty in obtaining a grasp of the subject. . . ." 
 — Solicitors' Journal. 
 
 " .... As a Student's Text-book we have always felt that this 
 work would be hard to beat, and at the present time we have no 
 reason for altering our opinion " — Law Times. 
 
 WILSHERE'S Elements of Criminal and Magisterial 
 Law and Procedure. By A. M. Wilshere, Barris- 
 ter-at-Law. Second edition. 256 pages. Price 8s. 
 net. 
 
 This book sets out concisely the essential principles of the criminal 
 law and explains in detail the most important crimes, giving 
 precedents of indictments ; it also gives an outline of criminal 
 procedure and evidence. 
 
 " An excellent little book for examination purposes. Any 
 student who fairly masters the book ought to pass any ordinary 
 examination in criminal law with ease. " — Solicitors' Journal. 
 
 WILSHERE'S Leading Cases illustrating the Crimi- 
 nal Law, for Students. 168 pages. Price 6s. 6d. 
 net. 
 
 A companion book to the above. 
 
 " This book is a collection of cases pure and simple, without a 
 commentary. In each case a short rubric is given, and then follow 
 the material parts of the judge's opinions. The selection of cases 
 has been judiciously made, and it embraces the whole, field of 
 criminal law. The student who has mastered this and its com- 
 panion volume will be able to face his examiners in criminal law 
 without trepidation." — Scots La«j Times. 
 
 [ U ] 
 
EASEMENTS. 
 
 BLYTH'S Epitome of the Law of Easements. By 
 
 T. T. Blyth, Barrister-at-Law. 158 pages. Price 
 6s. net. 
 
 "The book should prove a. useful addition to the student's 
 library, and as such we can confidently recommend it." — Law 
 Quarterly Review. 
 
 CARSON on Prescription and Custom; Six Lectures 
 delivered for the Council of Legal Education. By 
 T. H. Carson, K.C. 136 pages. Price 6s. net. 
 
 ECCLESIASTICAL LAW. 
 
 SMITH'S Law and Practice in the Ecclesiastical 
 Courts. For the use of Students. By Eustace 
 Smith, Barrister-at-Law. Seventh Edition. 219 
 pages. Price 12s. 6d. net. 
 
 " His object has been, asihe tells us in his preface, to give the " 
 student and general reader a fair outline of the scope and extent 
 of ecclesiastical law, of the principles on which it is founded, of 
 the .Courts by which it is enforced, and the procedure by which 
 these Courts are regulated. We think the book well fulfils its 
 object. Its value is much enhanced by a profuse citation of 
 authorities for the propositions contained in it." — Bar Examination 
 Journal. 
 
 EQUITY. 
 
 SNELL'S Principles of Equity. Intended for the use 
 of Students and Practitioners. Eighteenth Edition. 
 By H. G. RiviNGTON, M.A. Oxon., and A. C. Foun- 
 TAiNE. 578 pages. Price £1 ids. net. 
 
 " In a most modest preface the editors disclaim any intention to 
 interfere with Snell as generations of students have known it. 
 Actually what they have succeeded in doing is to make the book 
 at least three times as valuable as it ever was before. Illustrations 
 ■ from cases have been deftly introduced, and the whole rendered 
 simple and intelligible until it is hardly recognisable." — The 
 Students' Companion. 
 
 " It hEis been stated that this book is intended primarily for law 
 students, but it is much too useful a book to be so limited. It is 
 
 [ 15 J 
 
Equity' — continued. 
 
 in our opinion the best and most lucid summary of the principles 
 of the law of equity in a small compass, and should be m every 
 lawyer's library." — Australian Law Times. 
 
 " ' Snell's Equity ' which has now reached its seventeenth edition, 
 has long occupied so strong- a position as a standard work for 
 students that it was not easy to perceive how it could be improved. 
 The new editors have succeeded in achieving this task." — Law 
 Journal. 
 
 BLYTH'S Analysis of Snell's Principles of Equity, 
 
 with Notes thereon. By E. E. Blyth, LL.D., 
 Solicitor. Eleventh Edition. 270 pages. Price 
 7s. 6d. net. 
 
 " This is an admirable analysis of a good treatise ; read with 
 Snell, this little book will be found very profitable to the student." 
 ■ — Law Journal. 
 
 STORY'S Commentaries on Equity Jurisprudence. 
 
 Third English Edition. By A. E. Randall. 641 
 pages. Price 37s. 6d. net. 
 
 WILSHERE'S Principles of Equity. By A. M. 
 
 WiLSHERE. 499 pages. Price £1 5s. net. 
 In this book the author has endeavoured to explain and enable 
 the student to understand Equity. He has incorporated a large 
 number of explanations from the authorities and has tried to make 
 the subject intelligible while at the same t me he has as much 
 useful and relevant detail as the larger students' works. It is not 
 a mere " cram " book. A useful feature is an analysis of the 
 subject which follows the text. 
 
 " Mr. Wilshere has succeeded in giving us a very clear exposition 
 of these principles. The book is far better balanced than the 
 majority of text books, and the law is stated in its modern garb 
 and is not, as in so many elementary works, almost lost to sight 
 beneath a mass of historical explanatory matter. " — Sittings Review. 
 
 KELKE'S Epitome of Leading: Cases in Equity. 
 
 Founded on White and Tudor's Leading Cases in 
 Equity. Third Edition. 241 pages. Price 6s. 
 
 " It is not an abridgment of the larger work, but is intended to 
 furnish the beginner with an outline of equity law so far as it is 
 settled or illustrated by a selection of cases. Each .branch is dealt 
 with in a separate chapter, and we have (inter alia) trusts, 
 mortgages, specific performance and equitable assignments, and 
 equitable implications treated with reference to the cases on the 
 subject." — Law Times. 
 
 \ 16 ] 
 
Equity — continued. 
 
 INDERMAUR'S Epitome of Leading: Equity Cases. 
 
 See page 13. 
 
 WHITE & TUDOR'S Leading Cases in Equity. A 
 
 Selection of Leading Cases in Equity ; with Notes. 
 Eighth b dition. By W. J. Whittaker, of the Middle 
 Temple and Lincoln's Inn, Barrister-at-Law. 2 vols. 
 Price £4. net. 
 
 " ' White and Tudor ' towers high above all other works on 
 Equity. It is the fountain of Equity, from which all authors 
 draw and drink. It is the book we all turn to when we want to 
 know what the Judges of the old Court of Chancery, or its 
 modem representative, the Chancery Division, have said and 
 decided on this or that principle of law. It is the book in which 
 counsel in his chambers puts such faith, and from which in Court 
 counsel reads with so much confidence. It is the book from the 
 law of which Judges hesitate to depart." — Law Notes. 
 
 EVIDENCE. 
 
 COCKLE'S Leading Cases and Statutes on the Law 
 of Evidence, with Notes, explanatory and connective, 
 presenting a systematic view of the whole subject. 
 By Ernest Cockle, Barrister-at-Law. Third 
 Edition. 500 pages. Price i6s. 6d. net. 
 
 This book and Phipson's Manual are together sufficient for 
 all ordinary examination purposes, and will save students the 
 necessity of reading larger works on this subject. 
 
 By an ingenious use of black type the author brings out the 
 essential words of the judgments and Statutes, and enables the 
 student to see at a glance the effect of each section. 
 
 " Of all the collections of leading cases compiled for the use of 
 students with which we are acquainted, this book of Mr. Cockle's 
 is, in our opinion, far and away the best. The student who picks 
 up the principles of the English law of evidence from these 
 readable and logical pages has an enormous advantage over a 
 generation of predecessors who toiled through the compressed 
 sentences of Stephen's little digest in a painful effort to grasp its 
 meaning. Mr. Cockle teaches his subject in the only way in 
 which a branch of law so highly abstract can ever be grasped ; he 
 arranges the principal rules of evidence in logical order, but he 
 puts forward each in the shape of a leading case which illustrates 
 it. Just enough of the headnote, the facts, and the judgments are 
 
 [ 17 ] 
 
Evidence — continued. 
 
 selected and set out to explain the point .fully without boring the 
 reader ; and the notes appended to the cases contain all the 
 additional Information that anyone can require in 
 ordinary practice." — Solicitors' Journal. 
 
 PHIPSON'S Law of Evidence. By S. L. Phipson, 
 Barrister-at-Law. Sixth Edition. 699 pages. Price 
 £2 2S. net. 
 
 " The best book now current on the law of evidence in 
 England." — Harvard Law Review. 
 
 PHIPSON'S Manual of the Law of Evidence. Second 
 Edition. 208 pages. Price 12s. 6d. net. 
 
 This is an abridgment for students of Mr. Phipson's larger 
 treatise. With Cockle's Cases it will be sufficient for examina: 
 tion purposes. 
 
 " The way of the student, unlike that of the transgressor, is no 
 longer hard. The volume under review is designed by the author 
 for the use of students. To say that it is the best text-book for 
 students upon the subject is teally to understate its usefulness ; as 
 far as we know there is in existence no other treatise upon evidence 
 which gives a scientific and. accurate presentment of the subject 
 in a form and compass suitable to students." — Australian Law 
 Times. 
 
 " We know no book on the subject which gives in so short a 
 space so much valuable information. We readily commend the 
 work both to students and to practitioners, especially those who, 
 not being in possession of the author's larger work, wish to have 
 an up-to-date and explanatory companion to ' Cockle.' " — South 
 African Law Journal. 
 
 BEST'S Principles of Evidence. With Elementary 
 Rules for conducting the Examination and Cross- 
 Examination of Witnesses. Eleventh Edition. By 
 S. L. Phipson, Barrister-at-Law. 620 pages. ■ Price 
 £1 5s. net. 
 
 " The most valuable work on the law of evidence which exists 
 in any country." — Law Times. 
 
 "There is no more scholarly work among all the treatises on 
 Evidence than that of Best. There is a philosophical breadth of 
 treatment throughout which at once separates the work from 
 those mere collections of authorities which take no account of 
 the 'reason why,' and which arrange two apparently contradictory 
 propositions side by side without comment or explanation." — 
 Law Magazine. 
 
 [ 18 ] 
 
Evidence — continued. 
 
 WROTTESLEY on the Examination of Witnesses 
 in Court. Including Examination in Chief, Cross- 
 Examination, and Re-Exaniination. With chapters 
 on Preliminary Steps and some Elementary Rules 
 of Evidence. By F. J. Wrottesley, of the Inner 
 Temple, Barrister-at-Law. 173 pages. Price 6s. net. 
 This is a practical book for the law student. It is interesting, and 
 is packed full of valuable hints and information. The author 
 lays down clearly and succinctly the rules which should guide the 
 advocate in the examination of witnesses and in the argument of 
 questions of fact and law, and has illustrated the precepts which 
 he has given by showing how they have been put into actual 
 practice by the greatest advocates of modern times. 
 
 EXAMINATION GUIDES AND 
 QUESTIONS. 
 
 SHEARWOOD'S Selection of Questions set at tlie 
 Bar Examinations from 1913 to 1921. Price 
 6s. net. 
 
 INDERMAUR'S Articled Clerk's Guide to and 
 Self-Preparation for the Final Examination. 
 
 Containing a Complete Course of Study, with Books 
 to Read, List of Statutes, Cases, Test Questions, &c., 
 and intended for the use of those Articled Clerks who 
 read by themselves. Seventh Edition. [In the press. 
 
 " His advice is practical and sensible : and if the course of study 
 he recommends is intelligently followed, the articled clerk will 
 have laid in a store of legal knowledge more than sufficient to 
 carry him through the Final Examination." — Solicitors' Journal. 
 
 A New Guide to the Bar. Containing the Regula- 
 tions and Examination Papers, and a critical Essay 
 on the Present Condition of the Bar of England. 
 By LL.B., Barrister-at-Law. Fourth Edition. 204 
 pages. Price 5s. 
 
 A Guide to the Legal Profession and London LL.B. 
 
 Containiiig the latest Regulations, with a detailed 
 description of all current Students' Law Books, and 
 suggested courses of reading. Price 2s. 6d. net. 
 
 [ 19 ] 
 
EXECUTORS. 
 
 WALKER'S Compendium of the Law relating to 
 Executors and Administrators. Fifth Edition. 
 By S. E. Williams, of Lincoln's Inn, Barrister-at- 
 Law. £i 5s. net. 
 
 " We highly approve of Mr. Walker's arrangement. . . . We 
 can commend it as bearing on its face evidence of skilful and 
 careful labour." — haw Times. 
 
 INSURANCE LAW. 
 
 HARTLEY'S Analysis of the Law of Insurance. By 
 
 D. H. J. Hartley, Barrister-at-Law. 119 pages. 
 Price 4s. 6d. net. 
 
 PORTER'S Laws of Insurance: Fire, Life, Accident, 
 and Guarantee. Embodying Cases in the English, 
 Scotch, Irish, American, Australian, New Zealand, 
 and Canadian Courts. Sixth Edition. 490 pages. 
 Price £1 I2s. 6d. net. 
 
 INTERNATIONAL LAW. 
 
 BENTWICH'S Students' Leading Cases and Statutes 
 on International Law, arranged and edited- with 
 notes. By Norman Bentwich, Barrister-at-Law. 
 With an Introductory Note by Professor L. Oppen- 
 HEiM. 247 pages. Price 12s. 6d. net. 
 
 "This Case Book is admirable from every pomt of view, and 
 may be specially recommended to be used by young students in 
 conjunction with their lectures and, their reading of text-books." 
 — Professor Oppenheim. 
 
 COBBETT'5 Leading Cases and Opinions on Inter- 
 national Law, and various points of English Law 
 connected therewith. Collected and Digested from 
 English and Foreign Reports, Official Documents, 
 and other sources. With Notes containing the 
 
 [ 20 ] 
 
International Law — continued. 
 
 views of the Text-writers on the Topics referred 
 to, Supplementary Cases, Treaties, and Statutes. 
 By Pitt Corbett, M.A., D.C.L. Oxon. 
 
 Vol. I. "Peace." Fourth Edition. By H. H. L. 
 
 Bellot, D.C.L. [In the press. 
 
 Vol.11. "War and Neutrality." Third Edition. 
 
 By the Author. 579 pages. 15s. net. 
 
 " The book is well arranged, the materials well selected, and the 
 comments to the point. Much will be found in small space in 
 this book." — Law Journal. 
 
 " The notes are concisely written and trustworthy 
 
 The reader will learn from them a great deal on the subject, and 
 the book as a whole seems a convenient introduction to fuller and 
 more systematic works." — Oxford Magazine. 
 
 JURISPRUDENCE. 
 
 EASTWOOD'S Brief Introduction to Austin's Theory 
 of Positive Law and Sovereignty. By R. A. 
 
 Eastwood. 72 pages. Price 3s. 6d. net. 
 
 Nine out of ten students who take up the study of Jurisprudence 
 are set to read Austin, without any warning that Austin's views 
 are not universally held, and that his work ought not now to be 
 regarded alone, but rather in connection with the volume of 
 criticism and counter-criticism to which it has given rise. 
 
 Mr. Eastwood's book gives a brief summary of the more essential 
 portions of Austin, together with a summary of the various views 
 and discussions which it has provoked. 
 
 SALMOND'S Jurisprudence; or, Theory of the Law. 
 
 By John W. Salmond, Barrister-at-Law. Sixtli 
 Edition. 496 pages. Price £1 net. 
 
 LEGAL HISTORY. 
 
 HAMMOND'S Short History of English Law, for 
 
 Law Students. By Edgar Hammond, B.A. Price 
 los. 6d. net. Clear and concise. Containing just 
 what is required for the examinations. 
 
 r 21 1 
 
Legal History — continued. 
 
 EVANS'S Theories and Criticisms of Sir Henry 
 Maine. Contained in his six works, "Ancient Law," 
 " Early Law and Customs," " Early History of In- 
 stitutions," " Village Communities," "International 
 Law," and "Popular Government," which works 
 have to be studied for the various examinations. 
 By Morgan O. Evans, Barrister-at-Law. loi pages. 
 Price fs. net. 
 
 LEGAL MAXIMS. 
 
 BROOM'S Selection of Les^al Maxims, Classified and 
 Illustrated. Eighth Edition. By J. G. Pease and 
 Herbert Chitty. 767 pages. .Price £1 12s. 6d. 
 net. 
 
 The main' idea of this' work is to present,' under the head of 
 "Maxims," certain 'leading principles of English' la'w, and to 
 illustrate some of the ways in which those principles have been 
 applied or limited, by reference to reported cases. The maxims 
 are classified under the following divisions : — 
 
 Rules founded on Public Fundamental Legral Principles, 
 
 Policy. Acquisition, Enjoyment, and 
 
 Rules of Lesrislative Policy. Transfer of Property. 
 
 Maxims relatinsr to the Rules Relating to Marriage 
 
 Crown. and Descent. 
 
 The Judicial Office, The Interpretation of Deeds 
 
 The Mode of Administering and Written Instruments. 
 
 Justice. The Law of Contracts. 
 
 Rules of Logic, The Law of Evidence, 
 
 " It has been to us a pleasure to read the book, and we cannot 
 help thinking that if works of this kind were more frequently 
 studied by the Profession there would be fewer false points taken 
 in argument in our Courts." — Justice of the Peace. • 
 
 Latin for La'wyers. Contains (i) A course in Latin, 
 in 32 lessons, based on legal maxims ; (2) looo Latin 
 Maxims, with translations, explanatory notes, cross- 
 references, and subject-index ; (3) A Latin Vocabu- 
 lary. 300 pages. Price 7s. 6d. net. 
 
 [ 22 ] 
 
Legal Maxims — continued. 
 
 This book is intended to enable the practitioner or student to 
 acquire a working knowledge of Latin in the shortest possible 
 time, and at the same time to become acquainted with the legal 
 maxims which embody the fundamental rules of the common law. 
 
 COTTERELL'S Latin Maxims and Phrases. Literally 
 translated, with explanatory notes. Intended for 
 the use of students for all legal examinations. By 
 J. N. CoTTERELL, Solicitor. Third Edition. 82 
 pages. Price 5s. net. 
 
 LOCAL GOVERNMENT. 
 
 WRIGHT & HOBHOUSE'S Outline of Local Govern- 
 ment and Local Taxation in Eng'land and Wales 
 
 (excluding London). Fifth Edition. With Intro- 
 duction and Tables of Local Taxation. By Rt. 
 Hon. Henry Hobhouse. [In the press. 
 
 " The work gives within a very moderate compass a singularly 
 clear and comprehensive account of our present system of local 
 self-government, both in urban and rural districts. We are, 
 indeed, not aware of any other work in which a similar view is 
 given with equal completeness, accuracy, and lucidity." — County 
 Council Times. 
 
 " Lucid, concise, and accurate to a degree which has never been 
 surpassed." — Justice of the Peace. 
 
 JACOBS' Epitome of the Law relating to Public 
 Health. By Bertram Jacobs, Barrister-at-Law. 
 191 pages. Price 7s. 6d. net. 
 
 Specially written for students. 
 
 " This little work has the great merit of being an accurate guide 
 to the whole body of law in broad outline, with the added ad- 
 vantage of bringing the general law up to date. The one feature 
 will appeal to the general student or newly-fledged councillor, and 
 the other to the expert who is always the better ior the perusal of 
 an elementary review." — Municipal Officer. 
 
 [ 23 ] 
 
MERCANTILE LAW. 
 
 HURST & CECIL'S Principles of Commercial Law. 
 
 With an Appendix of Annotated Statutes. Second 
 Edition. By J. Hurst, Barrister-at-Law. 518 pages. 
 Price IDS. 6d. net. 
 
 SLATERS' Principles of Mercantile Law. By Joshua 
 Slater, Barrister-at-Law. Third Edition. 308 
 pages. Price 6s. 6d. net. 
 
 SMITH'S Mercantile Law. A Compendium of Mer- 
 cantile Law, by the late John William Smith. 
 Twelfth Edition. By J. H. Watts, Barrister-at- 
 Law. [In the press. 
 
 CONTENTS— 
 
 Partners. Negotiable Instruments. Lien. 
 
 Companies. Carriers. Banlcruptcy. 
 
 Principal and Agrent. Affrelerhtment. Bills of Exchanee. 
 
 Shippingr. Insurance. Master and Servant. 
 
 Patents. Contracts. Sale of Goods. 
 
 Qoodwill. Guarantees. Debtor and Creditor. 
 
 Trade Marks. Stoppage in Transitu, 
 
 " We have no hesitation in recommending the work before us to 
 the profession and the public as a reliable guide to the subjects 
 included in it, and as constituting one of the most scientific 
 treatises extant on mercantile law." — Solicitors' Journal. 
 
 MORTGAGES. 
 
 STRAHAN'S Principles of the General Law of 
 Mortgages. By J. Andrew Strahan, Barrister-at- 
 Law, Reader of Equity, Inns of Court. Second 
 Edition. 247 pages. Price 7s. 6d. net. 
 
 " He has contrived to make the whole law not merely consistent, 
 but simple and reasonable. . . . Mr. Strahan's book is ample 
 for the purposes of students' examinations, and may be thoroughly 
 recommended." — Law Journal. 
 
 " It is a subject in which there is great need for a book which in 
 moderate compass should set forth in clear and simple language 
 the great leading principles. This Mr. Strahan's book does in a 
 way that could hardly be bettered." — Law Notes. 
 
 [ 24 1 
 
PARTNERSHIP. 
 
 STRAHAN & OLDHAM'S Law of Partnership. By 
 
 J. A. Strahan, Reader of Equity, Inns of Court, 
 and N. H. Oldham, Barristers-at-Law. Second 
 Edition. 264 pages. Price los. net. 
 
 "It might almost be described as a collection of judicial 
 statements as to the law of partnership arranged with skill, so as 
 to show their exact bearing on the language used in the Parttier- 
 ship Act of 1890, and we venture to prophesy that the book will 
 attain a considerable amount of fame." — Student's Companion. 
 
 PERSONAL PROPERTY. 
 
 WILLIAMS' Principles of .the Law of Personal Pro- 
 perty, intended for the .use of Students in Con- 
 veyancing. Seventeenth Edition. By T. Cyprian 
 Williams, of Lincoln's Inn, Barrister-at-Law. 655 
 pages. Price £1 is. net. 
 
 " Whatever competitors there may be in the field of real pro- 
 perty, and they are numerous, none exist as serious rivals to 
 Williams' Personal. For every law student it is invaluable, and 
 to the practitioner it is often useful." — Law Times. 
 
 WILSHERE'S Analysis of Williams on Real and 
 Personal Property. By A. M. Wilshere, Barlister- 
 at-Law. 205 pages. Third Edition. Price 6s. net. 
 
 This book is designed as an assistance to the memory of the 
 student who has read the parent works. It contains a useful 
 appendix of questions. 
 
 " It will be found a most excellent aid to the student." — Law 
 Students' JournaL 
 
 KELKE'S Epitome of Personal Property Law. Third 
 Edition. 155 pages. Price 6s. 
 
 " On the eve of his examination we consider a candidate for the 
 Solicitors' Final would find this epitome most useful." — Law Notes. 
 
 " An admirable little book ; one, indeed, which will prove of 
 great service to students, and which will meet the needs of the 
 busy practitioner who desires to refresh his memory or get on the 
 track of the law without delay." — Irish Law JournaL 
 
 [ 25 1 
 
Personal Property — continued. 
 
 QOODEVE'S Modern Law of Personal Property. 
 
 With an Appendix of Statutes and Forms. Fifth 
 Edition. Revised and partly re-written by J: H. 
 Williams and W. M. Crowdy, Barristers-at-Law. 
 461 pages. Price £1 net. 
 
 " We have no hesitation in heartily commending the ■work to 
 students. They can hardly take up a better treatise on the subject 
 of Personal Property." — Law Student's Journal. 
 
 PROCEDURE. 
 
 ODQERS on the Common Law. See page 7. 
 
 INDERMAUR'S Manual of the Practice of the 
 Supreme Court of Judicature, in the King's 
 Bench and Chancery Divisions. Tenth Edition. 
 Intended for the use of Students and the Profession. 
 By Charles Thwaites, Solicitor. 495 pages. Price 
 £1 net. 
 
 " The arrangement of the book is good, and references are given 
 to the leading decisions. Copious references are also given to the 
 rules, so that the work forms a convenient guide to the larger 
 volumes on practice. It is a very successful attempt to deal 
 clearly _ and concisely with an important and complicated 
 subject." — Solicitors' Journal. 
 
 WILSHERE'S Outlines of Procedure in an Action in 
 the King's Bench Division. With some facsimile 
 forms. For the Use of Students. By A. M. Wilshere, 
 Barrister - at - Law. Second Edition. 127 pages. 
 Price 7s. 6d. net. 
 
 This forms a companion volume to Wilshere's Crinjinal Law, 
 and the student will find sufficient information to enable him to 
 pass any examination in the subjects dealt with by the two 
 books. 
 
 " The author has made the book clear, interesting, and instruc- 
 tive, and. It should be acceptable to students."— SoZtcttoj-s' Journal. 
 
 WHITE'S Points on Chancery Practice. A Lecture 
 delivered to the Solicitors' Managing Clerks" 
 Association, by Richard White, a Master of the 
 Supreme Court. 76 pages. Price 3s. '6d. net. 
 
 [ 26 ] 
 
REAL PROPERTY. 
 
 WILLIAMS' Principles of the Law of Real Property. 
 
 Intended as a first book for the use of Students in 
 Conveyancing. 23rd Edition. By T. Cyprian 
 Williams, Barrister - at - Law. 717 pages. Price 
 £1 los. net. 
 
 " Its value to the student cannot well be over-estimated." — Law 
 Students' Journal. 
 
 " The modern law of real property is, as he remarks in his con- 
 cluding summary, a system of great complexity, but under his 
 careful supervision ' Williams on Real Property ' remains one of 
 the most liseful text-books for acquiring a knowledge of it." — 
 Solicitors' Journal. 
 
 WILSHERE'S Analysis of Williams on Real and 
 Personal Property. Third Edition. 205 pages. 
 Price 6s. net. 
 
 This book is designed as an assistance to the memory of the 
 student who has read the parent works. It contains a useful 
 appendix of questions. 
 
 " Read before, with, or after Williams, this should prove of 
 much service to the student. In a short time it is made possible 
 to him to grasp the outline of this difficult branch of the law." — 
 Law Magazine. 
 
 KELKE'S Epitome of Real Property Law, for the 
 
 use of Students. Fifth Edition. By Cuthbert 
 Spurling, Barrister-at-Law. 243 pages. Price 
 8s. 6d. net. 
 
 " The arrangement is convenient and scientific, and the text 
 accurate. It contains just what the diligent student or ordinary 
 practitioner should carry in his head, and must be very useful for 
 those about to go in for a law examination." — Law Times. 
 
 QOODEVE'S Modern Law of Real Property. Fifth 
 Edition. By Sir Howard Warburton Elphinstone, 
 Bart., and F. T. Maw, both of Lincoln's Inn, Barris- 
 ters-at-Law. 462 pages. Price 21s. 
 
 " No better book on the principles of the law relating to real 
 property could well be placed in a student's hands after the first 
 elements relating to the subject have been mastered." — I^aw 
 Students' Journal. 
 
 [ 27 ] 
 
Real Property — continued, 
 
 EDWARDS' Compendium of the Law of Property in 
 Land. For the use of Students and the Profession. 
 By W. D. Edwards, Barrister-at-Law. Fifth 
 Edition. About 550 pages. [In the press. 
 
 " Mr. Edwards' treatise on the Law of Real Property is marked 
 ,by excellency of arrangement and conciseness of statement." — 
 Solicitors' Journal. 
 
 " So excellent is the arrangement that we know of no better 
 compendium upon the subject of which it treats." — Law Times. 
 
 RECEIVERS. 
 
 KERR on the Law and Practice as to Receivers 
 appointed by the High Court of Justice or Out of 
 Court. Seventh Edition. 410 pages. Price £1 is. 
 net. 
 
 ROMAN LAW. 
 
 KELKE'S Epitome of Roman Law. 255 pages. 
 Price 6s. net. 
 
 This js a highly condensed summary of all the salient facts of 
 Roman Law throughout its history, taking as its centre the era of 
 Gaius and the Antonines. 
 
 "One of the safest introductory manuals which -can be put into 
 the hands of a student who wishes to get a general knowledge of 
 the subject. In embodying many of the views of Moyle, Sohm, 
 and Poste, it is more up-to-date than some of the older manuals 
 which are still in traditional use, and much more accurate and 
 precise than some of the elementary works which have appeared 
 more recently. "^Latei Quarterly Review. 
 
 KELKE'S Primer of Roman Law. 152 pages. Price 
 5s. net. 
 
 " In this book the author confines himself mainly to the system 
 of Justinian's Institutes, and as a student's guide to that text-book 
 it should be very useful. The summary is very well done, the 
 arrangerhent is excellent, and there is a very useful Appendix of 
 Latin words and phrases." — Law Journal. 
 
 [ 28 ] 
 
Roman Law — continued. 
 
 CAMPBELL'S Compendium of Roman Law. Founded 
 on the Institutes of Justinian ; together with 
 Examination Questions Set in the University and 
 Bar Examinations (with Solutions), and Definitioris 
 of Leading Terms in the Words of the Principal 
 Authorities. Second Edition. By Gordon Campbell,, 
 of the Inner Temple, M.A., LL.D. 300 pages. Price 
 i2s. net. ' 
 
 HARRIS'S Institutes of Qaius and Justinian. With 
 copious References arranged in Parallel Columns, 
 also "Chronological and Analytical Tables, Lists of 
 Laws, &c., &c. Primarily designed for the use of 
 Students preparing for Examination at Oxford, 
 Cambridge, and the Inns of Court. By F. Harris, 
 B.C.L., M.A., Barrister-at-Law. Third Edition. 
 223 pages. Price 6s. net. 
 
 " This book contains a summary in English of the elements of 
 Roman Law as contained in the works of Gains and Justinian, 
 and is so arranged that the reader can at once see what are the 
 opinions of either of these two writer's on each point. From the 
 very exact and accurate references to titles and sections given he 
 can at once refer to the original writers. The concise manner in 
 which Mr. Harris has arranged his digest will render it most 
 useful, not only to the students for whom it was originally written, 
 but also to those persons who, though they have not the time to 
 wade through the larger treatises of Poste. Sanders, Ortolan, and 
 others, yet desire to obtain some knowledge of Roman Law." 
 — Oxford and Cambridge Undergraduates' Journal. 
 
 JACKSON'S Justinian's Digest, Book 20, with an 
 English Translation and an Essay on the Law of 
 Mortgage in the Roman Law. By T. C. Jackson, 
 B. A. , LL.B., Barrister-at-Law. 98 pages. 7s.6d.net. 
 
 SALKOWSKI'S Institutes and History of Roman 
 Private Law. With Catena of Texts. By Dr. 
 Car Salkowski, Professor of Laws, Konigsberg. 
 Translated and Edited by E. E. Whitfield, M.A. 
 Oxon. 1076 pages. Price £1 12s. nfet. 
 
 [ 29 ] 
 
Roman Law — continued. 
 
 HUNTER'S Systematic and Historical Exposition of 
 Roman Law in the Order of a Code. By W. A. 
 
 Hunter, M.A., Barrister-at-Law. Embodying the 
 Institutes of Gaius and the Institutes of Justinian, 
 translated into English by J. Ashton Cross, Bar- 
 rister-at-Law. Fourth Edition. 1075 pages. Price 
 £1 I2S. net. 
 
 HUNTER'S Introduction to tlie Study of Roman 
 T^aw and the Institutes of Justinian. Sixth 
 Edition. With a Glossary explaining the Technical 
 Terms and Phrases employed in the Institutes. 
 By W. A. Hunter, M.A., LL.D., of the Middle 
 Temple, Barrister-at-Law. 228 pages. Price los. 
 net. 
 
 GARSIA'S Roman Law in a Nutshell. With a 
 selection of questions set at Bar Examinations. By 
 M. Garsia, Barrister-at-Law. 48 pages. Price 
 4s. net. 
 
 With this cram book and the small Hunter or Kelke the examina- 
 tions can be passed. 
 
 SALE OF GOODS. 
 
 WILLIS'S Law of Contract of Sale. Contained in a 
 Course of Six Lectures delivered by William Willis, 
 one of His Majesty's Counsel, at. the request of the 
 Council of Legal Education. Second Edition, with 
 the text of the Sale of Goods Act. By H. N. 
 HiBBERT, LL.D. 176 pages. Price los. net. 
 
 STATUTES. 
 
 MAXWELL on the Interpretation of Statutes. By 
 
 Sir Peter Benson Maxwell, late Chief Justice of 
 the Straits Settlements. Sixth Edition. By Wyatt 
 Paine, Barrister-at-Law. 750 pages. Price £1 15s. 
 net. 
 
 [ 30 ] 
 
statutes — continued. 
 
 "This is an admirable book, excellent in its 'method and 
 arrangement, and clear and thorough in its treatment of the 
 different questions involved." — Laia Magazine. 
 
 " The whole book is very readable as well as instructive." — 
 Solicitors' Journal. 
 
 CRAIES on Statute Law founded on Hardcastle on 
 Statutory Law. With Appendices containing Words 
 and Expressions used in Statutes which have been 
 judicially and statutably construed, and the Popular 
 and Short Titles of certain Statutes, and the Inter- 
 pretation Act, 1899. By W. F. Craies, Barrister-at- 
 Law. Second Edition. 825 pages. Price ;fi 8s. net. 
 
 " Both the profession and students will find this work of great 
 assistance as a guide in that difficult branch of our law, namely 
 the construction of Statutes." — Law Times. 
 
 TORTS. 
 
 ODQERS on the Common Law. See page 7. 
 
 WILSHERE'S Analysis of Contracts and Torts, 
 
 being an Analysis of Books III. and IV. of Odgers on 
 the Common Law. By A. M. Wilshere and Douglas 
 RoBB, Barristers-at-Law. 172 pages. Price 6s. net. 
 
 It is designed as an assistance to the memory of the Student who 
 has read the parent work. 
 
 ERASER'S Compendium of tlie Law of Torts, 
 
 Specially adapted for the use of Students. By H. 
 Eraser, Barrister-at-Law, one of the Readers to the 
 Inns of Court. Tenth Edition. 258 pages. Price 
 1 23. 6d. net. 
 
 " It is a model book for students — clear, succinct, and trustworthy, 
 and showing a practical knowledge of their needs." — Law Journal. 
 
 RINQWOOD'S Outlines of the Law of Torts. Pre- 
 scribed as a Text-book by the Incorporated Law 
 
 [ 31 ] 
 
Torts — continued. 
 
 Society of Ireland. By Richard Ringwood, M.A., 
 of the Middle Temple, Barrister-at-Law. Fourth 
 Edition. 376 pages. Price los. 6d. net. 
 
 " We have always had a great liking for this work, and are very 
 pleased to see by the appearance of a new Edition that it is 
 appreciated by students. We consider that for the ordinary 
 student who wants to take up a separate work on Torts, this is 
 the best book he can read, for it is clear and explanatory, and has 
 good illustrative cases, and it is all contained in a very modest 
 compass. . . This Edition appears to have been thoroughly 
 ' revised, and is, we think, in many respects improved." — Law 
 Students' Journal. 
 
 " The work is one we well recommend to law students, and the 
 able way in which it is written reflects much credit upon the 
 author." — Law Times. 
 
 SALMOND'S Law of Torts. A Treatise on the English 
 Law of Liability for Civil Injuries. By Sir John W. 
 Salmond. Fifth Edition. 568 pages. £1 ids. net. 
 
 " It would be difficult to find, any book on the subject of Torts 
 in which the principles are more' clearly and accurately expressed 
 or the case law more usefully referred to." — Solicitors' Journbl. 
 
 WILLS. 
 
 STRAHAN'S Law of Wills. By J. A. Strahan, 
 Barrister-at-Law. 167 pages. Price 7s. 5d. net. 
 
 " We do not know of anything more useful in its way to a 
 student, and it is a. book not to be despised by the practitioner." 
 — Law Magazine. 
 
 MATHEWS' Guide to Law of Wills. By A. G. 
 
 Mathews, Barrister-at-Law. 402 pages. Price 
 7s. 6d. net. 
 
 " Mr. Mathews has produced an excellent and handy volume on 
 a subject bristling with difficulties. . . . There is a scope for a 
 short work of this kind oh this subject, and doubtless Mr. Mathews' 
 book will find its way into the hands of many Law Students." — 
 Juridical Review. 
 
 The Eastern Press, Ltd., London and Reading. 
 
^1 
 
 1 1. 
 
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