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A 456172
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1817

ARTES SCIENTIA
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LAW STUDENTS' SERIES .

MESSRS . LITTLE , BROWN, & CO . have in preparation

for the use of Students , a series of Elementary Treatises ,
by able writers , to embrace the most important topics of the
Law. They will be of 12mo form, of about three hundred and
fifty pages each .
VOLUMES NOW READY.
STEPHEN'S EVIDENCE . A Digest of the Law of Evi-
dence. By Sir JAMES FITZJAMES STEPHEN. From the Third English
Edition, revised , corrected, and enlarged by the author. With Notes and
additional Illustrations, chiefly from American Cases, by JOHN WILDER
MAY, Ex-District Attorney for Suffolk, and Author of " The Law of
Insurance." 12mo. Leatherette, $2.50 ; law sheep, $3.00.
BIGELOW'S TORTS. An Elementary Treatise on the Law
of Torts, By MELVILLE M. BIGELOW, Author of " A Treatise on the
Law of Estoppel,," ' "A Treatise on the Law of Fraud," and Editor of
" Leading Cases in the Law of Torts," &c. 12mo . Leatherette, $2.50 ;
law sheep, $3.00 .
VOLUMES IN PREPARATION,
AMES ON BILLS AND LANGDELL'S LAW OF
NOTES. By J. B. AMES, Professor SALES . By C. C. LANGDELL ,
in Harvard University. Professor in Harvard Univer-
BIGELOW'S LAW OF sity.
EQUITY. BY MELVILLE M. BIGE- MAY'S LAW OF INSUR-
LOW, Author of " Estoppel," ANCE. By J. WILDER MAY,
&c., &c. Author of the " Law of Insur-
HILL ON CORPORATIONS. ance.'""
. By CLEMENT H. HILL, Late First MAY'S CRIMINAL LAW .
Assistant Attorney-General. By J. WILDER MAY, Ex-District
LANGDELL'S LAW OF Attorney for Suffolk.
CONTRACTS. By C. C. LANG- THAYER'S LAW OF EVI-
DELL, Professor in Harvard Univer- DENCE. By J. B. THAYER,
sity. Professor in Harvard University.

ALSO ELEMENTARY TREATISES ON

AGENCY AND PARTNER- BAILMENTS , INCLUDING
SHIP . CARRIERS.
REAL PROPERTY . CIVIL AND CANON LAW .
LAW OF WILLS, & c. CONSTITUTIONAL LAW.
......
LAW OF EVIDENCE .
A DIGEST

OF THE

LAW OF EVIDENCE.

BY

SIR JAMES FITZJAMES STEPHEN, Q.C. , K.C.S.I.

FROM THE THIRD ENGLISH EDITION,

REVISED, CORRECTED , AND ENLARGED BY THE AUthor.

WITH NOTES AND ADDITIONAL ILLUSTRATIONS ,

CHIEFLY FROM AMERICAN CASES,

BY JOHN WILDER MAY,

EX-DISTRICT ATTORNEY FOR SUFFOLK, MASS.

BOSTON :

LITTLE, BROWN, AND COMPANY.

1877.
Entered according to Act of Congress, in the year 1877, by
LITTLE, BROWN, AND COMPANY,
In the Office of the Librarian of Congress, at Washington.

Cambridge:
Press of John Wilson & Son.
EDITOR'S NOTICE.

THIS third English edition has been carefully revised,

corrected to a considerable extent, changed in its arrange-
ment, and, to some extent, enlarged by the addition of
new matter by the author in the light of the criticisms
made upon the first and second editions, and his reflections
thereupon. The purpose of the editor has been to adapt
the work to the use of the American student and lawyer.
To this end he has briefly noticed those points in which
the American authorities differ, both amongst themselves
and from the English authorities. To some extent, he
has added new illustrations from American cases, which
seemed to him to be sufficiently apt to warrant their in-
sertion ; though he has generally preferred , rather than to
swell the size of the volume, to refer to those sections of
Greenleaf from which, through Mr. Taylor, the illustrations
selected by the author have been to a considerable ex-
tent taken . In the sections of Greenleaf thus referred to
will be found numerous cases, both English and American,
as pertinently illustrative of the author's propositions as
most of those selected . For greater convenience, the
cases cited by the editor— nearly or quite equal in num-
ber to those cited by the author - have been incorporated
in the same Table.
J. W. M.
BOSTON, October, 1877.
CONTENTS .

INTRODUCTION • Page 1-17

PREFACE TO THE THIRD EDITION • 19-33

PART I.

RELEVANCY .

CHAPTER I.
PRELIMINARY.
ART. 1. Definition of Terms 35-40

CHAPTER II.
OF FACTS IN ISSUE AND RELEVANT TO THE ISSUE.
ART. 2. Facts in issue and Facts relevant to the issue may be proved
-3. Relevancy of Facts forming part of the same transaction as
Facts in issue - 4. Acts of Conspirators - 5. Title - 6. Customs -
7. Motive, preparation , subsequent conduct, explanatory state-
ments - 8. Statements accompanying acts, complaints, statements
in presence of a person - 9. Facts necessary to explain or intro-
duce relevant Facts 41-54

CHAPTER III.
OCCURRENCES SIMILAR TO BUT UNCONNECTED WITH THE FACTS IN
ISSUE, IRRELEVANT EXCEPT IN CERTAIN CASES.
ART. 10. Similar but unconnected Facts - 11 . Acts showing inten-
tion, good faith, &c. - 12. Facts showing system - 13. Existence
of course of business when deemed to be relevant . .. 55-63
viii CONTENTS .

CHAPTER IV.
HEARSAY IRRELEVANT EXCEPT IN CERTAIN CASES.
ART. 14. Hearsay and the contents of documents irrelevant, Page 64

Section I. —Hearsay when Relevant.

ART. 15. Admissions defined - 16. Who may make admissions on
behalf of others, and when -17. Admissions by agents and per-
sons jointly interested with parties - 18. Admission by strangers
-19. Admission by person referred to by party - 20. Admissions
made without prejudice — 21. Confessions defined - 22. Confession
caused by inducement, threat, or promise, when irrelevant in
Criminal Proceeding -23. Confessions made upon oath, &c. - -
24. Confession made under a promise of secrecy -25. Statements
by deceased persons when deemed to be relevant - 26. Dying
declaration as to cause of death - 27. Declarations made in the
course of business or professional duty -- 28. Declarations against
interest - 29. Declarations by testators as to contents of will-
30. Declarations as to public and general rights ― 31 . Declarations
as to pedigree - 32. Evidence given in former proceeding when
relevant 65-90
Section II. - ·Statements in Books, Documents, and Records, when relevant.
ART. 33. Recitals of public facts in statutes and proclamations--
34. Relevancy of entry in public record made in performance of
duty - 35. Relevancy of statements in works of history, maps,
charts, and plans - 36. Entries in bankers' books - 37. Excep-
tions to article 36-38. Judges' powers as to bankers' books -
99
39. " Judgment ' - - 40. All judgments conclusive proof of their
legal effect ― 41. Judgments conclusive as between parties and
privies of Facts forming ground of judgment — 42. Statements in
judgments irrelevant as between strangers, except in Admiralty
Cases - 43. Effect of judgment not pleaded as an estoppel-
44. Judgments generally deemed to be irrelevant as between stran-
gers - 45. Judgments conclusive in favor of Judge - 46 . Fraud,
collusion, or want of jurisdiction may be proved - 47. Foreign
judgments 90-102

CHAPTER V.
OPINIONS, WHEN RELEVANT AND WHEN NOT.
ART. 48. Opinion generally irrelevant -49. Opinions of experts on
points of science or art — 50. Facts bearing upon opinions of ex-
CONTENTS . ix

perts -
— 51. Opinion as to handwriting, when deemed to be rele-
vant 52. Comparison of handwritings 53. Opinion as to
existence of marriage, when relevant -
— 54. Grounds of opinion,
when deemed to be relevant . . Page 103-110

CHAPTER VI.
CHARACTER, WHen deemed to be Relevant and when not.
ART. 55. Character generally irrelevant -56. Evidence of character
in Criminal Cases - 57. Character as affecting damages, 111-113

PART II .

ON PROOF.

CHAPTER VII.
FACTS PROVEd otherwise THAN BY EVIDENCE -JUDICIAL NOTICE.
ART. 58. Of what Facts the Court takes judicial notice - 59. As to
proof of such Facts — 60. Evidence need not be given of Facts
admitted .. 114-118

CHAPTER VIII.
OF ORAL EVIDENCE.
ART. 61. Proof of Facts by oral evidence - 62. Oral evidence must
be direct 119

CHAPTER IX.
OF DOCUMENTARY EVIDENCE PRIMARY AND SECONDARY, AND
ATTESTED DOCUMENTS.
ART. 63. Proof of contents of documents — 64. Primary evidence -
65. Proof of documents by primary evidence - 66. Proof of exe-
cution of document required by law to be attested - 67. Cases
in which attesting witness need not be called - 68. Proof when
attesting witness denies the execution - 69. Proof of document
not required by law to be attested -70 . Secondary evidence --
71. Cases in which secondary evidence relating to documents may
be given -72. Rules as to notice to produce • 120
X CONTENTS.

CHAPTER X.
PROOF OF PUBLIC DOCUMENTS.
ART. 73. Proof of public documents - 74. Production of document
itself 75. Examined copies -76. General records of the realm -
77. Exemplifications - 78 . Copies equivalent to exemplifications --
79. Certified copies -80 . Documents admissible throughout the
Queen's dominions -81 . Queen's printer's copies -82. Proof of
Irish statutes — 83. Proclamations, Orders in Council, &c . -84.
Foreign and colonial acts of state, judgments, &c. . Page 129-137

CHAPTER XI.
PRESUMPTIONS AS TO DOCUMENTS.
ART. 85. Presumption as to date of a document -86 . Presumption
as to stamp of a document - 87. Presumption as to sealing and
delivery of deeds -88 . Presumption as to documents thirty years
old - 89. Presumption as to alterations 138-141

CHAPTER XII.
OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE, AND OF
THE MODIFICATION AND INTERPRETATION OF DOCUMENTARY BY
ORAL EVIDence.
ART. 90. Evidence of terms of contracts, grants, and other disposi-
tions of property reduced to a documentary form -91. What
evidence may be given for the interpretation of documents—
92. Cases to which articles 90 and 91 do not apply . . . 142–151

PART III.

PRODUCTION AND EFFECT OF EVIDENCE. $

CHAPTER XIII. 1
BURDEN OF PROOF.
ART. 93. He who affirms must prove - 94. Presumption of innocence
- 95. On whom the general burden of proof lies - 96 . Burden of
proof as to particular Fact — 97. Burden of proving Fact to be
proved to make evidence admissible . . 152-157
CONTENTS.
.
凶

CHAPTER XIV.
ON PRESUMPTIONS AND ESTOPPELS.
ART. 98. Presumption of legitimacy - 99. Presumption of death from
seven years' absence - 100. Presumption of lost grant - 101 . Pre-
sumption of regularity and of deeds to complete title - 102. Estoppel
by conduct - 103. Estoppel of tenant and licensee - 104. Estoppel
of acceptor of bill of exchange-- 105. Estoppel of bailee, agent,
and licensee · Page 158-165

CHAPTER XV.
OF THE COMPETENCY OF WITNESSES.
ART. 106. Who may testify - 107. What witnesses are incompetent
- 108. Competency in Criminal Cases - 109 . Competency in pro-
ceedings relating to adultery - 110. Communications during mar-
riage - 111. Judges and advocates privileged as to certain questions
112. Evidence as to affairs of State - 113. Information as to com-
mission of offences - 114. Competency of jurors — 115. Profes-
sional communications - 116 . Confidential communications with
legal advisers -117. Clergymen and medical men -118. Produc-
tion of title-deeds of witness not a party - 119. Production of
documents which another person, having possession , could refuse
to produce 120. Witness not to be compelled to criminate him-
self- 121. Corroboration, when required - 122. Number of wit-
nesses 166-178

CHAPTER XVI.
OF TAKING ORAL EVIDENCE, AND OF THE EXAMINATION OF
WITNESSES .
ART. 123. Evidence to be upon oath, except in certain cases—
124. Form of oaths ; by whom they may be administered - 125. How
oral evidence may be taken -126 . Examination in chief, cross-
examination, and re-examination - 127 . To what matters cross-
examination and re-examination must be directed - 128. Leading
questions - 129. Questions lawful in cross-examination - 130. Ex-
clusion of evidence to contradict answers to questions testing
veracity - 131. Statements inconsistent with present testimony
may be proved - 132. Cross-examination as to previous statements
in writing - 133. Impeaching credit of witness--134. Offences
against women - 135. What matters may be proved in reference
xii CONTENTS .

to declarations relevant under articles 25-34-136. Refreshing

memory - 137. Right of adverse party as to writing used to re-
fresh memory -- 138. Giving, as evidence, document called for and
produced on notice - 139. Using, as evidence, a document, pro-
duction of which was refused on notice · Page 179-193

CHAPTER XVII.
OF DEPOSITIONS .

ART. 140. Depositions before magistrates -141. Depositions under

30 & 31 Vict. c. 35, s . 6-142. Depositions under Merchant Shipping
Act, 1854 · 194-197

CHAPTER XVIII.
OF IMPROPER ADMISSION AND REJECTION OF EVIdence.
ART. 143 • 198

APPENDIX OF NOTES 200

INDEX · · 247
TABLE OF CASES CITED.

A. PAGE
PAGE Baron de Bode's Case • 104
Abney v. Kingsland • • 45 Barrett v. Long . 60
Abrams v. Pomeroy · · 138 Barrs v. Jackson 96
Adams v. Davidson • · 67 Barry v. Ryan • 122
v. Lloyd . 173 Barton v. Dawes 144
v. Seitzenger 82 Bateman v. Bailey 52
v. Swansea 88 Bauerman v. Radenius 211
Adie v. Clark 147 Bayliss v. A. G. . . : 148
A. G. v. Bryant 169 Beardsley v. Wildman 186
v. Hitchcock 39, 186 Beatson v. Skene • · · 169
Aldous v. Cornwell · 30, 140 Beatty v. Clement · 82
Alivon v. Furnival . • 126 Beaufort v. Crawshay 105
Allen v. Dundas 95 Bedford ( Duke of) v. Lopes 48
- v. Prink • 145 Beedy v. Macomber 81
Allgood v. Blake 227 Beeston's Case • • • J 90
Alner v. George . 211 Bell v. Morrison . · 70
Am. Fur. Co. v. United States 46 Benham v. Dunbar . 42
Amos v. Hughes 153 Berkeley Peerage Case 88, 217
Anderson v. Parker · • • 88 Bersh v. State 58
v. Weston • · 138 Biddle v. Bond • 165
Angel v. Duke 145 Birt v . Barlow 109
Annapolis R. R. Co. v. Gantt 56 Blackett v. Royal Exchange 148
Annesley v. Anglesea . 172 Blair v. Pelham 105
Appleton v. Braybrooke . 223 Blatner v. Weis . 81
Armoury v. Delamire . · 155 Bliss v. Brainard 156
Aveson v. Lord Kinnaird 44, 61 Bob v. State 52
Boddy v. Boddy . 42
Bogart v. Brown 193
B. Bolton v. Liverpool 172
Bonelli, Goods of • 105
B. & S. R. R. v. Woodruff · 56 Boon v. State 198
Bacon v. Chesney 70 Boston & Wor. R. R. Co. v.
Bailey v. Bidwell 123 Dana . 44
v. Haines 198 Bottomley v. United States 58
v. Taylor 141 Boyce v. Cheshire R. R. Co. 56
Baird v. Daly 38 Boyden v. Burke • 44
v. Gillett 39 Boyse v. Rossborough 54
Balentine v. White . 175 Bradley v. James 82
Bank of Hindustan, Allison's Brain v. Preece . 80
Case . • 97 Brander v. Ferridy . 60
Bank of Utica v. Mersereau 171 Brandt v. Klein . 128
Barber v. Merriam . 61 Brassington v. Brassington . 173
xiv TABLE OF CASES CITED.

PAGE PAGE
Breton v. Cope 122 Chaffee v. United States . 36, 81
Bright v. Pennywit 128 Chamberlin v. Wilson • 175
Bristow v. Segueville . 104 Chambers v. Bernasconi . 80
Brittain v. Kinnaird 101 Chandler v. Grieves 117
Broad v. Pitt . 236 Chandler v. Jamaica Pond
Brobston v. Cahill 109 Aqueduct Corp. 42
Brogg's Case . 89 Chandler v. Roeder • 42
Brooks v. Acton 40 Chapel v. Washburn 70
Brough v. Lord Scarsdale 48 Chapman v. Chapman 87
Brown v. Bulkley • 154 Charleston R. R. Co. v. Blake 69
v. Com, 79 Charlton v. Coombes • 171
v. Foster . 171 Charter v. Charter . • 226
v. Woodman 120 Chasemore v. Richards • 161
Broyles v. State . 51 Christy v. Kavanagh • • 157
Brubaker v. Taylor 184 Chubb v. Salomons 169
Bruce v. Nicolopulo 146 Ciocci v. Ciocci • 38
Bull v. Loveland 125, 174 Clapp v. Foster • 72
Bullard v. Pearsall . 188 v. Ingersoll 82
Bunnell v. Butler 183 Clay v. Langslow 212
Burgess v. Langley 170 Clayton v. Lord Nugent 148
Burke v. Miller • 47 Cleave v. Jones 76
Burlen v. Shannon . 95 Cleaveland v. Grand Trunk
Burnham v. Morrissey 173 R. R. Co. 56
Burr's Trial • 175 Clementi v. Golding 117
Burton v. Driggs 126 Clifford v. Burton • · 69
Bush v. Guion 62 Clinton v. Estes . 47
Butler v. Collins 58 Closmadeuc v. Carrel . 139
v. Millet . 66 Coale v. H. & St. J. R. R. Co. 56
v. Moore . 235 Coffin v. Bucknam . 82
Cole v. Sherard 116
C. Coleman v. Com . 105
v. Fobes 70
Caddy v. Barlow 95 v. People . 58
Caermarthen Railway Co. v. Colling v. Trewick . 120
Manchester Railway Co.. 70 Collins v. Bayntun . 122
Call v. Dunning . 122 v. Dorchester 56
Calvert v. Flower • · 193 Com. v. Billings . 41
Calypso, The . 100 v. Bonner 186
Campbell, Admr., v. Chicago, v. Coe 59
Rock Island, & Pac. R. R. v. Cuffee 73
Co. • • 39 v. Dana 76
Campbell v. People · 39 v. Davis 43
Carleton v. Patterson 44 v. Drake 74
Carlisle v. Hunley 187 v. Harwood 54
Carr v. L. & N. W. Railway . 231 v. Howe • 76, 176, 183
v. McPike 45 v. Jennings 53
Carter v. Boehm 104 v. King 76
v. Buchanan 44, 205 v. Knapp • • 75
Cartwright v. Green 175 v. Lyden · 183
Castrique v. Imrie 102, 219 v. Mason 51
Catherwood v . Caslon 109 v. McCarthy .· 59
Catlin v. Springfield F. Ins. v. Mead 170
Co. 154 v. Morgan 175
TABLE OF CASES CITED. XV

PAGE PAGE
Com. v. Morrell . 183 Doe v. Barton 164
v. Pomeroy 156 v. Baytup 164
v. Reid . 176 v. Beaviss 83
v. Shaw 176, 185 v. Brydges . 98
v. Sparks 176 v. Catomore 141
v. Stearns . 58 v. Coulthred 154
v. Stone 59 v. Date . 173
v. Sturtivant . 103 v. Derby 89
v. Tolliver . 50 d. Devine v . Wilson . 160
v. Walker . 52 v. Edwards • 116
v. Webster 50 d. Hammond v. Cooke . 161
v. Welch 188 v. Hiscocks . 149, 226
v. Williams 105 v. Hodgson . 193
v. Wilson . 192 v. Keeling 105
Conrad v. Griffey 187 v. Kemp 45
Conyers v. State 156 v. Lloyd . 117
Cook v. Brown 187 v. Needs . 150, 226
Coole v. Braham 71 v. Palmer 141
Cooper v. Tamswel l 123 v. Pegg 164
Cope v. Cope . 159 v. Pulman 48
Copperman v. People 58 v. Ries 128
Cory v. Bretton . 72 v. Ross 129
Coulson v. Walton . 141 v. Sackermore 106
Coulter v. Am. Exp . Co. 188 v. Smyth 164
Craig v. State 190 v. Tatham 89, 219
Crease v. Barret 85 v. Turford 79
Cronk v. Frith 22 v. Voules 84
Crossley v. Dixon 165 v. Wils on 160
Crouse v. Miller . 65 Doncaster ( Mayor of) v. Day 89
Curry v. Walter . 168 Dover v. Child 96
Dowling v. Dowling 37
Draper v. Snow . 142
D. Drennen v. Lindsey 187
Du Barre v. Livette 235
Da Costa v. Jones • 203 Duchess of Kingston's Case 173
Dana v. Boyd • 128 Dunn's Case . 58
Danforth v. Carter 70 Durell v. Evans . 121
Daniel v. Pitt 71 Durgin v. Danville . 157, 188
Darling v. Westmoreland 39, 56 Dwight v. Brown 33
Dartmouth (Lady) v. Rob- Dwyer v. Collins .127, 222
erts 223
Davenport v. Ledger 186
Davidson v. Cooper 3
· 0, 140 E.
Davies v. Lowndes . 81
v. Waters 174 Earl's Trust 116
Davis v. State 89 Eason v. Chapman . 190
Dazey v. Mills 66 Eddy v. Gray 38
De Thoren v. A. G. 109 Edington v. Mut. L. Ins. Co. 61
Devote v. Com. 58 Egan v. Bowker . 51
Dezell v. Odell 165 Eiker v. McAllister • 63
Dillingham v. Snow 86 Elkin v. Janson 156
Di Sora v. Phillipps • 104 Ennis v. Smith 94
Dixon v. Hammond 165 Entick v. Carrington 125
xvi TABLE OF CASES CITED.

PAGE PAGE
Eskridge v. State 76 Goodtitle v. Baldwin · 160
Evans v. Beattie • • • 70 Gorrissen v. Perrin · • 148
v. Rees • 215 Gosling v. Birnie · 165
Goss v. Lord Nugent 165, 225
Grand Tr. R. R. Co. v. Rich-
ardson 56
F. Gray's Case 78
Great Falls Co. v. Worster 86
Fail v. McArthur 44 Great Western R. R. v. Ba-
Fairlie v. Hastings 212 con 156
Faucet v. Nichols 62 Green v. New River Co. 95
Fauts v. State 73 Greenough v. Eccles 188
Fenn's Case 89 v. Gaskell . 234
Fenwick v. Thornton 67 Griffin v. Mont. R. R. Co. 69
Feversham v. Emerson 99 Guild's Case · • · 75
Few v. Guppy 174 Guy v. West • • • 154
Field v. N. Y. Central R. R.
Co. 56
Fitzpatrick v. Fitzpatrick 149 H.
Flannigan v. People 156
Flitters v. Allfrey 96 Haigh v. Belcher · 43
Follett v. Jefferyes 171 Halifax Guardians v. Wheel-
Foote v. Hayne . 171 wright 231
Forbush v. Goodwin 40 Hall v. Bainbridge 134
Foulkes v. Chadd 107 v. Hill 150
Fraternal Mut. Life Ins. Co. Hamilton v. People 103, 190
v. Applegate · • 61 Hammond v. Bradstreet 86
Frazier v. Hunter • 86 Hardman v. Wilcock • 165
Frear v. Evertson • · · • 67 Hardy v. Merrill • 103
Freeman ". Cooke 162,231 Hargrave v. Hargrave 158
Fry v. Wood . · • • • 89 Harratt v. Wise . 61
Fuller v. Fuller · · · · 180 Harriman v. Brown 81
v. Stowe 45
Harrington v. Lincoln 72
Harris v. Holmes 43
G. Hart v. Powell · 45, 65
Harwood v. Mulry . 80
Galena R. R. Co. v. Fay . 44, 187 Hawes v. Marchant 162
Garber v. State . 44 Hawkes v. Charlemont 56
Garland v. Jacomb 164 Head v. Taylor • 37
Geralopulo v. Wieler 121 Heath v. Com. 57
Gerish v. Chartier · 60 Hedge v. Clapp 187
Gery v. Redman 50 Helyear v. Hawke 69
Geyer v. Aguilar 29, 145 Hendrickson v. People 76
Gibbs v. Tinsley 187 Henry v. Bishop 123
Gibson v. Am. Mut. Life Ins. Hetherington v. Kemp 63
Co. 39 Higham v. Ridgway 82, 214
v. Hunte r 60 Hiscocks v. Hiscocks 227
Gillies v. Smither • 122 Hoener v. Koch . 106
Gleadow v. Atkin 81 , 215 Holcombe v. Hewson 55
Glynn v. George 164 Holler v. State 39
Godard v. Gray • • 102, 219 Holt v. Crume 43
Goodall v. State . 191 v . Squire 70
TABLE OF CASES CITED. xvii

PAGE PAGE
Hope v. Liddell . . 173 Kemp v. King • 174
Hopewell v. De Pinna 159 Kempland v. Macaulay • . 71
Hopkins v. Lee 102 Kendricks v. State . . 89
Horbuck v. State • 39 Kennedy v. Doyle 80
Hough v. Doyle . 69 Kensington v. Inglis · 192
Houlston v. Smith 138 Ketchingman v. State 187
How v. Hall 128 Kimball v. Huntington 67
Howard v. Hudson . 163 Kingston (Duchess of) Case 98,
v. Sexton 60 173
Howe v. Cole 162 Kinney v. Farnsworth 86
Hume v. Scott 190 Kinsman v. Parkhurst 165
Hunter v. Atkins 154 Kirkstall Brewery Co. v.
- v. Leathley 173 Furness Railway Co. 69
Hurst v. Leach · 150 Knight v. Clements 141
Huston v. Schindler • · 109 Knights v. Wiffen 163
Hutchins v. Kennel • 109 Koster v. Reed 155
Hutchinson v. Bernard • 182 Kurtz v. Hibner . • 149

I.
L.
Ill. Cen. R. R. Co. v. Sutton 61 54
Insurance Co. v. Moody . • 45 Lady Ivy's Case 56
Landell v. Hotchkiss
Ireland (Bank of) v. Evans . 231 Langhorn v. Allnutt 69
Iron Mt. Bank v. Murdock . 39 155
Lawton v. Sweeney
Leconfield v. Lonsdale 160
J. Lee v. Kilburn 60
-v. Pain 149
Jackson v. Boneham · • 88 Leeds v. Cook 128
v. Browner • 87 Leggatt v. Tollervey 76, 95
v. Smit h · 39 Legge v. Edmonds . 159
Jaggers v. Binning . • 70 Lewis v. Kramer 80
Janvrin v. Scammon · 175 Ley Barlow 174
Jarboe v. Kepler · 187 Lindley v. Lacey 145
Jarrett v. Leonard • 71 Little's Case 45
Jewell v. Jewell . · • 87 Lloyd v. Mastyn 76
Johnson v. Kershaw • 126 Londonderry v. Andover 88
v. Sherwin · 45 Longabaugh v. Virginia, &c.
Jones v. Phelps . 123 R. R. Co. • • 56
v. State 41 Losee v. Losee 65, 191
v. Stevens · · 112 Lothian v. Henderson . • 97
v. Williams • · 45 Lothrop v. Greenfield . · • 63
Jordan's Case • · 45 Lucas v. De la Cour · • • 69
Luttrell v. Regnal • • • • 188
K. Lynch v. Com. • · • · · 156
488

Kearney v. Farrell . • 44
Keenan v. State . • 39 M.
Kelley v. Jackson • • 36
v. People 52 v. Moor 112
Kelsey v. Universal Life Ins. McAllister's Case 43
Co. 61 McCreary v. Hood . 128
b
xviii TABLE OF CASES CITED.

PAGE PAGE
McDaniel v. State 78 Nelson v. State 44
McDonald v. Savoy 56 Nepean v. Doe • · 159
Macdougall v. Purrier 161 v. Knight 159
McKenna v. Bliss · 117 Newcastle ( Duke of) v . Brox-
McMahon v. McElroy • 159 towe · 86
McNeil v. Hill 163 Newcomb v. Griswold 186
Maguire v. Middlesex R. R. New Haven v. Mitchell • · 138
Co. · 56 New Milford v. Sherman 45
Maitland v. Cit. Nat. Bank . 188 Newton v. Chaplin . • 127
Malcolmson v. O'Dea . 204 v. Mut. Ben . Life
Malpas v. Clements 63 Ins. Co.. • · 44
Mann v. Langton • • 202 Noble v. Ward • 225
Many v. Jagger . 67 Noden v. Murray · · 121
Marine Investment Co. v. Noonan v. State . · 52
Haviside 139 Nutting v. Page . 44
Marston v. Downes • · 125
Matthews, In re . · • 115
Mehan v. State 156 0.
Metcalf v. Van Benthuysen . 85
Meldrum v. Clark 138 Ochsenbein v. Papelier • 102
Melhuish v. Collier . 188 O'Connor v. Halinan · • 105
Merkle v. State . 192 Omichund v. Barker . · • 180
Meyer v. Sefton . 126 Osgood v. Nichols · • · • 165
Miles v. Oddy 125 Otterson v. Hofford · 65
Miller v. Stevens 146
v. Travers 149
Mills v. Barber 154 P.
Minet v. Morgan • 172
Montgomery v. Pickering 173Packet Co. v. Clough 69
Mitchell v. Sellman 40Paddock v. Forester · 72
Mobile R. R. v. Ashcroft . 56Page v. Faucet 117
Monroe v. Napier 67Palmer v . Trower 186
Moore v. Conn. &c . R. R. Co. 69 Papendick v. Bridgewater 84
Moppin v. Etna Axle, & c . Patchin v. Astor Ins. Co. 187
Co. · 43Patton v. Freeman . 192
Morgan v. Griffiths 145Pearce v. Hooper · 128
Moriarty v. L. C. & D. Rail- Pearse v. Jenkins 81
way Co. 50, 66, 211 - v. Pearse • 172
Morris v. Davies 159Penn. R. R. Co. v. Stranahan 56
v. Eastham 56People v. Corbin 58
v. Miller . · 109 v. Doyell 187
Morrissey v. Inghamn 41 v. Garbutt 156
Mortimer v. McCallan 128 v. Grunzig 78
Muggleton v. Barnett . 49 v. Horton 176
Munn v. Godbold 124, 126 v. Jacobs 188
Mut. Ben. Life Ins. Co. v. v. Manning . 186
Tisdale . 95 v. Mariano Soto • 157
v. Marion 58
v. Mather · 175
N. v. McCoy • 75
v. McMahon 76
355

Needham v. Bremner 95 v. Real · 103

Neil v. Jakle . 51 v. Robinson 76
TABLE OF CASES CITED. xix

PAGE PAGE
People v. Safford 188 R. v. Baker 79, 214
v. Scroggins 39 - v. Baldry 213
v. Sheriff 171 v. Barnard 53
v. Stanley 47 - v. Bathwick 175
v. Vernon 44 - v. Bembridge 11
v. Williams . 198 - v. Bispham 190
Petch v. Lyon 70 - v. Blake 47
Petrie v. Nuttall 101 - v. Bliss . 86
Phelps v. Prew 174 - v. Boswell 74
Phené's Trust, re 159 - v. Boyes 175
Philips v. Bury . 95 - v. Burke 39
Phillips v. Allen 159 - v. Butler 154
Pickard v. Sears 162, 231 - v. Canning 63
Pickering v. Noyes . 173 - v. Castleton 126
Picton's Case 104 - v. Cheadle 151 , 229
Pierce v. Hoffman 58 - v. Chidley & Cummins 76
Piers v. Piers 109 - v. Clapham 80
Pigott's Case 140 - v. Clarke 190
Pim v. Curell 86 - v. Clewes • · 49, 75
Pipe v. Fulcher 86 - v. Cliviger 175
Piper v. Chappell 115 - v. Cokin 42
v. Pearson 101 - v. Cole . 55
Plaxton v. Dare . 86 - v. Cooper • 59
Plumer v. Brisco 123 - v. Cotton · 62
Plunkett v. Cobbett 169 - v. Cress well 161
Pocock v. Billings 67 - v. Crittenden 41
Poole v. Perritt . 175 - v. Davis 57
v. Warren 123 -v. Derrington 76
Pope v. State 89 - v. Donellan 54
Potter v. Sewall 143 - v. Doolin 183
Powell, Ex parte. In re - v. Dove 106
Matthews 49, 115 - v. Drummond 191
Pratt v. Patterson 183 - v. Dunn 57
Preston's Case 60 v. Edmunds 51
Price v. Torrington 80, 214 v. Ellis . 57
Prindle v. Glover 38, 54 v. Eriswell 89
Pritt v. Fairclough • • 80 v. Exeter • 84
Pym v. Campbell 145 v. Forster . 58
v. Foster 44
v. Foulkes 44
Q. v. Francis . 59
v. Francklin 91
Queen's Case, The 187 v. Garbett 75
Quick v. Quick . 85 v. Garne r 62
Quinsigamond Bk. v. Hobbs 190 v. Gazard 168
v. Geering 62
v. Gilham 74
R. v. Gordon 141
v. Gould 75
Rea v. Missouri 184 v. Gray 62, 207
R. v. 202 - v. Griffin 236
v. Adamson 151 - v. Halliday • 175
- v. All Saints, Worcester . 175 v. Harborne 159
XX TABLE OF CASES CITED .

PAGE PAGE
R. v. Hardy • 47, 169 R. v. Walker . 52
-v. Harringworth 122, 221 - v. Warwickshall 75
-v. Hartington Middle - v. Watson 121 , 183
Quarter • 96 -v. Whitehead • 183
v. Haworth 125 - v. Widdop • 76
- v. Heyford 84 - v. Woodcock . 79
- v. Hind 78 - v. Wylie 57
- v. Hogg 89 Radcliffe v. Fursman 172
-v. Holmes 191 Railroad Co. v. Smith · 198
- v. Holt . 59 Randall v. Lynch • 123
v. Horne Tooke . 108 Rawson v. Haigh 45, 52
v. Hull . 145 Rearden v. Minter 128
v. Hutchinson 78 Reed v. People 186
v. Jarvis 156 Reels v. Knights 37
v. Jeffries . 117 Reeve v. Wood . 167
v. Jenkins 78 Redd v. Muscogee R. R. Co. 162
v. Llanfaethly 128 Reffell v. Reffell · 142
- v. Lloyd 74 Reformed Dutch Church v.
- v. Long 57 Ten Eyck . • 64
v. Lord George Gordon 54 Relyea v. New Haven · 165
v. Lord Thanet • 234 Rhoades v. Selin · 128
v. Luffe • 159 Richmond v. Thomaston 45
- v. Lumley • 159 -v. Vassalborough 45
- v. Mainwaring 109 Roath v. Driscoll · · 161
v. Mansfield 159 Rob v. Hackley . • • · 187
-v. Martin 191 Roberts v. Doxen • • 126
v. Mead 78 v. Johnson 183
v. Moore 74 Robinson v. Hutchinson · 67, 187
- v. Mosley 78 v. Yarrow • 164
v. Oddy 57 Rockwell v. Taylor • • • 69
v. Orton 185 Roe d. West v. Davis . 121
-v. Palmer . 30, 64, 105 v. Neal • 88
-v. Parbhudas and Others 202 Rogers v. Allen . 48
- v. Patch • 50 Rose v. Bryant 82
- v. Payne • 167 Roseboom v. Billington 82
- v. Pike . • • 191 Rosenbaum v. State 111
- v. Reason 73 Rowland v. Doe 39
-v. Reev e 73 Rowley v. L. & N. W. Rail-
-v. Richardson 62, 169 way · 104
- v. Roden • 62 Ryall v. Hannam 149
-v. Rowton 30, 219
-v. Russell 233
- v. Scaife 89, 194 S.
- v. Scott 76
v. Sparkes 235 Sanderson v. Coleman • 164
v. Stephenson 194 Sandilands, re 139
v. Stone 156 Sargent v. Sargent 67
v. Sutton 91 Sasser v. Herring 86
v. Tait 195 Schoeffler v. State 76
v. Thompson 167 Scott v. Miller 175
v. Thornhill 118 v. Ratcliff. 88
v. Turner . 100 Sears v. Wingate 165
v. Twyning · .153 Shaser v. State . · 59
TABLE OF CASES CITED. xxi

PAGE PAGE
Shaw v. Emery 190 State v. Graham 76
Shearer v. Harber • 89 v. Hays 198
Shedden v. Att'y- Gen. 88 v. Hirsch 156
v. Patrick 39 v. Hodges . 42
Sheen v. Bumpstead 60 v. Howard 45
Sheffill v. Van Deusen 39 v. Jones 76
Shepard v. Geddings 128 v. Knapp 50
Sheridan v. New Quay 165 v. Littlefield 177
Shields v. Boucher 217 v. Pike 103, 156
Shoemaker v. Benedict • 70 v. Reed 50
Shore v. Wilson 148 v. Ross . 47
Short v. Lee . 214 v. Sagen 187
Shrewsbury v. Hayward • 42 v. Shackford . 62
Shrewsbury Peerage Case · 87 v. Shelledy 44
Shriedly v. State · 58 v. Stallings 190
Sievewright v. Archibald • 121 v. Terrell . 79
Simmons v. Rudall • · · 141 v. Tilghman . 105
Simpson v. Dendy · • • · 46 v. Vaigneur 75
Sinclair v. Baggallay · 138 v. Wagner 79
v. Murphy 165 v. Watkins 37
Skilbeck v. Garbett 68 v. Welch 176
Slane Peerage Case 130 v. Wentworth 57, 74
Slatterie v. Pooley . 30, 120 v. Williams 50
Slattery v. People 38, 51 v. Wilson . 79
Sloan v. People . • 41 Stead v. Heaton 83
Smith v. Blakey 80 Stearns v. Hall 143
v. Montgomery 38 Stein v. Bowman 87
v. Morgan 67 Steinhouse v. State 38
v. Prewitt 86 Stephens v. Baird • 162
v. People . 187 Stoate v. Stoate 97
v. Ward 143 Stobart v. Dryden 64
v. Whippingham 70 Stockfleth v. De Tastet 72
v. Wilso n • 148 Stokes v. People 39
Solomon v. Dreschler . • 156 Stolp v. Blair . 38, 187
Spargo v. Brown 212 Stone v. People . 111
Spears v. Ward . • 146 Stover v. People 175
Speer v. Coate • 86 Stowe v. Querner 127
Spring v. Eve 117 Stringer v. Gardiner 150
State v. Alford · 38, 198 Sugden v. St. Leonards 84
v. Arnold . 154 Summers v. State 89
v. Berg • 140 Sumner v. Cook . • 67
v. Boswell 190 Sussex Peerage Case . 84, 192
v. Brewster 42 Swan v. British and Austra-
v. Briggs 176 lasian Co. 163, 231
v. Broughton 76 Swift v. Mass. Mut. L. Ins.
v. Crawford 156 Co. 44
v. Dudley • 176
v. Ela 175
v. Fitzhugh 79 T.
v. Ford 198
v. Foste r 156 Talbot v. Hodson . • 124
v. Gardner • 176 Taylor v. Barclay · • • 117
v. Garrett . 75 v. Foster · 171
xxii TABLE OF CASES CITED.

PAGE PAGE
Taylor v. Gould 81 Wedley v. Baugh 161
Thayer v. Thayer 42 Weeks v. Sparke • 85, 216
Thomas v. Newton . 176 Weidler v. Farmers' Bank 43
Thompson v. Drake 66 Welch v. Mandeville • 67
v. Stevens 83 Welsh v. State 156
Thorington v. Smith 146 Westfall v. Erie R. R. Co. • 38
Thorndike v. Boston • 45, 198 Weston v. Eames 144
Thurtell v. Beaumont . • 153 Wetherell v. Mar. Ins. Co. 162
Tilton v. Beecher . 168, 176 Wharam v. Routledge 193
Tracy v. McMannus 38 Wheat v. State . 156
Trelawney v. Coleman 61 Wheelden v. Wilson • 33
Tucker v. Welch 187 Whitaker v . Izod 173
Turner v. Baldwin . 48 v. Jackson 99
Turquand v. Knight 171 Whitcomb v. Whitting 70
Tyler v. Ulmer 95 White v. Graves 42
v. State • 75
Whittuck v. Walters 88
U. Whyman v. Garth 122, 222
Wiggins v. United States 39
Unis v. Charlton 187 Wigglesworth v. Dallison 143, 225
United States v. Chapman 75 Wilbur v. Flood . 186
v. Flowery 43 Williams v. Bridges 71
v. Gooding . 156 v. East India Co. . 153
v. McComb 89 v. Graves . 83
v. Moses 169 v. State 46, 89
v. Teschmaker 117 v. Wood 138
Willoughby v. Willoughby 117
Wilson v. Anderton 165
V. v. Brownlee 88
v. Rastall 171
Vaise v. Delaval 170 Winchell v. Edwards *50
Van Buren v. Wells 43 Wing v. Angrave 160
Van Kuren v. Parmelee 70 v. Chesterfield 198
Veiths v. Hagge • · · 153 Woodcock v. Houldsworth 63
Volant v. Soyer . • • · 174 Woodman v. Buchanan • 37
Vooght v. Winch · • • • 99 Worthington v. Scribner 169
Vose v. Morton . · • 102 Wright v. Doe d. Tatham 52, 108,
198
v. Hicks • • 187
W. v. State • 78

Wagner's Case • 117

Wallis v. Littell . 145 Y.
Ware v. Ware · 187
Warner v. Lucas 175 Young v. Clare Hall . • 214
Warren v. Warren 63 v. Foster . • · • 109
Webb v. Bird 161 v. Grote . • 163, 231
TABLE OF STATUTES CITED.

PAGE PAGE
7 James I. c. 12 · . .98, 240 14 & 15 Vict. c. 99, ss. 9, 10,
20 Ch. II. c. 3 • • 160 11, 19. 133
7 & 8 Will. III. c. 3, ss . 2, 4 177, 241 s. 14. . 132
2 Geo. III. c. 28 101 8. 16 . 180
13 Geo. III. c. 63 181 16 & 17 Vict. c. 83, ss. 1 , 2 . 233
ss. 40, 42, 44 180 s. 3 • . 168
39 & 40 Geo. III. c. 93 . 178, 241 17 & 18 Vict. c. 104, s. 270 196
41 Geo. III. c. 90, s. 9 • 134 17 & 18 Vict. c. 125, ss. 22, 27 243
46 Geo. III. c. 37 . • 176, 241 s. 2 . 190
7 Geo. IV. c. 64, s. 4 • 196 ? 8. 20. . 179
7 & 8 Geo. IV. c. 28, s . 11 111 , 240 -, ss . 22, 23 238
9 Geo. IV. c. 14, s. 1 . · 68 -, ss . 22-27 243
8. 3 • · 82 s. 24. . 189
1 Will. IV. c. 22 · 181 s.26 124, 222
3 & 4 Will. IV. c. 42 240 s. 27 . 108
5 & 6 Will. IV. c. 50, s . 100 233 18 & 19 Vict. c. 111 , s. 3 165
6 & 7 Will. IV. c. 111 240 19 & 20 Vict. c. 97, s . 13 68
1 & 2 Vict. c. 94, s . 1 , 12, 13. 130 s. 14 · . 68
8. 13 · • 132 24 & 25 Vict. c. 66 179
1 & 2 Vict. c. 105 180 ss. 1, 2, 3 243
3 & 4 Vict. c. 26 · • · 233 24 & 25 Vict. c. 96, s . 116 112, 240
3 & 4 Vict. c. 105 181 24 & 25 Vict. c. 99, s . 37 112, 240
6 & 7 Vict. c. 85 • • 241 28 Vict. c. 18 · 240, 244
8 & 9 Vict. c. 10, s. 6 177, 241 ss. 1, 7 • 124, 222
8 & 9 Vict. c. 113 241 ss. 1-8 • • 244
(preamble ) 131, s. 3 . • · 190
241 8. 5 189
s. 1. 132, 241 ss. 3-8 • 244
s. 2. 115, 241 s. 5 • 189, 244
s. 3 133 s. 6 189, 244
ss. 4, 5, 6, 7 241 s. 8 108
11 & 12 Vict. c. 42 213, 240 s. 18 • 107
s. 17 195 28 & 29 Vict. c. 63, s. 6 137
ss. 40, 42, 28 & 29 Vict. c. 104, s. 34 . • 167
45 . 180 30 & 31 Vict. c. 35, s. 6 195, 240
13 & 14 Vict. c. 21 , ss. 7, 8 ·. 114 31 & 32 Vict. c. 37 • • · · 134
14 & 15 Vict. c. 99, ss . 1-20 .132, ss. 1, 6 . · 244
242 8. 2 • • • 134
s. 2 • • 233 32 & 33 Vict. c. 68, ss . 1-6 • 245
s. 3 • • 233 8. 2 • • 176
-, s. 7 • 136 -, s. 3 . 168, 233
xxiv TABLE OF STATUTES CITED.

PAGE PAGE
32 & 33 Vict. c. 68, s. 4 179, 232 37 & 38 Vict. c. 96 • 233
33 & 34 Vict. c. 49, s. 1 179, 245 38 & 39 Vict. c. 77 180, 198
ss. 2, 3 . • 245 39 & 40 Vict. c. 48 • . . 127
33 & 34 Vict. c. 79, s. 21 134 ss. 2, 3 92
34 & 35 Vict. c. 70, s. 5 • 134 ss. 3, 5
34 & 35 Vict. c. 112, s. 19 57, 240 (part ) · 93
35 & 36 Vict. c. 6, s. 4 . 177, 241 ss. 3, 4 . 127
36 & 37 Vict. c. 66, s . 25 • • 114 8. 6 · ⚫ 93
8. 76 • . 115 8. 7 • · 93
37 & 38 Vict. c. 35 · · • • 233 6. 8 · · 174
LIST OF ABBREVIATIONS.

A. & E. • • Adolphus & Ellis's Reports.

Atk. • Atkinson's Reports.

B. & A. • Barnewall & Alderson's Reports.

B. & Ad. Barnewall & Adolphus's Reports.
B. & B. · Broderip & Bingham's Reports.
B. & C. Barnewall & Cresswell's Reports.
Beav. Beavan's Reports.
Bell, C. C. Bell's Crown Cases.
Best • Best on Evidence, 6th ed.
B. & S. • Best & Smith's Reports.
Bing. • • Bingham's Reports.
Bing. N. C. · Bingham's New Cases.
B. N. P. · Buller's Nisi Prius.
Br. P. C.. • • Brown's Parliamentary Cases.
Buller, N. P. • Buller's Nisi Prius.

Cam . · • Campbell's Reports.

Car. & Kir. • Carrington & Kirwan's Reports.
C. B. • Common Bench Reports.
C. B. N. S. Common Bench Reports. New Series.
C. C. C.
Cox's Crown Cases.
Cox, Cr. Ca.
C. & F. Clark & Finnelly's Reports.
C. M. & R. · Crompton, Meeson, & Roscoe's Reports.
C. & Marsh.. Carrington & Marshman's Reports.
Cowp.. ·. . Cowper's Reports.
C. & P. • Carrington & Paine's Reports.
C. & J. Crompton & Jervis's Reports.

D. & B. Dearsley & Bell's Crown Cases.

Dear., or .
Dearsley's Crown Cases .
Dearsley & P.
De Ge. & J.. · De Gex & Jones's Reports.
De G. M. & G. • • De Gex, Macnaughten, & Gordon.
xxvi LIST OF ABBREVIATIONS.

De G. & S. • • De G. & Smale's Reports.

Den. C. C. · Denison's Crown Cases.
Doug.. Douglas's Reports.
Dru. & War. Drury & Warren's Reports.

Ea.. East's Reports .

East, P. C. · East's Pleas of the Crown.
E. & B. Ellis & Blackburn's Reports.
Esp. • · • Espinasse's Reports.
Ex.. Exchequer Reports.

F. & F. · · Foster & Finlason's Reports.

Gen. View Cr. Law • • Stephen's General View of the Criminal

Law.

Hale, P. C. · • Hale's Pleas of the Crown.

Hare • Hare's Reports.
H. Bl.. H. Blackstone's Reports.
H. & C. . · Hurlston & Coltman's Reports.
H. & N. • · Hurlston & Norman's Reports.
H. L. C. • House of Lords Cases.

Ir. Cir. Rep. Irish Circuit Reports .

Ir. Rep. Eq. • • Irish Equity Reports.

Jac. & Wal.. • Jacob & Walker's Reports .

Jebb, C. C. • • Jebb's Criminal Cases (Ireland) .

Keen Keen's Reports, Chancery.

L. & C. · Leigh & Cave's Crown Cases.

Leach . • • Leach's Crown Cases.
L. J. Ch.. Law Journal, Chancery. &
L. J. Eq.. Law Journal , Equity.
L. J. M. C. • Law Journal, Magistrates' Cases.
L. J. N. S. • Law Journal, New Series.
L. R. Ch. Ap. Law Reports, Chancery Appeals.
L. R. C. C. • • Law Reports, Crown Cases Reserved.
L. R. C. P. • · Law Reports, Common Pleas
L. R. Ex. • Law Reports, Exchequer.
L. R. Q. B. • · Law Reports, Queen's Bench.
Madd.. • • Maddock's Reports .
Man. & R. • Manning & Ryland's Reports.
LIST OF ABBREVIATIONS . xxvii

McNally, Ev. McNally's Rules of Evidence.

Moo. C. C. • • Moody's Crown Cases.
M. & G. · Manning & Granger's Reports.
M. & K. · · Mylne & Keen's Reports.
M. & M. Moody & Malkin's Reports.
Moo. P. C. Moore's Privy Council Reports.
Mo. & Ro. · Moody & Robinson's Reports.
M. & S. Maule & Selwyn's Reports .
M. & W. • Meeson & Welsby's Reports.

Pea. R. • Peake's Reports.

Phill. • Phillips's Reports.
Phi. Ev. • Phillips on Evidence , 10th ed .
Price • Price's Reports.

Q. B. • · Queen's Bench Reports.

R. N. P. Roscoe's Nisi Prius, 13th ed.

R. & R. · Russell & Ryan's Crown Cases.

Russ. on Crimes . • Russell on Crimes, 4th ed.

Selw. N. P.. . Selwyn's Nisi Prius.
Simon • Simon's Reports.
Simon, N. s.. Simon's Reports. New Series.
Sim. & Stu.. Simon & Stuart's Reports.
S. L. C., or •
Smith, L. C. Smith's Leading Cases, 7th ed.
Star. Starkie's Reports .
Starkie • Starkie on Evidence, 4th ed.
S. & T. • Swabey & Tristram's Reports.
S. T., or St. Tri. State Trials.
Story's Eq. Jur. Story on Equity Jurisprudence.
Swab. Ad. · Swabey's Admiralty Reports.
T. R. • Term Reports .
T. E. • · Taylor on Evidence, 6th ed.
Tau. • · Taunton's Reports.

Ve.. Vesey's Reports.

Wigram , or .
Wig. Ext. Ev.. Wigram on Extrinsic Evidence.
Wills's Circ. Ev. Wills on Circumstantial Evidence.
1
INTRODUCTION.

In the years 1870-1871 I drew what afterwards became

the Indian Evidence Act (Act 1 of 1872) . This Act
began by repealing (with a few exceptions) the whole of
the Law of Evidence then in force in India, and proceeded
to re-enact it in the form of a code of 167 sections, which
has been in operation in India since September, 1872 .
I am informed that it is generally understood, and has re-
quired little judicial commentary or exposition.
In the autumn of 1872 Lord Coleridge (then Attorney-
General) employed me to draw a similar code for Eng-
land . I did so in the course of the winter, and we settled
it in frequent consultations . It was ready to be intro-
duced early in the Session of 1873. Lord Coleridge made
various attempts to bring it forward, but he could not
succeed till the very last day of the Session. He said a
few words on the subject on the 5th August, 1873 , just
before Parliament was prorogued . The Bill was thus
never made public, though I believe it was ordered to be
printed.
It was drawn on the model of the Indian Evidence Act,
and contained a complete system of law upon the subject
of Evidence.
In the latter part of 1873 Lord Coleridge was raised to
his present position, and the Bill has not been proceeded
with by his successors .
It is perhaps scarcely necessary to say that I obtained
Lord Coleridge's consent (which was most heartily and
readily given) before I published this work.
1
2 INTRODUCTION.

The present work is founded upon this Bill, though it

differs from it in various respects. Lord Coleridge's Bill
proposed a variety of amendments of the existing law.
These are omitted in the present work, which is intended
to represent the existing law exactly as it stands. The
Bill, of course, was in the ordinary form of an Act of
Parliament. In the book I have allowed myself more
freedom of expression, though I have spared no pains to
make my statements as precise and complete in substance
as if they were intended to be submitted to the Legis-
lature.
The Bill contained a certain number of illustrations ,
and Lord Coleridge's personal opinion was in their favor,
though he had doubts as to the possibility of making
them acceptable to Parliament. In the book I have
much increased the number of the illustrations, and I
have, in nearly every instance, taken cases actually de-
cided by the Courts for the purpose. In a few instances
I have invented illustrations to suit my own purposes, but
I have done so only in cases in which the practice of the
Courts is too well ascertained to be questioned. I think
that illustrations might be used with advantage in Acts
of Parliament, though I am aware that others take a dif-
ferent view ; but, be this as it may, their use in a treatise
cannot be disputed, as they not only bring into clear light
the meaning of abstract generalities, but are, in many
cases, themselves the authorities from which rules and
principles must be deduced.
These explanations show, amongst other things, that I
cannot honestly claim Lord Coleridge's authority for more
than a general approval of this work. An Act of Parlia-
ment which makes the law, and a treatise which states it ,
differ widely, and my work may of course be open to
numerous objections, which would have been easily an-
swered if they had been urged against Lord Coleridge's
Bill.
INTRODUCTION. 3

The novelty of the form and objects of the work may

justify some explanations respecting it. In December,
1875, at the request of the Council of Legal Education,
I undertook the duties of Professor of Common Law,
at the Inns of Court, and I chose the Law of Evidence
for the subject of my first course of lectures . It ap-
peared to me that the draft Bill which I had prepared
for Lord Coleridge supplied the materials for such a
statement of the law as would enable students to obtain
a precise and systematic acquaintance with it in a moder-
ate space of time, and without a degree of labor dispro-
portionate to its importance in relation to other branches
of the law. No such work, so far as I know, exists ; for all
the existing books on the Law of Evidence are written on
the usual model of English law-books, which, as a general
rule, aim at being collections more or less complete of all
the authorities upon a given subject, to which a judge
would listen in an argument in court. Such works often
become, sometimes under the hands of successive editors ,
the repositories of an extraordinary amount of research,
but they seem to me to have the effect of making the
attainment by direct study of a real knowledge of the
law, or of any branch of it as a whole, almost impossible.
The enormous mass of detail and illustration which they
contain, and the habit into which their writers naturally
fall, of introducing into them every thing which has any
sort of connection, however remote, with the main subject,
make these books useless for purposes of study, though
they may increase their utility as works of reference. The
last edition of Mr. Taylor's work on Evidence contains
1797 royal 8vo pages. To judge from the table of cases ,
it must refer to about 9000 judicial decisions , and it cites
nearly 750 Acts of Parliament. The last edition of
"Roscoe's Digest of the Law of Evidence on the trial of
Actions at Nisi Prius," contains 1556 closely-printed
pages . The table of cases cited consists of 77 pages, one
4 INTRODUCTION .

of which contains the names of 152 cases , which would

give a total of 11,704 cases referred to . There is, besides,
a list of references to statutes which fills 21 pages more.
" Best's Principles of the Law of Evidence," which dis-
claims the intention of adding to the number of practical
works on the subject, and is said to be intended to ex-
amine the principles on which the rules of evidence are
founded, contains 908 pages, and refers to about 1400
cases. When we remember that the Law of Evidence
forms only one branch of the Law of Procedure, and that
the Substantive Law which regulates rights and duties
ought to be treated independently of it, it becomes obvious
that if a lawyer is to have any thing better than a famili-
arity with indexes, he must gain his knowledge in some
other way than from existing books on the subject. No
doubt such knowledge is to be gained . Experience
gives by degrees, in favorable cases, a comprehensive ac-
quaintance with the principles of the law with which a
practitioner is conversant. He gets to see that it is shorter
and simpler than it looks, and to understand that the
innumerable cases which at first sight appear to constitute
the law, are really no more than illustrations of a com-
paratively small number of principles ; but those who
have gained knowledge of this kind have usually no
opportunity to impart it to others. Moreover, they ac-
quire it very slowly, and with needless labor them-
selves, and though knowledge so acquired is often specially
vivid and well remembered, it is often fragmentary, and
the possession of it not unfrequently renders those who
have it sceptical as to the possibility, and even as to the
expediency, of producing any thing more systematic and
complete.
Circumstances already mentioned have led me to put
into a systematic form such knowledge of the subject as
I had acquired, and my connection with the scheme of
education established by the Inns of Court seems to im-
INTRODUCTION. 5

pose upon me the duty of doing what I can to assist in

their studies those who attend my lectures. This work is
the result. The labor bestowed upon it has, I may say,
been in an inverse ratio to its size.
My object in it has been to separate the subject of
evidence from other branches of the law with which it has
commonly been mixed up ; to reduce it into a compact
systematic form, distributed according to the natural
division of the subject-matter ; and to compress into pre-
cise definite rules, illustrated, when necessary, by examples,
such cases and statutes as properly relate to the subject-
matter so limited and arranged . I have attempted, in
short, to make a digest of the law, which, if it were
thought desirable, might be used in the preparation of a
code, and which, at all events, will, I hope, be useful, not
only to professional students, but to every one who takes
an intelligent interest in a part of the law of his country
bearing directly on every kind of investigation into ques-
tions of fact, as well as on every branch of litigation.
The Law of Evidence is composed of two elements ,
namely, first, an enormous number of cases, almost all of
which have been decided in the course of the last 100 or
150 years, and which have already been collected and
classified in various ways by a succession of text writers,
the most recent of whom I have already named ; secondly,
a comparatively small number of Acts of Parliament
which have been passed in the course of the last thirty or
forty years, and have effected a highly beneficial revolu-
tion in the law as it was when it attracted the denunci-
ations of Bentham. Writers on the Law of Evidence
usually refer to statutes by the hundred, but the Acts
of Parliament which really relate to the subject are but
few. A detailed account of this matter will be found at
the end of the volume, in Note XLIX.
The arrangement of the book is the same as that of the
Indian Evidence Act, and is based upon the distinction
6 INTRODUCTION.

between relevancy and proof, that is, between the ques-

tion What facts may be proved ? and the question How
must a fact be proved assuming that proof of it may be
given ? The neglect of this distinction , which is concealed
by the ambiguity of the word evidence (a word which
sometimes means testimony and at other times relevancy) ,
has thrown the whole subject into confusion, and has
made what was really plain enough appear almost incom-
prehensible.
In my "Introduction to the Indian Evidence Act, "
published in 1872, and in speeches made in the Indian
Legislative Council, I entered fully upon this matter, and
I need not return to it here. I may, however, give a
short outline of the contents of this work, in order to
show the nature of the solution of the problem stated
above at which I have arrived .
All law may be divided into Substantive Law, by which
rights, duties, and liabilities are defined, and the Law of
Procedure, by which the Substantive Law is applied to
particular cases.
The Law of Evidence is that part of the Law of Pro-
cedure which, with a view to ascertain individual rights
and liabilities in particular cases, decides :
I. What facts may, and what may not be proved in
such cases ;
II . What sort of evidence must be given of a fact
which may be proved ;
III. By whom and in what manner the evidence must
be produced by which any fact is to be proved.
I. The facts which may be proved are facts in issue, or
facts relevant to the issue.
Facts in issue are those facts upon the existence of
which the right or liability to be ascertained in the pro-
ceeding depends.
Facts relevant to the issue are facts from the existence
of which inferences as to the existence of the facts in
issue may be drawn.
INTRODUCTION. 7

A fact is relevant to another fact when the existence of

the one can be shown to be the cause or one of the causes,
or the effect or one of the effects, of the existence of the
other, or when the existence of the one, either alone or
together with other facts, renders the existence of the
other highly probable, or improbable, according to the
common course of events.
Four classes of facts, which in common life would usually
be regarded as falling within this definition of relevancy,
are excluded from it by the Law of Evidence except in
certain cases :
1. Facts similar to, but not specifically connected with ,
each other. (Res inter alios actæ.)
2. The fact that a person not called as a witness has
asserted the existence of any fact. (Hearsay.)
3. The fact that any person is of opinion that a fact
exists. ( Opinion .)
4. The fact that a person's character is such as to
render conduct imputed to him probable or improbable.
(Character.)
To each of these four exclusive rules there are, however,
important exceptions, which are defined by the Law of
Evidence.
II. As to the manner in which a fact in issue or relevant
fact must be proved.
Some facts need not be proved at all, because the Court
will take judicial notice of them, if they are relevant to
the issue.
Every fact which requires proof must be proved either
by oral or by documentary evidence.
Every fact, except (speaking generally) the contents of
a document, must be proved by oral evidence. Oral
evidence must in every case be direct, that is to say, it
must consist of an assertion by the person who gives it
that he directly perceived the fact to the existence of
which he testifies .
8 INTRODUCTION .

Documentary evidence is either primary or secondary.

Primary evidence is the document itself produced in
court for inspection.
Secondary evidence varies according to the nature of
the document. In the case of private documents a copy
of the document, or an oral account of its contents, is
secondary evidence. In the case of some public docu-
ments, examined or certified copies, or exemplifications ,
must or may be produced in the absence of the documents
themselves.
Whenever any public or private transaction has been
reduced to a documentary form, the document in which
it is recorded becomes exclusive evidence of that trans-
action, and its contents cannot, except in certain cases
expressly defined , be varied by oral evidence, though
secondary evidence may be given of the contents of the
document.
III. As to the person by whom, and the manner in
which the proof of particular fact must be made.
When a fact is to be proved, evidence must be given of
it by the person upon whom the burden of proving it is
imposed, either by the nature of the issue or by any legal
presumption, unless the fact is one which the party is
estopped from proving by his own representations, or by
his conduct, or by his relation to the opposite party.
The witnesses by whom a fact is to be proved must be
competent. With very few exceptions, every one is now
a competent witness in all cases. Competent witnesses ,
however, are not in all cases compelled or even permitted
to testify.
The evidence must be given upon oath, or in certain
excepted cases without oath. The witnesses must be first
examined in chief, then cross-examined , and then re-exam-
ined . Their credit may be tested in certain ways, and the
answers which they give to questions affecting their credit
may be contradicted in certain cases and not in others.
INTRODUCTION. 9

This brief statement will show what I regard as consti-

tuting the Law of Evidence properly so called . My view
of it excludes many things which are often regarded as
forming part of it . The principal subjects thus omitted
are as follows :
I regard the question, What may be proved under par-
ticular issues ? (which many writers treat as part of the
Law of Evidence) as belonging partly to the subject of
pleading, and partly to each of the different branches into
which the Substantive Law may be divided.
A is indicted for murder, and pleads Not Guilty. This
plea puts in issue, amongst other things, the presence of
any state of mind describable as malice aforethought, and
all matters of justification or extenuation.
Starkie and Roscoe treat these subjects at full length ,
as supplying answers to the question, What can be proved
under an issue of Not Guilty on an indictment for murder ?
Mr. Taylor does not go so far as this ; but a great part of
his book is based upon a similar principle of classification.
Thus chapters i. and ii . of Part II. are rather a treatise
on pleading than a treatise on evidence.
Again, I have dealt very shortly with the whole subject
of presumptions . My reason is that they also appear to
me to belong to different branches of the Substantive Law,
and to be unintelligible, except in connection with them .
Take for instance the presumption that every one knows
the law. The real meaning of this is that, speaking gen-
erally, ignorance of the law is not taken as an excuse for
breaking it. This rule cannot be properly appreciated if
it is treated as a part of the Law of Evidence. It belongs
to the Criminal Law. In the same way numerous pre-
sumptions as to rights of property (in particular ease-
ments and incorporeal hereditaments) belong not to the
Law of Evidence but to the Law of Real Property. The
only presumptions which, in my opinion, ought to find a
place in the Law of Evidence, are those which relate to
10 INTRODUCTION.

facts merely as facts, and apart from the particular rights

which they constitute . Thus the rule, that a man not
heard of for seven years is presumed to be dead, might be
equally applicable to a dispute as to the validity of a
marriage, an action of ejectment by a reversioner against
a tenant pur auter vie, the admissibility of a declaration
against interest, and many other subjects. After careful
consideration, I have put a few presumptions of this
kind into a chapter on the subject, and have passed over
the rest as belonging to different branches of the Sub-
stantive Law.
Practice, again, appears to me to differ in kind from
the Law of Evidence. The rules which point out the
manner in which the attendance of witnesses is to be pro-
cured, evidence is to be taken on commission, depositions
are to be authenticated and forwarded to the proper offi-
cers, interrogatories are to be administered, &c., have
little to do with the general principles which regulate the
relevancy and proof of matters of fact. Their proper
place would be found in codes of civil and criminal pro-
cedure.
A similar remark applies to a great mass of provisions
as to the proof of certain particulars. Under the head of
"Public Documents," Mr. Taylor gives amongst other
things a list of all, or most, of the statutory provisions
which render certificates or certified copies admissible in
particular cases.
To take an illustration at random, section 1458 begins
thus : " The registration of medical practitioners, under
the Medical Act of 1858, may be proved by a copy of the
"Medical Register,' for the time being, purporting," &c.
I do not wish for a moment to undervalue the practical
utility of such information , or the industry displayed in
collecting it ; but such a provision as this appears to me
.
to belong not to the Law of Evidence, but to the law re-
lating to medical men. It is matter rather for an index
INTRODUCTION . 11

or schedule than for a legal treatise, intended to be

studied, understood, and borne in mind in practice.
On several other points the distinction between the
Law of Evidence and other branches of the law is more
difficult to trace. For instance, the law of estoppel, and
the law relating to the interpretation of written instru-
ments, both run into the Law of Evidence. I have tried
to draw the line by dealing in the case of estoppels with
estoppels in pais only, to the exclusion of estoppels by
deed and by matter of record, which must be pleaded as
such ; and in regard to the law of written instruments by
stating those rules only which seemed to me to bear di-
rectly on the question whether a document can be sup-
plemented or explained by oral evidence.
The result is no doubt to make the statement of the
law much shorter than is usual. I hope, however, that
competent judges will find that, as far as it goes, the
statement is both full and correct. As to brevity, I may
say, in the words of Lord Mansfield : " The law does
not consist of particular cases, but of general principles
"" *
which are illustrated and explained by those cases.'
Every one will express somewhat differently the prin-
ciples which he draws from a number of illustrations, and
this is one source of that quality of our law which those
who dislike it describe as vagueness and uncertainty, and
those who like it as elasticity. I dislike the quality in
question, and I used to think that it would be an im-
provement if the law were once for all enacted in a dis-
tinct form by the Legislature, and were definitely altered
from time to time as occasion required. For many years
I did my utmost to get others to take the same view of
the subject, but I am now convinced by experience that
the unwillingness of the Legislature to undertake such
an operation proceeds from a want of confidence in its

* R. v. Bembridge, 3 Doug. 332.

12 INTRODUCTION.

power to deal with such subjects, which is neither un-

natural nor unfounded. It would be as impossible to get
in Parliament a really satisfactory discussion of a bill
codifying the Law of Evidence as to get a committee of
the whole House to paint a picture. It would, I am
equally well satisfied , be quite as difficult at present to
get Parliament to delegate its powers to persons capable
of exercising them properly. In the meanwhile the
Courts can decide only upon cases as they actually occur,
and generations may pass before a doubt is set at rest by
a judicial decision expressly in point. Hence, if any
thing considerable is to be done towards the reduction
of the law to a system, it must, at present at least, be
done by private writers.
Legislation proper is under favorable conditions the
best way of making the law, but if that is not to be had,
indirect legislation, the influence on the law of judges
and legal writers who deduce, from a mass of precedents,
such principles and rules as appear to them to be sug-
gested by the great bulk of the authorities, and to be in
themselves rational and convenient, is very much better
than none at all . It has, indeed , special advantages,
which this is not the place to insist upon. I do not think
the law can be in a less creditable condition than that of
an enormous mass of isolated decisions, and statutes as-
suming unstated principles ; cases and statutes alike being
accessible only by elaborate indexes. I insist upon this
because I am well aware of the prejudice which exists
against all attempts to state the law simply, and of the
rooted belief which exists in the minds of many lawyers
that all general propositions of law must be misleading,
and delusive, and that law-books are useless except as
indexes. An ancient maxim says : " Omnis definitio in
jure periculosa." Lord Coke wrote : " It is ever good to
rely upon the books at large ; for many times compendia
sunt dispendia, and Melius est petere fontes quam sectari
INTRODUCTION . 13

rivulos." Mr. Smith chose this expression as the motto

of his " Leading Cases," and the sentiment which it em-
bodies has exercised immense influence over our law. It
has not perhaps been sufficiently observed that when
Coke wrote, the " books at large," namely the " Year
Books " and a very few more modern reports, contained
probably about as much matter as two, or at most three,
years of the reports published by the Council of Law Re-
porting ; and that the compendia (such books, say, as
Fitzherbert's " Abridgment ") were merely abridgments
of the cases in the " Year Books " classified in the
roughest possible manner, and much inferior both in
extent and arrangement to such a book as Fisher's
"Digest." *
In our own days it appears to me that the true fontes
are not to be found in reported cases, but in the rules and
principles which such cases imply, and that the cases
themselves are the rivuli, the following of which is a dis-
pendium. My attempt in this work has been emphati-
cally petere fontes, to reduce an important branch of the
law to the form of a connected system of intelligible rules
and principles .
Should the undertaking be favorably received by the
profession and the public, I hope to apply the same pro-
cess to some other branches of the law ; for the more I
study and practise it, the more firmly am I convinced of
the excellence of its substance and the defects of its form.
Our earlier writers, from Coke to Blackstone, fell into the
error of asserting the excellence of its substance in a ful-
some and exaggerated strain, whilst they showed a total

* Since the beginning of 1865 the Council has published eighty-

six volumes of Reports. The Year Books from 1307-1535, 228 years,
would fill not more than twenty-five such volumes. There are also
ten volumes of Statutes since 1865 (May, 1876 ) . There are now (Feb-
ruary, 1877 ) at least ninety-three volumes of Reports and eleven vol-
umes of Statutes.
14 INTRODUCTION.

insensibility to defects, both of substance and form , which

in their time were grievous and glaring. Bentham seems
to me in many points to have fallen into the converse
error. He was too keen and bitter a critic to recognize
the substantial merits of the system which he attacked ;
and it is obvious to me that he had not that mastery of
the law itself which is unattainable by mere theoretical
study, even if the student is, as Bentham certainly was,
a man of talent, approaching closely to genius .
During the last twenty- five years Bentham's influence
has to some extent declined , partly because some of his
books are like exploded shells, buried under the ruins
which they have made, and partly because under the in-
fluence of some of the ablest and most distinguished of
living authors, great attention has been directed to legal
history, and in particular to the study of Roman Law. It
would be difficult to exaggerate the value of these studies,
but their nature and use is liable to be misunderstood .
The history of the Roman Law no doubt throws great
light on the history of our own law ; and the comparison
of the two great bodies of law, under one or the other of
which the laws of the civilized world may be classified,
cannot fail to be in every way most instructive ; but the
history of bygone institutions is valuable mainly because
it enables us to understand, and so to improve existing
institutions. It would be a complete mistake to suppose
either that the Roman Law is in substance wiser than
our own, or that in point of arrangement and method the
Institutes and the Digest are any thing but warnings.
The pseudo-philosophy of the Institutes, and the confu-
sion of the Digest, are, to my mind, infinitely more objec-
tionable than the absence of arrangement and of all
general theories, good or bad, which distinguish the Law
of England.
However this may be, I trust the present work will
show that the law of England on the subject to which it
INTRODUCTION. 15

refers is full of sagacity and practical experience, and is

capable of being thrown into a form at once plain, short,
and systematic.
I wish, in conclusion , to direct attention to the manner
in which I have dealt with such parts of the Statute Law
as are embodied in this work. I have given, not the very
words of the enactments referred to, but what I under-
stand to be their effect, though in doing so I have de-
viated as little as possible from the actual words employed.
I have done this in order to make it easier to study the
subject as a whole. Every Act of Parliament which
relates to the Law of Evidence assumes the existence of
the unwritten law. It cannot, therefore, be fully under-
stood, nor can its relation to other parts of the law be
appreciated till the unwritten law has been written down
so that the provisions of particular statutes may take
their places as parts of it. When this is done, the Stat-
ute Law itself admits of, and even requires, very great
abridgment. In many cases the result of a number of
separate enactments may be stated in a line or two. For
instance, the old Common Law as to the incompetency
of certain classes of witnesses was removed by parts of
six different Acts of Parliament.- the net result of which
is given in five short articles (106-110) .
So, too, the doctrine of incompetency for peculiar or
defective religious belief has been removed by many
different enactments, the effect of which is shown in one
article (123) .
The various enactments relating to documentary evi-
dence (see Ch . X.) appear to me to become easy to fol-
low and to appreciate when they are put in their proper
places in a general scheme of the law, and arranged accord-
ing to their subject-matter. By rejecting every part of
an Act of Parliament except the actual operative words
which constitute its addition to the law, and by setting it
(so to speak) in a definite statement of the unwritten law
16 INTRODUCTION.

of which it assumes the existence, it is possible to com-

bine brevity with substantial accuracy and fulness of
statement to an extent which would surprise those who
are acquainted with Acts of Parliament only as they
stand in the Statute Book.* At the same time I should '
warn any one who may use this book for the purposes of
actual practice in or out of court, that he would do well
to refer to the very words of the statutes embodied in it .
It is very possible that, in stating their effect instead of
their actual words, I may have given in some particulars
a mistaken view of their meaning.
Such are the means by which I have endeavored to
make a statement of the Law of Evidence which will
enable not only students of law, but I hope any intelli-
gent person who cares enough about the subject to study
attentively what I have written, to obtain from it a
knowledge of that subject at once comprehensive and
exact a knowledge which would enable him to follow
in an intelligent manner the proceedings of Courts of
Justice, and which would enable him to study cases and
use text-books of the common kind with readiness and
ease. I do not say more than this. I have not attempted
to follow the matter out into its minute ramifications,
and I have avoided reference to what after all are little
more than matters of curiosity. I think, however, that
any one who makes himself thoroughly acquainted with
the contents of this book, will know fully and accurately
all the leading principles and rules of evidence which
occur in actual practice.
If I am entitled to generalize at all from my own ex-
perience, I think that even those who are already well

* Twenty articles of this work represent all that is material in

the ten Acts of Parliament, containing sixty-six sections, which have
been passed on the subject to which it refers . For the detailed proof
of this, see Appendix, Note XLVIII.
INTRODUCTION. 17

acquainted with the subject will find that they under-

stand the relations of its different parts, and therefore the
parts themselves more completely than they otherwise
would, by being enabled to take them in at one view,
and to consider them in their relation to each other.

J. F. S.
4, PAPER BUILDINGS, TEMPLE,
May, 1876.

2
1
PREFACE TO THE THIRD EDITION.

THE first edition of this work sold so quickly that it was

necessary to publish a second edition before it was possi-
ble to make any substantial alterations in the first, and
indeed before I had had time to study and consider the
criticisms made upon it.
The second edition has been disposed of as quickly as
the first, and it has been exceedingly difficult in the midst
of many other engagements to give as much attention to
the revision and correction of the book as I could have
wished. I have, however, done my best.
I have very carefully considered the different criticisms
which have been made upon my book. The most impor-
tant of these were contained in an article, in the “ Fort-
nightly Review " for September, by Mr. Frederick
Pollock ; and in a careful and elaborate series of articles,
entitled " An English Evidence Code," published in the
" Solicitors' Journal " in September and October. I wish
to acknowledge my obligations to each of these critics.
They have detected and enabled me to correct a con-
siderable number of blemishes ; and I am surprised and
gratified to find that they do not allege that they have
discovered any serious error or unintentional omission.
I have adopted some, though not all, of their suggestions.
I may mention the most important.
The blemishes detected by them are, I think, reducible
to one principle. They are all cases in which I failed to
draw as precisely as I should have drawn it the line be-
20 PREFACE

tween the theory on which the rules of evidence depend

and the rules of evidence themselves. It is more diffi-
cult to do so than might be imagined by a person who
had not had to go through the process of first deducing
the theory from the rules, and then adjusting the rules to
the theory. In performing this double operation it is
hardly possible not to attribute to particular matters a
degree of importance and prominence proportioned rather
to the impression which they made on one's own mind.
when they first occurred to it than to the impression
which they are likely to make on other minds in studying
the subject. The criticisms I have mentioned have
enabled me to perceive, and I hope to remedy, some of
the defects due to this cause. In particular I have
omitted some of the definitions inserted in the first
edition, and modified others ; and I have introduced
several changes in the way of treating the subject of
relevancy which I think bring out not only my own
meaning, but the actual character and construction of the
law more clearly than before. The chief object of these
alterations has been to mark as clearly as possible the
distinction between the theory of relevancy, which is
really a branch of logic, and the particular rules founded
upon it which form the Law of Evidence . This is
effected by two alterations. First, by changing the posi-
tion of the definition of relevancy, and dividing the part of
it which is required for practical purposes from the part
which expresses the logical theory on which the practice
proceeds. Secondly, by changing throughout the whole
of Part I. the phrase " is relevant," or " is not relevant,"
into " is deemed to be relevant," or " to be irrelevant."
The object of this change is to mark a distinction best
explained by illustrations. Both evidence of an alibi and
evidence of the good character of a prisoner would be
admitted on a trial, say for murder ; whereas a dying
declaration by some deceased person, that he and not the
TO THE THIRD EDITION. 21

prisoner had committed the murder, would be rejected .

On examining the articles contained in Part I. it will be
found that evidence of an alibi would be admissible only
under Articles 1 and 2, which provide in general terms
that facts relevant to the issue may be proved, and define
relevant facts as including, amongst others, facts showing
that a given fact could not have happened . The alibi
therefore may be proved, because it actually is relevant
to the fact in issue, i.e. the alleged murder.
The previous good character (which in strictness means
reputation) of the accused can hardly be said to be actu-
ally relevant to his guilt. The possession of a good repu-
tation does not in the common course of events prove that
a man cannot have committed a crime, or that it is in any
appreciable degree improbable that he did so. Still the
prisoner is allowed, if he likes, to prove the fact for what
it is worth. In other words, the fact that a man has a
good character is treated by the law as a matter which
either has or may have something to do with the question
of guilt or innocence. In other words, it is deemed to be
relevant, though it may not actually be relevant. On the
other hand , a dying confession of murder made by a third
person is deemed to be irrelevant, though it is actually
relevant. Such a confession can hardly be false except
under extraordinary circumstances. It can hardly be
caused by any thing except a consciousness of guilt, and it
is impossible to doubt that any one who was guided by
common sense alone would wish to know the fact that it
had been made when he had to determine upon the guilt
of another. Rightly or wrongly, however, evidence of
such a confession is by our law excluded. The fact that
it was made is kept from the judge and jury. It is thus
treated as being or is deemed to be irrelevant.*

* As a curious and instructive instance of the way in which rules

of evidence vary in their effect, I may mention the following circum-
22 PREFACE

It has been suggested with great [Link] the

simplest way of stating the Law of Evidence would be to
omit all reference to the relevancy of facts , and to lay
down a series of rules as to the classes of facts of which
proof is or is not admissible . Such a way of treating the
subject might perhaps be more convenient in an Act of
Parliament than the arrangement which I have adopted ;
but I do not think it would state the matter with equal
point and vigor, nor do I think it would represent the
actual state of the law with equal accuracy.
My study of the subject, both practically and in books,
has convinced me that the doctrine that all facts in issue
and relevant to the issue, and no others, may be proved,
is the unexpressed principle which forms the centre of
and gives unity to all the express negative rules which
form the great mass of the law. To me these rules
always appeared to form a hopeless mass of confusion ,
which might be remembered by a great effort, but could
not be understood as a whole, or reduced to system, until
I had meditated for months upon the question , What is
this evidence which you tell me hearsay is not ? The ex-
pression " hearsay is not evidence " seemed to assume that
I knew by the light of nature what evidence was, but I

stance : A Punjab district officer lately told me that it had come to

be commonly known in the Peshawur division that a dying declara-
tion as to the cause of the declarant's death is admitted in proof of
the matter stated. The effect of this was , that whenever a man was
mortally wounded, and found himself dying (a very common inci-
dent in that part of the world ) , he took the opportunity of making
a dying declaration calculated to pay off as many old scores of ven-
geance as possible. The supposed ground of the English rule is,
that the solemn thoughts connected with approaching death are
equivalent to the sanction of an oath . This is very far indeed from
being the way in which a dying Punjabee looks at the subject. His
reflection on such an occasion is, " This is my last chance of doing
So-and-so, my old family enemy, a bad turn, and I will on no account
miss it."
TO THE THIRD EDITION. 23

perceived at last that that was just what I did not know.
I found that I was in the position of a person who , hav-
ing never seen a cat, is instructed about them in this
fashion : " Lions are not cats in our sense of the word,
nor are tigers nor leopards, though you might be inclined
to think they were." Show me a cat to begin with,
and I at once understand both what is meant by saying
that a lion is not a cat, and why it is possible to call him
one. Tell me what evidence is, and I shall be able to
understand why you say that this and that class of facts
are not evidence. The question " What is evidence ? "
constantly asked , gradually disclosed the ambiguity of the
word. To describe a matter of fact as " evidence " in the
sense of testimony is obviously nonsense . No one wants
to be told that hearsay, whatever else it is, is not testi-
mony. What then does the word mean ? The only
possible answer is : It means that the one fact either is or
else is not considered by the person using the expression
to furnish a premiss or part of a premiss from which the
existence of the other is a necessary or probable inference
-in other words, that the one fact is or is not relevant
to the other. When the inquiry is pushed further, and
the nature of relevancy has to be considered in itself, and
apart from legal rules about it, we are led to inductive
logic, which shows that judicial evidence is only one case
-
of the general problem of science — namely, inferring the
unknown from the known. As far as the logical theory
of the matter is concerned , this is an ultimate answer.
If now we turn from the logical to the legal theory, the
case is altered. The logical theory was cleared up by
Mr. Mill . Bentham and some other * writers had more or

* See, e.g., that able and interesting book " An Essay on Circum-
stantial Evidence," by the late Mr. Wills, father of Mr. Alfred Wills,
Q.C. Chief Baron Gilbert's work on the Law of Evidence is
founded on Locke's " Essay," much as my work is founded on Mill's
"Logic."
24 PREFACE

less discussed the connection of logic with the rules of

evidence. But I am not aware that it occurred to any
one before I published my " Introduction to the Indian
Evidence Act " to point out in detail the very close
resemblance which exists between Mr. Mill's theory and
the existing state of the law.
The law, as distinguished from the theory of judicial
evidence, is the work of many generations of judges,
who have by degrees worked it out with a more or less
indistinct and partial perception of the theory on which
it ought to be founded .
Patient study of the subject seemed to me to show
that, making allowance for some defects and some ex-
cesses, the cases thus decided collectively occupied very
nearly the same area as would be occupied by the logical
application of the simple principle just stated -- — that
facts in issue and facts relevant to that issue may be
proved, and no others.
These cases might be compared to the astronomical
observations which showed what in fact had been the
positions of the planets for a long series of years ; the
theory (the ludicrous disproportion of the comparison
affords the only excuse for making it) to the discovery
that these positions may be shortly described by saying
that the planets move round the sun in ellipses, overstep-
ing the line at some points and receding from it at others.
Facts actually relevant correspond to the points on the
elliptical part of the orbit ; facts deemed to be relevant,
though they are not, to the points outside the ellipse but
touched by the orbit ; facts deemed to be irrelevant,
though really relevant, correspond to the points upon the
ellipse from which the orbit recedes ; but the statement
that the orbit is (exceptions excepted) elliptical gives
unity and coherency to the whole subject.
I have made one or two additions to the contents of
my first edition. The effect of the Bankers' Books Evi-
TO THE THIRD EDITION. 25

dence Act, 1876 (39 & 40 Vict. c. 48) , is given in Articles

36, 37, 38, 71 (ƒ) , and 118. This is the only statute
passed in the last session which affects the Law of Evi-
dence. I have also added references to a few cases, some
of which I had overlooked in my first edition, and others
of which have been decided since it was published.
In the first edition I omitted all reference to affidavits,
because I did not see clearly how to deal with them .
This omission has been pointed out by several critics .
Upon further consideration , I have added to the title of
Chapter XVI. (" Of the Examination of Witnesses ") the
words " Of Taking Evidence," and I have inserted arti-
cles relating to taking evidence by affidavit and under
commissions. I have also removed to a separate chapter
the articles relating to depositions, which in the first
edition came in rather awkwardly under the head of
hearsay evidence, though not, I think, incorrectly.
With respect to the arrangement of certain parts of
the book, it has been suggested that the articles in Chap-
ter I. are arranged at random and on no principle. They
are, in fact, arranged on the principle of taking the facts
actually in issue as a starting-point, and referring to other
classes of facts in the order of their proximity to the
facts in issue. The nearest are those which form part of
the same transaction . Acts done by conspirators in exe-
cution of their common purpose are not indeed part of
the conspiracy or agreement, which is supposed to be
actually in issue, but in all common cases are the facts
from which the conspiracy has to be inferred. They thus
stand in a very close relation to the actual facts in issue.
The same is true of the facts admitted in the proof of a
title or a custom. The fact that A. conveyed to B. the
land which was conveyed by B. to C., or that on a par-
ticular occasion the custom of Borough English was
observed in a particular manor, are not directly in issue
when C.'s title or the existence of the custom of Borough
26 PREFACE

*
English are in question ; but they are parts of a com-
plex whole, which is denoted by each of the words cus-
tom and title. Motive, preparation , subsequent conduct
lead up to or away from the facts in issue, when such
facts are parts of human conduct . Explanatory and in-
troductory facts stand a step farther off.
This explanation I see is required, because its absence
has puzzled an acute critic.
One other point of the same kind I may mention .
Why, it is asked , put judicial notice under the general
head of Proof ? Is not this a strange heading : " Part
II. Of Proof. — Chapter I. Facts which need not be
Proved " ? There is an apparent verbal opposition, no
doubt, which I have removed by a change in the title of
the chapter, but the opposition is only apparent and ver-
bal. I believe the arrangement to be logically correct,
and I have accordingly maintained it. By Proof I mean
the means used of making the Court aware of the exist-
ence of a given fact, and surely the simplest possible
way of doing so is to remind the Court that it knows it
already. It is like proving that it is raining by telling
the Judge to look out of the window. It has been said
that judicial notice should come under the head of Bur-
den of Proof, but surely this is not so . The rules as to
burden of proof show which side ought to call upon the
Court to take judicial notice of a particular fact, but the
act of taking judicial notice, of consciously recalling to

* In strictness, title and custom are rather inferences from facts

than facts ; but it is convenient, and is in accordance with common
usage, to speak of them as facts. I have been led to modify the
definition of " fact " by an acute remark made on this subject in the
" Solicitors' Journal." The real object of the definition was to show
that I used the word " fact " so as to include states of mind. It is
very common to say, " This is not mere opinion, this is a matter of
fact ; "" or, " This is not a fact, it is only a statement." That A
holds a particular opinion or says certain words is just as much a
fact as that he strikes a blow.
TO THE THIRD EDITION. 27

the mind a fact known, but not for the moment adverted
to, is an act of precisely the same kind as listening to the
evidence of a witness or reading a document, that is ,
it belongs to the general head of proof.
The only other alteration connected with the arrange-
ment of the book which I need notice relates to the ar-
rangement of the chapter on Hearsay. It is said to be
contrary to the common use of language to treat the
rules as to the admissibility of judgments and depositions
as exceptions from the rule excluding hearsay. No doubt
there is some weight in this remark, especially as regards
depositions. It does sound odd to say that the state-
ments in a judgment or decree are hearsay, but the fault
lies with the word hearsay, which is so well established
that its existence cannot practically be overlooked in any
statement of the law as it is. Define the exclusive rule
a little more widely and the propriety of treating the
admissibility of judgments as exceptions from it becomes
apparent. The rule I think ought to be framed in two
branches one excluding hearsay in the popular sense of
the word, the other excluding matter recorded in docu-
ments for public information or otherwise . A little
thought will show that the contents of the " Times "
newspaper, or of a parliamentary blue-book, or of the
report of a Royal Commission are excluded on the same
principle as statements made in conversation by a private
person. The object is perhaps hardly so much to prevent
inaccuracy as to compel the production before the Court
of the evidence on which their conclusion must ultimately
be based . The rule which admits the contents of a judg-
ment is as much an exception to one branch of the rule
as the rule which admits a dying declaration is an excep-
tion to the other. In the present edition I have accord-
ingly remodelled the exclusive rule, so as to include both
branches . I have also divided the chapter into two sec-
tions, containing respectively the exceptions to the first
28 PREFACE

and the exceptions to the second branch of the exclusive

rule as remodelled .
The principal importance of this work lies in its bearing
on the great question of codification . It is not for me to
say how far my book can be regarded as affording a
practical proof of the possibility of that process as giving a
distinct, complete, and systematic statement of the branch
of the law which is its subject, but the experience gained
by writing it and by considering the criticisms made upon
it, as well as by attempts which I have made and am still
engaged upon to apply the same process to other branches
of the law, lead me to feel very serious doubts whether it
would be desirable to take the Law of Evidence as the
first subject on which to try the experiment of codifica-
tion. I doubt whether any branch of the law is so diffi-
cult to arrange in a completely satisfactory manner.
Probably none depends so directly on questions lying
outside of law. A code not based on the principles of
logic would in my opinion be mischievous, but the attempt
to impose a particular logical theory either upon the
Judges and the legal profession by Act of Parliament
would be hazardous. If that way of treating the subject
which has been adopted in this book is the right one, it
will be gradually recognized and adopted as such by the
profession, and might ultimately form the basis of a code.
I must in candor add that, since I drew the Indian Evi-
dence Act in 1870, I have learnt so much from both hostile
and friendly critics as to the way of treating the subject,
that I should be sorry to see any theory about it finally
adopted until it had been recognized as the true one by
the best of all possible tests, its influence on and accept-
ance by the profession , whose cordial support is absolutely
essential to the success of any attempt to codify the law,
either by legislation or by private enterprise.
I would, however, suggest that this book might be
made subservient to legislation in a way which, if not so
TO THE THIRD EDITION. 29

ambitious as codification , would at all events be exceed-

ingly useful. On looking through it, it is easy to see two
things. First, the statute law relating to evidence might
be consolidated into a single Act with great advantage.
Next, a variety of detailed amendments in the law might
and ought to be made which would very greatly improve
the system and prepare the way for a code of the Law of
Evidence if either my theory on the subject or any other
should be tacitly adopted by the profession as the proper
way of stating the law. I beg to offer to the public the
following notes, which might with very little trouble be
reduced into the form of heads of a Bill to consolidate
and amend the Law of Evidence .
The notes follow the order of the articles in my book
to which they apply.
ARTICLE 2. NOTE II . - Mr. Taylor adopts from Pro-
fessor Greenleaf the statement, that "the law excludes,
on public grounds, evidence which is offensive or indecent
to public morals or to the feelings of third persons." For
the reasons given in the note I fear this statement of the
law is not correct . But if it is not the law, ought not
the Judges to have some such power ? If it is thought
impracticable to surround such a power by the necessary
safeguards against its abuse, this is an additional reason
for guarding against the abuse of cross-examination to
credit.
ARTICLE 8. NOTE V.- Should not the whole of a com-
plaint be given in evidence ?
ARTICLE 42. - As a general rule, statements contained
in judgments as to matters of fact are not evidence of the
matter stated as between strangers to the judgment except
in the case of judgments of the Court of Admiralty con-
demning a ship as prize (Geyer v. Aguilar, 7 T. R. 681 ) ,
In the case quoted the rule worked gross injustice, and it
is opposed to all analogy, and probably based on a mis-
take, as Lord Eldon points out in Lothian v. Henderson,
30 PREFACE

3 B. & P. 545. Why should not such judgments be put

on the same footing as others ?
ARTICLE 57. — In R. v . Rowton, 1 L. & C. 520, it was
held that evidence of character in a criminal trial must be
confined to evidence of reputation as distinguished from
disposition. The monstrous consequences of this rule, and
the fact that it is habitually and indeed unavoidably set at
nought, are pointed out in the Appendix, Note XXV .
Why not enact that in such cases evidence may be given of
the prisoner's general disposition, as well as of his reputa-
tion, but not of particular facts by which either is shown ?
ARTICLE 64. · As the law stands, an admission of the
contents of a document is primary evidence as against the
person who makes it (Slatterie v. Pooley, 6 M. & W.664) ,
and the contents of a document may thus be proved
against a person without his having had notice to produce
it. The impolicy of this rule has often been remarked
upon. The case in which it was affirmed , and others
which preceded it, seem to show that it was established ,
in part at least, in order to find a way of proving docu-
ments which were excluded by the operation of the stamp
laws. As the law as to the effect of the want of a proper
stamp has been altered , this reason for the rule no longer
exists. The only effect of removing it would be that
notice to produce would be (as it surely ought to be) re-
quired before the contents of a document can be proved
by an admission.
ARTICLE 89.- The rule that an alteration made in a
deed by a stranger, while the document is in the custody
of the person who produces it, but without his knowledge
or consent, prevents him from claiming under it (David-
son v. Cooper, 11 M. & W. 778 , 13 M. & W. 343, and see
Aldous v. Cornwell, L. R. 3 Q. B. 573) , seems to be a relic
of a time when almost idolatrous respect was paid to
deeds. If a man can sue on a deed which has been de-
stroyed, why not on one which has been altered ?
TO THE THIRD EDITION. 31

ARTICLE 91. CLAUSES 7 AND 8. - As to the cases in

which a testator's statements as to the meaning of his will
are admitted and rejected in construing the will, see Ap-
pendix, Note XXXIII . Several Judges of the highest
eminence have expressed an opinion adverse to the present
rule . Why should it not be permissible to give the same
evidence for the purpose of reforming a mistake in a will
as for the purpose of reforming a mistake in an agree-
ment in writing ? There is no real fear that the Court
would not be sufficiently jealous on the subject.
ARTICLES 114, 115. - The doubts as to the competency
of a grand juror to testify as to what passes between him
and his fellows, and as to the privilege of special pleaders
and licensed conveyancers, might perhaps be worth setting
at rest.
ARTICLE 117. — Surely communications made in pro-
fessional confidence to clergymen of all denominations
ought to be privileged . A clergyman asked to disclose
what has been said to him in confession is sure to refuse
to answer. If he does so, he has public sympathy with
him, and the administration of justice is so far discredited.
The improbability that any advantage comparable to this
disadvantage will ever be obtained from the existing law
(to say nothing of its doubtfulness) is very great indeed.
ARTICLE 129 and NOTE XLVI. — This article and note
refer to the law as to cross-examination to credit. I have
nothing to add to what is said in the note, except that
recent notorious abuses of the power of cross-examining
to credit appear to me to place in a strong light the im-
portance of the suggestion there made.
These amendments , slight and few in number as they are,
are the only ones which I should feel disposed to suggest in
the common law on the subject of evidence. The statute
law might, I think, be recast with very great advantage.
A detailed statement of its present condition will be found
in the Appendix, Note XLVIII. On reference to that
32 PREFACE

note and to the articles of this work therein referred to, it

will be found that by proper management the greater
part of ten Acts of Parliament might be repealed , and re-
enacted in a single Act of twenty sections arranged upon
an intelligible system . This process would afford a nat-
ural opportunity for removing a number of minor blem-
ishes in the law, of which I will notice a few.
ARTICLES 106-109 . — These articles give the result of
an odd amalgam of common and statute law, the com-
ponent parts of which are described in the Appendix, Notes
XXXIX., XL., XLI. The last paragraph of XLI. points
out a flaw worth removing, and the same may be said of
the note to Article 110, which gives the effect of 16 & 17
Vict. c. 83, s. 3.
The enactment of these four articles would supersede
expressly common-law principles which have been eaten
away bit by bit by five or six Acts of Parliament contain-
ing at least two notable flaws.
In the same way Articles 123, 124 are the short equiva-
lents of a very complicated set of enactments as to oaths.
Articles 131 and 132 are meant to represent 17 & 18 Vict.
c. 125, secs. 22–23, as to which see Appendix, Note XLVII.
Of the twenty-second section the Lord Chief Justice of
England said, with obvious truth, " There has been a great
blunder in the drawing of it and on the part of those who
adopted it."
I need say nothing as to the importance of bringing
into one Act arranged in a consecutive manner not only
the material parts of ten Acts which deal with the sub-
ject, but a large number of enactments scattered all over
the statute book.
It would be a great convenience to the profession to
re-enact the different sections relating to taking the dep-
ositions of witnesses in a better form than their present
one. The existing statutes are wandering, diffuse, and
incoherent to the last degree, and many questions have
TO THE THIRD EDITION. 33

been raised on their meaning. On this subject see Articles

140, 141, 142.
The law as to commissions to take evidence is in a
most confused state. See Article 125 and the footnote.
It is difficult to imagine an odder arrangement than
one which sends a person wishing to know the law as to
the issue of commissions to take evidence to an Act for
the government of India, the main purpose of which
was the establishment of a governor-general in council.
Surely, too, it is a great omission in our law that there
should be no provision for taking evidence under a com-
mission in criminal cases, except in one rare class of mis-
demeanors.
Lastly, might it not be wise to authorize the superior
courts to give a certificate, if they thought proper to do
so, of the existence of any matter of fact which had been
duly established before them in a suit bona fide contested ,
on the application of the successful party, such certificate
to be evidence of the matters stated in it, and raising a
presumption of their truth whenever they are brought
into question in any subsequent proceedings ? It seems
monstrous that, when Orton had been prosecuted to con-
viction for perjury, the fact that he was Orton and not
Tichborne, and the fact that Tichborne was dead, should
have been, as far as the law went, open to future dispute,
and that it should have been necessary to procure a private
Act of Parliament to furnish satisfactory proof of these
facts for future use.
My friend Mr. J. C. Lawrance, of the Midland Circuit,
has been good enough to prepare the new index added
to this edition. It will, I hope, very greatly facilitate
reference, and so add to the utility of the book for pur-
poses of actual practice.
J. F. S.
TEMPLE,
Jan. 27, 1877.
A DIGEST

OF

THE LAW OF EVIDENCE .

PART I.

RELEVANCY.

CHAPTER I.

PRELIMINARY .

ARTICLE 1.*

DEFINITION OF TERMS .

In this book the following words and expressions are

used in the following senses unless a different intention
appears from the context.
Judge " includes all persons authorized to take evi-
dence, either by law or by the consent of the parties.
" Fact " includes the fact that any mental condition of
which any person is conscious exists.

{Wheelden v. Wilson, 44 Me. 1. }

" Document "9 means any substance having any matter
expressed or described upon it by marks capable of being
read.
"Evidence " means--
(1) Statements made by witnesses in court under a legal
sanction, in relation to matters of fact under inquiry ;

* See Appendix, Note I.

36 A DIGEST OF [PART I.

such statements are called oral evidence :

(2) Documents produced for the inspection of the Court
or judge ;
such documents are called documentary evidence.
" Conclusive Proof " means evidence upon the produc-
tion of which, or a fact upon the proof of which, the judge
is bound by law to regard some fact as proved, and to
exclude evidence intended to disprove it.
"A Presumption " means a rule of law that Courts and
judges shall draw a particular inference from a particular
fact, or from particular evidence, unless and until the
truth of such inference is disproved.

This "presumption " constitutes what is called a prima facie

case, and, in a civil action, so establishes a fact in dispute as, if not
rebutted, to require a verdict in accordance therewith , Kelley v. Jack-
son, 6 Pet. (U. S. ) 632 ; but not in a criminal case, Chaffee v. United
States, 18 Wall. ( U. S. ) 516. See, however, 1 Greenl. Ev. § 81 e,
as to the last point, that there are facts, such as sanity, and cer-
tain negative allegations, which are sufficiently proved by this pre-
sumption even in a criminal case.

The expression " facts in issue 99 means ―

(1 ) All facts which, by the form of the pleadings in
any action, are affirmed on one side and denied on the
other :
(2) In actions in which there are no pleadings, or in
which the form of the pleadings is such that distinct
issues are not joined between the parties, all facts from
the establishment of which the existence, non-existence,
nature, or extent of any right, liability, or disability
asserted or denied in any such case would by law follow.
The word " relevant " means that any two facts to
which it is applied are so related to each other that
according to the common course of events one either
taken by itself or in connection with other facts proves
or renders probable the past, present, or future existence
or non-existence of the other.
CHAP. I. ] THE LAW OF EVIDENCE . 37

{ This definition may perhaps be as good as any that can be given.

See Appendix, Note I. But the question recurs, What is " so related "?
and this is substantially identical with the question, What is rele-
vant ? Relevancy is generally hereinafter used by the author in the
sense of admissibility. All admissible evidence must be relevant,
but all relevant evidence is not therefore admissible. Thus , privi-
leged communications and confessions, and all evidence excluded by
public policy, may be in the highest degree relevant, yet they are
inadmissible. See post, Ch. IV.
There seems to be no general test of relevancy. What is rele-
vant on one issue is not relevant on another. When the issue is
fraud, great latitude is allowed in the proof of circumstances. Reels
v. Knights, 8 Mar. (La.) N. s. 267. Circumstances so trivial and re-
mote in themselves, that, if individually and separately offered, they
might justly be rejected, may, from their multitude and relation, be-
come important and obviously relevant. State v. Watkins, 9 Conn.
52. Especially, on cross-examination, when it becomes important to
show who and what and how related to the case the witness is or
may be, are many questions relevant which otherwise would not be
relevant. The decisions of courts of last resort afford no data, and
have no such uniformity or similarity as to afford the grounds for a
general rule. What they decide to be relevant or irrelevant is or is
not so, for the particular case and within their jurisdiction, and to
that extent only. A few cases, showing what has and what has not
been deemed relevant, will serve to illustrate this remark. It will
generally be found that the circumstances of the parties to the suit
at the time of the controversy are relevant. On the trial of an ac-
tion for work done and materials supplied to certain houses on the
orders of a third person, the defendant denying that he is the owner
of the houses, or the real principal, evidence is relevant that other
persons had received orders from the defendant to do work at the
same houses, without showing that the plaintiff knew of those orders
at the time he did his work. But if the orders had been to do work
upon other houses, it seems they would not have been relevant.
Woodman v. Buchanan, 5 L. R. Q. B. 285 ; Dowling v. Dowling, 10
Ir. Law, 236. The question being whether A loaned money to B,
the fact of A's poverty at the time of the alleged loan is relevant.
Dowling v. Dowling, 10 Ir. Law, 236. The question being to which
of two persons the plaintiff gave credit, the facts that he had already
before brought suit upon the same demand against one, is relevant,
as showing that he did not give credit to the other. Head v. Taylor,
Litt. Sel. Cas. ( Ky. ) 257. On proof that the defendant was at a cer-
tain place where he might have committed an alleged trespass, it is
relevant to show that he was there from another motive than to
38 A DIGEST OF [PART I.

commit it. Prindle v. Glover, 4 Conn. 266 ; Tracy v. McMannus, 58

N. Y. 257. The fact that A usually procured and paid for the board
of the workmen in his employ at other boarding-houses, is relevant
on the question of his indebtedness for the board of those boarding
with B. Dwight v. Brown, 9 Conn. 83. The question being whether
A caused B to miscarry, by violence, the fact that B had several
times before miscarried, without violence, is relevant. Slattery v.
People, 76 Ill. 217.
The fact that a father had given a slave to several of his daugh-
ters at their respective marriages is relevant to the question whether
the delivery of another slave to another daughter at the time of her
marriage was a gift. Smith v. Montgomery, 5 Monroe (Ky. ), 502.
Two women living in adjoining tenements fell into an altercation,
during which one was severely injured . The other, on being prose-
cuted for an assault, set up that the injury was unintentional and
accidental. That the prisoner did not visit, inquire for, or in any way
interest herself in the injured party, is evidence that the assault
was intentional. State v. Alford , 31 Conn. 40.
Proof that A was in the habit of loaning money without taking
notes, is relevant, in a suit to recover $500 so loaned for six months,
to rebut any unfavorable presumption from the singularity of such a
transaction. Stolp v. Blair, 68 Ill. 541.
A sues B for negligently towing a scow, whereby the scow was
partially swamped, and several cattle belonging to A were lost.
The defendant may ask the owner of the scow, who has testified that
she was seaworthy, on cross-examination, how many times she has
been accidentally sunk before. Baird v. Daly, Ct. of App. N. Y.,
3 L. & Eq. Reptr. 573.
On a question of negligence, the employment of more men to
watch the track after a fire has been caused by sparks escaping
from a locomotive is relevant as an admission that enough had
not previously been employed. Westfall v. Erie R. R. Co., 5 Hun
(N. Y. S. C. ) , 75.
On an indictment for seduction, the fact that others " kept com-
pany " with the prosecutrix as well as the defendant, is relevant.
Steinhouse v. State , 47 Ind. 17.
On the question whether A committed adultery, the fact that he
associated with prostitutes is relevant. Ciocci v. Ciocci, 29 L. J.
Pr. & Mat. 60.
The fact that the complainant in a bastardy case associated with
young men of notoriously bad character for chastity, is not relevant
to the question whether the defendant is the father of the child.
Eddy v. Gray, 4 Allen ( Mass . ) , 435.
The fact that A habitually loans money at usurious interest is not
CHAP . I.] THE LAW OF EVIDENCE . 39

relevant to the question whether there was usury in the particular

loan on trial. Jackson v. Smith, 7 Cow. (N. Y. ) 717.
The fact that A had drawn four other notes in a given form is not
relevant to the question whether he drew the notes in controversy in
that way. Iron Mt. Bank v. Murdock, 62 Mo. 70.
The question being whether the plaintiff's intestate was injured by
the negligence of the defendant, an offer by the defendant to pay
the intestate's funeral expenses is irrelevant. Campbell, Admr., v .
Chicago, Rock Island, & Pac. R. R. Co., Sup: Ct. Iowa, 1876, 3 L.
& Eq. Reptr.
In an action against a physician for malpractice, the fact that he
has never called for his pay for his services is irrelevant. Baird v.
Gillett, 47 N. Y. 186.
On the question of damages in a slander suit, the moral and intel-
lectual character of the person to whom the slander is addressed, if
the words are understood, are irrelevant. Sheffill v. Van Deusen,
15 Gray (Mass. ) , 485.
On a question of a breach of contract, the position and standing
of the parties in society are irrelevant. Rowland v. Dowe, 2 Mur-
phy (N. C. ) , 347.
The question being whether A committed suicide, the fact that
he was an infidel or an atheist is irrelevant. Gibson v. American
Mut. Life Ins . Co. , 37 N. Y. 580.
On a trial for homicide, the question being which party began the
encounter, threats previously made by either against the other, but
unknown to the other, are relevant. Wiggins v. United States, Sup.
Ct. U. S., Ch. L. News, June 2, 1877 ; Stokes v . People, 53 N. Y. 174 ;
Campbell v. People, 16 Ill . 18 ; Keenan v. State, 18 Ga . 194 ; Holler v.
State, 37 Ind. 57 ; People v. Scroggins, 37 Cal. 676 ; Wharton on Homi-
cide, §§ 694, 695. This is now the very generally accepted doctrine.
That it has been frequently held to the contrary, see the cases cited
by Wharton, ut supra. In Horbuck v. State, 43 Texas, 242 , the habit
of the deceased of carrying weapons, and his character for violence,
are held relevant under such circumstances, if known to the defend-
ant, on the question whether the defendant had such grounds of appre-
hension as to call upon him to take steps in his defence. s. c. 2 Cen.
L. J. 414. See also Wharton on Homicide, § 606 et seq.
On the general question of relevancy, see the recent very elabo-
rate and valuable opinion of Doe, J., in Darling v. Westmoreland,
52 N. H. 401 ; Att'y-Genl. v. Hitchcock, 1 Ex. 91 ; Reg. v. Burke,
8 Cox, 44 ; Southern Law Rev. vol. iii. N. s . pp. 93-118. See also
articles 3 and 10, post, and notes .
The general rule is, that the introduction by one party of irrele-
vant evidence does not give the right to reply. Shedden v. Patrick,
40 A DIGEST OF [PART 1.

2 Sw. & Tr. 170 ; Mitchell v. Sellman, 5 Md. 376. But, in New
Hampshire, the right to reply seems to be conceded, Forbush v. Good-
win, 5 Fost. 425 ; and in Massachusetts it is said to be a matter within
the discretion of the judge, Brooks v. Acton, 117 Mass. 204 ; see
further upon this point, Cowen & Hill's Notes to Phillip's Ev. vol . ii.
p. 450, note 328.
A fact in issue in a criminal case must be proved beyond a rea-
sonable doubt.
A is indicted for assaulting B. The assault must be proved
beyond a reasonable doubt.
A fact in issue in a civil case may be proved by a preponderance
of evidence in favor of the fact in issue.
B sues A for an assault upon him. The assault may be proved by
a preponderance of evidence.
Subject to this important distinction, the rules in civil and crimi-
nal cases are the same. As to the origin and history of the distinc-
tion, see 10 Am. Law Rev. pp. 642-664. }
CHAP. II. ] THE LAW OF EVIDENCE . 41

CHAPTER II.

OF FACTS IN ISSUE AND RELEVANT TO THE ISSUE.

ARTICLE 2.*

FACTS IN ISSUE AND FACTS RELEVANT TO THE ISSUE

MAY BE PROVED.

EVIDENCE may be given in any proceeding of any fact

in issue,
and of any fact relevant to any fact in issue unless it
is hereinafter declared to be deemed to be irrelevant,
and of any fact hereinafter declared to be deemed to
be relevant to the issue whether it is or is not relevant
thereto .
Provided that the judge may exclude evidence of facts
which, though relevant or deemed to be relevant to the
issue, appear to him too remote to be material under all
the circumstances of the case.

See Morrissey v. Ingham, 111 Mass. 63, for several good illustra-
tions of this proviso .
Facts and circumstances in their nature continuous may always be
shown to exist anterior to the precise period in 'question, unless so
remote as to afford no reasonable inference that there has been
no change. Com. v. Billings, 97 Mass. 406.
The possession of stolen property may be of such property, and
so long after the theft as to justify the judge in rejecting the fact,
as, though relevant, of inappreciable weight. Sloan v. People,
47 Ill. 76 ; Jones v. State, 26 Miss. 247 ; Reg. v. Crittenden, 6 Jur.
267. Or the judge may leave the question to the jury, whether, upon
all the facts, the possession affords any presumption connecting the

* See Appendix, Note II.

42 A DIGEST OF [PART I.

prisoner with the crime. State v. Hodges, 50 N. H. 510 ; State v.

Brewster, 7 Vt. 122 ; Rex v. Cokin , 2 Lew. C. C. 235, Coleridge, J.
See post, art. 11, par. 2.
So, on a question of the value of land, recent sales of similar
land in the vicinity are relevant. But what constitutes recent-
ness, similarity, and vicinity is to a great extent to be left to the dis-
cretion of the judge, and much weight is to be given to his opinion.
Benham v. Dunbar, 103 Mass. 365. Nevertheless, whether that dis-
cretion is soundly exercised, may, upon report of the facts, on
exceptions, be reviewed by the appellate court. Chandler v. Jamaica
Pond Aqueduct Corp. , Sup . Ct. Mass., 3 L. & Eq. Reptr. 459.
So, when mental condition at a given time is the issue, evidence of
the condition, both prior and subsequent to that time, is relevant ; but
how long before or after is in the discretion of the judge , subject to
a like revision. White v. Graves, 107 Mass . 325.
So prior and subsequent acts of adultery are proof of an adulterous
disposition. Thayer v. Thayer, 101 Mass. 111 ; Boddy v. Boddy,
30 L. J. Pr. & Mat. 23.
Although, when a relevant fact has greater or less weight in pro-
portion to its remoteness in point of time, place, or other circum-
stance, it is sometimes held that the judge may, in his discretion, fix
the limit beyond which it becomes of inappreciable weight, and
reject it as immaterial, though relevant, it is a practice liable to
abuse, and, as there is no rule by which the limit is to be fixed, cer-
tain to be inconsistently applied by different judges. The safer and
more satisfactory rule is for the judge to admit whatever is relevant,
and leave the question of its weight to the jury, — the rule adopted
in some courts, as we have just seen. And so far as the judge
deals with the question of its weight, he interferes with the just
prerogative of the jury. "Whether there be any evidence," said
Mr. Justice Buller, long ago, in the Company of Carpenters, &c . of
Shrewsbury v. Hayward, Doug. 375, “ is a question for the judge ;
whether sufficient evidence, is for the jury." Chandler v. Roeder,
24 How. (U. S. ) 224. This exercise of discretion is defended on the
ground that the time of the courts ought not to be consumed in the
taking of substantially immaterial evidence. But it will take much
less time to hear the evidence, if relevant, without regard to its
weight, than to decide, on exceptions, the question whether the evi-
dence was admissible or inadmissible, on account of its degree of
relevancy. Besides, it is hardly probable that respectable counsel
will waste their own and their client's time and money, and vex the
court and jury, with much evidence which is so remotely relevant as
to be practically immaterial. If counsel are right in the production
of relevant evidence, they ought not to be deprived of it because
CHAP. II. ] THE LAW OF EVIDENCE . 43

they may have misjudged as to its weight. In the first instance, the
jury only have the right to say they have misjudged . Relevancy
should be the simple and only test, where the statute does not control ;
and the exclusion of relevant evidence, offered in good faith, is as
indefensible upon principle as would be the exclusion of a compe-
tent witness, - an accomplice, or one who had deliberately sworn
falsely in a material matter, for instance, -on the ground that his
evidence was without weight. 1 Greenl. Ev. § 49, and note ; Holt v.
Crume, Lit. Sel. Cas. ( Ky. ) 500.
It is discretionary with the judge whether to admit evidence
which does not yet appear to be relevant, on the assurance of coun-
sel that other facts will be proved which will show its releyancy, the
general practice being to admit on such assurance, and afterwards
exclude it, if its relevancy is not made to appear. Moppin v. Ætna
Axle, &c. Co., 41 Conn. 34 ; Haigh v. Belcher, 7 C. & P. 339 ; Abney
v. Kingsland, 10 Ala. 355 ; Com. v. Davis, 107 Mass . 210 ; Harris v.
Holmes, 30 Vt. 352 ; McAllister's Case , 11 Shep. (Me . ) 139 ; U. S. v.
Flowery, 1 Sprague, Dec. 109 ; Van Buren v. Wells, 19 Wend. (N. Y.)
203.
And no exception lies to the exercise of such discretion by the
judge, as to the order in which the evidence is admitted . But such
evidence may be rejected, till its relevancy appears. Weidler v.
Farmers' Bank, 11 Serg. & Rawle (Pa. ) , 134. }

Illustration.

(a ) A is indicted for the murder of B, and pleads not guilty.

The following facts may be in issue : The fact that A killed B ;
the fact that at the time when A killed B he was prevented by dis-
ease from knowing right from wrong ; the fact that A had received
from B such provocation as would reduce his offence to man-
slaughter.
The fact that A was at a distant place at the time of the murder
would be relevant to the issue ; the fact that A had a good character
would be deemed to be relevant ; the fact that C on his deathbed
declared that C and not A murdered B would be deemed not to be
relevant.

ARTICLE 3.
RELEVANCY OF FACTS FORMING PART OF THE SAME
TRANSACTION AS FACTS IN ISSUE .

Facts which, though not in issue, are so connected with

a fact in issue as to form part of the same transaction or
41 A DIGEST OF [PART I.

subject-matter, are deemed to be relevant to the fact

with which they are so connected .

Illustrations.
(a) The question is, whether A murdered B by shooting him.
The fact that a witness in the room with B, just before he was
shot, saw a man with a gun in his hand pass a window opening into
the room in which B was shot, and thereupon exclaimed, " That's the
butcher ! " (a name by which A was known ) is deemed to be rele-
vant.1
(b) The question is, whether A committed manslaughter on B by
carelessly driving over him.
A statement made by B as to the cause of the accident, as soon as
he was picked up, is deemed to be relevant, though it may not be a
dying declaration within article 26.2

1 R. v. Foulkes, per Campbell, C. J. , Leicester Spring Assizes ,

1856. Ex relatione O'Brien, Serjt. The question being whether
the plaintiff's intestate died by his own hand, evidence that about the
time of his death the occupant of the adjoining room came out,
"seemingly excited, and saying something about the man having
shot himself," is relevant. Newton v. Mut. Ben. Life Ins. Co. ,
2 Dill. (U. S. C. Ct. ) 154 ; Galena, &c. R. R. Co. v. Fay, 16 Ill. 558.
2 R. v. Foster, 6 C. & P. 325. The judges (Park, J., Gurney, B. ,
and Patteson, J. ) who decided this case referred to Aveson v. Lord
Kinnaird, 6 Ea. 193. See Article 11 , Illustration (m) . Incidental
declarations, acts, and circumstances contemporaneous with the prin-
cipal acts, or so nearly contemporaneous with them as to constitute
a part thereof, and in some respect to qualify them, become rele-
vant, whenever the principal acts themselves are relevant. Boyden
v. Burke, 14 How. ( U. S. ) 575 ; Swift v. Mass. Mut. Life Ins. Co.,
63 N. Y. 186 ; Boston & Wor. R. R. Co. v. Dana, 1 Gray, ( Mass . ) 83 ;
1 Greenl. Ev. § 108 ; Nelson v. State, 2 Swan ( Tenn. ) , 237 ; Garber
v. State, 4 Cold. ( Tenn. ) 161 ; People v. Vernon, 35 Cal. 49 ; Carter
v. Buchanan, 3 Ga. 513 ; Kearney v. Farrell, 28 Conn. 317. But
not if the principal facts are irrelevant, Carleton v. Patterson, 29
N. H. 580 ; Fail v. McArthur, 31 Ala. 26 ; or are unequivocal, and
need no explanation, Nutting v. Page, 4 Gray (Mass . ) , 584 ; or are
inconsistent with the declaration, State v. Shelledy, 8 Clarke ( Iowa),
477.
If the declaration be so connected with or so grows out of the
act as fairly to be considered incidental to or qualifying it, it is
CHAP. II.] THE LAW OF EVIDENCE . 45

(c) The question is, whether A, the owner of one side of a river,
owns the entire bed of it, or only half the bed, at a particular spot.
The fact that he owns the entire bed a little lower down the river is
deemed to be relevant.¹
(d) The question is, whether a slip of land by the roadside belongs
to the lord of the manor or to the owner of the adjacent land. The
fact that the lord of the manor owned other parts of the slip of land
by the side of the same road is deemed to be relevant.2
Such evidence as is admissible under the last two illustrations is
so only as to proof of ownership of lands by acts of possession ; and
the latitude allowed springs, it is said, from the impossibility of prov-
ing the exact spot of a trespass. Hence evidence of acts done in
other places may be admitted, provided there is a common character
of locality between the place and the spot in question as to give

relevant, though not contemporaneous ; as where a patient tells his

physician how the injury happened, Harriman v. Stowe, 57 Mo. 93 ;
or one just escaping from an assault tells who was the aggressor,
Carr v. McPike, 3 Cush. ( Mass. ) 181 ; Jordan's Case, 25 Gratt. ( Va . )
443 ; 1 Greenl . Ev. § 110.
Courts are inclined to extend rather than restrict the scope of the
rule admitting declarations as part of and qualifying an act. Insur-
ance Co. v. Moody, 8 Wall. (U. S. ) 397.
On a trial for homicide, a statement made by the prisoner a few
minutes after, and in the hearing and presence of those who saw the
homicide, may be relevant in his favor, and it is error to exclude it.
Little's Case, 25 Gratt. (Va . ) 921 ; Hart v. Powell, 18 Ga. 635 ;
1 Greenl. Ev . § 108, and notes.
It being material to show that A went to a certain place, the fact
that he went away declaring that he was going to that place is relevant.
State v. Howard, 32 Vt. 380 ; Richmond v . Thomaston, 38 Me. 232 ; `
New Milford v. Sherman, 21 Conn . 101. So also is a letter, written
while away, explanatory of the nature of the writer's absence.
Rawson v. Haigh, 2 Bing. 99.
A wife leaves her husband, and goes to her father's house . The
reasons she gives for leaving her husband on the day of her return
are relevant ; the reasons she gives the day after are irrelevant.
Johnson v. Sherwin, 3 Gray ( Mass . ) 374.
On a question of domicile, declarations of intent are relevant.
The Venus, 8 Cranch ( U. S. ) , 278 ; Thorndike v. Boston , 1 Met.
(Mass. ) 242 ; Richmond v. Vassalborough, 5 Greenl. ( Me. ) 396. }
1 Jones v. Williams, 2 M. & W. 326.
2 Doe v. Kemp, 7 Bing. 332 ; 2 Bing. N. C. 102 .
46 A DIGEST OF [PART I.

rise to the inference that the owner of the former is also owner of
the latter. 1 Greenl. Ev § 53. Whether that common character exists
is a preliminary question for the determination of the judge, Doe
v. Kemp, 7 Bing . 336 ; and there seems to be no test of the correct-
ness of this determination, unless, possibly, under exceptions, when
the judgment of one or more superior judges may sustain or over-
rule the judgment of an inferior one. The principle upon which
such evidence is admissible can only be understood by a careful
study of the cases themselves , and perhaps not then. What " com-
mon character of locality " existed in either case except contiguity
is not apparent. It will hardly do for a man to claim title to a lot of
land because it is contiguous to another lot which he does own.
These cases seem to have been recognized in Simpson v. Dendy,
8 C. B. N. s. 433, where there was not even contiguity to support the
66
common character ; " but no case has been found in this country
sanctioning such latitude . }

ARTICLE 4.*
ACTS OF CONSPIRATORS .

When two or more persons conspire together to com-

mit any offence or actionable wrong, every thing said ,
done, or written by any one of them in the execution or
furtherance of their common purpose, is deemed to be so
said, done, or written by every one, and is deemed to be
a relevant fact as against each of them ; ¹ but statements
as to measures taken in the execution or furtherance of
any such common purpose are not deemed to be relevant
as such as against any conspirators, except those by whom
or in whose presence such statements are made. Evi-
dence of acts or statements deemed to be relevant under
this article may not be given until the judge is satisfied
that, apart from them, there are primâ facie grounds for
believing in the existence of the conspiracy to which
they relate.2

* See Appendix, Note III.

1 Am. Fur Co. v. United States, 2 Pet. (U. S. ) 358 ; Williams
v. State, 47 Ind . 568.
2 The judge's decision on this point may be revised on exceptions
CHAP . II.] THE LAW OF EVIDENCE . 47

Illustrations.
(a) The question is, whether A and B conspired together to cause
certain imported goods to be passed through the custom-house on
payment of too small an amount of duty.
The fact that A made in a book a false entry, necessary to be
made in that book in order to carry out the fraud, is deemed to be a
relevant fact as against B.
The fact that A made an entry on the counterfoil of his cheque-
book showing that he had shared the proceeds of the fraud with B,
is deemed not to be a relevant fact as against B.¹
(b) The question is, whether A committed high treason by imag-
ining the king's death ; the overt act charged is that he presided over
an organized political agitation calculated to produce a rebellion, and
directed by a central committee through local committees.
The facts that meetings were held, speeches delivered, and papers
circulated in different parts of the country, in a manner likely to
produce rebellion by and by the direction of persons shown to have
acted in concert with A, are deemed to be relevant facts as against
A, though he was not present at those transactions, and took no part
in them personally.
An account given by one of the conspirators in a letter to a friend,
of his own proceedings in the matter, not intended to further the
common object, and not brought to A's notice, is deemed not to be
relevant as against A.2

containing all the facts upon which he based his decision. Burke v.
Miller, 7 Cush. (Mass. ) 547. }
1 R. v. Blake, 6 Q. B. 137-140. The correctness of the law
stated in this branch of this illustration will appear more clearly
when it is stated that B is a land-waiter, and A is an importer's
agent, at the custom-house, whose respective duties were independ-
ently to make entries of the contents of cases imported, each as a
check upon the other. It was shown that each had made false
entries as to the contents of thirteen different packages . It was
then proposed to offer entries made by A in his book of the amount
of duty paid by him on the several cases as evidence against B. }
2 R. v. Hardy, 24 S. T. passim, but see particularly 451-453. Dec-
larations made after the execution of the conspiracy are only good
against those who make them, or have notice of them. Clinton v.
Estes , 20 N. Y. 216 ; State v. Ross, 29 Mo. 32 ; 1 Greenl . Ev. § 111.
Flight of one conspirator is no evidence of the guilt of another.
People v. Stanley, 47 Cal. 113.
48 A DIGEST OF [PART I.

ARTICLE 5.*
TITLE .

When the existence of any right of property, or of

any right over property is in question, every fact which
constitutes the title of the person claiming the right, or
which shows that he, or any person through whom he
claims, was in possession of the property, and every fact
which constitutes an exercise of the right, or which
shows that its exercise was disputed , or which is incon-
sistent with its existence or renders its existence improb-
able, is deemed to be relevant.
Illustrations.
(a) The question is, whether A has a right of fishery in a river.
An ancient inquisitio post mortem finding the existence of a right of
fishery in A's ancestors, licenses to fish granted by his ancestors, and
the fact that the licensees fished under them , are deemed to be rele-
vant.1
(b) The question is, whether A owns land.
The fact that A's ancestors granted leases of it is deemed to be
relevant.2
(c) The question is, whether there is a public right of way over
A's land.
The facts that persons were in the habit of using the way, that
they were turned back, that the road was stopped up, that the road
was repaired at the public expense, and A's title-deeds showing that
for a length of time, reaching beyond the time when the road was
said to have been used , no one had power to dedicate it to the pub-
lic, are all deemed to be relevant.3

* See Appendix, Note IV.

1 Rogers v. Allen, 1 Camp. 309.
2 Doe v. Pulman , 3 Q. B. 622, 623, 626 (citing Duke of Bedford v.
Lopes). The document produced to show the lease was a counter-
part signed by the lessee. See post, art. 64.
3 Common practice. As to the title-deeds, Brough v. Lord Scars-
dale, Derby Summer Assizes, 1865. Declarations accompanying
and qualifying possession, whether of real or personal property, or
whether in disparagement of title or otherwise, are facts within the
meaning of this article. 1 Greenl. Ev. § 109 ; Turner v. Baldwin,
Sup. Ct. Conn., 1876, 4 L. & Eq. Reptr. 7.
CHAP. II. ] THE LAW OF EVIDENCE . 49

ARTICLE 6.
CUSTOMS .
When the existence of any custom is in question, every
fact is deemed to be relevant which shows how, in par-
ticular instances , the custom was understood and acted
upon by the parties then interested .

Illustrations.
(a) The question is, whether, by the custom of borough-English
as prevailing in the manor of C, A is heir to B.
The fact that other persons, being tenants of the manor, inherited
from ancestors standing in the same or similar relations to them as
that in which A stood to B, is deemed to be relevant.¹

ARTICLE 7.
MOTIVE, PREPARATION, SUBSEQUENT CONDUCT, EXPLAN-
ATORY STATEMENTS.

When there is a question whether any act was done

by any person, the following facts are deemed to be
relevant, that is to say-
any fact which supplies a motive for such an act, or
which constitutes preparation for it.2
any subsequent conduct of such person apparently
influenced by the doing of the act, and any act done in
consequence of it by or by the authority of that person."
Illustrations.
(a) The question is, whether A murdered B.
The facts that, at the instigation of A, B murdered C twenty-five
years before B's murder, and that A at or before that time used ex-
pressions showing malice against C, are deemed to be relevant as
showing a motive on A's part to murder B.4

1 Muggleton v. Barnett, 1 H. & N. 282. For a late case of evidence

of a custom of trade, see Ex parte Powell, in re Matthews, L. R.
1 Ch. D. 501.
2 Illustrations (a) and (b) . 8 Illustrations (c), (d), and (e) .
4 R. v. Clewes, 4 C. & P. 221.
4
50 A DIGEST OF [PART I.

The question is , whether A burned a certain building.

The fact that A had excessive insurance upon the building is
relevant, as showing that A had a motive to destroy it. State v.
Cohn, 9 Nev. 179 ; Com. v. McCarthy, 119 Mass . 354.
(b) The question is, whether A committed a crime.
The fact that A procured the instruments with which the crime
was committed is deemed to be relevant.1
(c) A is accused of a crime.
The facts that, either before, or at the time of, or after the alleged
crime, A caused circumstances to exist tending to give to the facts of
the case an appearance favorable to himself, or that he destroyed or
concealed things or papers, or prevented the presence or procured
the absence of persons who might have been witnesses, or suborned
persons to give false evidence, are deemed to be relevant.2
(d) The question is, whether A committed a crime.
The facts that, after the commission of the alleged crime, he ab-
sconded, for concealed himself, or was in possession of property or
the proceeds of property acquired by the crime, or attempted to con-
ceal things which were or might have been used in committing it,
and the manner in which he conducted himself when statements on
the subject were made in his presence and hearing, are deemed to be
relevant.3
(e) The question is, whether A suffered damage in a railway acci-
dent.
The fact that A conspired with B, C, and D to suborn false wit-
nesses in support of his case is deemed to be relevant, as conduct
subsequent to a fact in issue tending to show that it had not hap
pened.

1 R. v. Palmer (passim) ; { Com. v. Roach, 108 Mass. 289.

2 R. v. Patch, Wills, Circ. Ev. 230 ; R. v. Palmer, ub. sup. ( passim).
And so any thing said or done by either party to the issue, intended
to produce a false impression touching the fact in issue, or his or his
adversary's connection with it, is relevant. As when the status of
things at the locus of the crime is charged just before a view by the
jury, State v. Knapp , 45 N. H. 148 ; or a false reason is given for
an act, State v. Reed, 62 Me. 129 ; or evidence is fabricated, Win-
chell v. Edwards, 57 Ill. 41 ; Com. v. Webster, 5 Cush. (Mass . ) 316 ;
State v. Williams, 27 Vt. 226 ; 1 Greenl. Ev. § 37.
8 Common practice. { Com. v. Tolliver, 119 Mass. 312. }
4 Moriarty v. London, Chatham, & Dover Ry. Co. , L. R. 5 Q. B.
314; compare Gery v. Redman, L. R. 1 Q. B. D. 161. The issue
being whether A owes B, the fact that A suborned C to testify falsely
CHAP. II. ] THE LAW OF EVIDENCE . 51

ARTICLE 8.*

STATEMENTS ACCOMPANYING ACTS , COMPLAINTS, STATE-

MENTS IN PRESENCE OF A PERSON.

Whenever any act may be proved , statements accom-

panying and explaining that act made by or to the per-
son doing it may be proved if they are necessary to
understand it.¹
In criminal cases the conduct of the person against
whom the offence is said to have been committed, and in
particular the fact that he made a complaint soon after
the offence to persons to whom he would naturally com-
plain, are deemed to be relevant ; but the terms of the
complaint itself seem to be deemed to be irrelevant.2
When a person's conduct is in issue or is or is deemed
to be relevant to the issue, statements made in his pres-
ence and hearing by which his conduct is likely to have
been affected , are deemed to be relevant facts.

* See Appendix, Note V.

in support of his claim is relevant, as an admission by conduct that
the claim is unjust. Egan v. Bowker, 5 Allen ( Mass . ), 449. But the
fact that he suborned a witness in another case, or that he committed
forgery in a matter not connected with the transaction or trust, is
not relevant. Com. v. Mason, 105 Mass . 163. On an issue of forgery,
the procurement of a false and fictitious deposition - the respondent
personating the deponent - is relevant, as tending to show guilt.
State v. Williams, 27 Vt. 226. }
1 Illustrations (a) and (b). Other statements made by such per-
sons are relevant or not according to the rules as to statements here-
inafter contained . See Ch. IV. post.
2 Illustration (c).
3 R. v. Edmunds, 6 C. & P. 164 ; Neil v. Jakle, 2 C. & K. 709.
This proposition should be limited to such statements as are within
the presumed knowledge of the party, and call for notice on his part,
and at a time and under circumstances when notice would be proper.
Thus, he is not bound to reply to statements made in his presence
during a trial, Broyles v. State, 47 Ind. 251 ; or where he has for a
proper purpose promised to keep silent, Slattery v. People, 76 Ill .
52 A DIGEST OF [PART I.

Illustrations.
(a) The question is, whether A committed an act of bankruptcy,
by departing the realm with intent to defraud his creditors.
Letters written during his absence from the realm, indicating such
an intention, are deemed to be relevant facts.¹
(b) The question is, whether A was sane.
The fact that he acted upon a letter received by him is part of the
facts in issue. The contents of the letter so acted upon are deemed
to be relevant, as statements accompanying and explaining such
conduct.2
(c) The question is, whether A was ravished.
The fact that, shortly after the alleged rape, she made a complaint
relating to the crime, and the circumstances under which it was
made, are deemed to be relevant, but not (it seems ) the terms of the
complaint itself. 1 Greenl. Ev. § 102. The terms of the complaint
are admissible on cross-examination , and in corroboration of the wit-
ness, if she is impeached. 3 Greenl. Ev. § 213. In some courts this
complaint is held admissible only in a case of rape. Haynes v. Com.,
Sup. Ct. Va., 1877 , 3 L. & Eq. Reptr. 699 ; People v. McRea, 32
Cal. 98. But see ante, art. 3, note to Illustration (b). }
The fact that, without making a complaint, she said that she had
been ravished, is not deemed to be relevant as conduct under this
article, though it might be deemed to be relevant (e.g. ) as a dying
declaration under article 26.

ARTICLE 9.
FACTS NECESSARY TO EXPLAIN OR INTRODUCE RELEVANT
FACTS .

Facts necessary to be known to explain or introduce a

fact in issue or relevant or deemed to be relevant to the

217. Nor does silence, when a party is under arrest, give rise to any
presumption for or against the party. Com. v. Walker, 13 Allen
(Mass.) , 570 ; Bob v. State, 32 Ala. 560 ; Noonan v. State, 9 Miss . 562.
Kelley v. People, 55 N. Y. 565, contra , seems to have proceeded upon
a misapprehension of the case upon which it relied . See 1 Greenl.
Ev. ( 13th ed.) § 199.
1 Rawson v. Haigh, 2 Bing. 99 ; Bateman v. Bailey, 5 T. R. 512.
See ante, art. 3. }
2 Wright v. Doe d. Tatham, 7 A. & E. 324, 325 (per Denman, C. J. ) .
3 R. v. Walker, 2 M. & R. 212. See Appendix, Note V.
CHAP. II. ] THE LAW OF EVIDENCE . 53

issue, or which support or rebut an inference suggested by

any such fact, or which establish¹ the identity of any thing
or person whose identity is in issue or is or is deemed to
be relevant to the issue, or which fix the time or place at
which any such fact happened, or which show that any
document produced is genuine or otherwise, or which
show the relation of the parties by whom any such fact
was transacted, or which afforded an opportunity for its
occurrence or transaction, or which are necessary to be
known in order to show the relevancy of other facts, are
deemed to be relevant in so far as they are necessary for
those purposes respectively.
{ So are facts which show that a witness is incredible or biased.
Post, art. 129. }
Illustrations.
(a) The question is, whether a writing published by A of B is
libellous or not.
The position and relations of the parties at the time when the
libel was published may be deemed to be relevant facts as intro-
ductory to the facts in issue.
The particulars of a dispute between A and B about a matter
unconnected with the alleged libel are not deemed to be relevant
under this article, though the fact that there was a dispute may be
deemed to be relevant if it affected the relations between A and B.2
(b) The question is, whether A wrote an anonymous letter, threat-
ening B, and requiring B to meet the writer at a certain time and
place to satisfy his demands.
The fact that A met B at that time and place is deemed to be rele-
vant, as conduct subsequent to and affected by a fact in issue.
The fact that A had a reason, unconnected with the letter, for
being at that time at that place, is deemed to be relevant, as rebut-
ting the inference suggested by his presence.³

1 Or tend to establish or disprove. }

2 Common practice. When a party puts facts in evidence for
the purpose of discrediting a witness , explanations of the facts so
put in are relevant. To what extent of detail is within the discre-
tion of the judge. Com. v. Jennings, 107 Mass . 488.
3 R. v. Barnard, 19 St. Tri. 815, &c. The question is, whether
A committed a trespass. The fact that he was at the place where
54 A DIGEST OF [PART I.

(c) A is tried for a riot, and is proved to have marched at the head
of a mob. The cries of the mob are deemed to be relevant, as ex-
planatory of the nature of the transaction.¹
(d) The question is, whether a deed was forged . It purports to be
made in the reign of Philip and Mary, and enumerates King Philip's
titles.
The fact that at the alleged date of the deed, Acts of State and
other records were drawn with a different set of titles, is deemed to
be relevant.2
(e) The question is, whether A poisoned B. Habits of B known
to A, which would afford A an opportunity to administer the poison,
are deemed to be relevant facts.3
(f) The question is, whether A made a will under undue influence.
His way of life and relations with the persons said to have influenced
him unduly, are deemed to be relevant facts.4

the trespass was committed, at the time it was committed, is relevant.

So is the fact that he was there for another purpose relevant, in
rebuttal. Prindle v. Glover, 4 Conn. 266.
1 R. v. Lord George Gordon, 21 St. Tri. 520. The exclamations
and conduct of the passengers on board a railroad train at the time
of an accident are relevant to explain and justify the conduct of the
injured plaintiff, though not in his presence. Galena R. R. Co. v.
Fay, 16 Ill. 558. But the conversation of men just emerged from an
alleged house of ill-fame, not in the presence of the alleged keeper,
are not relevant in explanation of the character of the house.
Com. v. Harwood, 4 Gray ( Mass . ) , 41. This last case, however,
savors of strictness. See ante, art. 3, notes ; 1 Greenl. ( 13th ed . )
§ 108, n.
2 Lady Ivy's Case, 10 St. Tri. 615.
3 R. v. Donellan, Wills, Circ. Ev. 192 ; and see my " General View
of the Criminal Law," p. 338, &c.
4 Boyse v. Rossborough, 6 H. L. C. 42-58.
CHAP. III. ] THE LAW OF EVIDENCE . 55

CHAPTER III .

OCCURRENCES SIMILAR TO BUT UNCONNECTED WITH

THE FACTS IN ISSUE, IRRELEVANT EXCEPT IN CER-
TAIN CASES.
ARTICLE 10.*

SIMILAR BUT UNCONNECTED FACTS.

A FACT which renders the existence or non-existence

of any fact in issue probable by reason of its general
resemblance thereto and not by reason of its being con-
nected therewith in any of the ways specified in articles
3-10, both inclusive, is deemed not to be relevant to
such fact except in the cases specially excepted in this
chapter.
Illustrations.
(a) The question is , whether A committed a crime.
The fact that he formerly committed another crime of the same
sort, and had a tendency to commit such crimes, is irrelevant.¹
(b) The question is, whether A, a brewer, sold good beer to B, a
publican. The fact that A sold good beer to C, D, and E, other pub-
licans, is irrelevant ² (unless it is shown that the beer sold to all is of
the same brewing ) .3

* See Appendix, Note VI.

1 R. v. Cole. 1 Phi. Ev. 508 (said to have been decided by all the
Judges in Mich. Term, 1810) .
2 Holcombe v. Hewson, 2 Camp . 391.
³ See Illustrations to article 3. See also ante, notes to articles 1
and 3. The difficulties in the application of the rule stated in the
article may be further illustrated by reference to the following cases.
The question being whether a certain fire was caused by sparks
escaping from a certain locomotive, the fact that at various times
before the fire, and during the same summer, other fires were caused
56 A DIGEST OF [PART I.

ARTICLE 11.*

ACTS SHOWING INTENTION, GOOD FAITH, ETC.

When there is a question whether a person said or did

something, the fact that he said or did something of the
same sort on a different occasion may be proved if it

* See Appendix, Note VI.

along the line of the same railroad by sparks escaping from other
locomotives of the same company is relevant. Grand Tr. R. R. Co.
v. Richardson, 91 U. S. 454 ; Penn. R. R. Co. v. Stranahan, 79
Pa. St. 405 ; Annapolis R. R. Co. v. Gantt, 39 Md . 115 ; Field v.
N. Y. Central R. R. Co., 32 N. Y. 339 ; Longabaugh v. Virginia, &c.
R. R. Co., 9 Nev. 271 ; Boyce v. Cheshire R. R. Co., 43 N. H. 627 ;
Cleaveland v. Gr. Tr. R. R. Co., 42 Vt. 449 ; contra, Coale v. H. &
St. J. R. R. Co. , 60 Mo. 224. The other cases to the contrary, B. & S.
R. R. v. Woodruff, 4 Md . 254 , Boyce v. Cheshire R. R. , 42 N. H. 97,
cannot be regarded as law, even in those States. 2 Cen. L. J. 642.
The question being whether a horse was frightened by a certain
pile of lumber, evidence that other horses were frightened by the
same pile is relevant. Darling v. Westmoreland, 52 N. H. 401. In
Collins v. Dorchester, 6 Cush . (Mass . ) 396, in an action to recover for
injuries caused by a defect in the highway, it was held that proof of
similar injuries before received by others at or near the same place,
was irrelevant to the question whether the road was defective or
not. See also Hawks v. Charlemont, 110 Mass . 110, to the same
point.
A sues B for negligently permitting a car to run off the track, to A's
injury. Proof that the cars of the same line have several times run
off the same track is relevant. Mobile R. R. v. Ashcroft, 48 Ala. 15.
The question being whether a certain driver of a horse-car was
negligent at a certain time, the fact that he had been guilty of the
same negligence at other times is not relevant. Maguire v. Middle-
sex R. R. Co., 115 Mass. 240. Nor is the fact that he is generally
careful relevant to the issue whether he was then careful. McDon-
ald v. Savoy, 110 Mass . 49 ; Morris v. Eastham , 41 Conn. 252.
A hog was shot twice within an hour of the same day. The fact
that B shot him the second time is relevant to the charge that he fired
the first shot. Landell v. Hotchkiss, 1 Th . & C. N. Y. Sup. Ct. 580.
Three burglaries were committed in one night in the same neigh-
borhood, property taken from one house being found in another.
CHAP. III.] THE LAW OF EVIDENCE. 57

shows the existence on the occasion in question of any

intention, knowledge, good or bad faith, malice, or other
state of mind, or of any state of body or bodily feeling,
the existence of which is in issue or is or is deemed to be
relevant to the issue ; but such acts or words may not
be proved merely in order to show that the person so
acting or speaking was likely on the occasion in question
to act in a similar manner.
2 Where proceedings are taken against any person for
having received goods, knowing them to be stolen , or for
having in his possession stolen property, the fact that
there was found in the possession of such person other
property stolen within the preceding period of twelve
months, is deemed to be relevant to the question whether
he knew the property to be stolen which forms the sub-
ject of the proceeding taken against him.
If, in the case of such proceedings as aforesaid, evi-
dence has been given that the stolen property has been
found in the possession of the person proceeded against,
the fact that such person has within five years imme-
diately preceding been convicted of any offence involving
fraud or dishonesty, is deemed to be relevant for the

The fact that A committed one is relevant to the question whether

he committed the other. Taylor, Ev. § 307 ; Rex v. Wylie, 1 N. R.
94 ; Rex v. Ellis, 6 B. & C. 76 ; Rex v. Long, 6 C. & P. 179 ; Heath v.
Com., 1 Rob. (Va. ) 235 ; State v. Wentworth, 37 N. H. 196. See also
1 Greenl. Ev. (13th ed. ) § 53, n. }
1 Such a fact is relevant, because it tends to show knowledge,
intent, &c. This is the ground upon which the case admitting such
testimony proceeds. See the cases cited in the notes to Illustrations
(a), (b), and (c). }
2 34 & 35 Vict. c. 112, s. 19 (language slightly modified ) . This
enactment overrules R. v. Oddy, 2 Den . C. C. 264, and practically
supersedes R. v. Dunn, 1 Moo. C. C. 150, and R. v. Davis, 6 C & P.
177. See Illustrations. It is in accordance, however, with the com-
mon law as held in this country, except that the limitation as to time
is left to the discretion of the court. }
58 A DIGEST OF [PART I.

purpose of proving that the person accused knew the

property which was proved to be in his possession to
have been stolen, and may be proved at any stage of the
proceedings provided that not less than seven days'
notice in writing has been given to the person accused
that proof is intended to be given of such previous
conviction.
{ This provision is new, and, so far as we have observed, peculiar
to the English statute. It is significant as indicating a tendency
to abandon the absurdity that good character is relevant to show
that a man has not committed an offence, but bad character is not
relevant to show that he has.}
Illustrations.
(a) A is charged with receiving two pieces of silk from B, know-
ing them to have been stolen by him from C.
The facts that A received from B many other articles stolen by
him from C in the course of several months, and that A pledged all
of them, are deemed to be relevant to the fact that A knew that the
two pieces of silk were stolen by B from C.1
(b) A is charged with uttering, on the 12th December, 1854, a
counterfeit crown piece, knowing it to be counterfeit.
The facts that A uttered another counterfeit crown piece on the
11th December, 1854, and a counterfeit shilling on the 4th January,
1855, are deemed to be relevant to show A's knowledge that the
crown piece uttered on the 12th was counterfeit.2
(c) A is charged with attempting to obtain money by false pre-
tences, by trying to pledge to B a worthless ring as a diamond ring.
The facts that two days before, A tried, on two separate occasions,

1 Dunn's Case, 1 Moo . C. C. 146 ; Copperman v. People, 56

N. Y. 591 ; Shriedly v. State, 23 Ohio St. 130 ; Devoto v. Com.,
3 Met. ( Ky. ) 142. But receiving other stolen property from other
thieves is irrelevant. Coleman v . People, 58 N. Y. 81.
2 R. v. Forster, Dear. 456 ; (Bersh v. State, 13 Ind. 434 ; Bottom-
ley v. United States, 1 Story, C. Ct. 143 ; Butler v. Collins, 12 Cal.
457 ; Pierce v. Hoffman, 24 Vt. 525 ; Com. v. Stearns, 10 Met. (Mass .)
256. On the charge of forgery of the signature of a deed, evidence
of affixing a false seal is relevant to show intent. People v. Marion,
29 Mich. 31. So is evidence of the use of a false deposition. State
v. Williams, 27 Vt. 726. Contra, People v. Corbin, 56 N. Y. 363 ; fol-
lowing Coleman v. People, ut supra. }
CHAP. III. ] THE LAW OF EVIDENCE . 59

to obtain money from C and D respectively, by a similar assertion

as to the same or a similar ring, and that on another occasion on the
same day he obtained a sum of money from E by pledging as a gold
chain a chain which was only gilt, are deemed to be relevant, as
showing his knowledge of the quality of the ring.¹
(d) A is charged with obtaining money from B by falsely pretend-
ing that Z had authorized him to do so.
The fact that on a different occasion A obtained money from C
by a similar false pretence is deemed to be irrelevant,2 as A's knowl-
edge that he had no authority from Z on the second occasion had no
connection with his knowledge that he had no authority from Z on
the first occasion.
(e) A sues B for damage done by a dog of B's, which B knew to
be ferocious.
The facts that the dog had previously bitten X, Y, and Z, and that
they had made complaints to B, are deemed to be relevant.³
(f) The question is, whether A, the acceptor of a bill of exchange,
knew that the name of the payee was fictitious.

1 R. v. Francis, L. R. 2 C. C. R. 128. The case of R. v. Cooper,

L. R. 1 Q. B. D. ( C. C. R. ) 19, is similar to R. v. Francis, and perhaps
stronger. Com. v. Stone, 4 Met. (Mass. ) 43. See, for some sensible
observations upon the rule involved in the decisions in Francis's
Case, an article from the Solicitors ' Journal, reprinted in the Albany
Law Journal, vol. x. p . 120.
The question being whether A intentionally set fire to B's house
on a certain day, it is relevant to show that on two occasions within
a month prior to that day A set fire to a shed near by, and connected
with the house by a flight of steps . Com. v. McCarthy, 119 Mass.
354. But it is irrelevant to show that the prisoner committed larceny
at another time. Shaser v. State, 36 Wis. 429.
On an indictment for obtaining money by the false pretences that
a certain certificate of stock in a railroad is genuine, the fact that
about the same time, both before and after, he had made the same
false pretences to other persons as to certificates of stock in other
corporations, is relevant to show guilty knowledge. Com. v. Coe,
115 Mass . 481. See also, for further illustrations of this rule, 1 Greenl.
Ev. § 53, n.
2 R. v. Holt, Bell, C. C. 280 ; and see R. v. Francis, ub. sup. p. 130.
This case does not seem to be consistent with either the English or
American cases cited in the previous illustrations to this article.
See also Rex v. Wiley, 1 New Rep. 92 ; 1 Greenl. Ev. § 53. }
8 See cases collected in Roscoe's Nisi Prius, 739.
60 A DIGEST OF [PART I.

The fact that A had accepted other bills drawn in the same man-
ner before they could have been transmitted to him by the payee, if
the payee had been a real person, is deemed to be relevant, as show-
ing that A knew that the payee was a fictitious person.1
(g) A sues B for a malicious libel. Defamatory statements made
by B regarding A for ten years before those in respect of which the
action is brought are deemed to be relevant to show malice.2
(h) A is sued by B for fraudulently representing to B that C was
solvent, whereby B, being induced to trust C, who was insolvent,
suffered loss.
The fact that, at the time when A represented C to be solvent, C
was to A's knowledge supposed to be solvent by his neighbors and
by persons dealing with him, is deemed to be relevant, as showing
that A made the representation in good faith.3
(i) A is sued by B for the price of work done by B, by the order
of C, a contractor, upon a house, of which A is owner.
A's defence is that B's contract was with C.
The fact that A paid C for the work in question is deemed to be
relevant, as proving that A did, in good faith, make over to C the
management of the work in question, so that C was in a position to
contract with B on C's own account, and not as agent for A.4
(j) A is accused of stealing property which he had found, and
the question is, whether he meant to steal it when he took possession
of it.
The fact that public notice of the loss of the property had been
given in the place where A was, and in such a manner that A knew or
probably might have known of it, is deemed to be relevant, as show-
ing that A did not, when he took possession of it, in good faith believe
that the real owner of the property could not be found.5

1 Gibson v. Hunter, 2 H. Bl. 288 ; 1 Greenl. Ev. § 53. }

2 Barrett v. Long, 3 H. L. C. 395, 414. { Words of different
import are not relevant. Howard v. Sexton, 4 N. Y. 157. Some
cases hold only such words as are not actionable, relevant ; others
hold subsequent words relevant only when they explain ambiguities
in the alleged slanderous words. See 2 Greenl. Ev . § 418.
3 Sheen v. Bumpstead , 2 H. & C. 193. The fact that A was re-
puted insolvent amongst his neighbors, is evidence that B, who was
one of his neighbors, had reason to believe him insolvent. Lee v.
Kilburn, 3 Gray (Mass. ) , 594 ; Brander v. Ferridý, 16 La. 296.
4 Gerish v. Chartier, 1 C. B. 13.
5 This illustration is adapted from Preston's Case, 2 Den. C. C.
353 ; but the misdirection given in that case is set right. As to the
relevancy of the fact, see in particular Lord Campbell's remark on
p. 359.
CHAP. III .] THE LAW OF EVIDENCE . 61

(k) The question is, whether A is entitled to damages from B, the

seducer of A's wife.
The fact that A's wife wrote affectionate letters to A before the
adultery was committed, is deemed to be relevant, as showing the
terms on which they lived and the damage which A sustained.¹
(1) The question is, whether A's death was caused by poison.
Statements made by A before his illness as to his state of health, and
during his illness as to his symptoms, are deemed to be relevant facts.2
(m) The question is, what was the state of A's health at the time
when an insurance on her life was effected by B.
Statements made by A as to the state of her health at or near the
time in question are deemed to be relevant facts.3
(n) The question is, whether A, the captain of a ship, knew that
a port was blockaded.
The fact that the blockade was notified in the Gazette is deemed
to be relevant.4
ARTICLE 12.*
FACTS SHOWING SYSTEM.

When there is a question whether an act was acci-

dental or intentional, the fact that such act formed part
of a series of similar occurrences, in each of which the
person doing the act was concerned, is deemed to be
relevant.
Illustrations.
(a) A is accused of setting fire to his house in order to obtain
money for which it is insured.

* See Appendix, Note VI.

1 Trelawney v. Coleman, 1 B. & A. 90. <If written before her
misconduct, and not open to the suspicion of collusion. 1 Greenl.
Ev. § 102.
2 R. v. Palmer. See my "Gen. View of Crim. Law," pp. 363, 377
(evidence of Dr. Savage and Mr. Stephens). Barber v. Merriam , 11
Allen ( Mass. ) , 322. }
8 Aveson v. Lord Kinnaird, 6 Ea. 188. Kelsey v. Universal Life
Ins. Co., 35 Conn. 225. But the statements must be of the state of
health at the time of the statement. A subsequent narration of the
state of health before is irrelevant. Fraternal Mutual Life Ins. Co.
v. Applegate, 7 Ohio St. 292 ; Ill . Cen. R. R. Co. v. Sutton, 42 Ill. 438 ;
Edington v. Mutual Life Ins. Co., Ct. of App. N. Y., 3 L. & Eq.
Reptr. 141 ; 1 Greenl. Ev. § 102. )
4 Harratt v. Wise, 9 B. & C. 712.
62 A DIGEST OF [PART I.

The facts that A had previously lived in two other houses suc-
cessively, each of which he insured , in each of which a fire occurred,
and that after each of those fires A received payment from a different
insurance office, are deemed to be relevant, as tending to show that
the fires were not accidental.¹
(b) A is employed to pay the wages of B's laborers, and it is A's
duty to make entries in a book showing the amounts paid by him. He
makes an entry showing that on a particular occasion he paid more
than he really did pay.
The question is, whether this false entry was accidental or inten-
tional.
The fact that for a period of two years A made other similar false
entries in the same book, the false entry being in each case in favor
of A, is deemed to be relevant.2
(c) The question is, whether the administration of poison to A, by
Z, his wife, in September, 1848, was accidental or intentional.
The facts that B, C, and D (A's three sons ) , had the same poison
administered to them in December, 1848, March, 1849, and April, 1849,
and that the meals of all four were prepared by Z, are deemed to be
relevant, though Z was indicted separately for murdering A, B, and
C, and attempting to murder D.3

1 R. v. Gray, 4 F. & F. 1102. { On the issue whether a fire was in-

cendiary or accidental, evidence that an attempt was made to set fire
to another building , in the same village and on the same night, is
relevant. Faucet v. Nichols, N. Y. Ct. of App . , 2 N. Y. Weekly Dig.
332.
When a defendant, tried for suffocating her infant in bed, claimed
that it was accidental, evidence that the defendant had had four
other children, who died at an early age by causes not shown, is rele-
vant to rebut the theory of accident. Reg. v. Roden, 12 Cox, C. C. 330.
On a trial for infanticide, a confession by the defendant that she
had before had a child which she had put away was admitted. State
v. Shackford, 69 N. C. 486. }
2 R. v. Richardson , 2 F. & F. 343. The fact that most of the
items in an account are shown by the vouchers to be overcharges, is
relevant, on the question whether the other items are overcharged.
Bush v. Guion, 6 La. Ann. 798.
3 R. v. Geering, 18 L. J. M. C. 215 ; cf. R. v. Garner, 3 F. & F. 681 ;
( Reg. v. Cotton, 12 Cox, C. C. 400. }
CHAP. III.] THE LAW OF EVIDENCE . 63

ARTICLE 13.*

EXISTENCE OF COURSE OF BUSINESS WHEN DEEMED TO

BE RELEVANT.

When there is a question whether a particular act was

done, the existence of any course of office of business ,
according to which it naturally would have been done,
is a relevant fact.
When there is a question whether a particular person
held a particular public office, the fact that he acted in
that office is deemed to be relevant.¹

Illustrations.
(a) The question is, whether a letter was sent on a given day.
The post-mark upon it is deemed to be a relevant fact.2
(b) The question is, whether a particular letter was despatched.
The facts that all letters put in a certain place were, in the com-
mon course of business, carried to the post, and that that particular
letter was put in that place, are deemed to be relevant."
(c) The question is, whether a particular letter reached A.
The facts that it was posted in due course properly addressed, and
was not returned through the Dead Letter Office, are deemed to be
relevant. So of a telegraphic despatch. Com. v. Jeffries, 7 Allen
(Mass.), 548.

* See Appendix, Note VII.

1 1 Ph. Ev. 449 ; R. N. P. 46 ; T. E. § 139 ; { 1 Greenl. Ev. §§ 40, n. ,
83, 92.
2 R. v. Canning, 19 S. T. 370. The date of a letter or other
paper is, from the usual course of business, to be presumed to be
true. Malpas v. Clements, 19 L. J. Q. B. 435. Papers on file, opened,
are presumed to have been opened by order of court. Eiker v. Mc.
Allister, Sup. Ct. Md . 1876 .
3 Hetherington v. Kemp, 4 Camp. 193 ; and see Skilbeck v. Gar-
bett, 7 Q. B. 846 ; Lothrop v. Greenfield, &c. Ins. Co., 2 Allen
(Mass . ); 82.
4 Warren v. Warren, 1 C. M. & R. 250 ; Woodcock v. Houldsworth,
16 M. & W. 124. Many cases on this subject are collected in Ros-
coe's Nisi Prius , pp. 374, 375.
64 A DIGEST OF [PART I.

CHAPTER IV.

HEARSAY IRRELEVANT EXCEPT IN CERTAIN CASES.

ARTICLE 14.*

HEARSAY AND THE CONTENTS OF DOCUMENTS

IRRELEVANT.

(a) THE fact that a statement was made by a person

not called as a witness, and
(b) the fact that a statement is contained or recorded
in any book, document, or record whatever, proof of
which is not admissible on other grounds,
are respectively deemed to be irrelevant to the truth
of the matter stated , except ( as regards ( a) ) in the
cases contained in the first section of this chapter ; ¹
and except (as regards (b) ) in the cases contained in
the second section of this chapter.

Illustrations.
(a) A declaration by a deceased attesting witness to a deed that
he had forged it, is deemed to be irrelevant to the question of its
validity.2
(b) The question is, whether A committed murder by causing B

* See Appendix, Note VIII.

1 It is important to observe the distinction between the principles
which regulate the admissibility of the statements contained in a
document and those which regulate the manner in which they must
be proved. On this subject see the whole of Part II.
2 Stobart v. Dryden, 1 M. & W. 615. The soundness of this doc-
trine has been questioned in this country, and declarations of a de-
ceased attesting witness, inconsistent with the inference from proof
of his signature that the will was duly executed, were admitted in
Reformed Dutch Church v. Ten Eyck, 1 Dutch. (N. J. ) 40, affirmed
CHAP . IV. ] THE LAW OF EVIDENCE . 65

to be executed by martial law. The finding of a Commission of In-

quiry into the facts of the case would be deemed to be irrelevant
even if the Commission had power by statute to take evidence on
oath.1

SECTION I.
HEARSAY WHEN RELEVANT.

ARTICLE 15.*
ADMISSIONS DEFINED.
An admission is a statement oral or written, suggesting
any inference as to any fact in issue or relevant or
deemed to be relevant to any such fact, made by or on
behalf of any party to any proceeding. Every admis-
sion is (subject to the rules hereinafter stated ) deemed
to be a relevant fact as against the person by or on whose
behalf it is made, but not in his favor unless it is or is
deemed to be relevant for some other reason.2

ARTICLE 16.†
WHO MAY MAKE ADMISSIONS ON BEHALF OF OTHERS,
AND WHEN.

Admissions may be made on behalf of the real party

to any proceeding-
By any nominal party to that proceeding ;
{ 1 Greenl. Ev. § 171.
* See Appendix, Note IX. † See Appendix, Note X.
in Otterson v. Hofford, 36 N. J. 129. See also Crouse v. Miller, 10
Serg. & Rawle ( Pa. ) , 155. So the bad character of the attesting wit-
ness was held relevant in rebuttal of the like inference. Losee v.
Losee, 2 Hill (N. Y. ) , 609.
1 Suggested by the proceedings against Mr. Eyre in 1867. I sup-
pose, if the case had gone to trial, no one would have even thought
of tendering the report of the Jamaica Commission in evidence.
2 { Statements, part of the res gestæ, though favorable to the party
making them, are relevant. See Hart v. Powell, 18 Ga. 635 ; 1 Greenl.
Ev. § 108, n. 2, p. 130.
5
66 A DIGEST OF [PART I.

By any person who, though not a party to the proceed-

ing, has a substantial interest in the event ;
1 Greenl. § 180. }
By any one who is privy in law, in blood, or in estate
to any party to the proceeding on behalf of that party.
{1 Greenl. Ev. 189. }
A statement made by a party to a proceeding may be
an admission whenever it is made, unless it is made by
a person suing or sued in a representative character only,
in which case [it seems] it must be made whilst the per-
son making it sustains that character.
1 Greenl. Ev. § 179.
A statement made by a person interested in a proceed-
ing, or by a privy to any party thereto, is not an admis-
sion unless it is made during the continuance of the
interest which entitles him to make it, and only as
affecting his interest . 1 Greenl. Ev. § 180.

Illustrations.
(a) The assignee of a bond sues the obligor in the name of the
obligee.
An admission on the part of the obligee that the money due has
been paid is deemed to be relevant on behalf of the defendant.¹

1 See Moriarty v. L. C. & D. Co., L. R. 5 Q. B. 320. If such ad-

missions, made after an assignment, are relevant, as they may be by
the English practice, though the observation of Blackburn, J., in
the case cited by the author upon this point, was a dictum merely,
and the cause was not that of a mere nominal plaintiff having no in-
terest, but of a husband suing with his wife for injuries to the wife,
in this country, the fact of an assignment prior to these admissions is
relevant, in reply, to control the effect of the admissions. 1 Greenl .
Ev. §§ 172-177 . Though the courts of some States may have fol-
lowed the strict common-law rule, we apprehend that it is now
the general rule in this country that neither the declarations of a
nominal plaintiff, after his interest has passed from him ( Butler v.
Millet, 47 Me . 492 ; Thompson v. Drake, 32 Ala . 99 ; Dazey v. Mills,
CHAP. IV. ] THE LAW OF EVIDENCE . 67

(b) An admission by the assignee of the bond in the last illustra-

tion would also be deemed to be relevant on behalf of the defendant.
(c) A statement made by a person before he becomes the assignee
of a bankrupt is not deemed to be relevant as an admission by him
in a proceeding by him as such assignee.¹
(d) Statements made by a person as to a bill of which he had been
the holder are deemed not to be relevant as against the holder, if
they are made after he has negotiated the bill.2

ARTICLE 17.*

ADMISSIONS BY AGENTS AND PERSONS JOINTLY . INTER-

ESTED WITH PARTIES.

Admissions may be made by agents authorized to make

them either expressly or by the conduct of their prin-
cipals ; but a statement made by an agent is not an ad-

* See Appendix, Note XI.

5 Gilman (Ill. ) , 67 ; Frear v. Evertson, 20 Johns. (N.Y. ) 142 ; Sargeant
v. Sargeant, 18 Vt. 371 ) , will be admitted in evidence, nor a discharge
by him admitted as a valid defence. Kimball v. Huntington, 10
Wend. (N. Y. ) 677 ; Welch v. Mandeville, 1 Wheat. ( U. S. ) 233 ;
1 Greenl. Ev. § 173.)
1 Fenwick v. Thornton, M. & M. 51 (by Lord Tenterden ) . In
Smith v. Morgan, 2 M. & R. 257, Tindal, C. J. , decided exactly the
reverse. 1 Greenl. Ev. § 179. The statements of a party named as
an executor and legatee in a will, appellee in the proceedings, as to
the mental unsoundness of the testator, are relevant on probate of the
will. Robinson v. Hutchinson, 31 Vt. 443 ; 1 Greenl. Ev. § 174.}
2 Pocock v. Billing, 2 Bing. 269. When one has parted with his
title to property, his subsequent declarations in disparagement of his
title cannot be received against a party who has acquired it in good
faith. Monroe v. Napier, 52 Ga. 385 ; Many v. Jagger, 1 Blatch.
C. Ct. U. S. 372 ; 1 Greenl. Ev. §§ 180, 190 ; Sumner v. Cook, 12
Kan. 162. If A conveys his property to B to defraud C, and after a
technical delivery is permitted by B to retain possession , the declara-
tions of A after the assignment and while in possession, showing that
the conveyance to B was fraudulent, are relevant in favor of C in a
suit by C against B to recover the property. Adams v. Davidson,
10 N. Y. 309.
68 A DIGEST OF [PART I.

mission merely because if made by the principal himself

it would have been one.

{ 1 Greenl. Ev. §§ 113, 114.}

Partners and joint contractors are each other's agents

for the purpose of making admissions against each other
in relation to partnership transactions or joint contracts.
Barristers and solicitors are the agents of their clients
for the purpose of making admissions whilst engaged in
the actual management of the cause, either in court or
in correspondence relating thereto ; but statements made
by a barrister or solicitor on other occasions are not
admissions merely because they would be admissions if
made by the client himself.
( 1 Greenl. Ev. § 239 et seq. }
The fact that two persons have a common interest in
the same subject-matter does not entitle them to make
admissions respecting it as against each other.
In cases in which actions founded on a simple contract
have been barred by the Statutes of Limitations no joint
contractor or his personal representative loses the benefit
of such statute, by reason only of any written acknowl-
edgment or promise made or signed by [or by the agent
duly authorized to make such acknowledgment or prom-
ise of ] any other or others of them [or by reason only of
payment of any principal, interest, or other money, by
any other or others of them ] .¹
A principal, as such, is not the agent of his surety for
the purpose of making admissions as to the matters for
which the surety gives security.

19 Geo. IV. c. 14, s . 1. The words in the first set of brackets

were added by 19 & 20 Vict. c. 97, s. 13. The words in the second
set by s. 14 of the same Act. The language is slightly altered.
Whether this is the law in any given State may depend upon its
Statutes of Limitations . See notes to Illustration (ƒ), post. }
CHAP. IV. ] THE LAW OF EVIDENCE . 69

Illustrations.
(a) The question is, whether a parcel, for the loss of which a
Railway Company is sued, was stolen by one of their servants.
Statements made by the station-master to a police-officer, suggesting
that the parcel had been stolen by a porter, are deemed to be rele-
vant, as against the railway, as admissions by an agent.¹
(b) A allows his wife to carry on the business of his shop in his
absence. A statement by her that he owes money for goods supplied
to the shop is deemed to be relevant against him as an admission by
an agent.2
(c) A sends his servant, B, to sell a horse. What B says at the
time of the sale, and as part of the contract of sale, is deemed to be
a relevant fact as against A, but what B says upon the subject at
some different time is not deemed to be relevant as against A³
[though it might have been deemed to be relevant if said by A him-
self].
(d) The question is, whether a ship remained at a port for an un-
reasonable time. Letters from the plaintiff's agent to the plaintiff
containing statements which would have been admissions if made by
the plaintiff himself are deemed to be irrelevant as against him.4
(e) A, B, and C sue D as partners upon an alleged contract re-
specting the shipment of bark. An admission by A that the bark
was his exclusive property and not the property of the firm is
deemed to be relevant as against B and C.5

1 Kirkstall Brewery v. Furness Ry., L. R. 9 Q. B. 468 . The

declarations of a baggage-master as to the loss of baggage are rele-
vant, Moore v. Conn., &c. R. R. Co. , 6 Gray (Mass. ) , 430 ; and so
would be the admissions of a general agent or president of the road,
Charleston R. R. Co. v. Blake, 12 Rich. ( S. C. ) Law, 634 ; but not
the declarations of a conductor as to the circumstances attending an
accident, made after the occurrence of the accident, Griffin v.
Mont. R. R. Co. , 26 Ga. 111 ; Packet Co. v . Clough, 20 Wall. ( U. S. )
540. See also, for further illustrations on this point, 1 Greenl. Ev.
§§ 113, 114 ; Rockwell v. Taylor , 41 Conn. 59.
2 Clifford v. Burton , 1 Bing. 199. When the wife is by the hus-
band constituted his agent, then her admissions, like those of any
other agent, to the extent of her authority, are relevant. 1 Greenl.
Ev. § 185.
3 Helyear v. Hawke, 5 Esp . 72 ; Hough v. Doyle, 4 Rawle (Pa. ),
294.
4 Langhorn v. Allnutt, 4 Tau. 511.
5 Lucas v. De La Cour, 1 M. & S. 249. The declarations of one
70 A DIGEST OF [PART I.

(ƒ) A, B, C, and D make a joint and several promissory note.

Either can make admissions about it as against the rest.¹
(g) The question is, whether A accepted a bill of exchange . A
notice to produce the bill signed by A's solicitor and describing
the bill as having been accepted by A is deemed to be a relevant
fact.2
(h) The question is, whether a debt to A, the plaintiff, was due
from B, the defendant, or from C. A statement made by A's solici-
tor to B's solicitor in common conversation that the debt was due
from C is deemed not to be relevant against A.3
(i) One co-part-owner of a ship cannot, as such, make admissions
against another as to the part of the ship in which they have a com-
mon interest, even if he is co-partner with that other as to other
parts of the ship.*
(j) A is surety for B, a clerk. B being dismissed makes state-
ments as to sums of money which he has received and not accounted
for. These statements are not deemed to be relevant as against A,
as admissions.5

partner before the dissolution, in the ordinary course of business,

are relevant in favor of a third party, where a creditor seeks to
charge him as a partner. Danforth v. Carter, 4 Clark ( Iowa) , 230. }
1 Whitcomb v. Whitting, 1 S. L. C. 644. Whether an acknowl-
edgment or part payment of a debt by one joint promisor will take
the case out of the statute, has been a much debated question in
the courts of this country, with a decided weight of authority in the
negative. See Van Kuren v. Parmelee, 2 Comst. ( N. Y. ) 523 ; Shoe-
maker v. Benedict, 1 Kernan ( N Y. ), 176 ; Coleman v. Fobes,
22 Pa. 308 ; Bell v. Morrison, 1 Pet. (U. S. ) 367 ; 1 Greenl. Ev.
§§ 112, 174, notes. Angell on Limitations (6th ed . ) , §§ 240, 260, and
notes, where the cases pro and con are very fully stated . }
2 Holt v. Squire, Ry. & Mo. 282 .
8 Petch v. Lyon, 9 Q. B. 147.
4 Jaggers v. Binning, 1 Star. 64.
5 Smith v. Whippingham, 6 C. & P. 78. See also Evans v. Beattie,
5 Esp. 26 ; Bacon v. Chesney, 1 Star. 192 ; Caermarthen R. C. v.
Manchester R. C., L. R. 8 C. P. 685 ; 1 Greenl. Ev. § 187. But the
admission of the surety is good against both. Chapel v . Washburn,
17 Ind. 393.
CHAP. IV. ] THE LAW OF EVIDENCE . 71

ARTICLE 18.*

ADMISSIONS BY STRANGERS .

Statements by strangers to a proceeding are not rele-

vant as against the parties except in the cases hereinafter
mentioned.¹
In actions against sheriffs for not executing process
against debtors , statements of the debtor admitting his
debt to be due to the execution creditor are deemed to
be relevant as against the sheriff.
In actions by the trustees of bankrupts an admission
by the bankrupt of the petitioning creditor's debt is
deemed to be relevant as against the defendant.³

ARTICLE 19.†
ADMISSION BY PERSON REFERRED TO BY PARTY .

When a party to any proceeding expressly refers to

any other person for information in reference to a matter
in dispute, the statements of that other person may be
admissions as against the person who refers to him.
Illustration.
The question is, whether A delivered goods to B. B says " if C "
(the carman) " will say that he delivered the goods, I will pay for
them ." C's answer may as against B be an admission. So if a per-
son refer to a certain document, the statements of that document upon
the subject-matter of inquiry are his statements. Smith v. Etna
Life Ins. Co., 49 N. Y. 211 ; 1 Greenl. Ev. § 182. )

* See Appendix , Note XII. † See Appendix, Note XIII.

1 Coole v. Braham, 3 Ex. 183 ; 1 Greenl. Ev. § 181. }
2 Kempland v. Macaulay, Peake, 95 ; Williams v. Bridges, 2 Star.
42.
3 Jarrett v. Leonard, 2 M. & S. 265 (adapted to the new law of
bankruptcy) . If made before the act of bankruptcy, 1 Greenl. Ev.
§ 181.
4 Daniel v. Pitt, 1 Camp. 366, n.
72 A DIGEST OF [PART 1 .

ARTICLE 20.*

ADMISSIONS MADE WITHOUT PREJUDICE.

No admission is deemed to be relevant in any civil

action if it is made either upon an express condition
that evidence of it is not to be given,¹ or under circum-
stances from which the judge infers that the parties
agreed together that evidence of it should not be given,2
or if it was made under duress.8

ARTICLE 21 .

CONFESSIONS DEFINED.

A confession is an admission made at any time by a

person charged with a crime, stating or suggesting the
inference, that he committed that crime. Confessions, if
voluntary, are deemed to be relevant facts as against the
persons who make them only.

ARTICLE 22.†

CONFESSION CAUSED BY INDUCEMENT, THREAT, OR PROM-

ISE, WHEN IRRELEVANT IN CRIMINAL PROCEEDING.
No confession is deemed to be voluntary if it appears
to the judge to have been caused by any inducement,

* See Appendix, Note XIV. † See Appendix, Note XV.

1 Cory v. Bretton, 4 C. & P. 462.
2 Paddock v. Forester, 5 M. & G. 918. The rule in this country
is not so strict as in England, and all admissions, not expressly to
make peace, and all independent facts admitted during negotiations
for settlement, are relevant. 1 Greenl. Ev. § 192 ; Clapp v. Foster,
34 Vt. 580 ; Harrington v. Lincoln, 4 Gray ( Mass. ), 563. }
8 Stockfleth v. De Tastet, per Ellenborough, C. J., 4 Camp. 11.
{But evidence unfairly obtained, or by an abuse of process, will not
therefore be inadmissible. 1 Greenl. Ev. § 193. See also, post, art.
24, and notes.
CHAP. IV. ] THE LAW OF EVIDENCE . 73

threat, or promise, proceeding from a person in authority,

and having reference to the charge against the accused
person, whether addressed to him directly or brought to
his knowledge indirectly ;
and if (in the opinion of the judge) such inducement,
threat, or promise, gave the accused person reasonable
grounds for supposing that by making a confession he
would gain some advantage or avoid some evil in refer-
ence to the proceedings against him.
But a confession is not involuntary, only because it
appears to have been caused by the exhortations of a
person in authority to make it as a matter of religious
duty, or by an inducement collateral to the proceeding,
or by inducements held out by a person not in authority.
The prosecutor, officers of justice having the prisoner
in custody, magistrates, and other persons in similar posi-
tions, are persons in authority. The master of the pris-
oner is not as such a person in authority if the crime of
which the person making the confession is accused was
not committed against him.
{ 1 Greenl. Ev. § 222. }
A confession is deemed to be voluntary if (in the opin-
ion of the judge) it is shown to have been made after
the complete removal of the impression produced by any
inducement, threat, or promise which would otherwise
render it involuntary .
Facts discovered in consequence of confessions im-
properly obtained, and so much of such confessions as
distinctly relate to such facts, may be proved.

"The cases excluding confessions on the ground of unlawful

inducement have gone too far for the protection of crime." Kelly,
C. B. , Reg. v. Reeve, 12 Cox, 179. " The real question is, whether
there has been any threat or promise of such a nature that the pris-
oner would be likely to tell an untruth, from fear of the threat, or
hope of profit from the promise. " Keating, J., Reg. v. Reason , 12
Cox, 228. See also Com. v. Cuffee, 108 Mass . 285 ; Fauts v. State,
74 A DIGEST OF [PART I.

8 Ohio, N.s. 98 ; State v . Freeman, 12 Md. 100, where the statute

has interposed ; Young v. Com. , 8 Bush ( Ky. ) , 366 ; Reg . v. Baldry,
2 Den. 430 ; s. c. 16 Jur. 599 ; s. c. 12 Eng. L. & Eq. 590. See also,
upon the general subject, Mr. Green's note to Reg. v. Reeve, 1 Cr.
Law Rep. 398 ; 1 Greenl. Ev . § 219 et seq. }

Illustrations.
(a ) The question is, whether A murdered B.
A handbill issued by the Secretary of State, promising a reward
and pardon to any accomplice who would confess , is brought to the
knowledge of A, who, under the influence of the hope of pardon,
makes a confession. This confession is not voluntary.¹
(b) A being charged with the murder of B, the chaplain of the
gaol reads the Commination Service to A, and exhorts him upon
religious grounds to confess his sins. A, in consequence, makes a
confession . This confession is voluntary.2
(c) The gaoler promises to allow A, who is accused of a crime, to
see his wife, if he will tell where the property is . A does so. This
is a voluntary confession.3
(d) A is accused of child murder. Her mistress holds out an
inducement to her to confess, and she makes a confession. This is
a voluntary confession, because the mistress is not a person in
authority.4
(e) A is accused of the murder of B. C, a magistrate, tries to

1 R. v. Boswell, C. & Marsh. 584.

2 R. v. Gilham, 1 Moo . C. C. 186. In this case the exhortation
was that the accused man should confess " to God," but it seems
from parts of the case that he was urged also to confess to man to
repair any injury done to the laws of his country." According to
the practice at that time, no reasons are given for the judgment.
The principle seems to be that a man is not likely to tell a falsehood
in such cases, from religious motives. The case is sometimes cited as
an authority for the proposition that a clergyman may be compelled
to reveal confessions made to him professionally. It has nothing to
do with the subject. A confession made to fellow church-members
is admissible. Com. v. Drake, 15 Mass. 161. }.
8 R. v. Lloyd, 6 C. & P. 393. The hope or fear must be with
reference to some advantage or disadvantage with reference to the
matter on which he is held. The hope or fear of some collateral
benefit or injury does not render the confession inadmissible. State
v. Wentworth, 37 N. H. 196 .
4 R. v. Moore, 2 Den. C. C. 522.
CHAP. IV. ] THE LAW OF EVIDENCE . 75

induce A to confess by promising to try to get him a pardon if he

does so. The Secretary of State informs C that no pardon can be
granted, and this is communicated to A. After that A makes a state-
ment. This is a voluntary confession.¹
(ƒ) A, accused of burglary, makes a confession to a policeman
under an inducement which prevents it from being voluntary. Part
of it is that A had thrown a lantern into a certain pond . The fact
that he said so, and that the lantern was found in the pond in con-
sequence, may be proved.2

ARTICLE 23.*
CONFESSIONS MADE UPON OATH, ETC.
Evidence amounting to a confession may be used as
such against the person who gives it, although it was
given upon oath, and although the proceeding in which
it was given had reference to the same subject-matter as
the proceeding in which it is to be proved, and although
the witness might have refused to answer the questions
put to him ; but if, after refusing to answer any such
question, the witness is improperly compelled to answer
it, his answer is not a voluntary confession .

* See Appendix, Note XVI.

1 R. v. Clewes, 4 C. & P. 221 ; Guild's Case, 5 Halst. (N. J.)
163 ; 1 Greenl. Ev. § 221. The influence of hope or fear being shown,
it will be presumed to continue, and this presumption must be over-
thrown by satisfactory evidence. United States v. Chapman, 4 Am.
L. J. N. s. 440.
2 R. v. Gould, 9 C. & P. 364. This is not consistent, so far as the
proof of the words goes, with R. v. Warwickshall, 1 Leach, 263.
Facts discovered through inadmissible confessions are admissible.
State [Link], 71 N. C. 85 ; 1 Greenl. Ev . § 231 ; White v. State, 3 Heisk.
(Tenn. ) 338 ; Com. v. Knapp , 9 Pick. (Mass. ) 496 ; State v. Vaigneur,
5 Rich. (S. C. ) 391. It has been held, however, in New York, that
facts obtained by a compulsory examination of a female, with a view
to use against her on a criminal charge, is in violation of the con-
stitutional provision that " no person shall be compelled in any
criminal case to be a witness against himself." People v. McCoy,
45 How. Pr. 216. See also art. 24, post, and notes.
3 R. v. Garbett, 1 Den. 236.
76 A DIGEST OF [PART I.

Illustrations.
(a ) The answers given by a bankrupt in his examination may be
used against him in a prosecution for offences against the law of
bankruptcy.1
(b) A is charged with maliciously wounding B.
Before the magistrates A appeared as a witness for C, who was
charged with the same offence. A's deposition may be used against
him on his own trial.2

ARTICLE 24.

CONFESSION MADE UNDER A PROMISE OF SECRECY.

If a confession is otherwise relevant, it does not become

irrelevant merely because it was made under a promise
of secrecy, or in consequence of a deception practised
on the accused person for the purpose of obtaining it,*
or when he was drunk,5 or because it was made in an-
swer to questions which he need not have answered ,
whatever may have been the form of those questions, or

1 R. v. Scott, 1 D. & B. 47 ; R. v. Widdop, L. R. 2 C. C. 5.

2 R. v. Chidley & Cummins, 8 C. C. C. 365 ; 1 Greenl. Ev.
§§ 224, 225 ; Hendrickson v. People, 10 N. Y. 13 ; Com. v. King,
8 Gray (Mass . ) , 501 ; State v. Broughton, 7 Ired . (N. C. ) 96. If the
party testifying is under arrest, and is being examined as a suspected
party, it has been held in New York that his confessions are inadmis-
sible. People v. McMahon, 15 N. Y. 384 ; but see Schoeffler v. State,
3 Wis. 823.
{ Com . v. Knapp, 9 Pick. (Mass. ) 496. }
4 Rex v. Derrington , 2 C. & P. 418 ; 1 Greenl. Ev. §§ 229, 230.
The court will not inquire how papers or witnesses are obtained,
whether legally or illegally, fairly or fraudulently, or by falsehood.
If relevant, the evidence will be admitted. State v. Graham , 74
N. C. 646 ; Com. v. Dana, 2 Met. ( Mass. ) 329 ; Leggatt v. Tollervey,
14 East, 302 ; State v. Jones, 54 Mo. 578 ; Lloyd v. Mastyn, 10 M. &
W. 481 ; Cleave v. Jones, 21 L. J. Ex. 106.
5 Eskridge v. State, 25 Ala. 30. If so drunk or otherwise in-
sensible as not to be conscious of his doings, the confession is not
relevant. People v. Robinson, 19 Cal. 40 ; Com. v. Howe, 9 Gray
(Mass.), 110 .
CHAP. IV . ] THE LAW OF EVIDENCE . 77

because he was not warned that he was not bound to

make such confession, and that evidence of it might
be given against him.¹

ARTICLE 25.

STATEMENTS BY DECEASED PERSONS WHEN DEEMED TO

BE RELEVANT.

Statements written or verbal of facts in issue or rele-

vant or deemed to be relevant to the issue are deemed to
be relevant, if the person who made the statement is
dead, in the cases, and on the conditions, specified in
articles 26-31 , both inclusive. In each of those articles
the word " declaration " means such a statement as is
herein mentioned , and the word " declarant " means a
dead person by whom such a statement was made in his
lifetime.
The constitutional right of a prisoner to be confronted with the
witnesses against him is no bar to the admission of dying declarations.
People v. Glen, 10 Cal. 32 ; State v. Nash, 7 Iowa, 347 ; Brown v.
Com. , 73 Pa. St. 321 ; Walston v. Com. , 16 B. Mon. ( Ky. ) 15 ; Burrill
v. State, 18 Texas, 713 ; Com. v. Carey, 12 Cush . ( Mass . ) 247.
Whether such declarations are admissible in civil cases is not agreed.
See 1 Greenl. Ev. § 156, n., and § 161 b, note. }

ARTICLE 26.*

DYING DECLARATION AS TO CAUSE OF DEATH.

A declaration made by the declarant as to the cause

of his death, or as to any of the circumstances of the
transaction which resulted in his death, is deemed to be
relevant
{ The declaration may be by signs or other appropriate modes of
communication. Post, art. 107, and note. Such declarations can

* See Appendix, Note XVII.

1 Cases collected and referred to in 1 Ph. Ev. 420, and T. E. s. 804.
See, too, Joy, sections iii. , iv., v.; 1 Greenl. Ev. § 229.
78 A DIGEST OF [Part I.

only be admitted as would be admissible as testimony for the

declarant, if alive and competent. State v. Williams, 68 N. C. 62 ;
Ben v. State, 37 Ala. 103 ; Whitley v. State, 38 Ga. 50 ; 1 Greenl.
Ev. § 159 ; State v. Shelton, 2 Jones (N. C. ), Law, 360 ; Mose v. State,
35 Ala. 421 ; Brims v. State, 46 Ind. 311 .
only in trials for the murder or manslaughter of the
declarant ;
and only when the declarant is shown, to the satisfac-
tion of the judge, to have been in actual danger of death ,
and to have given up all hope of recovery at the time
when his declaration was made.
Such a declaration is not irrelevant merely because it
was intended to be made as a deposition before a magis-
trate, but is irregular.
Illustrations.
(a) The question is, whether A has murdered B.
B makes a statement to the effect that A murdered him.
B at the time of making the statement has no hope of recovery,
though his doctor had such hopes, and B lives ten days after making
the statement. The statement is deemed to be relevant.1
B, at the time of making the statement (which is written down) ,
says something, which is taken down thus : " I make the above state-
ment with the fear of death before me, and with no hope of re-
covery." B, on the statement being read over, corrects this to
"with no hope at present of my recovery." B dies thirteen hours
afterwards. The statement is deemed to be irrelevant.2
(b) The question is, whether A administered drugs to a woman
with intent to procure abortion. The woman makes a statement
which would have been admissible had A been on his trial for
murder. The statement is deemed to be irrelevant.8
(c) The question is, whether A murdered B. A dying declara-
tion by C that he (C) murdered B is deemed to be irrelevant.4

1 R. v. Mosley, 1 Moo . 97. { McDaniel v. State, 16 S. & M.

(Miss . ) 401 ; contra, People v. Robinson, 2 Parker, Cr. Rep. 235 ; but
see People v. Grunzig, 1 id. 299. }
2 R. v. Jenkins, L. R. 1 C. C. R. 187.
3 R. v. Hind, Bell, 253, following R. v. Hutchinson, 2 B. & C. 608,
n., quoted in a note to R. v. Mead ; 1 Greenl. Ev. § 156 ; Wright v.
State, 41 Texas, 246.
4 Gray's Case, Ir. Cir. Rep. 76. On the trial of C for the
CHAP . IV. ] THE LAW OF EVIDENCE . 79

(d) The question is, whether A murdered B.

B makes a statement before a magistrate on oath, and makes her
mark to it, and the magistrate signs it, but not in the presence of A,
so that her statement was not a deposition within the statute then
in force. B, at the time when the statement was made, was in a
dying state, and had no hope of recovery. The statement is
deemed to be relevant.¹

ARTICLE 27.*
DECLARATIONS MADE IN THE COURSE OF BUSINESS OR
PROFESSIONAL DUTY.
A declaration is deemed to be relevant when it was
made by the declarant in the ordinary course of business,
or in the discharge of professional duty, at or near the
time when the matter stated occurred , and of his own
knowledge.
Such declarations are deemed to be irrelevant except
so far as they relate to the matter which the declarant
stated in the ordinary course of his business or duty.

* See Appendix, Note XVIII.

murder of A by poison, the dying declarations of B, who died from
the effects of the same poison, were admitted against C. State
v. Terrell, 12 Rich. ( S. C. ) 321 ; State v. Wilson, 23 La. Ann. 553 ;
Rex v. Baker, 2 Moo. & Mal. 53 ; contra , Brown v. Com., 73 Pa . St.
321 ; State v. Fitzhugh, 2 Oregon, 227 .
The outcries of a person deceased, made during the perpetration
of an assault which results in death, or upon the approach of the
assailant, are competent evidence upon the trial of a party charged
with the murder of such person. So, also, are the outcries of another
person, who was murdered by the same party, during the same
enterprise, a few minutes before, on another part of the premises, as
well on the ground that they were made under mortal terror of im-
pending death, as upon the ground that they are part of the res
gesta. State v. Wagner, 61 Me. 178. }
1 R. v. Woodcock, 1 East, P. C. 356. In this case, Eyre, C.B., is
said to have left to the jury the question, whether the deceased was
not in fact under the apprehension of death ? 1 Leach, 504. The
case was decided in 1789. It is now settled that the question is for
the judge.
2 Doe v. Turford, 3 B. & Ad . 898 ; 1 Greenl. Ev. § 116. }
80 A DIGEST OF [PART I.

Illustrations.
(a) The question is, whether A delivered certain beer to B.
The fact that a deceased drayman of A's, on the evening of the
delivery, made an entry to that effect in a book kept for the purpose,
in the ordinary course of business, is deemed to be relevant.¹
(b) The question is, what were the contents of a letter not pro-
duced after notice.
A copy entered immediately after the letter was written, in a book
kept for that purpose, by a deceased clerk, is deemed to be relevant.2
(c) The question is, whether A was arrested at Paddington, or in
South Molton Street.
A certificate annexed to the writ by a deceased sheriff's officer,
and returned by him to the sheriff, is deemed to be relevant so far
as it relates to the fact of the arrest ; but irrelevant so far as it re-
lates to the place where the arrest took place.³
(d) The course of business was for A, a workman in a coal-pit, to
tell B, the foreman, what coals were sold, and for B (who could not
write) to get C to make entries in a book accordingly.
The entries ( A and B being dead) are deemed to be irrelevant,
because B, for whom they were made, did not know them to be true.4
(e) The question is, what is A's age. A statement made by the
incumbent in a register of baptisms that he was baptized on a given
day is deemed to be relevant. A statement in the same register that
he was born on a given day is deemed to be irrelevant, because it
was not the incumbent's duty to make it.5

1 Price v. Torrington, 1 S. L. C. 328, 7th ed. See, for further

illustrations of this rule, 1 Greenl. Ev. §§ 116, 120, and notes. But
in this country, declarations or entries by the party himself, in his
own account-books, touching goods sold or services rendered, or
money loaned, to a limited amount, being made in the course of
business, and as a part of the general transaction to which they re-
late, and so connected as to give rise to the inference of previous
acts, from the fact of the entry, are relevant. See the cases illus-
trative very fully collected, 1 Greenl. Ev . §§ 118, 119, and notes. }
2 Pritt v. Fairclough, 3 Camp. 305.
8 Chambers v. Bernasconi, 1 C. M. & R. 347 ; see, too, Smith v.
Blakey, L. R. 2 Q. B. 326.
4 Brain v. Preece, 11 M. & W. 773. It is probable that such entries
would be held admissible in this country. Harwood v. Mulry, 8 Gray
(Mass. ) , 250 ; but see Lewis v. Kramer, 3 Md . 265. }
5 R. v. Clapham, 4 C. & P. 29 ; Kennedy v. Doyle, 10 Allen
(Mass. ), 161.
CHAP . IV. ] THE LAW OF EVIDENCE . 81

ARTICLE 28.*

DECLARATIONS AGAINST INTEREST.

A declaration is deemed to be relevant if the declarant

had peculiar means of knowing the matter stated, if he
had no interest to misrepresent it, and if it was opposed
to his pecuniary or proprietary interest. The whole of
any such declaration , and of any other statement referred
to in it, is deemed to be relevant, although matters may
be stated which were not against the pecuniary or pro-
prietary interest of the declarant ; but statements, not
referred to in, or necessary to explain such declarations,
are not deemed to be relevant merely because they were
made at the same time or recorded in the same place.2
A declaration may be against the pecuniary interest of
the person who makes it, if part of it charges him with
a liability, though other parts of the book or document
in which it occurs may discharge him from such liability
in whole or in part, and [it seems] though there may be
no proof other than the statement itself either of such
liability or of its discharge in whole or in part.3
A statement made by a declarant holding a limited
interest in any property and opposed to such interest is
deemed to be relevant only as against those who claim
under him, and not as against the reversioner.¹

* See Appendix, Note XIX.

1 These are almost the exact words of Bayley, J., in Gleadow v.
Atkin, 1 C. & M. 423 ; Taylor v. Gould, 57 Pa. St. 152 ; Pearse v.
Jenkins, 10 Ired. ( N. C. ) L. 355. Upon principle, such declarations
ought to be admitted, if the witness, though living, cannot be com-
pelled to attend court or to testify. Chaffee v. United States, 18
Wall. (U. S. ) 516 ; Harriman v. Brown, 8 Leigh ( Va . ) , 697 ; 1 Greenl.
Ev. § 147 et seq.; Beedy v. Macomber, 47 Me. 451 ; Blatner v. Weis,
19 Ill. 246.
2 Illustrations (a) , (b), and (c) . 3 Illustrations (d) and (e).
4 Illustration (g) ; see Lord Campbell's judgment in case quoted,
P. 177.
6
82 A DIGEST OF [Part 1 .

An endorsement or memorandum of a payment made

upon any promissory note, bill of exchange, or other
writing, by or on behalf of the party to whom such
payment was made, is not sufficient proof of such pay-
ment to take the case out of the operation of the Statutes
of Limitation ; ¹ but any such declaration made in any
other form by or by the direction of the person to whom
the payment was made is when such person is dead
sufficient proof for the purpose aforesaid.2
Any endorsement or memorandum to the effect above
mentioned made upon any bond or other specialty by a
deceased person, is regarded as a declaration against the
proprietary interest of the declarant for the purpose
above mentioned, if it is shown to have been made at
8
the time when it purports to have been made ; but it is
uncertain whether the date of such endorsement or mem-
orandum may be presumed to be correct without inde-
pendent evidence.
Statements of relevant facts opposed to any other than
the pecuniary or proprietary interest of the declarant
are not deemed to be relevant as such.5

1 9 Geo. IV. c. 14, s. 3.

2 Bradley v. James, 13 C. B. 822.
8 3 & 4 Will. IV. c. 42, which is the Statute of Limitations relating
to Specialties, has no provision similar to 9 Geo. IV. c. 14, s. 3.
Hence, in this case the ordinary rule is unaltered .
4 See the question discussed in 1 Ph. Ev. 302-305, and T. E.
ss. 625-629, and see article 85. The authorities in this country
would seem to confirm the doctrine of Lord Ellenborough in Rose v.
Bryant, 2 Camp. 321, that such endorsements cannot be admitted
unless they are proved to have been written at a time when they must
have been against the endorser's interest. Roseboom v. Billington , 17
Johns . (N. Y. ) 182 ; Clap v. Ingersol, 2 Fairf. ( Me . ) 83 ; Coffin v.
Bucknam, 3 id. 82 ; Beatty v. Clement, 12 La. Ann. 471 ; Adams v.
Seitzenger, 1 S. & R. ( Pa. ) 243. }
5 Illustration (h).
CHAP. IV. ] THE LAW OF EVIDENCE . 83

Illustrations.
(a) The question is, whether a person was born on a particular
day.
An entry in the book of a deceased man-midwife in these words
is deemed to be relevant : 1
"W. Fowden, Junr.'s wife,
Filius circa hor. 3 post merid. natus H.
W. Fowden, Junr.,
Ap. 22, filius natus,
Wife, £1 6s. 1d.,
Pd. 25 Oct., 1768."

(b) The question is, whether a certain custom exists in a part of a

parish.
The following entries in the parish books, signed by deceased
church-wardens, are deemed to be relevant-
" It is our ancient custom thus to proportion church-lay. The
chapelry of Haworth pay one-fifth, &c."
Followed by-
" Received of Haworth, who this year disputed this our ancient
custom, but after we had sued him, paid it accordingly - £8, and £ 1
for costs."2 A credit by the assessors of A's tax for a given year is
evidence against the town . Boston v. Weymouth, 4 Cush . ( Mass . )
538. But the oral declarations of a deceased collector that a tax had
been paid were held irrelevant, in Framingham v. Barnard, 1 Met.
(Mass .) 524, the court observing that Higham v. Ridgway went no
farther than to admit written declarations or entries.
(c) The question is, whether a gate on certain land, the property
of which is in dispute, was repaired by A.
An account by a deceased steward, in which he charges A with
the expense of repairing the gate is deemed to be irrelevant, though
it would have been deemed to be relevant if it had appeared that A
admitted the charge.3
(d) The question is, whether A received rent for certain land.
A deceased steward's account, charging himself with the receipt of
such rent for A, is deemed to be relevant, although the balance of
the whole account is in favor of the steward.4

1 Higham v. Ridgway, 2 Smith , L. C. 318, 7th ed.; Thompson v.

Stevens, 2 Nott & McCord ( S. C. ) , 493. }
2 Stead v. Heaton, 4 T. R. 669.
Doe v. Beviss, 7 C. B. 456.
Williams v. Graves, 8 C. & P. 592.
84 A DIGEST OF [PART I.

(e ) The question is, whether certain repairs were done at A's ex-
pense.
A bill for doing them, receipted by a deceased carpenter, is deemed
( relevant ¹
to be { irrelevant 2 there being no other evidence either that the re-
pairs were done or that the money was paid.
(f) The question is, whether A (deceased) gained a settlement in
the parish of B by renting a tenement.
A statement made by A, whilst in possession of a house, that he
had paid rent for it, is deemed to be relevant, because it reduces the
interest which would otherwise be inferred from the fact of A's pos-
session.3
(g) The question is, whether there is a right of common over a
certain field.
A statement by A, a deceased tenant for a term of the land in
question, that he had no such right, is deemed to be relevant as
against his successors in the term, but not as against the owner of
the field.4
(h) The question is, whether A was lawfully married to B.
A statement by a deceased clergyman that he performed the mar
riage under circumstances which would have rendered him liable to a
criminal prosecution, is not deemed to be relevant as a statement
against interest.5

ARTICLE 29.

DECLARATIONS BY TESTATORS AS TO CONTENTS OF WILL.

When there is a question as to the contents of a lost

will, the declarations of the deceased testator as to its
contents are deemed to be relevant, whether they were
made before or after the loss of the will.

1 R. v. Heyford, note to Higham v. Ridgway, 2 S. L. C. 333, 7th

ed.
2 Doe v. Vowles, 1 Mo. & Ro . 261. It is probable that this case
would not now be followed even in England. Taylor, Ev. § 610. }
3 R. v. Exeter, L. R. 4 Q. B. 341.
4 Papendick v. Bridgewater, 5 E. & B. 166.
5 Sussex Peerage Case, 11 C. & F. 108.
6 Sugden v. St. Leonards, L. R. 1 P. D. (C. A. ) 154. In questions
between the heir and the legatee or devisor such statements would
probably be relevant as admissions by a privy in law, estate, or
CHAP. IV. ] THE LAW OF EVIDENCE . 85

ARTICLE 30.*

DECLARATIONS AS TO PUBLIC AND GENERAL RIGHTS.

Declarations are deemed to be relevant (subject to the

third condition mentioned in the next article) when they
relate to the existence of any public or general right or
custom or matter of public or general interest . But
declarations as to particular facts from which the exist-
ence of any such public or general right or custom or
matter of public or general interest may be inferred , are
deemed to be irrelevant.

{ 1 Greenl. Ev. §§ 127, 138. Such declarations, being allowed on the

ground of the absence of better evidence from the nature of the
case, if it appears that there is better evidence of the facts sought
to be proved, will not be admitted. Glover v. Millings, 2 S. & P.
( Ala. ) 28 ; Dillingham v. Snow, 5 Mass . 552 ; 1 Greenl. Ev. § 127.}
A right is public if it is common to all Her Majesty's
subjects, { or all the citizens of a State, } and declarations
as to public rights are relevant, whoever made them.
(1 Greenl. Ev. § 128.
A right or custom is general if it is common to any
considerable number of persons, as the inhabitants of a
parish, or the tenants of a manor.
{ Ibid . }
Declarations as to general rights are deemed to be rele-
vant only when they were made by persons who are
shown, to the satisfaction of the judge, or who appear

blood. This case overruled Quick v. Quick, 3 Sw. & Tr. 442, as to
the admissibility of statements made after the execution , and is a
decided relaxation of the former strictness as to proof of the con-
tents of a lost will. The declarations of a deceased grantor as to the
contents of a lost deed may be admissible. Metcalf v. Van Ben-
thuysen, 3 Comst. (N. Y. ) 424. }
* See Appendix, Note XX. Also see Weeks v. Sparke, 1 M. & S.
679 ; Crease v. Barrett, 1 C. M. & R. 917.
86 A DIGEST OF [PART I.

from the circumstances of their statement, to have had

competent means of knowledge.
{ 1 Greenl. Ev. § 136 .
Such declarations may be made in any form and manner.
{ 1 Greenl. Ev. § 139. }
Illustrations.
(a) The question is, whether a road is public.
A statement by A (deceased ) that it is public is deemed to be rele-
vant.1
A statement by A (deceased) that he planted a willow ( still stand-
ing) to show where the boundary of the road had been when he was
a boy is deemed to be irrelevant.2
(b) The following are instances of the manner in which declara-
tions as to matters of public and general interest may be made :--
They may be made in
Maps prepared by or by the direction of persons interested in the
matter; &3
Copies of Court rolls ; 4
Deeds and leases between private persons ; 5
Verdicts, judgments, decrees, and orders of Courts, and similar
bodies 6 if final.7

1 Crease v. Barrett, per Parke, B. , 1 C. M. & R. 929. The incorpora-

tion of a town may be thus proved . Dillingham v. Snow, 5 Mass. 552. }
2 R. v. Bliss, 7 A. & E. 550. So is a declaration that a certain
spring was on one side of a boundary line. Frazier v. Hunter,
5 Cranch, C. Ct. U. S. 470. But in this country ancient private
boundaries may be proved by the declarations of deceased persons
having knowledge to a very considerable extent, the doctrines of
the common law being somewhat relaxed by the peculiarities grow-
ing out of the situation of certain sections of the country. Sasser
v. Herring, 3 Dev. ( N. C. ) 340 ; Speer v. Coate, 3 McCord ( S. C. ) , 227 ;
Kinney v. Farnsworth, 17 Conn. 355 ; Smith v. Prewitt, 2 A. K.
Marsh. (Ky. ) 155 ; Great Falls Co. v. Worster, 15 N. H. 437 ; 1 Greenl.
Ev. § 145, and note.
3 Implied in Hammond v. Bradstreet, 10 Ex. 390, and Pipe v.
Fulcher, 1 E. & E. 111. In each of these cases the map was rejected
as not properly qualified .
4 Crease v. Barrett, 1 C. M. & R. 928.
5 Plaxton v. Dare, 10 B. & C. 17.
6 Duke of Newcastle v. Broxtowe, 4 B. & Ad. 273.
7 Pim v. Curell, 6 M. & W. 234, 266.
CHAP . IV.] THE LAW OF EVIDENCE . 87

ARTICLE 31.*

DECLARATIONS AS TO PEDIGREE.

A declaration is deemed to be relevant ( subject to the

conditions hereinafter mentioned ) if it relates to the
existence of any relationship between persons, whether
living or dead, or to the birth, marriage, or death of any
person, by which such relationship was constituted, or to
the time or place at which any such fact occurred, or to
any fact immediately connected with its occurrence.¹
Such declarations may express either the personal
knowledge of the declarant, or information given to him.
by other persons qualified to be declarants, but not in-
formation collected by him from persons not qualified to
be declarants . They may be made in any form and in
any document or upon any thing in which statements as
8
to relationship are commonly made.
The conditions above referred to are as follows : -
(1) Such declarations are deemed to be relevant only
in cases in which the pedigree to which they relate is in
issue, and not to cases in which it is only relevant to the
issue ; ¹4
(2) They must be made by a declarant shown to be
legitimately related by blood to the person to whom they
relate ; or by the husband or wife of such a person.5
(3) They must be made before the question in relation
to which they are to be proved has arisen ; but they do

* See Appendix, Note XXI.

1 Illustration (a).
2 Davies v. Lowndes, 6 M. & G. 527 ; Stein v. Bowman, 13 Pet.
(U. S. ) 209 ; Chapman v. Chapman, 2 Conn. 347 ; Jackson v. Browner,
18 Johns. (N. Y. ) 37. }
3 Illustration (c). 4 Illustration (b) .
5 Shrewsbury Peerage Case, 7 H. L. C. 26 ; Jewell v. Jewell,
1 How. (U. S. ) 231. }
88 A DIGEST OF [PART I.

not cease to be deemed to be relevant because they were

made for the purpose of preventing the question from
arising.¹
This condition applies also to statements as to public
and general rights or customs and matters of public and
general interest.
Illustrations.
(a) The question is, which of three sons ( Fortunatus, Stephanus,
and Achaicus) born at a birth is the eldest.
The fact that the father said that Achaicus was the youngest, and
he took their names from St. Paul's Epistles ( see 1 Cor. xvi. 17 ) , and
the fact that a relation present at the birth said that she tied a string
round the second child's arm to distinguish it, are relevant.2
(b) The question is, whether one of the cestuis que vie in a lease for
lives is living.
The fact that he was believed in his family to be dead is deemed
to be irrelevant, as the question is not one of pedigree.3
(c) The following are instances of the ways in which statements
as to pedigree may be made : By family conduct or correspondence ;
in books used as family registers ; in deeds and wills ; in inscriptions
on tombstones, or portraits ; in pedigrees, so far as they state the
relationship of living persons known to the compiler.4

1 Berkeley Peerage Case, 4 Cam. 401-417 ; 1 Greenl. Ev. § 134,

and n. The question arises, when the controversy or dispute arises,
whether a suit has been commenced or not. Shedden v. Atty.- Gen-
eral, 2 Sw. & Tr. 170. }
2 Vin. Abr. tit. Evidence, T. b. 91. The report calls the son
Achicus. Anderson v. Parker, 6 Cal. 161 ; Scott v. Ratcliff, 5 Pet.
(U. S.) 81 ; Wilson v. Brownlee, 24 Ark. 586 ; Jackson v. Boneham,
15 Johns. (N. Y. ) 226.
3 Whittuck v. Walters, 4 C. & P. 375. The place of birth is not
a question of pedigree, Adams ". Swansea, 116 Mass . 591 ; nor is
residence, Londonderry v. Andover, 28 Vt. 416 ; nor is the age of a
person, Roe v. Neal, Dudley (Ga . ) , 168.
4 In 1 Ph. Ev. 203-215, and T. E. ss . 583-587 , these and many other
forms of statement of the same sort are mentioned ; and see Davies
v. Lowndes, 6 M. & G. 527 ; { 1 Greenl. Ev . §§ 103–106 . }
CHAP . IV. ] THE LAW OF EVIDENCE . 89

ARTICLE 32.*
EVIDENCE GIVEN IN FORMER PROCEEDING WHEN
RELEVANT.

Evidence given by a witness in a previous action is

relevant for the purpose of proving the matter stated in
a subsequent proceeding, or in a later stage of the same
proceeding, when the witness is dead, or is mad, or so
ill that he will probably never be able to travel, or is
kept out of the way by the adverse party, or in civil, but
not, it seems, in criminal cases, is out of the jurisdiction.
of the Court, or, perhaps, in civil, but not in criminal,
cases when he cannot be found."
Provided in all cases —
(1 ) That the person against whom the evidence is to
be given had the right and opportunity to cross-examine
the declarant when he was examined as a witness ; 7
{Johnson v. Powers, 40 Vt. 611.}
(2) That the questions in issue were substantially the
same in the first as in the second proceeding ; "
Orr v. Hadley, 36 N. H. 575 ; Sample v. Coulson, 9 W. & S. (Pa.)
62 ; Melvin v. Whitney, 7 Pick. (Mass . ) 79. }

* See Appendix, Note XXII.

1 Mayor of Doncaster v. Day, 3 Tau. 262.
2 R. v. Eriswell, 3 T. R. 720.
8 R. v. Hogg, 6 C. & P. 176.
4 R. v. Scaife, 17 Q. B. 238, 243.
5 Fry v. Wood, 1 Atk. 444 ; R. v. Scaife, 17 Q. B. 243.
6 Godbolt, p. 336, case 418 ; R. v . Scaife, 17 Q. B. 243. If the
witness cannot be found, he should be regarded as dead. Shearer v.
Harber, 35 Ind . 536. Such evidence is admissible in criminal cases.
Williams v. State, 19 Ga. 402 ; Summers v. State, 5 Ohio St. 325 ;
Kendricks v. State, 10 Humph . ( Tenn . ) 479 ; Davis v. State, 17 Ala.
354 ; Pope v. State, 22 Ark. 371 ; United States v. McComb, 5 Mc-
Lean, 286. But see contra, Fenn's Case, 5 Rand. ( Va . ) 701 , and
Brogg's Case, 10 Gratt. ( Va. ) 722. }
7 Doe v. Tatham, 1 A. & E. 319 ; Doe v. Derby, 1 A. & E. 783, 785,
789.
90 A DIGEST OF [PART I.

Provided also-
(3 ) That the proceeding, if civil, was between the
same parties or their representatives in interest ; 1
That there were also other parties in one or the other of the
suits is immaterial. Phila., W. & B. R. R. Co. v. Howard, 13 How.
( U. S. ) 307. In Noble v. Martin, 7 Martin, N. s . 282, the testimony
of a sheriff who was absent on official duty was admitted. Whether
testimony taken before committing magistrates, coroners, and arbi-
trators is admissible, the cases are in conflict. See 1 Greenl. Ev.
§§ 163, 164, and notes.
The old rule was, that the precise words must be proved . The
modern rule is, that the substance only of the whole evidence, both in
chief and in cross examination, upon the point inquired about, need
be proved. 1 Greenl. Ev. § 165 ; Kean v. Com., 10 Bush (Ky. ) , 190.
Depositions may be used, if the witness is sick and unable to attend,
or has lost his memory. Emig v. Diehl, 76 Pa . St. 359. }
(4) That, in criminal cases, the same person is accused
upon the same facts.²
If evidence is reduced to the form of a deposition, the
provisions of article 90 apply to the proof of the fact
that it was given.
The conditions under which depositions may be used
as evidence are stated in articles 140-142 .

SECTION II.

STATEMENTS IN BOOKS, DOCUMENTS, AND RECORDS,

WHEN RELEVANT.

ARTICLE 33.
RECITALS OF PUBLIC FACTS IN STATUTES AND PROC-
LAMATIONS.

When any act of State or any fact of a public nature

is in issue or is or is deemed to be relevant to the issue,
any statement of it made in a recital contained in any

1 Doe v. Tatham, 1 A. & E. 319 ; Doe v. Derby, 1 A. & E. 783, 785, 789.
2 Beeston's Case, Dears . 405.
CHAP. IV. ] THE LAW OF EVIDENCE . 91

public Act of Parliament, or in any Royal proclamation

or speech of the Sovereign in opening Parliament, or in
any address to the Crown of either House of Parliament,
is deemed to be a relevant fact.¹

ARTICLE 34.

RELEVANCY OF ENTRY IN PUBLIC RECORD MADE IN PER-

FORMANCE OF DUTY.

An entry in any record, official book, or register kept

in any of Her Majesty's dominions or at sea, or in any
foreign country, stating a fact in issue or relevant or
deemed to be relevant thereto, and made in proper time
by any person in the discharge of any duty imposed
upon him by the law of the place in which such record,
book, or register is kept, is itself deemed to be a relevant
fact.2
ARTICLE 35.

RELEVANCY OF STATEMENTS IN WORKS OF HISTORY ,

MAPS, CHARTS, AND PLANS .

Statements as to matters of general public history

made in accredited historical books are deemed to be
relevant when the occurrence of any such matter is in
issue or is or is deemed to be relevant to the issue ; but
statements in such works as to private rights or customs
are deemed to be irrelevant.8
[ Submitted ] Statements of facts in issue or relevant
or deemed to be relevant to the issue made in published
maps or charts generally offered for public sale as to

1 R. v. Francklin, 17 S. T. 636 ; R. v. Sutton, 4 M. & S. 532 ;

1 Greenl. Ev. § 491.)
2 T. E. (from Greenleaf) §§ 1429, 1432 ; 1 Greenl . Ev. §§ 483-
493.
8 See cases in 2 Ph. Ev. 155-156 ; 1 Greenl. Ev. § 6, and notes. }
92 A DIGEST OF [PART I.

matters of public notoriety, such as the relative position

of towns and countries, and such as are usually repre-
sented or stated in such maps or charts, are themselves
deemed to be relevant facts ; but such statements are
irrelevant if they relate to matters of private concern,
or matters not likely to be accurately stated in such
documents.

ARTICLE 36.
ENTRIES IN BANKERS' BOOKS.

2 The entries in the ledgers, day-books, cash-books, and

other account-books of any bank are deemed to be rele-
vant when any of the matters, transactions , or accounts
recorded therein are or are deemed to be relevant in any
proceeding, final or preliminary, civil or criminal, in any
Court of Justice or in which there is power to administer
an oath . If the books themselves are produced , they
may be proved to be what they profess to be by the
affidavit in writing of one of the partners, managers, or
officers of such bank, that they are or have been the
ordinary books of such bank, and that the said entries.
have been made in usual and ordinary course of business,
and that such books are in or come immediately from
the custody or control of the bank.

1 In R. v. Orton, maps of Australia were given in evidence to show

the situation of various places at which the defendant said he had
lived. Maps, plans, and charts are frequently used, by way of illus-
tration or explanation of collateral matters, and, if ancient, as evi-
dence. 1 Greenl. Ev. § 145, n. The proposed extension of the law
to maps offered for public sale, such as the public and judges resort
to for information, seems unobjectionable . }
2 39 & 40 V. c. 48, ss . 2 and 3. As to the contents of such books
by copies, see art. 71 (ƒ), post. This and the two following articles
are the substance of statutes peculiar to England, based on the pre-
sumption that entries made in the ordinary course of business are
presumably correct. 1 Greenl. Ev. § 118. }
CHAP. IV. ] THE LAW OF EVIDENCE . 93

ARTICLE 37.

EXCEPTIONS TO ARTICLE 36.

1 Nothing contained in article 36 applies to any pro-

ceeding to which any bank whose books are so to be
used is a party.
No such entry may be so used unless-
(a) five days' notice in writing, or such other notice as
may be ordered by the Court, is given by the party pro-
posing so to use the same to the party against whom they
are to be so used. Such notice must contain a copy of
the entries proposed to be so adduced . Nor unless -
(b) the party against whom the entries are proposed to
be used is at liberty to inspect the original entries and
the accounts of which such entries form a part.

ARTICLE 38.

JUDGES' POWERS AS TO BANKERS' BOOKS.

2 Any judge of the High Court may, on the application

of any party who has received such notice as aforesaid ,
make an order-
(a) That any party to a proceeding who has received
such notice as is mentioned in article 37 shall be at liberty
to inspect and take copies of any entry in the books of
any bank relating to the matters in question in the
proceeding. Such order may be made either after or

1 39 & 40 V. c. 48, ss. 3 and 5 (part) . Section 5 is rather awk-

wardly worded. The last two lines are represented I think cor-
rectly by (b), but it is not easy to see why they were put in, as s. 6
(see art. 38 ) seems to make them superfluous.
2 (a) 39 & 40 V. c. 48, s. 6 ; (b) s. 7. I have here omitted an article
founded on 7 James I. c. 12, about shopbooks. This enactment is
practically obsolete.
94 A DIGEST OF [PART I.

without summoning¹ the bank or the other party to the

proceeding, and it must be intimated to the bank at least
three days [Link] copies are required.
(b) That the entries or copies mentioned in the notice
aforesaid are not to be admissible as evidence of the
matters recorded therein.

ARTICLE 39.*
" JUDGMENT."

The word " judgment " in articles 40-47 means any

final judgment, order, or decree of any Court.
The provisions of articles 40-45, both inclusive , are
all subject to the provisions of article 46.

ARTICLE 40 .
ALL JUDGMENTS CONCLUSIVE PROOF OF THEIR LEGAL
EFFECT.

All judgments whatever are conclusive proof as against

all persons of the existence of that state of things which
they actually effect when the existence of the state of
things so effected is a fact in issue or is or is deemed to
be relevant to the issue. The existence of the judgment
effecting it may be proved in the manner prescribed in
Part II.
{ The record of a judgment is the only proper, and is conclusive,
evidence of the rendition of the judgment, and of all the legal
consequences flowing from that fact against all persons. 1 Greenl.
Ev. § 538 et seq.; Ennis v. Smith, 14 How. ( U. S. ) 400. By the con-
stitution of the United States, " full faith and credit " is to be given
" in each State to the public acts, records, and judicial proceedings
of every other State." This makes a judgment of the tribunals of
one State admissible as evidence in the tribunals of another State,
upon the footing of a domestic judgment, subject, however, to im-
* See Appendix, Note XXIII.
1 "With or without summoning " are the words of the statute,
which seems an odd expression.
CHAP. IV. ] THE LAW OF EVIDENCE . 95

peachment on the several grounds : 1. That the State had no right

to exercise authority over the parties ; 2. That the court had no juris-
diction ; and, 3. That the judgment is tainted by fraud. 1 Greenl.
Ev. § 548.
Illustrations.
(a ) The question is, whether A has been damaged by the negli-
gence of his servant B in injuring C's horse.
A judgment in an action, in which C recovered damages against A,
is conclusive proof as against B, that C did recover damages against
A in that action.1
(b) The question is, whether A, a shipowner, is entitled to recover
as for a loss by capture against B an underwriter.
A judgment of a competent French prize court condemning the
ship and cargo as prize, is conclusive proof that the ship and cargo
were lost to A by capture.2
(c ) The question is , whether A can recover damages from B for a
malicious prosecution .
The judgment of a Court by which A was acquitted is conclusive
proof that A was acquitted by that Court.3
(d) A, as executor to B, sues C for a debt due from C to B.
The grant of probate to A is conclusive proof as against C, that A
is B's executor.4
(e) A is deprived of his living by the sentence of an ecclesiastical
court.
The sentence is conclusive proof of the fact of deprivation in all
cases.5
(ƒ) A and B are divorced à vinculo matrimonii by a sentence of the
Divorce Court.
The sentence is conclusive proof of the divorce in all cases.6

1 Green v. New River Company , 4 T. R. 590. ( See art . 44,

Illustration (a ) . ) A judgment against a sheriff, on account of mis-
conduct of his deputy, is conclusive as to the fact that the sheriff has
been adjudged liable on account of the misconduct, but it is not, as
against the deputy, evidence of his misconduct, unless he was notified
of the suit, and required to defend it. Tyler v. Ulmer, 12 Mass. 166 .
2 Involved in Geyer v. Aguilar, 7 T. R. 681.
3 Leggatt v. Tollervey, 14 Ex. 301 ; and see Caddy v. Barlow,
1 Man. & Ry. 277 ; 1 Greenl. Ev. § 538. }
4 Allen v. Dundas, 37 R. 125-130 . In this case the will to which
probate had been obtained was forged . Mut. Ben. Life Ins. Co. v.
Tisdale, 1 Otto ( U. S. ) , 238. }
5 Judgment of Lord Holt in Philips v. Bury, 2 T. R. 346, 351.
6 Assumed in Needham v. Bremner, L. R. 1 C. P. 582 ; { Burlen v.
Shannon, 3 Gray (Mass . ) , 387. }
96 A DIGEST OF [PART I.

ARTICLE 41 .

JUDGMENTS CONCLUSIVE AS BETWEEN PARTIES AND

PRIVIES OF FACTS FORMING GROUND OF JUDGMENT.

Every judgment is conclusive proof as against parties

and privies of facts directly in issue in the case, actually
decided by the Court, and appearing from the judgment
itself to be the ground on which it was based ; unless
evidence was admitted in the action in which the judg-
ment was delivered which is excluded in the action in
which that judgment is intended to be proved .
1 Greenl. Ev. §§ 528, 534 ; Hopkins v. Lee, 6 Wheaton ( U. S.),
109 ; Bigelow v. Winsor, 1 Gray ( Mass. ) , 299. }

Illustrations.
(a) The question is, whether C, a pauper, is settled in parish A or
parish B.
D is the mother and E the father of C. D, E, and several of their
children were removed from A to B before the question as to C's
settlement arose, by an order unappealed against, which order de-
scribed D as the wife of E.
The statement in the order that D was the wife of E is conclusive
as between A and B.¹
(b) A and B each claim administration to the goods of C, de-
ceased.
Administration is granted to B, the judgment declaring that, as
far as appears by the evidence, B has proved himself next of kin.
Afterwards there is a suit between A and B for the distribution of
the effects of C. The declaration in the first suit is in the second
suit conclusive proof as against A that B is nearer of kin to C than
A.2
(c) A company sues A for unpaid premium and calls. A special
case being stated in the Court of Common Pleas, A obtains judg-
ment on the ground that he never was a shareholder.

1 R. v. Hartington Middle Quarter, 4 E. & B. 780 ; and see Flitters

v. Allfrey, L. R. 10 C. P. 29 ; and contrast Dover v. Child, L. R.
1 Ex. Div. 172.
2 Barrs v. Jackson, 1 Phill. 582, 587, 588.
CHAP. IV. ] THE LAW OF EVIDENCE . 97

The company being wound up in the Court of Chancery, A applies

for the repayment of the sum he had paid for premium and calls.
The decision that he never was a shareholder is conclusive as between
him and the company that he never was a shareholder, and he is
therefore entitled to recover the sums he paid.¹
(d) A obtains a decree of judicial separation from her husband B,
on the ground of cruelty and desertion, proved by her own evidence.
Afterwards B sues A for dissolution of marriage on the ground of
adultery, in which suit neither B nor A can give evidence. A
charges B with cruelty and desertion. The decree in the first suit is
deemed to be irrelevant in the second.2 1 Greenl. Ev. § 524. }

ARTICLE 42.

STATEMENTS IN JUDGMENTS IRRELEVANT AS BETWEEN

STRANGERS, EXCEPT IN ADMIRALTY CASES .

Statements contained in judgments as to the facts upon

which the judgment is based are deemed to be irrelevant
as between strangers, or as between a party, or privy,
8
and a stranger, except in the case of judgments of
Courts of Admiralty condemning a ship as prize. In
such cases the judgment is conclusive proof as against

1 Bank of Hindustan, &c., Allison's Case, L. R. 9 Ch. App. 24.

2 Stoate v. Stoate, 2 Swa. & Tri. 223.
81 Greenl. Ev. §§ 523, 535.
4 This exception is treated by Lord Eldon as an objectionable
anomaly in Lothian v. Henderson, 3 B. & P. 545. See, too, Castrique
v. Imrie, L. R. 4 E. & I. App. 434, 435. The exception includes not
only judgments strictly in rem, but also judgments determining the
personal status of parties, as marriage, bastardy, settlement, and the
like, 1 Greenl. Ev. §§ 525, 556 ; and also judgments on questions of
a public nature, such as customs and the like, 1 Greenl. Ev . §§ 526,
555.
Upon the question of the conclusiveness of judgments affecting
the personal status, there is not an entire uniformity of opinion. The
generally accepted doctrine seems to be, that the judgment of a court
upon facts transpiring within the limits of the jurisdiction of the
State whose laws it administers, is conclusive. But whether judg-
ments upon facts not transpiring within such jurisdiction are con-
clusive, is not agreed. 1 Greenl. Ev. §§ 544, 545. }
7
98 A DIGEST OF [PART I.

all persons of the fact on which the condemnation pro-

ceeded, where such fact is plainly stated upon the face
of the sentence.
Illustrations.
(a) The question between A and B is, whether certain lands in
Kent had been disgavelled. A special verdict on a feigned issue be-
tween C and D ( strangers to A and B) finding that in the 2d Edw.
VI. a disgavelling Act was passed in words set out in the verdict is
deemed to be irrelevant.¹
(b) The question is, whether A committed bigamy by marrying B
during the lifetime of her former husband C.
A decree in a suit of jactitation of marriage, forbidding C to claim
to be the husband of A, on the ground that he was not her husband,
is deemed to be irrelevant.2
(c) The question is , whether A, a shipowner, has broken a war-
ranty to B an underwriter, that the cargo of the ship whose freight
was insured by A was neutral property.
The sentence of a French prize court condemning ship and cargo,
on the ground that the cargo was enemy's property, is conclusive
proof in favor of B that the cargo was enemy's property (though on
the facts the Court thought it was not).3

ARTICLE 43.

EFFECT OF JUDGMENT NOT PLEADED AS AN ESTOPPEL.

If a judgment is not pleaded by way of estoppel it is

as between parties and privies deemed to be a relevant
fact, whenever any matter which was or might have been
decided in the action in which it was given is in issue or
is or is deemed to be relevant to the issue in any subse-
quent proceeding.
Such a judgment is conclusive proof of the facts which

1 Doe v. Brydges, 6 M. & G. 282.

2 Duchess of Kingston's Case, 2 S. L. C. 760.
8 Geyer v. Aguilar, 7 T. R. 681. In England, judgments in rem
are conclusive upon all facts which they incidentally decide. So in
some of the American States. In others, these facts may be contro-
verted. 1 Greenl. Ev. § 543. }
CHAP. IV. ] THE LAW OF EVIDENCE . 99

it decides, or might have decided, if the party who gives

evidence of it had no opportunity of pleading it as an
estoppel.
{ The prevailing doctrine in this country is, that the judgment,
whether pleaded as an estoppel or proved in evidence, is conclusive,
whether the party proving had an opportunity to plead or not.
1 Greenl. Ev. § 531, and notes. But the English rule is defended by
Taylor, Ev. § 1486, n. }
Illustrations.
(a) A sues B for deepening the channel of a stream, whereby the
flow of water to A's mill was diminished.
A verdict recovered by B in a previous action for substantially
the same cause, and which might have been pleaded as an estoppel, is
deemed to be relevant, but not conclusive in B's favor.1
(b) A sues B for breaking and entering A's land, and building
thereon a wall and a cornice. B pleads that the land was his, and
obtains a verdict in his favor on that plea.
Afterwards B's devisee sues A's wife (who on the trial admitted
that she claimed through A) for pulling down the wall and cornice.
As the first judgment could not be pleaded as an estoppel (the wife's
right not appearing on the pleadings ) , it is conclusive in B's favor
that the land was his.2

ARTICLE 44.

JUDGMENTS GENERALLY DEEMED TO BE IRRELEVANT AS

BETWEEN STRANGERS.

Judgments are not deemed to be relevant as rendering

probable facts which may be inferred from their exist-
ence, but which they neither state nor decide---
as between strangers ;
as between parties and privies in suits where the issue
is different even though they relate to the same occur-
rence or subject-matter ;
or in favor of strangers against parties or privies.

1 Vooght v. Winch, 2 B. & A. 662 ; and see Feversham v. Emerson,

11 Ex. 391.
2 Whitaker v. Jackson, 2 H. & C. 926. This had previously been
doubted. See 2 Ph. Ev. 24, n. 4.
100 A DIGEST OF [PART I.

But a judgment is deemed to be relevant as between

strangers :
(1) if it is an admission , or
(2) if it relates to a matter of public or general
interest, so as to be a statement under article 30.
{ 1 Greenl. Ev. §§ 526, 555.

Illustrations.
(a) The question is, whether A has sustained loss by the negligence
of B his servant, who has injured C's horse.
A judgment recovered by C against A for the injury, though con-
clusive as against B, as to the fact that C recovered a sum of money
from A, is deemed to be irrelevant to the question, whether this was
caused by B's negligence.¹
(b) The question whether a bill of exchange is forged arises in an
action on the bill. The fact that A was convicted of forging the bill
is deemed to be irrelevant.2
(c) A collision takes place between two ships A and B, each of
which is damaged by the other.
The owner of A sues the owner of B, and recovers damages on the
ground that the collision was the fault of B's captain. This judg-
ment is not conclusive in an action by the owner of B against the
owner of A, for the damage done to B.3 [Semble, it is deemed to be
irrelevant. ] 4
(d) A is prosecuted and convicted as a principal felon.
B is afterwards prosecuted as an accessory to the felony committed
by A.
The judgment against A is deemed to be irrelevant as against B,
though A's guilt must be proved as against B.5
(e) A sues B, a carrier, for goods delivered by A to B.
A judgment recovered by B against a person to whom he had

1 Green v. New River Company, 4 T. R. 589 ; 1 Greenl. Ev.

§ 539.
2 Per Blackburn, J., in Castrique v. Imrie, L. R. 4 E. & I. App.
434.
8 The Calypso, 1 Swab. Ad . 28.
4 On the general principle in Duchess of Kingston's Case, 2 S. L.
C. 813.
5 Semble from R. v. Turner, 1 Moo. C. C. 347.
CHAP. IV.] THE LAW OF EVIDENCE . 101

delivered the goods, is deemed to be relevant as an admission by B

that he had them.¹
(f) A sues B for trespass on land.
A judgment, convicting A for a nuisance by obstructing a highway
on the place said to have been trespassed on is [at least] deemed to
be relevant to the question, whether the place was a public highway
[and is possibly conclusive] .2

ARTICLE 45.

JUDGMENTS CONCLUSIVE IN FAVOR OF JUDGE.

When any action is brought against any person for

any thing done by him in a judicial capacity, the judg
ment delivered, and the proceedings antecedent thereto,
are conclusive proof of the facts therein stated, whether
they are or are not necessary to give the defendant juris-
diction, if, assuming them to be true, they show that he
had jurisdiction.
Illustration.
A sues B (a justice of the peace) for taking from him a vessel and
500 lbs. of gunpowder thereon. B produces a conviction before him-
self of A for having gunpowder in a boat on the Thames (against
2 Geo. III. c. 28).
The conviction is conclusive proof for B, that the thing called a
boat was a boat.3

ARTICLE 46.

FRAUD, COLLUSION, OR WANT OF JURISDICTION MAY BE

PROVED.

Whenever any judgment is offered as evidence under

any of the articles hereinbefore contained, the party

1 Buller, N. P. 242, b. { Such judgment, though relevant, is not

conclusive. 1 Greenl. Ev. § 527.
2 Petrie v. Nuttall, 11 Ex. 569.
8 Brittain v. Kinnaird, 1 B. & B. 432. Inferior magistrates must
show their jurisdiction by the production of the record. As to supe-
rior magistrates or judges of courts of general jurisdiction, the juris-
diction will be presumed . Piper v. Pearson, 2 Gray ( Mass . ) , 120. }
102 A DIGEST OF [PART I.

against whom it is so offered may prove that the Court

which gave it had no jurisdiction, or that it has been
reversed, or, if he is a stranger¹ to it, that it was obtained
by any fraud or collusion , to which neither he nor any
person to whom he is privy was a party.2

ARTICLE 47.

FOREIGN JUDGMENTS .

The provisions of articles 40-46 apply to such of the

judgments of Courts of foreign countries as can by law
be enforced in this country, and so far as they can be so
enforced.³

1 Vose v. Morton, 4 Cush. (Mass .) 27. }

2 Cases collected in T. E. ss. 1524-1525, s. 1530. See, too, 2 Ph.
Ev. 35, and Ochsenbein v. Papelier, L. R. 8 Ch. 695 ; Hopkins v.
Lee, 6 Wheat. (U. S. ) 109.
3 The cases on this subject are collected in the note on the Duchess
of Kingston's Case, 2 S. L. C. 813-845. A list of the cases will be
found in R. N. P. 221-223. The last leading cases on the subject are
Godard v. Gray, L. R. 6 Q. B. 139, and Castrique v. Imrie, L. R.
4 E. & I. App. 414. But whether foreign judgments are prima facie,
or conclusive, and if conclusive, to what extent, is not agreed by the
tribunals of England or of this country . See Judge Redfield's note
to Story, Confl. of Laws, § 618 et seq., reported in 1 Greenl. Ev.
§§ 546, 547 ; Taylor, Ev. § 1553. }
CHAP. V. ] THE LAW OF EVIDENCE . 103

CHAPTER V.*

OPINIONS, WHEN RELEVANT AND WHEN NOT.

ARTICLE 48 .

OPINION GENERALLY IRRELEVANT.

THE fact that any person is of opinion that a fact in

issue, or relevant or deemed to be relevant to the issue,
does or does not exist is deemed to be irrelevant to the
existence of such fact, except in the cases specified in
this chapter.
{ Opinions of non-experts are now receivable in this country, in
all those cases where after personal observation a description without
an opinion would convey an imperfect idea of what the witness tes-
tifies to, and where the opinion is a conclusion of fact ; as in questions
of health, identity, insanity, conduct, bearing, whether friendly or
hostile, and the like. See, for a full discussion of the subject, Mr.
Justice Doe's dissenting opinion , in State v. Pike, 49 N. H. 398,
afterwards adopted by the whole court in Hardy v. Merrill, 56 N. H.
227 ; Com. v. Sturtivant, 117 Mass. 122 ; Hamilton v. People, 29 Mich.
173 ; 1 Greenl. Ev. § 440 and notes, vol. 2, § 371. Contra, as to in-
sanity in New York, People v. Real, 42 N. Y. 270. }
Illustration.
The question is, whether A, a deceased testator, was sane or not
when he made his will. His friends' opinions as to his sanity, as
expressed by the letters which they addressed to him in his lifetime,
are deemed to be irrelevant.1

See Appendix, Note XXIV.

1 Wright v. Doe d. Tatham, 7 A. & E. 313. { The decision in this
case was, that the language of business and friendly correspondents,
implying that in their opinion the person to whom the language was
addressed was sane, there being no evidence of any act done by him in
relation to the letters, or that he had any knowledge of their contents, is
inadmissible on the ground of . irrelevancy .}
104 A DIGEST OF [PART I.

ARTICLE 49.

OPINIONS OF EXPERTS ON POINTS OF SCIENCE OR ART.

When there is a question as to any point of science or

art, the opinions upon that point of persons specially
skilled in any such matter are deemed to be relevant
facts.
Such persons are hereinafter called experts.
The words " science or art " include all subjects on
which a course of special study or experience is neces-
sary to the formation of an opinion ,' and amongst others
the examination of handwriting.
When there is a question as to a foreign law the opin-
ions of experts who in their profession are acquainted
with such law are the only admissible evidence thereof,
though such experts may produce to the Court books.
which they declare to be works of authority upon the
foreign law in question, which books the Court, having
received all necessary explanations from the expert, may
construe for itself.2
It is the duty of the judge to decide, subject to the
opinion of the Court above, whether the skill of any
person in the matter on which evidence of his opinion is
offered is sufficient to entitle him to be considered as an
expert.8

1 1 S. L. C. 555, 7th ed. (note to Carter v. Boehm) ; 28 Vict. c.

18, s . 18.
2 Baron de Bode's Case, 8 Q. B. 250-267 ; Di Sora v. Phillipps,
10 H. L. 624 ; Castrique v. Imrie, L. R. 4 E. & I. App. 434 ; see, too,
Picton's Case, 30 S. T. 510-511. This is the usual course as to
the unwritten law, though in some States, by statute, this may be
proved by the Reports. 1 Greenl. Ev. § 488. The written law must
be proved by a copy. There is not much uniformity in the degree
of proof of authenticity required by different courts. 1 Greenl. Ev.
§§ 486-488.
3 Bristow v. Sequeville, 6 Ex. 275 ; Rowley v. L. & N. W. Rail-
CHAP. V. ] THE LAW OF EVIDENCE . 105

The opinion of an expert as to the existence of the

facts on which his opinion is to be given is irrelevant,
unless he perceived them himself.¹

Illustrations.
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the
poison by which A is supposed to have died , are deemed to be relevant.2
(b) The question is, whether A, at the time of doing a certain act,
was, by reason of unsoundness of mind, incapable of knowing the
nature of the act, or that he was doing what was either wrong or
contrary to law.
The opinions of experts upon the question whether the symptoms
exhibited by A commonly show unsoundness of mind, and whether
such unsoundness of mind usually renders persons incapable of

way, L. R. 8 Ex. 221 ; In the Goods of Bonelli, L. R. 1 P. D. 69 ;

{ Com. v. Williams, 105 Mass . 62. So it is the duty of the courts to
decide upon the existence of any preliminary fact or condition upon
which the admissibility of any evidence depends : as whether a
witness possesses sufficient mental capacity to be admissible, Coleman
v. Com., 25 Va. 865 ; or a document comes from the proper custody,
Doe v. Keeling, 11 Q. B. 889 ; or a dying declarant entertained hope
of recovery, State v. Tilghman, 11 Ired . ( N. C. ) Law, 513 ; or whether
a declaration is part of the res gesta , State v. Pike, 51 N. H. 105 ;
or whether a photograph of a portion of a defective highway is suffi-
ciently verified, Blair v. Pelham, 118 Mass. 420 ; and the like. For
further illustrations, see 1 Greenl. Ev. § 49 ; Taylor, Ev. § 21.
In determining the question of the existence of these conditions,
whether the judge may receive and act upon evidence which would
not in a trial be legally admissible, is still an open question. Beaufort
v. Crawshay, 35 L. J. .C. P. 332 ; s . c . 1 H. & R. 638. Best (Ev.
vol. i. § 82) says that the better opinion is that he may ; and this
would seem to be the fair result of the English cases, though Taylor
thinks it of doubtful legality, Ev. vol. i. § 479. We are not aware
that the point has been solemnly adjudicated by any court of last
resort in this country ; and presume the practice varies, as it does in
England. Such judgment is conclusive, unless upon a report of all
the evidence it clearly appears that there was error. O'Connor v.
Halinan, 103 Mass . 547. }
11 Ph. 507 ; T. E. s . 1278 ; 1 Greenl. Ev. § 440.
2 R. v. Palmer (passim). See my " Gen. View of Crim. Law,” 357.
106 A DIGEST OF [PART I.

knowing the nature of the acts which they do, or of knowing that
what they do is either wrong or contrary to law, are deemed to be
relevant.1
(c) The question is, whether a certain document was written by A.
Another document is produced which is proved or admitted to have
been written by A.
The opinions of experts on the question whether the two docu-
ments were written by the same person or by different persons, are
deemed to be relevant.2
(d) The opinions of experts on the questions, whether in illustra-
tion (a) A's death was in fact attended by certain symptoms ;
whether in illustration (b ) the symptoms from which they infer that
A was of unsound mind existed ; whether in illustration (c) either
or both of the documents were written by A, are deemed to be
irrelevant.
ARTICLE 50.

FACTS BEARING UPON OPINIONS OF EXPERTS .

Facts, not otherwise relevant, are deemed to be rele-

vant if they support or are inconsistent with the opinions
of experts, when such opinions are deemed to be relevant.
All facts are relevant which show that the statements of wit-
nesses, whether experts or non-experts, of fact or of opinion, are or
are not to be relied on. }
Illustrations.
(a) The question is, whether A was poisoned by a certain poison.
The fact that other persons, who were poisoned by that poison,

1 R. v. Dove (passim) . Gen. View Crim. Law, 391.

2 28 Vict. c. 18, s. 8. This statute seems to have been passed
to resolve the doubt whether such evidence was admissible, arising
out of the differences of opinion of the judges in Doe v. Suckermore,
5 Ad. & El. 703. The same doubt exists on the differing opinions of
different courts in this country ; but the weight of opinion is perhaps
in accordance with the English statute. 1 Greenl. Ev. § 579 et seq.
On the trial of one physician for malpractice, another physician can-
not be allowed to testify that in his opinion upon the facts proved
there was no malpractice. In other words, the witness cannot give
his opinion upon the existence or non-existence of the fact which the
jury is to pass upon. Hoener v. Koch, Sup. Ct. Ill., 4 L. & Eq.
Reptr. 173.
CHAP. V. ] THE LAW OF EVIDENCE . 107

exhibited certain symptoms which experts affirm or deny to be the

symptoms of that poison, is deemed to be relevant.¹
(b) The question is, whether an obstruction to a harbor is caused
by a certain bank. An expert gives his opinion that it is not.
The fact that other harbors similarly situated in other respects,
but where there were no such banks,2 began to be obstructed at
about the same time, is deemed to be relevant.

ARTICLE 51.
OPINION AS TO HANDWRITING, WHEN DEEMED ΤΟ BE
RELEVANT.

When there is a question as to the person by whom

any document was written or signed, the opinion of any
person acquainted with the handwriting of the supposed
writer that it was or was not written or signed by him,
is deemed to be a relevant fact.
A person is deemed to be acquainted with the hand
writing of another person when he has at any time seen
that person write, or when he has received documents
purporting to be written by that person in answer to
documents written by himself or under his authority and
addressed to that person, or when, in the ordinary course
of business, documents purporting to be written by that
person have been habitually submitted to him.8

Illustration.
The question is, whether a given letter is in the handwriting of A,
a merchant in Calcutta.
B is a merchant in London, who has written letters addressed to A,

1 R. v. Palmer, printed trial, p. 124, &c. In this case (tried in

1856) evidence was given of the symptoms attending the deaths of
Agnes Senet, poisoned by strychnine in 1845, Mrs. Serjeantson
Smith, similarly poisoned in 1848, and Mrs. Dove, murdered by the
same poison subsequently to the death of Cook, for whose murder
Palmer was tried.
2 Foulkes v. Chadd, 3 Doug. 157.
8 See Illustrations ; 1 Greenl. Ev. § 577. }
108 A DIGEST OF [PART I.

and received in answer letters purporting to be written by him. Cis

B's clerk, whose duty it was to examine and file B's correspondence.
D is B's broker, to whom B habitually submitted the letter purport-
ing to be written by A for the purpose of advising with him thereon.
The opinions of B, C, and D on the question whether the letter is
in the handwriting of A are relevant, though neither B, C, nor D
ever saw A write.¹
The opinion of C, who saw A write once twenty years ago, is also
relevant.2

ARTICLE 52.

COMPARISON OF HANDWRITINGS.

Comparison of a disputed handwriting with any writ-

ing proved to the satisfaction of the judge to be genuine
is permitted to be made by witnesses, and such writings,
and the evidence of witnesses respecting the same, may
be submitted to the Court and jury as evidence of the
genuineness or otherwise of the writing in dispute.
This paragraph applies to all courts of judicature, crim-
inal or civil, and to all persons having by law, or by
consent of parties, authority to hear, receive, and exam-
ine evidence.³

ARTICLE 53.

OPINION AS TO EXISTENCE OF MARRIAGE, WHEN RELE-

VANT.

When there is a question whether two persons are or

are not married, the facts that they cohabited and were
treated by others as man and wife are deemed to be

1 Doe v Suckermore, 5 A. & E. 705 ( Coleridge, J. ) ; 730 (Patte-

son, J.) ; 739-740 ( Denman, C. J.) .
2 R. v. Horne Tooke, 25 S. T. 71–72.
8 17 & 18 Vict. c. 125, s. 27 ; 28 Vict. c. 18, s. 8. The American
authorities differ upon the admissibility of a standard of comparison,
proved to the satisfaction of the judge to be genuine, with a nearly
equal weight pro and con. 1 Greenl. Ev. § 581. In Indiana, a paper
not already in the cause, and foreign to it, with a proved genuine sig-
CHAP. V. ] THE LAW OF EVIDENCE . 109

relevant facts, and to raise a presumption that they

were lawfully married, and that any act necessary to
the validity of any. form of marriage which may have
passed between them was done ; ¹ but such facts are not
sufficient to prove a marriage in a prosecution for bigamy
or in proceedings for a divorce, or in a petition for dam-
ages against an adulterer.²

ARTICLE 54.

GROUNDS OF OPINION, WHEN DEEMED TO BE RELEVANT.

Whenever the opinion of any living person is deemed

nature, may be used by an expert upon which to state his opinion, but
cannot be allowed to go to the jury to enable them to compare and
form an opinion. Huston v. Schindler, 46 Ind . 39. And this seems
to be the rule in Illinois. Brobston v. Cahill, 64 Ill. 356.
11 Greenl. Ev. § 107 ; 2 id. § 462. }
2 Morris v. Miller, 2 Burr. 2057 ; Birt v. Barlow, 1 Doug. 170 ; and
see Catherwood v. Caslon, 13 Mow. 261. Compare R. v. Mainwar-
ing, Dear. & B. 132. See, too, De Thoren v. A. G., L. R. 1 App. Cas.
686 ; Piers v. Piers, 2 H. & C. 331. Some of the references in the
report of De Thoren v. A. G. are incorrect. This article was not
expressed strongly enough in the former editions . {Where the
question of marriage arises on an issue involving a finding that
one party or the other has been guilty of a crime, it certainly has
been the rule in this country to require direct evidence of the mar-
riage, and that in such a case the marriage cannot be proved by infer-
ences from circumstances alone. Hutchins v. Kennel, 31 Mich. 126 ;
1 Bish. M. & D. c. 23-29. But that any particular kind of evidence
should be required is contrary to principle. The American rule is,
by a very great preponderance of authority, that when in a civil suit
a charge of criminality is to be proved, as part of the case, it may
be proved by a preponderance of evidence only. 10 Am. Law Rev.
N. S. 642. Massachusetts , California, and perhaps other States,
have by statute defined what evidence shall be proof of marriage
generally or in special cases, showing a disposition to break away
from the rule requiring one kind of evidence of the same facts in
one case, and another in another. See also, to the same effect, Young
v. Foster, 14 N. H. 114.
110 A DIGEST OF [PART I.

to be relevant, the grounds on which such opinion is

based are also deemed to be relevant.

Illustration.
An expert may give an account of experiments performed by him
for the purpose of forming his opinion.
CHAP. VI . ] THE LAW OF EVIDENCE . 111

CHAPTER VI.*

CHARACTER, WHEN DEEMED TO BE RELEVANT AND

WHEN NOT.

ARTICLE 55.
CHARACTER GENERALLY IRRELEVANT.

THE fact that a person is of a particular character is

deemed to be irrelevant to any inquiry respecting his
conduct, except in the cases mentioned in this chapter.
{1 Greenl. Ev. §§ 54, 55. }

ARTICLE 56.
EVIDENCE OF CHARACTER IN CRIMINAL CASES .

In criminal proceedings, the fact that the person ac-

cused has a good character,¹ is deemed to be relevant ;
but the fact that he has a bad character is deemed to be
irrelevant, unless it is itself a fact in issue, or unless
evidence has been given that he has a good character,
in which case evidence that he has a bad character is
admissible.2
When any person gives evidence of his good character
who ―
Being on his trial for any felony not punishable with
death, has been previously convicted of felony ; 8

* See Appendix , Note XXV.

1 This is true as well when the evidence of the criminal act is
direct as when it is circumstantial. Stone v. People, 56 N. Y. 315.}
23 Greenl. Ev. § 25 et seq. Where the jury impose the fine, good
or bad character seems to be relevant. Rosenbaum v. State, 33 Ala.
354.
3 7 & 8 Geo. IV. c. 28, s. 11, amended by 6 & 7 Will. IV. c. 111. If
112 A DIGEST OF [PAR1 I.

Or who, being upon his trial for any offence punishable

under the Larceny Act, 1861 , has been previously con-
victed of any felony, misdemeanor, or offence punishable
upon summary conviction ; ¹
Or who, being upon his trial for any offence against
the Coinage Offences Act, 1861 , or any former Act re-
lating to the coin, has been previously convicted of any
offence against any such Act.²
The prosecutor may, in answer to such evidence of
good character, give evidence of any such previous con-
viction before the jury return their verdict for the offence
for which the offender is being tried.
In this article the word " character " means reputation
as distinguished from disposition , and evidence may be
given only of general reputation and not of particular
acts by which reputation or disposition is shown. *

ARTICLE 57.

CHARACTER AS AFFECTING DAMAGES.

In civil cases, the fact that the character of any party

to the action is such as to affect the amount of damages
which he ought to receive, is generally deemed to be
irrelevant.5

" not punishable with death " means not so punishable at the time
when 7 & 8 Geo. IV. c. 28, was passed (21 June, 1827 ) , this narrows
the effect ofthe article considerably.
1 24 & 25 Vict. c . 96, s . 116.
2 24 & 25 Vict. c. 99, s. 37.
8 See each of the Acts above referred to.
4 R. v. Rowton, 1 L. & C. 520 ; 1 Greenl. Ev. § 55, and note 3 ;
id. § 25 et seq.
5 In 1 Ph. Ev. 504, &c., and T. E. s . 333 , all the cases are referred
to. The most important are - v. Moor, 1 M. & S. 284, which
treats the evidence as admissible, though perhaps it does not abso-
lutely affirm the proposition that it is so ; and Jones v. Stevens,
11 Price, 235, see especially pp. 265, 268, which decides that it is not.
CHAP. VI. ] THE LAW OF EVIDENCE . 113

The question is now rendered comparatively unimportant, as the

object for which such evidence used to be tendered can always be
obtained by cross-examining the plaintiff to his credit. Taylor, Ev .
§ 333, cited by the author, thinks the weight of authority is that such
evidence is admissible. But the authorities are so equally balanced,
that difference of opinion is not surprising. The American authorities
are as irreconcilable. 2 Greenl. Ev. § 275.}

8
114 A DIGEST OF [PART II.

PART II.

ON PROOF.

CHAPTER VII .

FACTS PROVED OTHERWISE THAN BY EVIDENCE-

JUDICIAL NOTICE.

ARTICLE 58.*

OF WHAT FACTS THE COURT TAKES JUDICIAL NOTICE .

It is the duty of all judges to take judicial notice of

the following facts : -
(1) All unwritten laws, rules, and principles having the
force of law administered by any Court sitting under the
authority of Her Majesty and her successors in England
or Ireland, whatever may be the nature of the jurisdic-
tion thereof.¹
(2) All public Acts of Parliament, and all Acts of
Parliament whatever, passed since February 4, 1851 , un-
less the contrary is expressly provided in any such Act.²
(3) The general course of proceeding and privileges
of Parliament and of each House thereof, and the date
and place of their sittings, but not transactions in their
journals.
(4) All general customs which have been held to have

* See Appendix, Note XXVI.

1 Ph. Ev. 460-461 ; T. E. s . 4, and see 36 & 37 Vict. c. 66 (Judica-
ture Act of 1873) , s . 25.
2 13 & 14 Vict. c. 21, ss. 7, 8, and see (for date) caption of session
of 14 & 15 Vict.
3 Ph. Ev. 460 ; T. E. s. 5.
CHAP. VII. ] THE LAW OF EVIDENCE . 115

the force of law in any division of the High Court of

Justice or by any of the superior courts of law or equity,
and all customs which have been duly certified to and
recorded in any such court.¹
(5) The course of proceeding and all rules of practice
in force in the Supreme Court of Justice. Courts of a
limited or inferior jurisdiction take judicial notice of
their own course of procedure and rules of practice, but
not of those of other courts of the same kind, nor does
the Supreme Court of Justice take judicial notice of the
course of procedure and rules of practice of such Courts.2
(6) The accession and [ semble] the sign manual of Her
8
Majesty and her successors.
(7) The existence and title of every State and Sov-
ereign recognized by Her Majesty and her successors.*
(8) The accession to office, names, titles, functions, and,
when attached to any decree, order, certificate, or other
judicial or official documents, the signatures, of all the
judges of the Supreme Court of Justice."
( 9) The Great Seal, the Privy Seal, the seals of the
Superior Courts of Justice, and all seals which any Court

1 The old rule was that each Court took notice of customs held by
or certified to it to have the force of law. It is submitted that the
effect of the Judicature Act, which fuses all the Courts together,
must be to produce the result stated in the text. As to the old law,
see Piper v. Chappell, 14 M. & W. 649–650. Ex parte Powell, In re
Matthews, L. R. 1 Ch. Div. 505–507, contains some remarks by Lord
Justice Mellish, as to proving customs till they come by degrees to be
judicially noticed.
2 1 Ph. Ev. 462-463 ; T. E. s . 19.
8 1 Ph. Ev. 458 ; T. E. ss . 16, 12.
4 1 Ph. Ev. 460 ; T. E. s. 3.
5 1 Ph. 462 ; T. E. 19 ; and as to latter part, 8 & 9 Vict. c. 113,
8. 2, as modified by 36 & 37 Vict. c. 66, s . 76 (Judicature Act of
1873).
6 The Judicature Acts confer no seal on the Supreme or High
Court or its divisions.
116 A DIGEST OF [PART II.

is authorized to use by any Act of Parliament,¹ certain

other seals mentioned in Acts of Parliament,¹ the seal of
the Corporation of London, and the seal of any notary
public in the Queen's dominions.
(10) The extent of the territories under the dominion
of Her Majesty and her successors ; the territorial and
political divisions of England and Ireland , but not their
geographical position or the situation of particular places ;
the commencement, continuance, and termination of war
between Her Majesty and any other Sovereign ; and all
other public matters directly concerning the general gov-
ernment of Her Majesty's dominions.¹
(11) The ordinary course of nature, natural and arti-
ficial divisions of time, the meaning of English words.5
(12 ) All other matters which they are directed by any
statute to notice."
Courts will generally take notice of whatever ought to be gener-
ally known within their jurisdiction . But different judges take
different views of the scope of this rule, and the result is some con-
fusion, and not unfrequently considerable latitude in its application.
-1 Greenl. Ev. §§ 4-6, 479 et seq. and notes. This article applies to
the courts of the United States and of the several States, merely
substituting for the titles which have a local application the corre-
sponding ones for the several governments. }

ARTICLE 59.

AS TO PROOF OF SUCH FACTS.

No evidence of any fact of which the Court will take

judicial notice need be given by the party alleging its

1 Doe v. Edwards, 9 A. & E. 555. See a list in T. E. s. 6.

2 1 Ph. Ev. 464 ; T. E. s. 6.
8 Cole v. Sherard, 11 Ex. 482. As to foreign notaries, see Earl's
Trust, 4 K. & J. 300.
4 1 Ph. Ev. 458, 460, 466 ; and T. E. ss. 15-16.
5 1 Ph. Ev. 465-466 ; T. E. s. 14 ; 1 Greenl. Ev. §§ 4-6.
6 E.g., the Articles of War. See sec. 1 of the Mutiny Act.
CHAP. VII. ] THE LAW OF EVIDENCE. 117

existence ; but the judge, upon being called upon to take

judicial notice thereof, may, if he is unacquainted with
such fact, refer to any person or to any document or book
of reference for his satisfaction in relation thereto, or
may refuse to take judicial notice thereof unless and
until the party calling upon him to take such notice
produces any such document or book of reference.¹

ARTICLE 60.

EVIDENCE NEED NOT BE GIVEN OF FACTS ADMITTED.

No fact need be proved in any proceeding which the

parties thereto or their agents agree to admit at the hear-
ing, or which they have admitted before the hearing and
with reference thereto, or by their pleadings.2 Provided
that in a trial for felony the prisoner can make no admis-
sions so as to dispense with proof, though a confession

1 T. E. (from Greenleaf) s. 20. E.g., a judge will refer in case of

need to an almanac, or to a printed copy of the statutes, or write to
the Foreign Office , to know whether a State had been recognized.
In a case where a judge ought to take judicial notice, he may in-
form himself very much at his discretion. United States v. Tesch-
maker, 22 How. ( U. S. ) 392 ; Wagner's Case, 61 Me. 178. It is said
he is not to resort to local history ; but he is to determine what is
local and what is general. McKenna v. Bliss, 21 N. Y. 296. He
will go to an almanac for a date, Page v. Faucet, Cro. Eliz. 227 ;
to the dictionary for the meaning of a word, Clementi v. Golding
2 Camp. 25 ; to the printed or enrolled statute, on a question of con
struction, Rex v. Jeffries, 1 Stra. 446 ; Spring v. Eve, 2 Mod . 240 ;
to officials, for the law and practice in their departments, Taylor v.
Barclay, 2 Sim. 221 ; Chandler v. Grieves, 2 H. Bl. 606, note a ; Doe
v. Lloyd, 1 M. & Gr. 685 ; or to a member of the bar on a question
of practice in his profession, Willoughby v. Willoughby, 1 T. R.
772.
2 See Schedule to Judicature Act of 1875, Order xxxii.; { 1 Greenl.
Ev. §§ 27, 187. }
118 A DIGEST OF [PART II.

may be proved as against him, subject to the rules stated

in articles 21-24.¹

1 1 Ph. Ev. 391, n. 6. In R. v. Thornhill, 8 C. & P., Lord Abinger

acted upon this rule in a trial for perjury. The practice in this
country is understood to be generally, if not universally, the other
way, and admissions of the prisoner are constantly received by the
courts. }
CHAP. VIII. ] THE LAW OF EVIDENCE . 119

CHAPTER VIII.

OF ORAL EVIDENCE.

ARTICLE 61.

PROOF OF FACTS BY ORAL EVIDENCE.

ALL facts may be proved by oral evidence subject to

the provisions as to the proof of documents contained in
Chapters IX., X., XI ., and XII.

ARTICLE 62.*

ORAL EVIDENCE MUST BE DIRECT.

Oral evidence must in all cases whatever be direct ;

that is to say -
If it refers to a fact alleged to have been seen, it must
be the evidence of a witness who says he saw it ;
If it refers to a fact alleged to have been heard, it must
be the evidence of a witness who says he heard it ;
If it refers to a fact alleged to have been perceived by
any other sense or in any other manner, it must be the
evidence of a witness who says he perceived it by that
sense or in that manner ;
If it refers to an opinion, or to the grounds on which
that opinion is held, it must be the evidence of the person
who holds that opinion on those grounds.

* See Appendix, Note XXVII.

120 A DIGEST OF [PART II.

CHAPTER IX.*

OF DOCUMENTARY EVIDENCE - PRIMARY AND SEC-

ONDARY, AND ATTESTED DOCUMENTS.

ARTICLE 63.

PROOF OF CONTENTS OF DOCUMENTS.

THE contents of documents may be proved either by

primary or by secondary evidence.

ARTICLE 64.

PRIMARY EVIDENCE.

Primary evidence means the document itself produced

for the inspection of the Court, accompanied by the pro-
duction of an attesting witness in cases in which an attest-
ing witness must be called under the provisions of articles
66 and 67 ; or an admission of its contents proved to have
been made by a person whose admissions are relevant
under articles 15-20.¹
Where a document is executed in several parts, each
part is primary evidence of the document :

* The articles in this chapter have been rearranged so as to make

those relating to attested documents form part of the articles on
primary evidence. This is clearly the proper order, as was pointed
out by a critic to whom I am much indebted.
1 Slatterie v. Pooley, 6 M. & W. 664. The proof of the contents
of a writing, by the admission of the party, is allowed in Massachu-
setts. But in New York and in the Irish Courts, such proof is re-
jected. 1 Greenl. Ev. §§ 96, 203. Deeds in duplicate, executed by
all the parties, are all originals. Colling v. Trewick, 6 B. & C.
398 ; Brown v. Woodman, 6 C. & P. 206. }
CHAP. IX. ] THE LAW OF EVIDENCE . 121

Where a document is executed in counterpart, each

counterpart being executed by one or some of the parties
only, each counterpart is primary evidence as against the
parties executing it.¹
Where a number of documents are all made by print-
ing, lithography, or photography, or any other process of
such a nature as in itself to secure uniformity in the
copies, each is primary evidence of the contents of the
rest ; 2 but where they are all copies of a common original,
no one of them is primary evidence of the contents of the
original.
ARTICLE 65.
PROOF OF DOCUMENTS BY PRIMARY EVIDENCE.

The contents of documents must, except in the cases

mentioned in article 71, be proved by primary evidence ;
and in the cases mentioned in article 66 by calling an
attesting witness.

ARTICLE 66.*

PROOF OF EXECUTION OF DOCUMENT REQUIRED BY LAW

TO BE ATTESTED.

If a document is required by law to be attested, it may

not be used as evidence (except in the cases mentioned or

* See Appendix, Note XXVIII.

1 Roe d. West v. Davis, 7 Ea. 362.
2 R. v. Watson, 2 Star. 129. This case was decided long before
the invention of photography ; but the judgments delivered by the
Court (Ellenborough, C. J., and Abbott, Bayley and Holroyd, JJ. )
established the principle stated in the text.
8 Noden v. Murray, 3 Camp. 224. {A duplicate notarial instru-
ment, made from the copy in the book, is an original. Geralopulo
v. Wieler, 10 C. B. 712. Whether a broker's entries in his book, or
the bought and sold notes which he issues, are the proper primary
evidence, is not agreed. Sievewright v. Archibald, 17 Q. B. 115, holds
the former to be, while Durell v. Evans, 1 H. & C. 174, holds that the
latter are.
122 A DIGEST OF [PART II.

referred to in the next article) if there be an attesting

witness alive, sane, and subject to the process of the Court,
until one attesting witness at least has been called for the
purpose of proving its execution.

{ 1 Greenl. Ev. § 569. This rule is not abrogated by the change

in the law making parties witnesses. Whyman v. Garth, 8 Ex. 803 ;
Brigham v. Palmer, 3 Allen (Mass. ) , 450. But it has been modified by
statutes in some of the States. See 1 Greenl. Ev. § 569, and notes.
If it is shown that no such attesting witness is alive or
can be found, it must be proved that the attestation of
one attesting witness at least is in his handwriting, and
that the signature of the person executing the document
is in the handwriting of that person.
The rule extends to cases in which -
the document has been burnt¹ or cancelled ; 2
8
the subscribing witness is blind ;
the person by whom the document was executed is pre-
pared to testify to his own execution of it ; ¹
the person seeking to prove the document is prepared
to prove an admission of its execution by the person who
5
executed it, even if he is a party to the cause, unless such
admission be made for the purpose of, or has reference to,
the cause .

ARTICLE 67.*

CASES IN WHICH ATTESTING WITNESS NEED NOT BE

CALLED.

In the following cases, and in the case mentioned in

article 88, but in no others, a person seeking to prove the

* See Appendix, Note XXVIII.

1 Gillies v. Smither, 2 Star. R. 528.
2 Breton v. Cope, Pea. R. 43. 3 Cronk v. Frith, 9 C. & P. 197.
4 R. v. Harringworth, 4 M. & S. 353 ; Barry v. Ryan, 4 Gray
(Mass . ), 523. }
5 Call v. Dunning, 4 Ea. 53. See, too, Whyman v. Garth, 8 Ex.
CHAP. IX. ] THE LAW OF EVIDENCE . 123

execution of a document required by law to be attested is

not bound to call for that purpose either the party who
executed the deed or any attesting witness, or to prove
the handwriting of any such party or attesting witness-
(1) When he is entitled to give secondary evidence of
the contents of the document under article 71 (a) ; ¹
(2) When his opponent produces it when called upon
and claims an interest under it in reference to the subject-
2
matter of the suit ;
(3) When the person against whom the document is
sought to be proved is a public officer bound by law to
procure its due execution , and who has dealt with it as a
document duly executed .
{ (4) In this country, it has been held that official bonds, required
by law to be taken, as in the case of an executor's, may be proved
without calling in the attesting witnesses . Kello v. Maget, 1 Dev. &
Bat. 414. So when the instrument is not directly in issue, but comes
in incidentally, as where A sues B on a parol contract to do a por-
tion of the work which A had, in an attested writing, agreed with C
to do. Curtis v. Belknap, 6 Wash . ( Vt. ) 433. So, it seems, on an in-
dictment for obtaining a signature to a deed by false pretences, the
deed and signature may be proved without calling the attesting
witnesses. Com . v. Castles, 9 Gray (Mass. ), 123. Į

803 ; Randall v. Lynch, 2 Camp. 357 ; Henry v. Bishop, 2 Wend.

(N. Y. ) 575 ; Jones v. Phelps, 5 Mich. 218.
1 Cooper v. Tamswell, 8 Tau. 450 ; Poole v. Warren, 8 A. & E. 588.
2 Pearce v. Hooper, 3 Tau. 60 ; Rearden v. Minter, 5 M. & G. 204 ;
{ 1 Greenl. Ev. § 571. As to the sort of interest necessary to bring
a case within this exception, see Collins v. Bayntun, 1 Q. B. 118.
8 Plumer v. Brisco, 11 Q. B. 46. Bailey v. Bidwell, 13 M. & W.
73, would perhaps justify a slight enlargement of the exception, but
the circumstances of the case were very peculiar. Mr. Taylor (ss.
1650-1651 ) considers it doubtful whether the rule extends to instru-
ments executed by corporations, or to deeds enrolled under the pro-
visions of any Act of Parliament, but his authorities hardly seem
to support his view ; at all events, as to deeds by corporations.
1 Greenl. Ev. § 571. }
124 A DIGEST OF [PART II .

ARTICLE 68.

PROOF WHEN ATTESTING WITNESS DENIES THE EXECU-

TION.

If the attesting witness denies or does not recollect the

execution of the document, its execution may be proved
by other evidence.¹

ARTICLE 69.

PROOF OF DOCUMENT NOT REQUIRED BY LAW TO BE

ATTESTED.

An attested document not required by law to be attested

may in all cases whatever, civil or criminal, be proved as
if it was unattested ."

ARTICLE 70.

SECONDARY EVIDENCE.

Secondary evidence means—

(1) Examined copies, exemplifications, office copies, and
certified copies : 8*
(2) Other copies made from the original and proved to
be correct :
(3) Counterparts of documents as against the parties
who did not execute them : 4

1 "Where an attesting witness has denied all knowledge of the

matter, the case stands as if there were no attesting witness." Tal-
bot v. Hodson, 7 Tau. 251, 254 ; 1 Greenl. Ev. § 572, n. 8.
2 17 & 18 Vict. c. 125, s. 26 ; 28 & 29 Vict. c. 18, ss . 1, 7. By
the common law, such documents must be proved in the same way as
those which the law requires to be attested . Such is, no doubt, the
rule, in the absence of statutory control, in this country. }
8 See chapter X.
4 Munn v. Godbold, 3 Bing. 292.
CHAP. IX. ] THE LAW OF EVIDENCE . 125

(4) Oral accounts of the contents of a document given

by some person who has himself seen it.
{1 Greenl. Ev. §§ 84 et seq.}

ARTICLE 71.

CASES IN WHICH SECONDARY EVIDENCE RELATING TO

DOCUMENTS MAY BE GIVEN.

Secondary evidence may be given of the contents of a

document in the following cases—
(a) When the original is shown or appears to be in the
possession or power of the adverse party,
and when, after the notice mentioned in article 72, he
does not produce it ; ¹
(b) When the original is shown or appears to be in the
possession or power of a stranger not legally bound to
produce it, and who refuses to produce it after being
served with a subpoena duces tecum, or after having been
sworn as a witness and asked for the document and having
admitted that it is in court ; 2
(c) When the original has been destroyed or lost, and
proper search has been made for it ; 8

1 R. v. Watson, 2 T. R. 201. Entick v. Carrington, 19 S. T. 1073,

is cited by Mr. Phillips as an authority for this proposition . I do not
think it supports it, but it shows the necessity for the rule, as at
common law no power existed to compel the production of docu-
ments. By statute, the United States courts have the power to
compel parties to produce papers, under penalty of nonsuit or de-
fault. 1 Greenl. Ev. § 559, note 3. And the courts of some of the
States have exercised the same power. Ibid. § 560, note. }
2 Miles v. Oddy, 6 C. & P. 732 ; Marston v. Downes, 1 A. & E. 31 ;
{ 1 Greenl. Ev. § 558. In this country, the court, in its discretion, will
compel the production of the papers. Bull v. Loveland, 10 Pick.
(Mass. ) 14.
3 1 Ph. Ev. s. 452 ; 2 Ph. Ev. 281 ; T. E. ( from Greenleaf) s. 399 ;
{ 1 Greenl. Ev. § 558. } The loss may be proved by an admission of
the party or his attorney. R. v. Haworth, 4 C. & P. 254.
126 A DIGEST OF [PART II.

(d) When the original is of such a nature as not to be

easily movable, or is in a country from which it is not
permitted to be removed ; 2
8
(e) When the original is a public document ;
(f) When the document is an entry in a banker's book
proof of which is admissible under article 36.
(g) When the original is a document for the proof of
which special provision is made by any Act of Parlia-
ment, or any law in force for the time being ; or
(h) When the originals consist of numerous documents
which cannot conveniently be examined in court, and the
fact to be proved is the general result of the whole collec-
tion provided that that result is capable of being ascer-
tained by calculation ."
Subject to the provisions hereinafter contained any
secondary evidence of a document is admissible."
In case (ƒ) the entries may be proved by copies veri-
fied by means of the affidavit of a person who has ex-
amined the same, stating the fact of said examination,
and that the copies sought to be put in evidence are
correct ? in addition to the affidavit mentioned in article

1 Mortimer v. McCallan, 6 M. & W. 67, 68 (this was the case of a

libel written on a wall ) ; Bruce v. Nicolopulo, 11 Ex. 133 (the case
of a placard posted on a wall ) ; 1 Greenl. Ev. § 94.
2 Alivon v. Furnival, 1 C. M. & R. 277, 291-292. Or beyond the
jurisdiction of the court. Burton v. Driggs, 20 Wall. ( U. S. ) 125. }
3 See chapter X.; 1 Greenl. Ev. § 91 .
4 Ibid. Items (ƒ) and (g) are founded on the English statutes,
and not on the common law.}
5 Roberts v. Doxen, Peake, 116 ; Meyer v. Sefton, 2 Star. 276 ;
1 Greenl. Ev. § 93. The books, &c., should in such a case be
ready to be produced if required. Johnson v. Kershaw, 1 De G.
& S. 264.
6 If a counterpart is known to exist, it is the safest course to pro-
duce or account for it. Munn v. Godbold, 3 Bing. 297 ; R. v. Castle-
ton, 7 T. R. 236.
CHAP. IX. ] THE LAW OF EVIDENCE . 127

36, and subject to the provisions contained in articles 37

and 38 ¹ ].
In case (g) evidence may be given as to the general
result of the documents by any person who has examined
them, and who is skilled in the examination of such doc-
uments.
Questions as to the existence of facts rendering second-
ary evidence of the contents of documents admissible are
to be decided by the judge, unless in deciding such a
question the judge would in effect decide the matter in
issue.

ARTICLE 72.*

RULES AS TO NOTICE TO PRODUCE .

Secondary evidence of the contents of the documents

referred to in article 71 (a) , may not be given unless the
party proposing to give such secondary evidence has,
if the original is in the possession or under the control
of the adverse party, given him such notice to produce it
as the Court regards as reasonably sufficient to enable it
8
to be procured ; or has,
if the original is in the possession of a stranger to the
action, served him with a subpoena duces tecum requiring
4
its production ; *
if a stranger so served does not produce the document,
and has no lawful justification for refusing or omitting to
do so, his omission does not entitle the party who served

* See Appendix, Note XXIX.

1 I suppose this is the effect of 39 & 40 Vict. c. 48, ss . 4 and 3,
but the Act is oddly arranged and expressed. There are several
small peculiarities in its wording.
2 Stowe v. Querner, L. R. 5 Exch. 155 ; { ante, art. 49. }
3 Dwyer v. Collins, 7 Ex . 648 ; { 1 Greenl. Ev. § 560. }
4 Newton v. Chaplin, 10 C. B. 56-69 ; 1 Greenl . Ev. § 558.
128 A DIGEST OF [PART II.

him with the subpœna to give secondary evidence of the

contents of the document.¹
Such notice is not required in order to render second-
ary evidence admissible in any of the following cases-
(1) When the document to be proved is itself a notice ;
(2) When the action is founded upon the assumption
that the document is in the possession or power of the
adverse party and requires its production ; 2
(3) When it appears or is proved that the adverse party
has obtained possession of the original from a person sub-
pœnaed to produce it ; ?
(4) When the adverse party or his agent has the
original in court.¹
(5) Notice to produce is not necessary when the instrument to be
proved and that to be produced are duplicate originals, Greenl.
Ev. § 561 ; nor when the party has fraudulently or forcibly obtained
possession of it, for the purpose of preventing its production , Doe
v. Ries, 7 Bing. 724 ; nor when the party has purposely evaded
the service of the notice, Bright v. Pennywit, 21 Ark. 130 ; nor
when the paper is in possession of a person who cannot be reached
by the process of the court, Shepard v. Giddings, 22 Conn . 282 ;
nor when the paper is proved to be lost, McCreary v. Hood, 5 Blackf.
(Ind. ) 316. )

1 R. v. Llanfaethly, 2 E. & B. 940. This case seems to have

been obiter, Earl, J., distinctly saying that the notice to produce
had not been served upon the right person. However this may be,
we think that in this country the court would either compel the wit-
ness to produce (he not being justified in withholding it ) , or allow
secondary evidence. Bull v. Loveland, 10 Pick. ( Mass. ) 14. }
2 How v. Hall, 14 Ea. 247. In an action on a bond, no notice to
produce the bond is required. See other illustrations in 2 Ph. Ev.
373 ; T. E. s. 422 ; 1 Greenl. Ev. § 561. }
3 Leeds v. Cook, 4 Esp . 256 .
4 Formerly doubted, see 2 Ph. Ev. 278, but so held in Dwyer v.
Collins, 7 Ex. 639 ; { Brandt v. Klein, 17 Johns. ( N. Y. ) 335 ; Rhoades
v. Selin, 4 Wash. C. Ct. 718 ; Dana v. Boyd, 2 J. J. Marsh. ( Ky. )
587.
CHAP. X. ] THE LAW OF EVIDENCE . 129

CHAPTER X.

PROOF OF PUBLIC DOCUMENTS .

ARTICLE 73.

PROOF OF PUBLIC DOCUMENTS.

WHEN a statement made in any public document, regis-

ter, or record, judicial or otherwise, or in any pleading or
deposition kept therewith is in issue, or is relevant to the
issue in any proceeding, the fact that that statement is
contained in that document, may be proved in any of the
ways mentioned in this chapter.¹

ARTICLE 74.

PRODUCTION OF DOCUMENT ITSELF.

The contents of any public document whatever may be

proved by producing the document itself for inspection
from proper custody, and identifying it as being what it
professes to be.
ARTICLE 75.*
EXAMINED COPIES.

The contents of any public document whatever may in

all cases be proved by an examined copy.
1 Greenl. Ev. § 508. }
An examined copy is a copy proved by oral evidence

See Appendix, Note XXX., also Doe v. Ross, 7 M. & W. 106.

1 See articles 36 and 90.
9
130 A DIGEST OF [PART II.

to have been examined with the original and to corre-

spond therewith . The examination may be made either
by one person reading both the original and the copy,
or by two persons, one reading the original and the other
the copy, and it is not necessary (except in peerage cases ¹) ,
that each should alternately read both.2

ARTICLE 76.

GENERAL RECORDS OF THE REALM.

Any record under the charge and superintendence of

the Master of the Rolls for the time being, may be proved
by a copy certified as a true and authentic copy by the
deputy keeper of the records or one of the assistant
record keepers, and purporting to be sealed or stamped
with the seal of the Record Office.³

ARTICLE 77.*

EXEMPLIFICATIONS .

An exemplification is a copy of a record set out either

under the Great Seal or under the Seal of a Court .
A copy made by an officer of the Court, bound by law

See Appendix, Note XXXI.

1 Slane Peerage Case, 5 C. & F. 42.
2 2 Ph. Ev. 200, 231 ; T. E. ss . 1379, 1389 ; R. N. P. 113 ; 1 Greenl.
Ev. § 508.
8 1 & 2 Vict. c. 94, ss . 1, 12, 13. The mode of proof of public docu-
ments is so much a matter of statute regulation, both in England and in
the different jurisdictions of this country , that the details of differ-
ences would hardly be in their proper place in this work. So far as the
production and proof of such documents is regulated by the common
law, or by general practice, or by special statutes, reference is made
to Mr. Greenleaf's chapter on the subject. 1 Greenl. Ev. § 499
et seq.
CHAP. X. ] THE LAW OF EVIDENCE . 131

to make it, is equivalent to an exemplification, though it

is sometimes called an office copy.
An exemplification is equivalent to the original docu-
ment exemplified .
{1 Greenl. Ev. § 501 .

ARTICLE 78.*

COPIES EQUIVALENT TO EXEMPLIFICATIONS.

A copy made by an officer of the Court, who is author-

ized to make it by a rule of Court, but not required by
law to make it, is regarded as equivalent to an exempli-
fication in the same Cause and Court, but in other Causes
or Courts it is not admissible unless it can be proved as
an examined copy .

ARTICLE 79.

CERTIFIED COPIES .

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, bye-laws, entries in
registers and other books, shall be receivable in evidence
of certain particulars in Courts of Justice, provided they
are respectively authenticated in the manner prescribed
by such statutes.¹
Whenever, by virtue of any such provision, any such
certificate or certified copy as aforesaid is receivable in
proof of any particular in any Court of Justice , it is
admissible as evidence if it purports to be authenticated
in the manner prescribed by law without proof of any

* See Appendix, Note XXXI.

1 8 & 9 Vict. c. 113, preamble. Many such statutes are specified
in T. E. s. 1440 and following sections . See, too, R. N. P. 114-115.
132 A DIGEST OF [PART II.

stamp, seal, or signature required for its authentication

or of the official character of the person who appears to
have signed it.¹
Whenever any book or other document is of such a
public nature as to be admissible in evidence on its mere
production from the proper custody, and no statute exists
which renders its contents provable by means of a copy,
any copy thereof or extract therefrom is admissible in
proof of its contents,2 provided it purport to be signed
and certified as a true copy or extract by the officer to
whose custody the original is intrusted. Every such
officer must furnish such certified copy or extract to any
person applying at a reasonable time for the same, upon
payment of a reasonable sum for the same, not exceeding
fourpence for every folio of ninety words.³

ARTICLE 80.
DOCUMENTS ADMISSIBLE THROUGHOUT THE QUEEN'S
DOMINIONS.

If by any law in force for the time being any document

is admissible in evidence of any particular either in
Courts of Justice in England and Wales, or in Courts of
Justice in Ireland, without proof of the seal, or stamp, or

1 8 & 9 Vict. c. 113, s. 1. I believe the above to be the effect of the

provision, but the language is greatly condensed. Some words at the
end of the section are regarded as unmeaning by several text writers.
See, e.g., R. N. P. 116 ; 2 Ph. Ev. 241 ; T. E. s . 7, note 1. Mr. Taylor
says that the concluding words of the section were introduced into the
Act while passing through the House of Commons. He adds, they
appear to have been copied from 1 & 2 Vict. c. 94, s. 13 (see art. 76)
" by some honorable member who did not know distinctly what he
was about." They certainly add nothing to the sense.
2 The words " provided it be proved to be an examined copy or
extract, or," occur in the Act, but are here omitted, because their
effect is given in article 75.
8 14 & 15 Vict. c. 99, s . 14.
CHAP. X. ] THE LAW OF EVIDENCE . 133

signature authenticating the same, or of the judicial

or official character of the person appearing to have
signed the same, that document is also admissible in
evidence to the same extent and for the same purpose,
without such proof as aforesaid, in any Court or before
any judge in any part of the Queen's dominions except
Scotland.¹

ARTICLE 81.

QUEEN'S PRINTERS' COPIES.

The contents of Acts of Parliament, not being public

Acts, may be proved by copies thereof purporting to be
printed by the Queen's printers ;
The journals of either House of Parliament ; and
Royal proclamations,
may be proved by copies thereof purporting to be printed
by the printers to the Crown or by the printers to either
House of Parliament.2

ARTICLE 82.

PROOF OF IRISH STATUTES.

The copy of the statutes of the kingdom of Ireland

enacted by the Parliament of the same prior to the
union of the kingdoms of Great Britain and Ireland ,

1 Consolidates 14 & 15 Vict. c. 99, ss. 9, 10, 11 , 19. Sec. 9 provides

that documents admissible in England shall be admissible in Ireland ;
sec. 10 is the converse of 9 ; sec. 11 enacts that documents admissible
in either shall be admissible in the " British Colonies ; " and sec. 19
defines the British Colonies as including India, the Channel Islands,
the Isle of Man, and " all other possessions " of the British Crown,
wheresoever and whatsoever. This cannot mean to include Scotland,
though the literal sense of the words would perhaps extend to it.
28 & 9 Vict. c. 113, s. 3. Is there any difference between the
Queen's printers and the printers to the Crown ?
134 A DIGEST OF [PART II.

and printed and published by the printer duly authorized

by King George III . or any of his predecessors, is con-
clusive evidence of the contents of such statutes.¹

ARTICLE 83.

PROCLAMATIONS, ORDERS IN COUNCIL, ETC.

The contents of any proclamation , order, or regulation

issued at any time by Her Majesty or by the Privy Coun-
cil, and of any proclamation , order, or regulation issued
at any time by or under the authority of any such depart-
ment of the Government or officer as is mentioned in the
first column of the note 2 hereto, may be proved in all or
any of the modes hereinafter mentioned ; that is to say -

1 41 Geo. III. c. 90, s. 9.

2 COLUMN 1. COLUMN 2.

Name ofDepartment or Officer. Names of Certifying Officers.

The Commissioners of the Treas- Any Commissioner, Secretary, or
ury. Assistant Secretary of the
Treasury.
The Commissioners for execut- Any of the Commissioners for
ing the Office of Lord High executing the Office of Lord
Admiral. High Admiral or either of the
Secretaries to the said Com-
missioners.
Secretaries of State. Any Secretary or Under Secre-
tary of State.
Committee of Privy Council for Any Member of the Committee of
Trade. Privy Council for Trade or any
Secretary or Assistant Secre-
tary of the said Committee.
The Poor Law Board. Any Commissioner of the Poor
Law Board or any Secretary or
Assistant Secretary of the said
Board.
The Postmaster General. Any Secretary or Assistant Sec-
retary of the Post Office (33 &
34 Vict. c. 79, s. 21 ).
( Schedule to 31 & 32 Vict. c. 37. See also 34 & 35 Vict. c. 70, s . 5. )
CHAP. X. ] THE LAW OF EVIDENCE . 135

(1) By the production of a copy of the Gazette pur-

porting to contain such proclamation , order, or regulation :
(2) By the production of a copy of such proclamation,
order, or regulation purporting to be printed by the Gov-
ernment printer, or, where the question arises in a Court
in any British colony or possession, of a copy purporting
to be printed under the authority of the legislature of
such British colony or possession :
(3) By the production , in the case of any proclamation,
order, or regulation issued by Her Majesty or by the
Privy Council, of a copy or extract purporting to be
certified to be true by the Clerk of the Privy Council or
by any one of the Lords or others of the Privy Council ,
and, in the case of any proclamation , order, or regulation
issued by or under the authority of any of the said de-
partments or officers, by the production of a copy or
extract purporting to be certified to be true by the per-
son or persons specified in the second column of the said
note in connection with such department or officer.
Any copy or extract made under this provision may
be in print or in writing, or partly in print and partly in
writing.
No proof is required of the handwriting or official
position of any person certifying, in pursuance of this
provision, to the truth of any copy of or extract from
any proclamation, order, or regulation.¹
Subject to any law that may be from time to time
made by the legislature of any British colony or posses-
sion, this provision is in force in every such colony and
possession.2
ARTICLE 84.

FOREIGN AND COLONIAL ACTS OF STATE, JUDGMENTS , ETC.

All proclamations, treaties, and other acts of State of
any foreign State, or of any British colony, and all judg-

1 31 & 32 Vict. c. 37, s . 2. 2 Ibid., s. 3.

136 A DIGEST OF [PART II.

ments, decrees, orders, and other judicial proceedings of

any Court of Justice in any foreign State or in any Brit-
ish colony, and all affidavits, pleadings, and other legal
documents filed or deposited in any such Court, may be
proved either by examined copies or by copies authenti-
cated as hereinafter mentioned ; that is to say-
If the document sought to be proved be a proclamation,
treaty, or other act of State, the authenticated copy to be
admissible in evidence must purport to be sealed with the
seal of the foreign State or British possession to which
the original document belongs ;
And if the document sought to be proved be a judg
ment, decree, order, or other judicial proceeding of any
foreign Court, in any British possession, or an affidavit,
pleading, or other legal document filed or deposited in
any such Court, the authenticated copy to be admissible
in evidence must purport either to be sealed with the
seal of the foreign or other Court to which the original
document belongs, or, in the event of such Court having
no seal, to be signed by the judge, or, if there be more
than one judge, by any one of the judges of the said
Court, and such judge must attach to his signature a
statement in writing on the said copy that the court
whereof he is a judge has no seal ;
If any of the aforesaid authenticated copies purports
to be sealed or signed as hereinbefore mentioned, it is
admissible in evidence in every case in which the original
document could have been received in evidence, without
any proof of the seal where a seal is necessary, or of the
signature, or of the truth of the statement attached
thereto, where such signature and statement are neces-
sary, or of the judicial character of the person appearing
to have made such signature and statement.¹
Colonial laws assented to by the governors of colonies,

1 14 & 15 Vict. c. 99, s. 7.

CHAP. X. ] THE LAW OF EVIDENCE . 137

and bills reserved by the governors of such colonies for

the signification of Her Majesty's pleasure, and the fact
(as the case may be) that such law has been duly and
properly passed and assented to, or that such bill has
been duly and properly passed and presented to the
governor, may be proved (primâ facie) by a copy cer-
tified by the clerk or other proper officer of the legislative
body of the colony to be a true copy of any such law or
bill. Any proclamation purporting to be published by
authority of the governor in any newspaper in the colony
to which such law or bill relates, and signifying Her
Majesty's disallowance of any such colonial law, or
Her Majesty's assent to any such reserved bill, is primâ
facie proof of such disallowance or assent.¹

1 28 & 29 Vict. c. 63, s. 6. " Colony " in this paragraph means

"all Her Majesty's possessions abroad " having a legislature, " except
the Channel Islands, the Isle of Man, and India." 66 Colony " in the
rest of the article includes those places.
138 A DIGEST OF [PART II.

CHAPTER XI.

PRESUMPTIONS AS TO DOCUMENTS.

ARTICLE 85.
PRESUMPTION AS TO DATE OF A DOCUMENT.

WHEN any document bearing a date has been proved, it

is presumed to have been made on the day on which it
bears date, and if more documents than one bear date on
the same day, they are presumed to have been executed
in the order necessary to effect the object for which they
were executed, but independent proof of the correctness
of the date will be required if the circumstances are such
that collusion as to the date might be practised, and
would, if practised, injure any person, or defeat the ob-
jects of any law.¹
Illustrations.
(a) An instrument admitting a debt, and dated before the act of
bankruptcy, is produced by a bankrupt's assignees, to prove the
petitioning creditor's debt. Further evidence of the date of the trans-
action is required in order to guard against collusion between the
assignees and the bankrupt, to the prejudice of creditors whose claims
date from the interval between the act of bankruptcy and the adjudi-
cation.2
(b) In a petition for damages on the ground of adultery letters
are produced between the husband and wife, dated before the alleged
adultery, and showing that they were then on affectionate terms.
Further evidence of the date is required to prevent collusion, to the
prejudice of the person petitioned against.³

1 1 Ph. Ev. 482-483 ; T. E. s . 137 ; Best, s . 403 ; 1 Greenl. Ev.

§ 40 ; Meldrum v. Clark, 1 Mor. ( Iowa) 130 ; Abrams v. Pomeroy,
13 Ill. 133 ; New Haven v. Mitchell, 15 Conn. 206 ; Williams v. Wood,
16 Md. 220 .
2 Anderson v. Weston, 6 Bing. N. C. 302 ; Sinclair v. Baggallay,
M. & W. 318. 3 Houlston v. Smith, 2 C. & P. 24.
CHAP. XI. ] THE LAW OF EVIDENCE . 139

ARTICLE 86 .

PRESUMPTION AS TO STAMP OF A DOCUMENT.

When any document is not produced after due notice

to produce, and after being called for, it is presumed to
have been duly stamped,' unless it be shown to have re-
mained unstamped for some time after its execution.2

ARTICLE 87.

PRESUMPTION AS TO SEALING AND DELIVERY OF deeds .

When any document purporting to be and stamped as

a deed, appears or is proved to be or to have been signed
and duly attested, it is presumed to have been sealed
and delivered, although no impression of a seal appears
thereon.³

ARTICLE 88.

PRESUMPTION AS TO DOCUMENTS THIRTY YEARS OLD.

Where any document purporting or proved to be thirty

years old is produced from any custody which the judge
in the particular case considers proper, it is presumed
that the signature and every other part of such document
which purports to be in the handwriting of any particular
person is in that person's handwriting, and, in the case of
a document executed or attested, that it was duly exe-

1 Closmadeuc v. Carrel, 18 C. B. 44. In this case the growth of

the rule is traced, and other cases are referred to, in the judgment of
Cresswell, J.
2 Marine Investment Company v. Haviside, L. R. 5 E. & I. App .
624.
3 Hall v. Bainbridge, 12 Q. B. 699-710 ; Re Sandilands , L. R. 6 C. P.
411 . This is a general statement of the law as it exists in this
country. But the rule is not uniform . 2 Greenl. Ev. §§ 296, 297. }
140 A DIGEST OF [PART II.

cuted and attested by the persons by whom it purports

to be executed and attested ; and the attestation or
execution need not be proved, even if the attesting wit-
ness is alive and in court.
Documents are said to be in proper custody if they are
in the place in which, and under the care of the person
with whom, they would naturally be ; but no custody is
improper if it is proved to have had a legitimate origin, or
if the circumstances of the particular case are such as to
render such an origin probable.¹

ARTICLE 89.

PRESUMPTION AS TO ALTERATIONS.

No person producing any document which upon its

face appears to have been altered in a material part can
claim under it the enforcement of any right created by
it, unless the alteration was made before the completion
of the document or with the consent of the party to be
charged under it or his representative in interest .
This rule extends to cases in which the alteration was
made by a stranger, whilst the document was in the
custody of the person producing it, but without his
knowledge or leave.²
Alterations and interlineations appearing on the face of
a deed are, in the absence of all evidence relating to them,

12 Ph. Ev. 245-248 ; Starkie, 521-526 ; T. E. s. 74 and ss . 593-

601 ; Best, s. 220 ; 1 Greenl. Ev. §§ 21, 142–144, 570. }
2 Pigot's Case, 11 Rep. 47 ; Davidson v. Cooper, 11 M. & W. 778 ;
13 M. & W. 343 ; Aldous v. Cornwell, L. R. 3 Q. B. 573. This quali-
fies one of the resolutions in Pigot's Case. The judgment reviews
a great number of authorities on the subject. Alteration by a
stranger, without the knowledge or fault of the party to the instru-
ment, is not fatal to a claim under it by the real owner, by the great
weight of authority in this country. 1 Greenl. Ev. § 566, n.; State
v. Berg, 50 Ind. 496. }
CHAP . XI. ] THE LAW OF EVIDENCE. 141

presumed to have been made before the deed was com-

pleted.¹
Alterations and interlineations appearing on the face
of a will are, in the absence of all evidence relating to
them, presumed to have been made after the execution of
the will.2
There is no presumption as to the time when alterations
and interlineations, appearing on the face of writings not
under seal, were made except that it is presumed that
they were so made that the making would not constitute
an offence.¹
An alteration is said to be material when, if it had been
made with the consent of the party charged , it would
have affected his interest or varied his obligations in any
way whatever.
An alteration which in no way affects the rights of the
parties or the legal effect of the instrument, is immaterial."

1 Doe v. Catomore, 16 Q. B. 745. Upon this point the cases in

this country conflict, with the weight of authority that there is no
presumption either way, but that it is for the jury to decide when
the alteration was made. 1 Greenl. Ev. § 564. }
2 Simmons v. Rudall, 1 Sim . N. s. 136. The English Statute
of Wills requires alterations made before execution to be noted ;
hence those not noted may be presumed not to have been made after
execution. Doe v. Palmer, 15 Jur. 836. But there are other grounds
for this distinction between deeds and wills. See 1 Redfield on Wills,
pp. 315, 316.
3 Knight v. Clements, 8 A. & E. 215 ; { 1 Greenl. Ev. § 564, n. 3. }
4 R. v. Gordon, Dearsley & P. 592 ; 1 Greenl. Ev. § 564, n. 3. }
5 This appears to be the result of many cases referred to in T. E.
ss. 1619-1620 ; see also the judgments in Davidson v. Cooper and
Aldous v. Cornwell, referred to above. It would seem that to con-
stitute materiality the alteration must be in the interest of the party
who makes the alteration . Coulson v. Walton, 9 Pet. ( U. S.) 789 ;
Bailey v. Taylor, 11 Conn. 531 ; 1 Greenl. Ev. § 568. )
142 A DIGEST OF [PART II.

CHAPTER XII.

OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVI-

DENCE, AND OF THE MODIFICATION AND INTERPRE-
TATION OF DOCUMENTARY BY ORAL EVIDENCE.

ARTICLE 90.*

EVIDENCE OF TERMS OF CONTRACTS , GRANTS, AND OTHER

DISPOSITIONS OF PROPERTY REDUCED TO A DOCUMENT-
ARY FORM.

WHEN any judgment of any Court or any other judicial

or official proceeding, or any contract or grant, or any
other disposition of property, has been reduced to the
form of a document or series of documents, no evidence
may be given of such judgment or proceeding, or of the
terms of such contract, grant, or other disposition of
property, except the document itself, or secondary evi-
dence of its contents in cases in which secondary evidence
is admissible under the provisions hereinbefore contained.¹
Nor may the contents of any such document be contra-
dicted, altered, added to, or varied by oral evidence.2
Provided that any of the following matters may be
proved--
(1 ) Fraud, intimidation, illegality, want of due execu-
tion, want of capacity in any contracting party, the fact
that it is wrongly dated, want or failure of consideration ,

* See Appendix, Note XXXII.

1 Illustrations (a ) and ( b ) ; { 1 Greenl. Ev. §§ 275, 276, 281. Į
2 This last proposition is applicable only to the parties to the
instrument. 1 Greenl. Ev. § 279 ; post, art. 92. }
8 Reffell v. Reffell, L. R. 1 P. & D. 139. So that it was executed
on a day different from the date, Draper v. Snow, 20 N. Y. 331 ; or
CHAP. XII .] THE LAW OF EVIDENCE. 143

1
or mistake in fact or law, or any other matter which, if
proved, would produce any effect upon the validity of
any document, or of any part of it, or which would .
entitle any person to any judgment, decree, or order
relating thereto.2
(2) The existence of any separate oral agreement as to
any matter on which a document is silent, and which is
not inconsistent with its terms, if from the circumstances
of the case the Court infers that the parties did not
intend the document to be a complete and final statement
of the whole of the transaction between them.3
(3) The existence of any separate oral agreement,
constituting a condition precedent to the attaching of any
obligation under any such contract, grant, or disposition
of property .*
(4) The existence of any distinct subsequent oral
agreement to rescind or modify any such contract, grant,
or disposition of property, provided that such agreement
is not invalid under the Statute of Frauds, or otherwise.5
(5) Any usage or custom by which incidents not
expressly mentioned in any contract are annexed to con-
tracts of that description ; unless the annexing of such
incident to such contract would be repugnant to or
inconsistent with the express terms of the contract.

to show that the certificate of acknowledgment is untrue, Smith v.

Ward, 2 Root (Conn . ) , 374. Mr. Starkie extends this to mistakes in
some other formal particulars. 3 Star. Ev. 787-788.
1 {In the absence of fraud or mistake of fact, parol evidence is in-
admissible to correct a mistake of law. Potter v . Sewall, 54 Me. 142. }
2 Illustration (c) ; { 1 Greenl. Ev . §§ 284, 296 a, 304. }
8 Illustrations (d) and (e ) ; { 1 Greenl. Ev. § 284 a .}
4 Illustrations (ƒ) and (g) ; { 1 Greenl . Ev. § 284, n . 2, p. 331. )
5 Illustration (h) ; { 1 Greenl. Ev. §§ 302-304. The fact that the
modifying agreement is within the Statute of Frauds has been held in
this country not to be material. Stearns v. Hall, 9 Cush. (Mass . ) 31. )
6 Wigglesworth v. Dallison, and note thereto, S. L. C. 598-628 ;
{ 1 Greenl. Ev. § 294.
144 A DIGEST OF [PART II.

Oral evidence of a transaction is not excluded by the

fact that a documentary memorandum of it was made, if
such memorandum was not intended to have legal effect
as a contract, or other disposition of property.¹
Oral evidence of the existence of a legal relation is
not excluded by the fact that it has been created by a
document, when the fact to be proved is the existence of
the relationship itself, and not the terms on which it was
established or is carried on.2
The fact that a person holds a public office need not be
proved by the production of his written or sealed ap-
pointment thereto, if he is shown to have acted in it."

Illustrations.
(a) A policy of insurance is effected on goods " in ships from Sur-
inam to London." The goods are shipped in a particular ship, which
is lost.
The fact that that particular ship was orally excepted from the
policy cannot be proved.4
(b) An estate called Gotton Farm is conveyed by a deed which
describes it as consisting of the particulars described in the first
division of a schedule and delineated in a plan on the margin of the
schedule.
Evidence cannot be given to show that a close not mentioned in
the schedule or delineated in the plan was always treated as part of
Gotton Farm , and was intended to be conveyed by the deed.5
(c) A institutes a suit against B for the specific performance of a
contract, and also prays that the contract may be reformed as to one
of its provisions, as that provision was inserted in it by mistake.
A may prove that such a mistake was made as would entitle him
to have the contract reformed.6

1 Illustration (¿) . This rule is applicable to mere receipts and

bills of parcels generally. 1 Greenl. Ev. § 305 a. }
2 Illustration (k) .
3 See authorities collected in 1 Ph. Ev. 449-450 ; T. E. s. 139 ;
1 Greenl. Ev. §§ 83, 92. }
4 Weston v. Eames, 1 Tau. 115.
5 Barton v. Dawes, 10 C. B. 261-265.
Story's Equity Jurisprudence, chap. v. ss. 153-162.
CHAP. XII . ] THE LAW OF EVIDENCE . 145

(d) A lets land to B, and they agree that a lease shall be given
by A to B.
Before the lease is given, B tells A that he will not sign it unless
A promises to destroy the rabbits. A does promise. The lease is
afterwards granted, and reserves sporting rights to A, but does not
mention the destruction of the rabbits. B may prove A's verbal
agreement as to the rabbits.1
(e) A & B agree verbally that B shall take up an acceptance of A's,
and that thereupon A and B shall make a written agreement for the
sale of certain furniture by A to B. B does not take up the accept-
ance. A may prove the verbal agreement that he should do so.2
(f) A & B enter into a written agreement for the sale of an in-
terest in a patent, and at the same time agree verbally that the
agreement shall not come into force unless C approves of it. C does
not approve. The party interested may show this.3
(9) A, a farmer, agrees in writing to transfer to B, another farmer,
a farm which A holds of C. It is verbally agreed that the agreement
is to be conditional on C's consent. B sues A for not transferring the
farm. A may prove the condition as to C's consent and the fact that
he does not consent.4
(h) A agrees in writing to sell B 14 lots of freehold land and
make a good title to each of them. Afterwards B consents to take
one lot though the title is bad. Apart from the Statute of Frauds
this agreement might be proved.5
(i) A sells B a horse, and verbally warrants him quiet in harness.
A also gives B a paper in these words : " Bought of A a horse for
71. 2s. 6d."
B may prove the verbal warranty.6
(j) The question is, whether A gained a settlement by occupying
and paying rent for a tenement. The facts of occupation and pay-
ment of rent may be proved by oral evidence, although the contract
is in writing.7

1 Morgan v. Griffiths, L. R. 6 Ex. 70 ; and see Angell v. Duke, L. R.

10 Q. B. 174.
2 Lindley v. Lacey, 17 C. B. N. s. 578.
3 Pym v. Campbell, 6 E. & B. 370.
4 Wallis v. Littell, 11 C. B. N. 8. 369.
5 Goss v. Lord Nugent, 5 B. & Ad. 58, 65.
6 Allen v. Prink, 4 M. & W. 140.
7 R. v. Hull, 7 B. & C. 611.

10
146 A DIGEST OF [PART II.

ARTICLE 91.*

WHAT EVIDENCE MAY BE GIVEN FOR THE INTERPRETA-

TION OF DOCUMENTS.

(1) Putting a construction upon a document means

ascertaining the meaning of the signs or words made
upon it, and their relation to facts.
(2) In order to ascertain the meaning of the signs and
words made upon a document, oral evidence may be given
of the meaning of illegible or not commonly intelligible
characters, of foreign, obsolete, technical, local, and pro-
vincial expressions, of abbreviations, and of common
words which, from the context, appear to have been used
in a peculiar sense ; but evidence may not be given to
show that common words, the meaning of which is plain,
and which do not appear from the context to have been
used in a peculiar sense, were in fact so used.2
(3) If the words of a document are so defective or
ambiguous as to be unmeaning, no evidence can be given
to show what the author of the document intended to
say.3
(4) In order to ascertain the relation of the words of
a document to facts, every fact may be proved to which
it refers, or may probably have been intended to refer,
or which identifies any person or thing mentioned in it."

* See Appendix, Note XXXIII.

1 Illustrations (a) , (b) , (c) ; { 1 Greenl . Ev. §§ 280–295. Į
2 Illustration (d ) ; { 1 Greenl. Ev. § 259 ; Spears v. Ward, 48 Ind.
541. But oral evidence may be used to explain the word " barrel "
as used in the petroleum trade, Miller v. Stevens, 100 Mass. 518 ; and
of " dollars," used in a contract under the Confederate government,
Thorington v. Smith, 8 Wall . ( U. S. ) 1. }
8 Illustrations ( e ) and (f) ; { 1 Greenl. Ev. § 300.
4 See all the Illustrations ; 1 Greenl. Ev. §§ 286-290. }
5 Illustration (g) ; { 1 Greenl. Ev. §§ 286-290. }
CHAP. XII . ] THE LAW OF EVIDENCE. 147

Such facts are hereinafter called the circumstances of the

case.¹
(5) If the words of a document have a proper legal
meaning, and also a less proper meaning, they must be
deemed to have their proper legal meaning, unless such a
construction would be unmeaning in reference to the
circumstances of the case, in which case they may be
interpreted according to their less proper meaning.2
(6) If the document has one distinct meaning in refer-
ence to the circumstances of the case, it must be con-
strued accordingly, and evidence to show that the author
intended to express some other meaning is not admissible.
(7) If the document applies in part but not with accu-
racy to the circumstances of the case, the Court may
draw inferences from those circumstances as to the mean-
ing of the document, whether there is more than one,
or only one thing or person to whom or to which the
inaccurate description may apply. In such cases no evi-
dence can be given of statements made by the author of
the document as to his intentions in reference to the
matter to which the document relates , though evidence
may be given as to his circumstances, and as to his
habitual use of language or names for particular persons
4
or things.
(8) If the language of the document, though plain in
itself, applies equally well to more objects than one,
evidence may be given both of the circumstances of the
case and of statements made by any party to the docu-
ment as to his intentions in reference to the matter to
which the document relates.5

1 As to proving facts showing the knowledge of the writer, and for

an instance of a document which is not admissible for that purpose,
see Adie v. Clark, L. R. 3 Ch . Div. 134, 142.
2 Illustration (h ) . 3 Illustration (i) ; { 1 Greenl. Ev. § 290. }
4 Illustrations (k ) , ( l ) , (m) ; { 1 Greenl. Ev . § 289. }
5 Illustration (n) ; { 1 Greenl . Ev. §§ 288–290. }
148 A DIGEST OF [PART II.

(9) If the document is of such a nature that the Court

will presume that it was executed with any other than
its apparent intention, evidence may be given to show
that it was in fact executed with its apparent inten-
tion.¹
Illustrations.
(a ) A lease contains a covenant as to " ten thousand " rabbits.
Oral evidence to show that a thousand meant, in relation to rabbits,
1200, is admissible.2
(b) A sells to B " 1170 bales of gambier." Oral evidence is ad-
missible to show that a " bale " of gambier is a package compressed,
and weighing 2 cwt.3
(c) A, a sculptor, leaves to B " all the marble in the yard, the tools
in the shop, bankers, mod tools for carving." Evidence to show
whether " mod " meant models, moulds, or modelling-tools, and to
show what bankers are, may be given.
(d) Evidence may not be given to show that the word "boats,"
in a policy of insurance, means " boats not slung on the outside of
the ship on the quarter." 4
(e) A leaves an estate to K, L, M, &c., by a will dated before 1838.
Eight years afterwards A declares that by these letters he meant
particular persons. Evidence of this declaration is not admissible.
Proof that A was in the habit of calling a particular person M would
have been admissible.5
(f) A leaves a legacy to Evidence to show how the blank
was intended to be filled is not admissible.6
(g) Property was conveyed in trust in 1704 for the support of
" Godly preachers of Christ's holy Gospel." Evidence may be
given to show what class of ministers were at the time known by
that name.7
(h) Aleaves property to his " children." If he has both legitimate
and illegitimate children the whole of the property will go to the

1 Illustration (o) ; 1 Greenl. Ev. § 296. }

2 Smith v. Wilson, 3 B. & Ad. 728 .
8 Gorrissen v. Perrin, 2 C. B. N. s. 681 .
4 Blackett v. Royal Exchange Co. , 2 C. & J. 244.
5 Clayton v. Lord Nugent, 13 M. & W. 200 ; see 205-206.
6 Baylis v. A. G., 2 Atk. 239.
7 Shore v. Wilson, 9 C. & F. 365, 565–566.
CHAP. XII. ] THE LAW OF EVIDENCE . 149

legitimate children . If he has only illegitimate children, the prop-

erty may go to them.1
(i) A testator leaves all his estates in the county of Limerick and
city of Limerick to A. He had no estates in the county of Limerick,
but he had estates in the county of Clare, of which the will did not
dispose. Evidence cannot be given to show that the words " of
Clare" had been erased from the draft by mistake, and so omitted
from the will as executed.2
(j) A leaves a legacy to " Mrs. and Miss Bowden." No such
persons were living at the time when the legacy was made, but Mrs.
Washburne, whose maiden name had been Bowden, was living, and
had a daughter, and the testatrix used to call them Bowden. Evi-
dence of these facts was admitted.3
(k) A devises land to John Hiscocks , the eldest son of John
Hiscocks. John Hiscocks had two sons, Simon, his eldest, and John,
his second son, who, however, was the eldest son by a second mar-
riage . The circumstances of the family, but not the testator's
declarations of intention, may be proved in order to show which of
the two was intended.4
(1) A devises property to Elizabeth, the natural daughter of B.
B has a natural son John, and a legitimate daughter Elizabeth. The
Court may infer from the circumstances under which the natural
child was born, and from the testator's relationship to the putative
father, that he meant to provide for John.5
(m) A leaves a legacy to his niece, Elizabeth Stringer. At the
date of the will he had no such niece, but he had a great-great-niece
named Elizabeth Jane Stringer. The Court may infer from these
circumstances that Elizabeth Jane Stringer was intended ; but they
may not refer to instructions given by the testator to his solicitor,
showing that the legacy was meant for a niece, Elizabeth Stringer,

1 Wig. Ext. Ev. pp. 18, 19, and note of cases. But see 1 Greenl.
Ev. § 288, n. 2, p. 336. }
2 Miller v. Travers , 8 Bing. 244. Where a testator devised lot
22 in A, parol evidence is not admissible to show that he intended
lot 23. Kurtz v. Hibner, 55 Ill. 514 ; Fitzpatrick v. Fitzpatrick, 36
Iowa, 674. See also Am. Law Reg. N. s. vol. xix., pp. 94 and 353,
where the point considered is discussed by Judges Redfield and
Caton, pro and con. See also note to K. v. H., in 8 Am. Repts. 669.}
3 Lee v. Pain, 4 Hare, 251-253.
4 Doe v. Hiscocks, 5 M. & W. 363.
5 Ryall v. Hannam, 10 Beav. 536.
150 A DIGEST OF [PART II.

who had died before the date of the will, and that it was put into the
will by a mistake on the part of the solicitor .
(n ) A devises one house to George Gord, the son of George Gord,
another to George Gord the son of John Gord, and a third to George
Gord the son of Gord. Evidence both of circumstances and of the
testator's statements of intention may be given to show which of
the two George Gords he meant.2
(0) A leaves two legacies of the same amount to B, assigning the
same motive for each legacy, one being given in his will, the other
in a codicil. The Court presumes that they are not meant to be
cumulative, but the legatee may show, either by proof of surrounding
circumstances, or of declarations by the testator, that they were.3

ARTICLE 92.*

CASES TO WHICH ARTICLES 90 AND 91 DO NOT APPLY.

Articles 90 and 91 apply only to parties to documents,

and to their representatives in interest, and only to cases
in which some civil right or civil liability dependent
upon the terms of a document is in question . Any per-
son other than a party to a document or his represent-
ative in interest may, notwithstanding the existence of
any document , prove any fact which he is otherwise
entitled to prove ; and any party to any document or
any representative in interest of any such party may
prove any such fact for any purpose other than that of
varying or altering any right or liability depending upon
the terms of the document.

{ 1 Greenl. Ev. § 279. }

* See Appendix, Note XXXIV.

1 Stringer v. Gardiner, 27 Beav. 35 ; 4 De G. & J. 468.
2 Doe v. Needs , 2 M. & W. 129.
3 Per Leach, V. C. , in Hurst v. Leach, 5 Madd. 351 , 360–361 . The
rule in this case was vindicated, and a number of other cases, both
before and after it, were elaborately considered by Lord St. Leonards,
when chancellor of Ireland, in Hall v . Hill, 1 Dru. & War. 94, 111–
133.

1
CHAP. XII . ] THE LAW OF EVIDENCE . 151

Illustrations.
(a) The question is, whether A, a pauper, is settled in the parish
of Cheadle. A deed of conveyance to which A was a party is pro-
duced, purporting to convey land to A for a valuable consideration.
The parish appealing against the order was allowed to call A as a
witness to prove that no consideration passed.¹
(b) The question is , whether A obtained money from B under false
pretences. The money was obtained as a premium for executing a
deed of partnership, which deed stated a consideration other than the
one which constituted the false pretence . B may give evidence of
the false pretence although he executed the deed mis-stating the con-
sideration for the premium.2

1 R. v. Cheadle, 3 B. & Ad. 833.

2 R. v. Adamson, 2 Moody, 286.
152 A DIGEST OF [PART III.

PART III.

PRODUCTION AND EFFECT OF EVIDENCE .

CHAPTER XIII.*

BURDEN OF PROOF.

ARTICLE 93.†

HE WHO AFFIRMS MUST PROVE.

WHOEVER desires any Court to give judgment as to.

any legal right or liability dependent on the existence or
non-existence of facts which he asserts or denies to exist,
must prove that those facts do or do not exist.¹

ARTICLE 94.†

PRESUMPTION OF INNOCENCE .
If the commission of a crime is directly in issue in any
proceeding, criminal or civil, it must be proved beyond
reasonable doubt.2
The burden of proving that any person has been guilty

* See Appendix, Note XXXV. † See Appendix, Note XXXVI.

1 1 Ph. Ev. 552 ; T. E. (from Greenleaf) , s . 337 ; Best, ss. 265-266 ;
Starkie, 585-586 ; 1 Greenl. Ev. § 74.}
2 The law, by the great weight of authority in this country, is
held to be that where, in a civil action, the commission of a crime by
either party is to be proved, it may be proved by a preponderance of
evidence. And it is at least doubtful if the English authorities sup-
port the proposition of the learned author. See the subject fully
considered and the cases examined in 10 Am. Law Rev. N. s. 642 ;
2 Greenl. Ev. §§ 408, n., 426, notes.}
CHAP. XIII . ] THE LAW OF EVIDENCE. 153

of a crime or wrongful act is on the person who asserts

it, whether the commission of such act is or is not directly
in issue in the action.

Illustrations.
(a ) A sues B on a policy of fire insurance. B pleads that A
burnt down the house insured . B must prove his plea as fully as if
A were being prosecuted for arson.¹
(b) A sues B for damage done to A's ship by inflammable matter
loaded thereon by B without notice to A's captain. A must prove
the absence of notice.2
(c) The question in 1819 is, whether A is settled in the parish of
a man to whom she was married in 1813. It is proved that in 1812
she was married to another person, who enlisted soon afterwards,
went abroad on service, and had not been heard of afterwards. The
burden of proving that the first husband was alive at the time of
the second marriage is on the person who asserts it.3

ARTICLE 95.
ON WHOM THE GENERAL BURDEN OF PROOF LIES.

The burden of proof in any proceeding lies at first on

that party against whom the judgment of the Court
would be given if no evidence at all were produced on
either side, regard being had to any presumption which
may appear upon the pleadings . As the proceeding
goes on, the burden of proof may be shifted from the
party on whom it rested at first by his proving facts
which raise a presumption in his favor.5

1 Thurtell v. Beaumont, 1 Bing. 339. Held otherwise in this

country by the great weight of authority. See ante, p . 152, note ; May
on Insurance, § 583.
2 Williams v. East India Co., 3 Ea. 102, 198-199.
3 R. v. Twyning, 2 B. & A. 386.
4 Veiths v. Hagge, 8 Iowa, 163 ; Amos v. Hughes, 1 M. & R.
464.
5 1 Ph. Ev . 552 ; T. E. ss. 338-339 ; 1 Greenl . Ev. § 74. It is not
strictly correct to say that the burden of proof shifts. Each takes
and carries through the case the burden of the facts he is bound to
154 A DIGEST OF [PART III.

Illustrations.
(a ) It appears upon the pleadings that A is indorsee of a bill of
exchange. The presumption is that the indorsement was for value,
and the party interested in denying this must prove it.¹
(b) A, a married woman, is accused of theft and pleads not
guilty. The burden of the proof is on the prosecution . She is
shown to have been in possession of the stolen goods soon after the
theft. The burden of proof is shifted to A. She shows that she stole
them in the presence of her husband. The burden of proving that
she was not coerced by him is shifted on to the prosecutor.2
(c) A is indicted for bigamy. On proof by the prosecution of the
first marriage, A proves that at the time he was a minor. This
throws on the prosecution the burden of proving the consent of A's
parents.3
(d) A deed of gift is shown to have been made by a client to his
solicitor. The burden of proving that the transaction was in good
faith is on the solicitor.4
(e) It is shown that a hedge stands on A's land. The burden of
proving that the ditch adjacent to it is not A's also is on the person
who denies that the ditch belongs to A.5
(f) A proves that he received the rent of land. The presump-
tion is, that he is owner in fee-simple, and the burden of proof is on
the person who denies it.6

prove. 1 Greenl. Ev. § 74, notes 1 , 2, p. 93. The burden does not
shift, so long as evidence is offered , on one side or the other, as to the
same fact alleged by the plaintiff. But if the defendant, for instance,
sets up another and distinct fact in avoidance, he takes the burden
of proving it. Thus, when a contract is to be void on the happening
of a certain event, the party who seeks to avail himself of that fact
must allege and prove it. Catlin v. Springfield Fire Ins. Co. , 1 Sum .
(U.S. C. Ct. ) 434. So, when a prisoner sets up that he was under the
age of presumed capacity. State v. Arnold, 13 Ired. (N. C. ) Law, 184.
But as to this last case, see note to Illustration (c) , art. 97. Starkie,
586-587 & 748 ; Best, s. 268.
1 Mills v. Barber, 1 M. & W. 425.
.2 1 Russ. Cri. 33 ; and 2 , 337.
8 R. v. Butler, 1 R. & R. 61.
41 Story Eq. Juris. s. 310, n. 1. Quoting Hunter v. Atkins, 3.M.
& K. 113. And the presumption is against the solicitor. Brown
v. Bulkley, 13 N. J. Eq . 451 .
5 Guy v. West, Selw. N. P. 1297.
6 Doe v. Coulthred, 7 A. & E. 235.
CHAP. XIII. ] THE LAW OF EVIDENCE. 155

(g) A finds a jewel mounted in a socket, and gives it to B to look

at. B keeps it, and refuses to produce it on notice, but returns the
socket. The burden of proving that it is not as valuable a stone of
the kind as would go into the socket is on B.1
(h) A sues B on a policy of insurance, and shows that the vessel
insured went to sea, and that after a reasonable time no tidings of
her have been received, but that her loss had been rumored. The
burden of proving that she has not foundered is on B.2

ARTICLE 96.

BURDEN OF PROOF AS TO PARTICULAR FACT.

The burden of proof as to any particular fact lies on

that person who wishes the Court to believe in its exist-
ence, unless it is provided by any law that the burden of
8
proving that fact shall lie on any particular person ; but
the burden may in the course of a case be shifted ' from
one side to the other, and in considering the amount of
evidence necessary to shift the burden of proof the Court
has regard to the opportunities of knowledge with respect
to the fact to be proved which may be possessed by the
parties respectively.
Illustrations.
(a) A prosecutes B for theft, and wishes the Court to believe that
B admitted the theft to C. A must prove the admission.
B wishes the court to believe that, at the time in question, he was
elsewhere. He must prove it. In this country, it is pretty gener-
ally held, in the absence of statutory regulation, that if any fact mate-

1 Armoury v. Delamirie, 1 S. L. C. 357. This rule rests upon

the doctrine that the presumption is against the party who can, and
will not, produce evidence to explain an ambiguity. But where a
party is not shown to be able to produce such evidence, the rule is
different. Thus, when the delivery of a bank-note is proved without
proof of its denomination, the presumption is in favor of the defend-
ant, that it is the smallest in circulation. Lawton v. Sweeney, 8 Jur.
964.
2 Koster v. Reed, 6 B. & C. 19.
8 For instances of such provisions see T. E. ss . 345-346 ; 1 Greenl.
Ev. §§ 78, 79.
156 A DIGEST OF [PART III.

rial to the case be set up in the pleadings, whether by a negative

averment or otherwise, some proof of the existence of such fact must
be given. 1 Greenl. Ev. §§ 78, 79, and notes ; Conyers v. State, 50
Ga. 103 ; Mehan v. State, 7 Wis. 670 ; State v. Hirsch, 45 Mo. 429 ;
United States v. Gooding, 12 Wheat. (U. S. ) 460. Although some
cases following Rex v. Turner, 5 M. & S. 206 ( which is doubted by Mr.
Baron Alderson in Elkin v. Janson, 13 M. & W. 662) , hold that no
evidence of such fact need be given by the party alleging it, if it is
peculiarly within the knowledge of his adversary ; as, for instance,
that he has no license. State v. Foster, 23 N. H. 348 ; Great Western
R. R. v. Bacon, 30 Ill . 347. Some authorities support the proposition
that, when an act is by the common law or statute generally unlawful,
unless specially authorized , the presumption, whenever the question
of authority arises, is, that it does not exist, which presumption sup-
ports the negative allegation, and that it is for the person doing the
act to show his authority. Bliss v. Brainard , 41 N. H. 256 ; Wheat v.
State, 6 Mo. 455 ; Solomon v. Dreschler, 4 Minn. 278 ; Welsh v. State,
11 Texas, 568. }
(b) A, a shipowner, sues B, an underwriter, on a policy of insur-
ance on a ship. B alleges that A knew of and concealed from B
material facts. B must give enough evidence to throw upon A the
burden of disproving his knowledge ; but slight evidence will suffice
for this purpose.¹
(c) In actions for penalties under the old game laws, though the
plaintiff had to aver that the defendant was not duly qualified, and
was obliged to give general evidence that he was not, the burden of
proving any definite qualification was on the defendant.²

1 Elkin v. Janson, 13 M. & W. 655. See, especially, the judgment

of Alderson, B. , 663-666.
2 1 Ph. Ev. 556, and cases there quoted. The illustration is
founded more particularly on R. v. Jarvis, in a note to R. v. Stone,
1 Ea. 639, where Lord Mansfield's language appears to imply what is
stated above. This proposition is not generally accepted as law in
this country. The generally accepted doctrine here is that the gov-
ernment always assumes the burden of proof upon the whole evi-
dence as to such allegations as it is essential to make. Com. v. Pom-
eroy, 117 Mass. 143 ; State v. Pike, 49 N. H. 395 ; People v. Garbutt,
17 Mich. 9 ; State v . Crawford, 11 Kan. 32 ; 1 Greenl. Ev. §§ 81 b, 81e.
In New York and Pennsylvania, the rule as stated by the author
seems to prevail. Flannigan v. People, 52 N. Y. 467 ; Lynch v. Com .,
77 Pa . St. 205. See, on this subject, a valuable note to State v. Craw-
ford, 23 Am. Law Reg. N. s . 21. }
CHAP. XIII. ] THE LAW OF EVIDENCE. 157

ARTICLE 97.

BURDEN OF PROVING FACT TO BE PROVED TO MAKE

EVIDENCE ADMISSIBLE .

The burden of proving any fact necessary to be proved

in order to enable any person to give evidence of any
other fact is on the person who wishes to give such
evidence.
Illustrations.
(a) A wishes to prove a dying declaration by B.
A must prove B's death, and the fact that he had given up all
hope of life when he made the statement.
(b) A wishes to prove, by secondary evidence, the contents of a
lost document.
A must prove that the document has been lost. Christy v.
Kavanagh, 45 Mo. 375 ; People v. Mariano Soto, 49 Cal. 67 ; Durgin
v. Danville, 47 Vt. 95.}
153 A DIGEST OF [PART III.

CHAPTER XIV.

ON PRESUMPTIONS AND ESTOPPELS.

ARTICLE 98.

PRESUMPTION OF LEGITIMACY.

THE fact that any person was born during the contin-
uance of a valid marriage between his mother and any
man , or within such a time after the dissolution thereof
and before the celebration of another valid marriage, that
his mother's husband could have been his father, is con-
clusive proof that he is the legitimate child of his mother's
husband, unless it can be shown
either that his mother and her husband had no access
to each other at any time when he could have been be-
gotten, regard being had both to the date of the birth
and to the physical condition¹ of the husband ,
or that the circumstances of their access (if any) were
such as to render it highly improbable that sexual inter-
course took place between them when it occurred .
Neither the mother nor the husband is a competent
witness as to the fact of their having or not having had
sexual intercourse with each other, nor are any declara-
tions by them upon that subject deemed to be relevant
facts when the legitimacy of the woman's child is in
question, whether the mother or her husband can be
called as a witness or not, provided that in applications

* See Appendix, Note XXXV.

1 This, doubtless, is intended to refer to the impotency of the
husband. Hargrave v. Hargrave, 9 Beav . 552. }
CHAP. XIV. ] THE LAW OF EVIDENCE . 159

for affiliation orders when proof has been given of the

non-access of the husband at any time when his wife's
child could have been begotten, the wife may give evi-
dence as to the person by whom it was begotten.¹

ARTICLE 99.

PRESUMPTION OF DEATH FROM SEVEN YEARS' ABSENCE .

A person shown not to have been heard of for seven

years by those (if any) who if he had been alive would
naturally have heard of him, is presumed to be dead,
unless the circumstances of the case are such as to ac-
count for his not being heard of without assuming his
death ; but there is no presumption as to the time when
he died, and the burden of proving his death at any
particular time is upon the person who asserts it.²
There is no prèsumption as to the age at which a per-
son died who is shown to have been alive at a given

1 R. v. Luffe, 8 Ea. 207 ; Cope v. Cope, 1 Mo. & Ro. 272-274 ;

Legge v. Edmonds, 25 L. J. Eq. 125, see p. 135 ; R. v. Mansfield,
1 Q. B. 444 ; Morris v. Davies , 3 C. & P. 215 ; 1 Greenl. Ev. §§ 28,
253 ; 2 id. § 150, and notes ; Phillips v. Allen, 2 Allen (Mass . ) , 453.
The testimony of the mother in bastardy cases is variously regulated
in the different States. I am not aware of any decision as to the
paternity of a child born say six months after the death of one hus-
band, and three months after the mother's marriage to another.
Amongst common soldiers in India such a question might easily
arise. The rule in European regiments is that a widow not remar-
ried within the year ( it used to be six months ) must leave the
regiment : the result was and is that widowhoods are usually very
short.
2 McMahon v. McElroy, 5 Ir. Rep. Eq. 1 ; Hopewell v. De Pinna,
2 Camp. 113 ; Nepean v. Doe, 2 S. L. C. 562, 681 ; Nepean v. Knight,
2 M. & W. 894, 912 ; R. v. Lumley, L. R. 1 C. C. R. 196 ; and see the
caution of Lord Denman in R. v. Harborne, 2 A. & E. 544. All the
. cases are collected and considered in In re Phené's Trust, L. R. 5 Ch.
App. 139 ; 1 Greenl. Ev. § 41.}
160 A DIGEST OF [PART III.

time, or as to the order in which two or more persons

died who are shown to have died in the same accident,
shipwreck, or battle.¹

ARTICLE 100.

PRESUMPTION OF LOST GRANT.

When it has been shown that any person has, for a
long period of time, exercised any proprietary right
which might have had a lawful origin by grant or license
from the Crown or from a private person, and the exer-
cise of which might and naturally would have been
prevented by the persons interested if it had not had a
lawful origin, there is a presumption that such right had
a lawful origin and that it was created by a proper instru-
ment which has been lost.
{ 1 Greenl. Ev. § 46. }
Illustrations.
(a) The question is, whether B is entitled to recover from A the
possession of lands which A's father and mother successively occu-
pied from 1754 to 1792 or 1793, and which B had occupied ( without
title) from 1793 to 1809. The lands formed originally an encroach-
ment on the Forest of Dean.
The undisturbed occupation for thirty-nine years raises a pre-
sumption of a grant from the Crown to A's father.2
(b) A fishing mill-dam was erected more than 110 years before
1861 in the River Derwent, in Cumberland (not being navigable at
that place ), and was used for more than sixty years before 1861 in
the manner in which it was used in 1861. This raises a presumption,
that all the upper proprietors whose rights were injuriously affected
by the dam , had granted a right to erect it.3
(c) A builds a windmill near B's land in 1829, and enjoys a free

1 Wing v. Angrave , 8 H. L. C. 183, 198 ; and see authorities in last

note ; 1 Greenl. Ev. §§ 30, 41. }
2 Goodtitle v. Baldwin, 11 Ea. 488. The presumption was re-
butted in this case by an express provision of 20 Ch . II. c. 3, avoiding
grants of the Forest of Dean. See also Doe d. Devine v. Wilson,
10 Moo. P. C. 502.
8 Leconfield v. Lonsdale, L. R. 5 C. P. 657.
CHAP. XIV. ] THE LAW OF EVIDENCE. 161

current of air to it over B's land as of right, and without interruption

till 1860. This enjoyment raises no presumption of a grant by B of
a right to such a current of air, as it would not be natural for B to
interrupt it.1
(d) No length of enjoyment (by means of a deep well) of water,
percolating through underground undefined passages, raises a pre-
sumption of a grant from the owners of the ground under which the
water so percolates of a right to the water.2

ARTICLE 101.*

PRESUMPTION OF REGULARITY AND OF DEEDS TO COM-

PLETE TITLE .

When any judicial or official act is shown to have been

done in a manner substantially regular, it is presumed
that formal requisites for its validity were complied with .
When a person in possession of any property is shown
to be entitled to the beneficial ownership thereof, there
is a presumption that every instrument has been executed
which it was the legal duty of his trustees to execute in
order to perfect his title.

ARTICLE 102.†

ESTOPPEL BY CONDUCT.

When one person by any thing which he does or says,

4
or abstains from doing or saying, intentionally causes or

* See Appendix, Note XXXVII., and Macdougall v. Purrier,

3 Bligh, N. C. 433. R. v. Cresswell, L. R. 1 Q. B. D. (C. C. R. ) 446,
is a recent illustration of the effect of this presumption.
† See Appendix, Note XXXVIII.
1 Webb v. Bird, 13 C. B. N. s. 841.
2 Chasemore v. Richards, 7 H. L. C. 349 ; Roath v. Driscoll, 20
Conn. 533 ; Wheatley v. Baugh, 25 Pa . St. 528.}
8 Doe d. Hammond v. Cooke, 6 Bing. 174, 179.
4 This word " intentionally " seems to have been substituted for
the word " wilfully," used in Pickard v. Sears ; no doubt by reason
11
162 A DIGEST OF [PART III.

permits another person to believe a thing to be true, and

to act upon such belief otherwise than but for that belief
he would have acted , neither the person first mentioned
nor his representative in interest is allowed , in any suit
or proceeding between himself and such person or his
representative in interest, to deny the truth of that thing.
When any person under a legal duty to any other per-
son to conduct himself with reasonable caution in the
transaction of any business neglects that duty, and when
the person to whom the duty is owing alters his position
for the worse because he is misled as to the conduct of
the negligent person by a fraud, of which such neglect is
in the natural course of things the proximate cause, the
negligent person is not permitted to deny that he acted.
in the manner in which the other person was led by such
fraud to believe him to act.

Illustrations.
(a) A, the owner of machinery in B's possession, which is taken in
execution by C, abstains from claiming it for some months, and con-
verses with C's attorney without referring to his claim, and by these
means impresses C with the belief that the machinery is B's. C sells
the machinery. A is estopped from denying that it is B's.¹
(b) A, a retiring partner of B, gives no notice to the customers of
the firm that he is no longer B's partner. In an action by a cus-
tomer, he cannot deny that he is B's partner.2

of what fell from the court afterwards in Freeman v. Cooke, 2 Exch.

654. The exact meaning of the word is still an open question . See
Bigelow on Estoppel, 485 et seq. See also Hawes v. Marchant,
1 Curtis, C. Ct. 136. }
1 Pickard v. Sears, 6 A. & E. 469, 474 ; Stephens v. Baird, 9 Cow.
(N. Y. ) 274 ; Redd v. Muscogee R. R. Co. , 48 Ga. 102 ; Horn v. Cole,
51 N. H. 287.
2 (Per Parke, B. ) Freeman v. Cooke, 2 Ex. 661. An insurance
company renews a policy, with full knowledge that certain statements
in the application are untrue . It cannot set up the untrue statement
as a defence in a suit for the loss. Wetherell v. Mar. Ins. Co., 49
Me. 200. See also May on Insurance, § 502 et seq. }
CHAP. XIV. ] THE LAW OF EVIDENCE. 163

(c) A sues B for a wrongful imprisonment. The imprisonment

was wrongful, if B had a certain original warrant ; rightful, if he had
only a copy. B had in fact a copy. He led A to believe that he had
the original, though not with the intention that A should act other-
wise than he actually did ; nor did A so act. B may show that he
had only a copy and not the original.¹
(d) A sells eighty quarters of barley to B, but does not specifically
appropriate to B any quarters . B sells sixty of the eighty quarters
to C. C informs A, who assents to the transfer. C being satisfied
with this, says nothing further to B as to delivery. B becomes bank-
rupt. A cannot, in an action by C to recover the barley, deny that
he holds for C on the ground that, for want of specific appropriation,
no property passed to B.2
(e) A signs blank cheques and gives them to his wife to fill up as
she wants money. A's wife fills up a cheque for £50 2s . so carelessly
that room is left for the insertion of figures before the 50 and for the
insertion of words before the " fifty." She then gives it to a clerk of
A's to get it cashed . He writes 3 before 50, and " three hundred and "
before " fifty." A's banker pays the cheque so altered in good faith.
A cannot recover against the banker.
(f) A carelessly leaves his door unlocked , whereby his goods are
stolen. He is not estopped from denying the title of an innocent
purchaser from the thief.4

ARTICLE 103.

ESTOPPEL OF TENANT AND LICENSEE .

No tenant and no person claiming through any tenant

of any land or hereditament of which he has been let
into possession, or for which he has paid rent , is, till he
•
has given up possession, permitted to deny that the
landlord had , at the time when the tenant was let into

1 Howard v. Hudson, 2 E. & B. 1.

2 Knights v. Wiffen, L. R. 5 Q. B. 660 ; McNeil v. Hill, Woolw.
C. Ct. 96 .
3 Young v. Grote, 4 Bing. 253. See numerous cases illustrative
of this point, 2 Greenl. Ev . § 172 and notes. }
4 Per Blackburn, J., in Swan v. N. B. Australasian Co., 2 H. & C
181 ; 1 Greenl. Ev. §§ 24-27, 207. }
164 A DIGEST OF [PART III .

possession or paid the rent, a title to such land or here-

ditament ; ¹ and no person who came upon any land by
the license of the person in possession thereof is, whilst
he remains on it, permitted to deny that such person had
a title to such possession at the time when such license
was given.2
ARTICLE 104.

ESTOPPEL OF ACCEPTOR OF BILL OF EXCHANGE.

No acceptor of a bill of exchange is permitted to deny

the signature of the drawer or his capacity to draw, or if
the bill is payable to the order of the drawer, his capacity
to endorse the bill, though he may deny the fact of the
endorsement ; nor if the bill be drawn by procuration,
the authority of the agent, by whom it purports to be
drawn, to draw in the name of the principal, though he
may deny his authority to endorse it."
12 Greenl. Ev. §§ 164, 165.

ARTICLE 105.

ESTOPPEL OF BAILEE, AGENT, AND LICENSEE.

No bailee, agent, or licensee is permitted to deny that

the bailor, principal, or licensor, by whom any goods were
entrusted to any of them respectively was entitled to
those goods at the time when they were so entrusted .
Provided that any such bailee, agent, or licensee, may
show, that he was compelled to deliver up any such goods

1 Doe v. Barton, 11 A. & E. 307 ; Doe v. Smyth, 4 M. & S. 347 ;

Doe v. Pegg, 1 T. R. 760 (note ) ; {5 Am. Law Rev. 1.
2 Doe v. Baytup, 3 A. & E. 188 ; { Glynn v. George, 20 N. H. 114. }
8 Garland v. Jacomb, L. R. 8 Ex. 216.
* Sanderson v. Coleman, 4 M. & G. 209.
Robinson v. Yarrow, 7 Tau. 455.
CHAP. XIV. ] THE LAW OF EVIDENCE . 165

to some person who had a right to them as against his

bailor, principal, or licensor, or that his bailor, principal,
or licensor, wrongfully and without notice to the bailee,
agent, or licensee, obtained the goods from a third.
person who has claimed them from such bailee, agent,
or licensee.¹
Every bill of lading in the hands of a consignee or
endorsee for valuable consideration , representing goods
to have been shipped on board a vessel, is conclusive
proof of that shipment as against the master or other
person signing the same, notwithstanding that such
goods or some part thereof may not have been so shipped ,
unless such holder of the bill of lading had actual notice
at the time of receiving the same that the goods had not
been in fact laden on board , provided that the master or
other person so signing may exonerate himself in respect
of such misrepresentation by showing that it was caused
without any default on his part, and wholly by the fraud
of the shipper or of the holder, or some person under
whom the holder holds.2

¹ Dixon v. Hammond, 2 B. & A. 313 ; Crossley v. Dixon, 10 H. L. C.

293 ; Gosling v. Birnie, 7 Bing. 339 ; Hardman v. Wilcock, 9 Bing.
382 ; Biddle v. Bond, 34 L. J. Q. B. 137 ; Wilson v. Anderton, 1 B. &
Ad. 450. Sinclair v. Murphy, 14 Mich. 392 ; Osgood v. Nichols,
5 Gray (Mass . ) , 420 ; Kinsman v. Parkhurst, 18 How. ( U. S. ) 289 ;
Dezell v. Odell, 3 Hill ( N. Y. ) , 215. As to carriers, see Sheridan v.
New Quay, 4 C. B. N. s. 618.
2 18 & 19 Vict. c. 111, s. 3. The law received and acted upon in
this country holds the master bound by all statements by him made
relative to matters about which he knows, or ought to know. This
limitation is, perhaps, equivalent to the words in the statute, " with-
out any default on his part." Sears v. Wingate, 3 Allen ( Mass . ) , 103 .
See, also, as to how far a bill of lading may be explained, Angell on
Carriers (5th ed . ) , § 231 , n., where the cases are collected. See also
Relyea v. New Haven, &c. Co., 42 Conn . 577 ; per Shipman, J., U. S.
Dist. Ct.; 1 Greenl . Ev. § 305.
166 A DIGEST OF [PART III.

CHAPTER XV.

OF THE COMPETENCY OF WITNESSES.*

ARTICLE 106.

WHO MAY TESTIFY.

ALL persons are competent to testify in all cases except

as hereinafter excepted.

ARTICLE 107.†

WHAT WITNESSES ARE INCOMPETENT.

A witness is incompetent if in the opinion of the judge

he is prevented by extreme youth, disease affecting his
mind , or any other cause of the same kind, from recollect-
ing the matter on which he is to testify, from under-
standing the questions put to him, from giving rational
answers to those questions, or from knowing that he
ought to speak the truth.
1 Greenl. Ev. §§ 365-370. The limitation to causes of the
"" same kind " seems to be too strict. It matters not from what cause
the defect of understanding arises. Intoxication incapacitates. 1
Greenl. Ev. § 365.
A witness unable to speak or hear is not incompetent ,
but may give his evidence by writing or by signs, or in
any other manner in which he can make it intelligible ;
but such writing must be written and such signs made in
open Court. Evidence so given is deemed to be oral
evidence.
A being at the point of death, and conscious of her condition ,
but unable to speak articulately, was asked whether it was B who

* See Appendix, Note XXXIX. † See Appendix, Note XL.

CHAP. XV. ] THE LAW OF EVIDENCE. 167

injured her, and, if so, requested to squeeze the hand of the interro-
gator. She thereupon squeezed his hand . These facts were held
admissible against C ; the departure from the ordinary rules of evi-
dence being justified by necessity. Com. v. Casey, 11 Cush . ( Mass . )
417. The mode of testifying is subject to the discretion of the
Court. Morrison v. Leonard, 3 C. & P. 127 ; Snyder v. Nations,
5 Blackf. ( Ind . ) 295 ; State v. De Wolf, 8 Conn. 93. }

ARTICLE 108.*

COMPETENCY IN CRIMINAL CASES.

In criminal cases the accused person and his or her

wife or husband , and every person and the wife or hus-
band of every person jointly indicted with him is incom-
petent to testify.¹
{ This old doctrine of the common law has been very generally, if
not universally, abrogated in this country by statute . }
Provided that in any criminal proceeding against a
husband or wife for any bodily injury or violence inflicted
upon his or her wife or husband , such wife or husband is
competent and compellable to testify.2
Proceedings at law on the Revenue side of the Ex-
chequer Division of the High Court of Justice are not
criminal within the meaning of this article.

ARTICLE 109.

COMPETENCY IN PROCEEDINGS RELATING TO ADULTERY.

In proceedings instituted in consequence of adultery,

the parties and their husbands and wives are competent
witnesses, provided that no witness in any [ ? such] pro-

* See Appendix, Note XLI.

1 R. v. Payne, L. R. 1 C. C. R. 349, and R. v. Thompson, id. 377.
2 Reeve v. Wood , 5 B. & S. 364. Treason has been also supposed
to form an exemption. See T. E. s. 1237.
3 28 & 29 Vict. c. 104, s . 34.
168 A DIGEST OF [PART III.

ceeding, whether a party to the suit or not, is liable to

be asked or bound to answer any question tending to
show that he or she has been guilty of adultery, unless
such witness has already given evidence in the same pro-
ceeding in disproof of his or her alleged adultery.¹

ARTICLE 110.
COMMUNICATIONS DURING MARRIAGE.

No husband is compellable to disclose any communica-

tion made to him by his wife during the marriage, and no
wife is compellable to disclose any communication made
to her by her husband during the marriage."

ARTICLE 111.*

JUDGES AND ADVOCATES PRIVILEGED AS TO CERTAIN

QUESTIONS.

It is doubtful whether a judge is compellable to testify

as to any thing which came to his knowledge in court as
such judge.3 It seems that a barrister cannot be com-
pelled to testify as to what he said in court in his charac-
ter of a barrister.4
Probably neither branch of this proposition is law in this country.
Huff v. Bennett, 4 Sandf. ( N. Y. ) 120 ; Schall v. Miller, 5 Whart.
(Pa.) 156. See also 1 Greenl. Ev. § 168, n., by Judge Redfield. }

* See Appendix, Note XLII.

1 32 & 33 Vict. c. 68, s. 3. The word " such "" seems to have been
omitted accidentally. This is in abrogation of the common law,
and the same point is variously regulated by statute. See Tilton v.
Beecher, N. Y. Pamphlet, 1875. }
216 & 17 Vict. c. 83, s . 3. It is doubtful whether this would apply
to a widower or divorced person, questioned after the dissolution of
the marriage as to what had been communicated to him whilst it
lasted. By the common-law of this country , the prohibition oper-
ates after the dissolution of the marriage. 1 Greenl. Ev. § 254.}
8 R. v. Gazard, 8 C. & P. 595.
4 Curry v. Walter, 1 Esp . 456.
CHAP. XV. ] THE LAW OF EVIDENCE. 169

ARTICLE 112.

EVIDENCE AS TO AFFAIRS OF STATE .

No one can be compelled to give evidence relating to

any affairs of State, or as to official communications be-
tween public officers upon public affairs, except with the
permission of the officer at the head of the department
concerned, or to give evidence of what took place in
either House of Parliament, without the leave of the
House, though he may state that a particular person
acted as Speaker.2
1 Greenl. Ev. § 250. }

ARTICLE 113.

INFORMATION AS TO COMMISSION OF OFFENCES.

In cases in which the government is immediately con-

cerned no witness can be compelled to answer any ques-
tion, the answer to which would tend to discover the
names of persons by or to whom information was given
as to the commission of offences.
In ordinary criminal prosecutions it is for the judge to
decide whether the permission of any such question
would or would not, under the circumstances of the
particular case, be injurious to the administration of
justice.

1 Beatson v. Skene, 5 H. & N. 838.

2 Chubby. Salomons, 3 Car. & Kir. 77 ; Plunkett v. Cobbett, 5 Esp.
136.
8 R. v. Hardy, 24 S. T. 811 ; A. G. v. Bryant, 15 M. & W. 169 ;
R. v. Richardson, 3 F. & F. 693 ; United States v. Moses, 4 Wash.
C. Ct. 726 ; Worthington v. Scribner, 109 Mass. 487, where the ques-
tion is discussed in the light of all the cases bearing upon the
subject. }
170 A DIGEST OF [PART III

ARTICLE 114.

COMPETENCY OF JURORS .

A petty juror may not¹ and it is doubtful whether a

grand juror may 2 give evidence as to what passed be-
tween the jurymen in the discharge of their duties. It
is also doubtful whether a grand juror may give evidence
as to what any witness said when examined before the
grand jury.
ARTICLE 115.*

PROFESSIONAL COMMUNICATIONS.

No legal adviser is permitted , whether during or after

the termination of his employment as such, unless with
his client's express consent, to disclose any communica-
tion, oral or documentary, made to him as such legal
adviser, by or on behalf of his client, during, in the
course, and for the purpose of his employment, whether
in reference to any matter as to which a dispute has
arisen or otherwise, or to disclose any advice given by
him to his client during, in the course, and for the pur-
pose of such employment. It is immaterial whether the
client is or is not a party to the action in which the ques-
tion is put to the legal adviser.

* See Appendix, Note XLIII .

1 Vaise v. Delaval, 1 T. R. 11 ; Burgess v. Langley, 5 M. & G. 722.
{ It may be doubtful if this should not be limited to testimony as to
their own misconduct, offered for the purpose of vitiating their pro-
ceedings. 1 Greenl. Ev . § 252 a. }
2 1 Ph. Ev. 140 ; T. E. s . 863. Grand jurors may testify as to
what a witness testified to before them, Com. v. Mead, 12 Gray
(Mass. ) , 166 ; and to all matters which public policy does not re-
quire to be kept secret, Ibid. In some States, the statutes expressly
provide they may testify to certain facts. See N. Y. Ev. Code,
S$ 267, 268.
CHAP. XV.] THE LAW OF EVIDENCE. 171

This article does not extend to

(1 ) Any such communication as aforesaid made in
furtherance of any criminal purpose ; ¹
(2) Any fact observed by any legal adviser, in the
course of his employment as such, showing that any
crime or fraud has been committed since the commence-
ment of his employment, whether his attention was di-
rected to such fact by or on behalf of his client or not ;
(3) Any fact with which such legal adviser became
acquainted otherwise than in his character as such. The
expression "legal adviser " includes barristers and solici-
8
tors, their clerks, and interpreters between them and
their clients.
Illustrations.
(a) A, being charged with embezzlement, retains B, a barrister, to
defend him. In the course of the proceedings, B observes that an
entry has been made in A's account book, charging A with the sum
said to have been embezzled, which entry was not in the book at the
commencement of B's employment.
This being a fact observed by B in the course of his employment,
showing that a fraud has been committed since the commencement
of the proceedings, is not protected from disclosure in a subsequent
action by A against the prosecutor in the original case for malicious
prosecution.4
(b ) A retains B, an attorney, to prosecute C ( whose property he

1 Follett v. Jefferyes, 1 Sim. N. s. 17 ; Charlton v. Coombes, 32 L. J.

Ch . 284. These cases put the rule on the principle, that the further-
ance of a criminal purpose can never be part of a legal adviser's
business. As soon as a legal adviser takes part in preparing for a
crime, he ceases to act as a lawyer and becomes a criminal, -a con-
spirator or accessory as the case may be. Bank of Utica v. Mer-
sereau, 3 Barb. (N. Y. ) Ch . 528 ; People v . Sheriff, 29 Barb. (N. Y. )
627. Nor will advice how to evade the law be protected. }
2 Wilson v. Rastall, 4 T. R. 753. As to interpreters, id . 756.
3 Taylor v. Foster, 2 C. & P. 195 ; Foote v. Hayne, 1 C. & P. 545.
Quære, whether licensed conveyancers are within the rule ? Parke, B. ,
in Turquand v. Knight, 7 M. & W. 100, thought not. Special plead-
ers would seem to be on the same footing.
4 Brown v. Foster, 1 H. & N. 736.
172 A DIGEST OF [PART III .

had fraudulently acquired) for murder, and says, " It is not proper
for me to appear in the prosecution for fear of its hurting me in the
cause coming on between myself and him ; but I do not care if I give
£ 10,000 to get him hanged, for then I shall be easy in my title and
estate." This communication is not privileged.¹
The protection extends to communications believed by the client
to be necessary to his case, Cleave v. Jones, 7 Exch. 421 ; Aiken
v. Kilbune, 14 Shep . (Me. ) 252 ; or made to an attorney believed to
be retained in the case, Sargent v. Hampden, 38 Me . 581 ; Foster v.
Hall, 12 Pick. (Mass. ) 89 ; but not if made to a person not an
attorney, though supposed to be by the client, Sample v. Frost,
10 Iowa, 266 ; Barnes v. Harris, 7 Cush. ( Mass . ) 596.
If the attorney acts for several clients in the same matter, the
consent of all must be had. Doe v. Watkins, 3 Bing. N. C. 421 ;
Bank of Utica v. Mersereau, 3 Barb. Ch . 528. What the attorney
sees as well as what he hears, if learned in the same confidential way,
as, for instance, the destruction of an instrument, is also protected .
Robson v. Kemp, 5 Esp. 52.
If the attorney is jointly interested with his client as a party, as
he does not derive his information solely by his professional relation,
the communications are not protected . Greenough v. Gaskell, 1 M.
& K. 103 ; Jeanes v. Fridenburgh, 5 Penn. L. J. 65.
So, if he makes himself a subscribing witness to an instrument, he
must testify to whatever such a witness may be required to testify to.
See 1 Greenl. Ev. §§ 237-246 .

ARTICLE 116.

CONFIDENTIAL COMMUNICATIONS WITH LEGAL ADVISERS.

No one can be compelled to disclose to the Court any

communication between himself and his legal adviser,
which his legal adviser could not disclose without his
permission, although it may have been made before any
dispute arose as to the matter referred to.²

1 Annesley v. Anglesea, 17 S. T. 1223-1224.

2 Minet v. Morgan, L. R. 8 Ch. App. 361 , reviewing all the cases,
and adopting the explanation given in Pearse v. Pearse, 1 De G. &
S. 18-31, of Radcliffe v. Fursman, 2 Br. P. C. 514 ; and modifying
Bolton v. Liverpool, 1 M. & K. 88, so far as it is to the contrary.
1 Greenl. Ev. § 240. The rule is the same when a party testifies in
CHAP. XV. ] THE LAW OF EVIDENCE . 173

ARTICLE 117.*
CLERGYMEN AND MEDICAL MEN.

Medical men¹ and [probably] clergymen may be com-

pelled to disclose communications made to them in
professional confidence.

{ In some States in this country, communications made to a medi-

cal man or a clergyman, not for an unlawful purpose, are protected.
Johnson v. Johnson, 14 Wend. ( N. Y. ) 637 ; 1 Greenl. Ev. §§ 247, 248. }

ARTICLE 118.
PRODUCTION OF TITLE-DEEDS OF WITNESS NOT A PARTY.

No witness who is not a party to a suit can be com-

2
pelled to produce his title-deeds to any property, or any
document the production of which might tend to crim-
inate him, or expose him to any penalty or forfeiture ; ³
but a witness is not entitled to refuse to produce a docu-
ment in his possession only because its production may
expose him to a civil action, or because he has a lien
upon it.5

* See Appendix, Note XLIV.

his own case, and calls his counsel also as a witness, but neither is
examined or cross-examined in regard to the subject-matter of con-
fidential communication . Montgomery v. Pickering, 116 Mass . 227.
1 Duchess of Kingston's Case, 20 S. T. 572-573. As to clergymen,
see Appendix, Note XLIV.
2 Pickering v. Noyes, 1 B. & C. 263 ; Adams v. Lloyd , 3 H. & N.
351. This rule we believe to be peculiar to England . In this
country, a witness, not a party, may be compelled to produce any of
his private papers. Whether the Court, on inspection, will require
them to be put in evidence, may be a matter of discretion. Burn-
ham v. Morrissey, 14 Gray ( Mass . ) , 226 ; 1 Greenl. Ev. § 246. }
3 Whitaker v. Izod , 2 Tau. 115 ; 1 Greenl. Ev. §§ 451 , 453. }
4 Doe v. Date, 3 Q. B. 609, 618 ; 1 Greenl. Ev. § 452. }
5 Hope v. Liddell, 7 De G. M. & G. 331 ; Hunter v. Leathley, 10
B. & C. 858 ; Brassington v. Brassington, 1 Si . & Stu. 455. It has
174 A DIGEST OF [PART III.

No bank is compellable to produce the books of such

bank in any legal proceeding, unless a judge of the High
Court specially orders that such books are to be produced
at such proceeding.¹

ARTICLE 119.
PRODUCTION OF DOCUMENTS WHICH ANOTHER PERSON,
HAVING POSSESSION, COULD REFUSE TO PRODUCE .

No solicitor,2 trustee, or mortgagee can be compelled

to produce (except for the purpose of identification)
documents in his possession as such, which his client,
cestui que trust, or mortgagor would be entitled to refuse
to produce if they were in his possession ; nor can any
one who is entitled to refuse to produce a document be
compelled to give oral evidence of its contents.³

ARTICLE 120.

WITNESS NOT TO BE COMPELLED TO CRIMINATE HIMSELF

No one is bound to answer any question if the answer

thereto would, in the opinion of the judge, have a ten-

been doubted whether production may not be refused on the ground

of a lien as against the party requiring the production. This is sug-
gested in Brassington v. Brassington, and was acted upon by Lord
Denman, in Kemp v. King, 2 Mo. & Ro. 437 ; but it seems to be op-
posed to Hunter v. Leathley, in which a broker who had a lien on a
policy for premiums advanced was compelled to produce it in an
action against the underwriter by the assured who had created the
lien. See Ley v. Barlow (Judgt. of Parke, B. ), 1 Ex. 801. The
Court will determine whether the claim of a lien shall be recognized
or not. Bull v. Loveland, 10 Pick. ( Mass. ) 14. }
1 39 & 40 Vict. c. 48, s. 8. " Books " includes ledgers, day-books,
cash-books, and other account-books. 66' Legal proceedings " includes
all proceedings mentioned in article 36 . " Bank " is also defined so
as to include all sorts of banks.
2 Volant v. Soyer, 13 C. B. 231 ; Phelps v. Prew, 3 E. & B. 431 ;
1 Greenl. Ev. § 246 .
8 Davies v. Waters, 9 M. & W. 608 ; Few v. Guppy, 13 Beav. 454.
CHAP. XV. ] THE LAW OF EVIDENCE . 175

dency to expose the witness [ or the wife or husband of

the witness] to any criminal charge, or to any penalty or
forfeiture which the judge regards as reasonably likely
to be preferred or sued for ; ¹ but no one is excused from

1 R. v. Boyes, 1 B. & S. 330 ; 1 Greenl. Ev. §§ 451 , 453. As

to husbands and wives, see 1 Hale, P. C. 301 ; R. v. Cliviger, 2 T. R.
263 ; Cartwright v. Green, 8 Ve. 405 ; R. v. Bathwick, 2 B. & Ad.
639 ; R. v. All Saints, Worcester, 6 M. & S. 194. These cases show
that even under the old law which made the parties and their husbands
and wives incompetent witnesses, a wife was not incompetent to prove
matter which might tend to criminate her husband . R. v . Cliviger
assumes that she was, and was to that extent overruled . As to the
later law, see R. v. Halliday, Bell, 257. The cases, however, do not
decide that if the wife claimed the privilege of not answering she
would be compelled to do so , and to some extent they suggest that
she would not. Reg. v. Boyes seems to have settled the law in
England that the judge, and not the witness, is to decide whether the
answer will tend to criminate ; or, at least, that the oath of the witness,
that he believes it will tend to criminate, will not justify him in re-
fusing to answer, unless the Court can see some appreciable danger
ofprosecution. The bare possibility of legal peril is not a justification
of silence. The fair result of the American cases seems to be that
the witness's opinion is to prevail, unless the Court can see that it is
not well founded . Janvrin v. Scammon, 29 N. H. 280 ; People v.
Mather, 4 Wend . ( N. Y. ) 229 ; Burr's Trial, vol. i. p. 245 ; Chamber-
lin v. Wilson, 12 Vt . 491. Though some of the cases seem to leave
the matter absolutely to the determination of the witness. Warner v.
Lucas, 10 Ohio , 336 ; Poole v. Perritt, 1 Speers ( S. C. ) , 128. A defendant
in equity cannot refuse to discover, on the ground that the discovery
will expose him to a penalty. Scott v. Miller, 1 Johns. Ch. 328. If
a defendant in a criminal case avails himself of the right, given
him by statute, to take the stand as a witness in his own behalf,
he cannot refuse to answer, on the ground that by answering he
may criminate himself. By availing himself of the privilege of
testifying in his own behalf, he waives his other privilege of not being
obliged to furnish evidence against himself. Com. v. Morgan, 107
Mass. 199 ; Stover v. People, 56 N. Y. 315 ; State v. Ober, 52 N. H. 459.
If the wife be permitted by statute to testify in behalf of her hus-
band in a civil case, she may be required, on cross-examination, to
testify against him. Balentine v. White, 77 Pa. St. 20. But though a
witness will not be compelled to answer questions the answers to which
176 A DIGEST OF [Part III.

answering any question only because the answer may

establish or tend to establish that he owes a debt, or is
otherwise liable to any civil suit, either at the instance of
the Crown or of any other person.¹

ARTICLE 121 .

CORROBORATION, WHEN REQUIRED.

No plaintiff in any action for breach of promise of

marriage can recover a verdict, unless his or her testi-
mony is corroborated by some other material evidence in
support of such promise."
No order against any person alleged to be the father

may criminate him, the question may be asked wherever the answer,
ifthe witness should waive his privilege, would be received as evidence .
1 Greenl. Ev. § 460 ; Best, § 546. It is discretionary with the Court
whether it will advise a witness of his right to refuse to answer, on
the ground that the answer will criminate him. Com. v. Howe, 13
Gray (Mass. ), 26. And the privilege is personal. Counsel cannot be
allowed to make the objection. Thomas v. Newton, 1 M. & Malk.
48 ; Com. v. Shaw, 4 Cush. (Mass . ) 594. The more recent rule in
this country is, that the husband or wife cannot divulge confidential
communications between them , but may be admitted in a case be-
tween other parties as witnesses to facts tending to criminate the
other, though neither can be compelled to testify to such facts.
Com. v. Reid, 8 Phila. 609 ; State v. Briggs, 9 R. I. 361 ; State v.
Dudley, 7 Wis. 664. The earlier cases held that neither husband nor
wife could even in a collateral proceeding testify directly to the com-
mission of any criminal act by the other. State v. Welch, 26 Me.
30 ; State v. Gardner, 1 Root (Conn. ) , 485 ; People v. Horton, 4 Mich.
69 ; Com. v. Sparks, 7 Allen (Mass. ) , 534. Compare Tilton v.
Beecher, Abbot's Report, vol. ii . p . 48, where the common law is
thoroughly discussed, and how far modified by the New York
Statute of 1867. In Pennsylvania, under the Statute of 1869, giving
the husband authority to call his wife as a witness, she may be com-
pelled on cross-examination to give evidence against him. Balen-
tine v. White, 77 Pa. St. 20. }
1 46 Geo. III. c. 37. This statute is generally regarded in this
country as declaratory of the common law. 1 Greenl. Ev. § 452. }
2 32 & 33 Vict. c. 68, s. 2.
CHAP. XV. ] THE LAW OF EVIDENCE. 177

of a bastard child can be made by any justices, or con-

firmed on appeal by any Court of Quarter Session , unless
the evidence of the mother of the said bastard child is
corroborated in some material particular to the satisfac-
tion of the said justices or Court respectively.¹
When the only proof against a person charged with a
criminal offence is the evidence of an accomplice, uncor-
roborated in any material particular, it is the duty of the
judge to warn the jury that it is unsafe to convict any
person upon such evidence, though they have a legal
right to do so.2

ARTICLE 122.

NUMBER OF WITNESSES.

In trials for high treason, or misprision of treason, no

one can be indicted , tried , or attainted (unless he pleads
guilty) except upon the oath of two lawful witnesses,
either both of them to the same overt act, or one of them
to one and another of them to another overt act of the
same treason. If two or more distinct treasons of divers
heads or kinds are alleged in one indictment, one witness
produced to prove one of the said treasons and another
witness produced to prove another of the said treasons
are not to be deemed to be two witnesses to the same
treason within the meaning of this article.
This provision does not apply to cases of high treason
in compassing or imagining the Queen's death, in which

18 & 9 Vict. c. 10, s. 6 ; 35 & 36 Vict. c. 6, s. 4.

21 Ph. Ev. 93-101 ; T. E. ss. 887-891 ; 3 Russ. Cri. 600-611 ;
1 Greenl. Ev. § 379. This is, perhaps, the law as it is generally
held in this country. But its soundness has been questioned . It
seems contrary to the rights of parties that it should be the duty of
a judge to disparage evidence which he is obliged to admit. State
v. Littlefield, 58 Me. 267. }
3 7 & 8 Will. III. c. 3, ss. 2, 4 ; 1 Greenl. Ev. §§ 255, 256.}
12
178 A DIGEST OF [PART III.

the overt act or overt acts of such treason alleged in the

indictment are assassination or killing of the Queen, or
any direct attempt against her life, or any direct attempt
against her person, whereby her life may be endangered
or her person suffer bodily harm,¹ or to misprision of
such treason.
If upon a trial for perjury the only evidence against
the defendant is the oath of one witness contradicting
the oath on which perjury is assigned , and if no circum-
stances are proved which corroborate such witness, the
defendant is entitled to be acquitted.2

1 39 & 40 Geo. III. c. 93.

2 3 Russ. on Crimes, 77-86 ; { 1 Greenl. Ev. § 257. }
CHAP. XVI. ] THE LAW OF EVIDENCE . 179

CHAPTER XVI.

OF TAKING ORAL EVIDENCE, AND OF THE EXAMINA-

TION OF WITNESSES.

ARTICLE 123 .

EVIDENCE TO BE UPON OATH, EXCEPT IN CERTAIN CASES.

ALL oral evidence given in any proceeding must be

given upon oath, but if any person called as a witness
refuses or is unwilling to be sworn from alleged con-
scientious motives, the judge before whom the evidence
is to be taken may, upon being satisfied of the sincerity
of such objection , permit such person instead of being
sworn to make his or her solemn affirmation and declara-
tion in the following words—
" I, A B, do solemnly, sincerely, and truly affirm and
declare that the taking of any oath is according to my
religious belief unlawful, and I do also solemnly, sincerely,
and truly affirm and declare," &c.¹
2 If any person called to give evidence in any Court of
Justice, whether in a civil or criminal proceeding, objects

1 17 & 18 Vict. c. 125, s. 20 (civil cases ) ; 24 & 25 Vict. c. 66 ( crimi-

nal cases ). This is the usual form of oath in this country. Affir-
mations, under the pains and penalties of perjury, are admissible in
most, if not all, the States.
2 32 & 33 Vict . c. 68, s. 4 ; 33 & 34 Vict. c. 49. I omit special pro-
visions as to Quakers, Moravians , and Separatists, as the enactments
mentioned above include all cases. The statutes are referred to in
T. E. s . 1254 ; R. N. P. 175–176. The sanctions under which a
witness shall be admitted have been extended in most, if not all, of
the States by statutory enactments. This one, so far as the promise
is concerned, is, so far as we are aware, peculiar to England. }
180 A DIGEST OF [PART III.

to take an oath, or is objected to as incompetent to take

such an oath, such person must, if the presiding judge is
satisfied that the taking of an oath would have no bind-
ing effect on his conscience, make the following promise
and declaration -
" I solemnly promise and declare that the evidence
given by me to the Court shall be the truth, the whole
truth, and nothing but the truth."
If any person having made either of the said declara-
tions wilfully and corruptly gives false evidence, he is
liable to be punished as for perjury.

ARTICLE 124 .

FORM OF OATHS ; BY WHOM THEY MAY BE ADMINISTERED.

Oaths are binding which are administered in such form

and with such ceremonies as the person sworn declares
to be binding.¹
Every person now or hereafter having power by law or
by consent of parties to hear, receive, and examine evi-
dence, is empowered to administer an oath to all such
witnesses as are lawfully called before him.2

ARTICLE 125.

HOW ORAL EVIDENCE MAY BE TAKEN.

3
Oral evidence may be taken (according to the law
relating to civil and criminal procedure) --
-

1 1 & 2 Vict. c. 105. For the old law, see Omichund v. Barker,
1 S. L. C. 455 ; 1 Greenl. Ev . § 328 ; Fuller v . Fuller 17 Cal. 605. }
2 14 & 15 Vict. c . 99, s . 16. A similar statute exists in Massa-
chusetts, and doubtless in other States. }
8 As to civil procedure, see Order XXXVII . to Judicature Act of
1875 : Wilson, pp. 264–267 . As to criminal procedure, see 11 & 12
Vict. c. 42, for preliminary procedure, and the rest of this chapter
for final hearings.
CHAP. XVI. ] THE LAW OF EVIDENCE. 181

In open court upon a final or preliminary hearing ;

Or out of court for future use in court--
(a) upon affidavit,
(b) under a commission,¹
(c) before any officer of the Court or any other per-
son or persons appointed for that purpose by
the Court or a judge under the Judicature Act,
1875, Order XXXVII., 4.
Oral evidence taken upon a preliminary hearing may,
in the cases specified in 11 & 12 Vict. c. 42, s. 17 , 30 & 31
Vict. c. 35, s . 6, and 17 & 18 Vict. c. 104, s . 270 , be
recorded in the form of a deposition, which deposition
may be used as documentary evidence of the matter
stated therein in the cases and on the conditions specified
in Chapter XVII .
Oral evidence taken in open court must be taken
according to the rules contained in this chapter relating
to the examination of witnesses.
2 Oral evidence taken under a commission must be
taken in the manner prescribed by the terms of the
commission.
8 Oral evidence taken under (c) must be taken in the
same manner as if it were taken in open court ; but the
examiner has no right to decide on the validity of objec-
tions taken to particular questions, but must record the

1 The law as to commissions to take evidence is as follows : The

root of it is 13 Geo . III . c. 63. Section 40 of this Act provides for
the issue of a commission to the Supreme Court of Calcutta ( which
was first established by that Act) and the corresponding authorities
at Madras and Bombay to take evidence in cases of charges of mis-
demeanor brought against Governors, &c., in India in the Court of
Queen's Bench. S. 42 applies to parliamentary proceedings, and
s. 44 to civil cases in India . These provisions have been extended to
all the colonies by 1 Will. IV. c. 22, and so far as they relate to civil
proceedings to the world at large . 3 & 4 Vict. c. 105, gives a similar
power to the Courts at Dublin.
2 T. E. s. 491. 8 T. E. s. 1283.
182 A DIGEST OF [PART III.

questions, the fact that they were objected to, and the
answers given.
¹ Oral evidence given on affidavit must be confined to
such facts as the witness is able of his own knowledge to
prove, except on interlocutory motions, on which state-
ments as to his belief and the grounds thereof may be
admitted. The costs of every affidavit unnecessarily set-
ting forth matters of hearsay or argumentative matter, or
copies of or extracts from documents, must be paid by
the party filing them .
2 When a deposition , or the return to a commission , or
an affidavit, or evidence taken before an examiner, is used
in any court as evidence of the matter stated therein , the
party against whom it is read may object to the reading
of any thing therein contained on any ground on which
he might have objected to its being stated by a witness
examined in open court, provided that no one is entitled
to object to the reading of any answer to any question
asked by his own representative on the execution of a
commission to take evidence.³

ARTICLE 126.*

EXAMINATION IN CHIEF, CROSS-EXAMINATION, AND RE-

EXAMINATION.
Witnesses examined in open court must be first exam-
ined in chief, then cross-examined, and then re-examined.
Whenever any witness has been examined in chief, or
has been intentionally sworn, or has made a promise and
declaration as hereinbefore mentioned for the purpose of

See Appendix, Note XLV.

1 Judicature Act, 1875, Order XXXVII., 4.
2 T. E. s. 491 ; Hutchinson v. Bernard, 2 Moo. & Rob. 1.
3 The several provisions of this article refer to matters of prac
tice, which are presumed to be generally similar in the different
jurisdictions of this country. The particular differences would hardly
find an appropriate place in this treatise. }
CHAP. XVI. ] THE LAW OF EVIDENCE. 183

giving evidence,¹ the opposite party has a right to cross-

examine him ; but the opposite party is not entitled to
cross-examine merely because a witness has been called
to produce a document on a subpoena duces tecum, or in
order to be identified . After the cross-examination is
concluded, the party who called the witness has a right
to re-examine him.
The Court may in all cases permit a witness to be re-
called either for further examination in chief or for fur-
ther cross-examination, and if it does so, the parties have
the right of further cross-examination and further re-
examination respectively.2
If a witness dies, or becomes incapable of being further
examined at any stage of his examination, the evidence
given before he became incapable is good.
If in the course of a trial a witness who was supposed
to be competent appears to be incompetent, his evidence
may be withdrawn from the jury, and the case may be
left to their decision independently of it.¹

1 This provision, as has been before noted, is peculiar to the Eng-

lish practice . }
2 The judge may recall a witness at any stage of the proceed-
ings, and examine or cross-examine at his discretion, Rex v. Wat-
son, 6 C. & P. 653 ; may or may not, at his discretion, advise a witness
of his right to refuse to answer, Com. v. Howe, 13 Gray ( Mass. ) , 26 ;
may limit the number of impeaching or supporting witnesses, Bun-
nell v. Butler, 23 Conn. 65 ; may, at a preliminary hearing to deter-
mine whether the conditions exist upon which evidence offered
becomes admissible, refuse to permit cross-examination, Com. v.
Morrell, 99 Mass. 542 ; and may limit the cross-examination upon
facts otherwise immaterial, for the purpose of testing the witness's
bias, credibility , and judgment, Com. v. Lyden, 113 Mass . 452. Į
8 R. v. Doolin, 1 Jebb, C. C. 123 ; 1 Greenl. Ev. § 163 et seq. The
rule is the same with reference to the evidence of a deceased party.
Pratt v. Patterson, Sup . Ct. Pa., 3 L. & Eq. Reptr. 45. The judges
compared the case to that of a dying declaration, which is admitted
though there can be no cross-examination.
4 R. v. Whitehead, L. R. 1 C. C. R. 33 ; 1 Greenl. Ev. § 51a ;
Roberts v. Johnson, 58 N. Y. 614.
184 A DIGEST OF [PART III.

ARTICLE 127.

TO WHAT MATTERS CROSS-EXAMINATION AND RE-EXAM-

INATION MUST BE DIRECTED.

The examination and cross-examination must relate to

facts in issue or relevant or deemed to be relevant thereto,
but the cross-examination need not be confined to the
facts to which the witness testified on his examination in
chief.

{ The practice in the United States Courts, and perhaps a majority

of the State Courts, is to confine the cross-examination to facts
testified to in chief. 1 Greenl. Ev. § 445. }

The re-examination must be directed to the explana-

tion of matters referred to in cross-examination ; and if
new matter is, by permission of the Court, introduced
in re-examination, the adverse party may further cross-
examine upon that matter.

ARTICLE 128.

LEADING QUESTIONS .

Questions suggesting the answer which the person

putting the question wishes or expects to receive, or
suggesting disputed facts as to which the witness is to
testify, must not, if objected to by the adverse party, be
asked in an examination in chief, or a re-examination,
except with the permission of the Court, but such ques-
tions may be asked in cross-examination.

1 Greenl. Ev. § 434. Where a party calls his adversary as a

witness, he may cross-examine him by statute. Brubaker v. Taylor,
76 Pa. St. 83. This statute is but a confirmation of the common-law
right of a judge to cross-examine a witness who appears to be ad-
verse. Rea v. Missouri, Int. Rev. Record, March 21, 1874. }
CHAP. XVI . ] THE LAW OF EVIDENCE . 185

ARTICLE 129.*

QUESTIONS LAWFUL IN CROSS-EXAMINATION.

When a witness is cross-examined , he may, in addition

to the questions hereinbefore referred to, be asked any
questions which tend-
(1) To test his accuracy, veracity, or credibility ; or
(2) To shake his credit , by injuring his character.
And to this end the relations of the witness to either of the
parties, or to the subject-matter in dispute ; his interest, his motives,
his way of life, his associations, his habits, his prejudices, his physical
defects and infirmities, his mental idiosyncrasies, if they affect his
capacity ; his means of knowledge, and powers of discernment,
memory, and description, may all be relevant. 1 Greenl. Ev. § 446.
But it is said that questions otherwise irrelevant cannot be allowed
for the purpose of testing the moral sense of the witness . Com . v.
Shaw, 4 Cush. (Mass . ) 593. }

He may be compelled to answer any such question,

however irrelevant it may be to the facts in issue, and
however disgraceful the answer may be to himself, except
in the case provided for in article 120.
1 Greenl. Ev. § 456. )
Illustration.
(a) The question is, whether A committed perjury in swearing
that he was R. T. B deposes that he made tattoo marks on the arm
of R. T., which at the time of the trial were not, and never had been,
on the arm of A. B may be asked and compelled to answer the
question whether, many years after the alleged tattooing, and many
years before the occasion on which he was examined, he committed
adultery with the wife of one of his friends.¹

* See Appendix, Note XLVI.

1 R. v. Orton. See summing-up of Cockburn, C. J., vol. ii. p. 719,
&c. In this case the Lord Chief Justice, if such a question is to be
admitted or rejected at the discretion of the judge, carried that dis-
cretion to its extremest limits. This and other modern cases show
a tendency, no doubt, towards great liberality of cross-examination
186 A DIGEST OF [PART IIL

ARTICLE 130.

EXCLUSION OF EVIDENCE TO CONTRADICT ANSWERS TO

QUESTIONS TESTING VERACITY.

When a witness under cross-examination has been

asked and has answered any question which is relevant
to the inquiry only in so far as it tends to shake his
credit by injuring his character, no evidence can be given
to contradict him except in the following cases : 1
(1 ) If a witness is asked whether he has been pre-
viously convicted of any felony or misdemeanor, and
denies or does not admit it, or refuses to answer, evi-
dence may be given of his previous conviction thereof.2
(2) If a witness is asked any question tending to show
that he is not impartial, and answers it by denying the
facts suggested, he may be contradicted.

for the purpose of ascertaining who and what the witness is. People
v. Manning, 48 Cal. 335 ; Wilbur v . Flood, 16 Mich. 40 ; Taylor, Ev.
§§ 1314-15. But see Alb. L. J. vol. xiv. p . 281 ; Davenport v. Ledger,
80 Ill. 574. In New York, the witness cannot be asked if he has
been convicted of a particular offence, as there is better evidence if
the fact be so, Newcomb v. Griswold , 24 N. Y. 298 ; but he may be
asked if he has been in the State prison, and how long, as of that he
must know, Real v. People, 42 N. Y. 270 ; but the general rule has
been, both in England and this country, that questions as to matters
collateral, irrelevant, and not material to the issue, the witness is not
bound to answer, 1 Greenl. Ev. § 455. }
1 A. G. v. Hitchcock, 1 Ex. 91 , 99-105. See, too, Palmer v. Trower,
8 Ex. 247.
2 28 & 29 Vict. c. 18, s . 6. In this country, the conviction can
only be shown by record, if objection be made to other evidence.
Newcomb v. Griswold , 24 N. Y. 298 ; Com. v. Bonner, 97 Mass. 587 ;
1 Greenl. Ev. § 457. And where the witness is asked as to his con-
duct in collateral and irrelevant matters, with a view to discredit
him, his answer cannot be contradicted . 1 Greenl. Ev. § 449. }
8 A. G. v. Hitchcock, 1 Ex. 91 , pp. 100, 105 ; Beardsley v. Weld-
man, 41 Conn . 515 ; 1 Greenl. Ev. § 450 ; Com. v. Lyden, 113 Mass.
452 .
CHAP. XVI. ] THE LAW OF EVIDENCE. 187

ARTICLE 131.*
STATEMENTS INCONSISTENT WITH PRESENT TESTIMONY
MAY BE PROVED.

Every witness under cross-examination in any proceed-

ing, civil or criminal, may be asked whether he has made
any former statement relative to the subject- matter of
the action and inconsistent with his present testimony,
the circumstances of the supposed statement being re-
ferred to sufficiently to designate the particular occasion ,
and if he does not distinctly admit that he has made
such a statement, proof may be given that he did in fact
make it.
{ This was the rule established in the Queen's Case, 2 B. & B. 313 ;
and this rule is followed in the United States Courts, Conrad v.
Griffey, 16 How. ( U. S. ) 38 ; and in the Courts of the States gener-
ally, Smith v. People, 2 Mich. 415 ; Galena R. R. Co. v. Fay, 16
Ill. 558 ; Carlisle v. Hunley, 16 Ala. 622 ; Jarboe v. Kepler, 8 Ind.
314 ; Wright v. Hicks, 15 Ga. 160 ; Unis v. Charlton, 12 Gratt. (Va . )
484 ; Ketchingman v. State, 6 Wis . 426 ; Drennen v. Lindsey, 15
Ark. 359 ; Patchin v. Astor Ins. Co., 13 N. Y. 268 ; Brubaker v. Tay-
lor, 76 Pa. St. 83. But in some of the States, Tucker v. Welch, 17
Mass. 160 ; Robinson v. Hutchinson , 31 Vt. 443 ; Hedge v. Clapp, 22
Conn. 622 ; Cook v. Brown , 34 N. H. 460 ; Ware v. Ware, 8 Greenl.
(Me . ) 42 ; State v. Sagen, 58 Mo. 585, -no preliminary inquiry is
required.
Corroboration by showing prior similar statements . — Proof of declara-
tions made by a witness out of Court in corroboration of the testimony
given by him at the trial, is, as a general rule, inadmissible. But
when a witness is charged with having been actuated by some
motive, prompting him to a false statement, or that the story is a
recent fabrication, it may be shown that he made similar statements
before any such motive existed, or when self-interest would have
tempted him to make a different statement, and before he could
foresee what kind of evidence to fabricate. Stolp v. Blair, 68 Ill.
514 ; People v. Doyell, 48 Cal. 85 ; Conrad v. Griffey, 11 How. ( U. S. )
480 ; Rob v. Hackley, 23 Wend. ( N. Y. ) 50 ; Gibbs v. Tinsley, 13
Vt. 208.

* See Appendix, Note XLVII.

188 A DIGEST OF [PART III .

In Maryland, Pennsylvania, and Indiana, the earlier cases fol-

low the rule, that such statements are admissible, laid down in Lut-
trell v. Regnall, 1 Mod. 282, -long since overruled ; and it may be
doubted if now in either State the Courts would be bound by the
earlier cases, unless the facts were exactly coincident. See Maitland
v. Citizens' Nat. Bank, 40 Me. 540.
In Massachusetts, it has been held that the rule excluding such
declarations is confined to the examination in chief ; and, when the
purpose of cross-examination is to impeach, such declarations are to
be admitted. The question in this case insinuated fabrication ; and
so, upon the facts, the case is in harmony with the general rule. What
is said beyond this seems to have been obiter. Com. v. Wilson, 1 Gray
(Mass. ), 340.
The proof of a refusal by the plaintiff, in a suit against a town for
injuries caused by a defective highway, to submit to a personal ex-
amination, the object being to argue from the fact of refusal that
the injury was less than is pretended, may be rebutted by proof of a
prior offer to submit to such examination. Durgin v. Danville,
47 Vt. 95.

The same course may be taken with a witness upon

his examination in chief, if the judge is of opinion that
he is [hostile] to the party by whom he was called and
permits the question .
This is so now by statute in England, see Appendix, Note XLVIII.,
post; and there seems to be no good reason why such proof may not
be given whether the judge be of opinion that the witness be " hostile "
or not, Am . L. Rev., vol. xi. p. 261. But unless by statute in some
of the States, Gen. Stat. Mass ., 1869, c. 425, for instance, which
is substantially a reproduction of the English statute, such evi-
dence has not generally been regarded as admissible in this coun-
try, Coulter v. Am. Exp. Co. , 56 N. Y. 585 ; People v. Jacobs, 49 Cal.
384 ; Com. v. Welch, 4 Gray ( Mass . ) , 535 ; the sole effect being to
discredit 1 Greenl. Ev. §§ 442-444. But if the purpose be to
satisfy the witness that he is in error, and to get him to correct it,
and not to discredit him, it is said to be admissible. Bullard v. Pear-
sall, 53 N. Y. 230 ; Melhuish v. Collier, 15 Ad. & El. 378 ; 1 Greenl.
Ev. § 444, n. It has always been competent to show the truth of
any allegation by other witnesses, though they may contradict one
already called. Greenough v . Eccles, 5 C. B. N. s . 786 ; People v.
Safford, 5 Denio ( N. Y. ) , 112 ; 1 Greenl. Ev. § 443, n.
CHAP. XVI. ] THE LAW OF EVIDENCE. 189

ARTICLE 132.

CROSS-EXAMINATION AS TO PREVIOUS STATEMENTS IN

WRITING.

A witness under cross-examination [ or a witness whom

the judge under the provisions of article 131 has per-
mitted to be examined by the party who called him as
to previous statements inconsistent with his present
testimony] may be questioned as to previous statements
made by him in writing, or reduced into writing, relative
to the subject-matter of the cause, without such writing
being shown to him [or being proved in the first in-
stance] ; but if it is intended to contradict him by the
writing, his attention must, before such contradictory
proof can be given, be called to those parts of the writing
which are to be used for the purpose of contradicting
him. The judge may, at any time during the trial, re-
quire the document to be produced for his inspection,
and may thereupon make such use of it for the purposes
of the trial as he thinks fit.¹

ARTICLE 133.

IMPEACHING CREDIT OF WITNESS.

The credit of any witness may be impeached by the

adverse party, by the evidence of persons who swear
that they, from their knowledge of the witness , believe
him to be unworthy of credit upon his oath. Such per-
sons may not upon their examination in chief give

1 17 & 18 Vict. c. 125, s. 24 ; and 28 Vict. c. 18, s . 5. I think the

words between brackets represent the meaning of the sections, but
in terms they apply only to witnesses under cross-examination
"Witnesses may be cross-examined," &c. { This statute modifies
the common law, which requires that the paper shall be shown to
the witness. 1 Greenl. Ev. §§ 462-466. }
190 A DIGEST OF [PART III.

reasons for their belief, but they may be asked their

reasons in cross-examination , and their answers cannot
be contradicted.¹
No such evidence may be given by the party by whom
any witness is called, but, when such evidence is given
by the adverse party, the party who called the witness
may give evidence in reply to show that the witness is
worthy of credit . 8

ARTICLE 134.

OFFENCES AGAINST WOMEN.

When a man is prosecuted for rape or an attempt to

ravish, it may be shown that the woman . against whom
the offence was committed was of a generally immoral
character, although she is not cross-examined on the sub-
ject. The woman may in such a case be asked whether
she has had connection with other men, but her answer

1 2 Ph. Ev. 503–504 ; T. E. ss . 1324-1325. Although it is said

(1 Greenl. Ev. § 461 ) that the weight of authority in this country is
against allowing the impeaching witness to state his opinion of the
credibility of the impeached witness, it seems that later discussion
has shifted that weight — if it ever was the other way - — in favor of
the English rule. See Hamilton v. People, 29 Mich. 173, where the
question is very carefully considered . See also, in addition to the
cases cited in the opinion, State v. Stallings, 2 Hayw. ( Ky. ) 300 ;
State v. Boswell, 2 Dev. (N. C. ) 209. The inquiry is generally re-
stricted in this country to the witness's character for truth . Craig
v. State, 5 Ohio, N. s. 605 ; Quinsigamond Bank v. Hobbs, 11 Gray
( Mass . ) , 250 ; Shaw v. Emery, 42 Me . 569 ; 3 Am. Law Jour. N. s.
154. But in some States it may include his general character.
Anon., 1 Hill ( S. C. ) , 251 ; Hume v. Scott, 3 A. K. Marsh . ( Ky. ) 261 ;
People v. Mather, 4 Wend. ( N. Y. ) 257 ; State v. Boswell, 2 Dev.
(N. C. ) 209 ; Eason v. Chapman, 21 Ill. 33. And this appears to be
the rule in England, Rex v. Bispham, 4 C. & P. 392, though perhaps
not definitely settled , 2 Taylor, Ev. 1325. }
2 17 & 18 Vict. c. 125, s. 2 ; and 28 Vict. c. 18, s. 3.
8 2 Ph. Ev. 504.
4 R. v. Clarke, 2 Star. 241 ; 2 Greenl. Ev. § 214, n.
CHAP. XVI. ] THE LAW OF EVIDENCE. 191

cannot be contradicted.¹ She may also be asked whether

she has had connection on other occasions with * the
prisoner, and if she denies it she [probably] may be
contradicted.2
ARTICLE 135.
WHAT MATTERS MAY BE PROVED IN REFERENCE ΤΟ
DECLARATIONS RELEVANT UNDER ARTICLES 25-34.

Whenever any declaration or statement made by a

deceased person relevant or deemed to be relevant under
articles 25-33 , both inclusive, or any deposition is proved,
all matters may be proved in order to contradict it, or in
order to impeach or confirm the credit of the person by
whom it was made which might have been proved if that
person had been called as a witness, and had denied upon
cross-examination the truth of the matter suggested.

ARTICLE 136.
REFRESHING MEMORY.

A witness may, while under examination, refresh his

memory by referring to any writing made by himself at
the time of the transaction concerning which he is ques-
tioned, or so soon afterwards that the judge considers it
likely that the transaction was at that time fresh in his
memory.
The words in the text, " while under examination," might seem

1 R. v. Holmes, L. R. 1 C. C. R. 334. But see 1 Greenl. Ev.

§ 458, n.; 2 id. § 214, n.
2 R. v. Martin, 6 C. & P. 562, and remarks in R. v. Holmes, p. 337,
per Kelly, C. B.; 2 Greenl. Ev . § 214, n.
3 R. v. Drummond , 1 Lea. 338 ; R. ». Pike, 3 C. & P. 598. In these
cases dying declarations were excluded, because the persons by whom
they were made would have been incompetent as witnesses, but the
principle would obviously apply to all the cases in question. Good-
all v. State, 1 Oregon, 333 ; Otterson v. Hofford, 36 N. J. 129 ; Lossee
v. Lossee, 2 Hill ( N. Y. ) , 609 ; 1 Greenl. Ev. § 163. }
192 A DIGEST OF [PART III.

to imply that the papers by which the memory is refreshed must be

produced in court. But a witness may refresh his recollection be-
fore taking the stand, by reference to memoranda made by him, and
his testimony is competent without the production of the memoranda,
unless the paper, when produced, would be evidence of itself, and
so the best evidence of the fact in dispute. Kensington v. Inglis,
8 East, 273 ; Patton v. Freeman , Coxe ( N. J. ) , 113 ; 1 Greenl. Ev.
§ 437. See, on this general subject, Cowen & Hill's notes to Phil-
lip's Evidence, Part I., Note 528. In many of the American courts
the memorandum , in itself inadmissible, is permitted to go to the
jury, being verified by the oath of the party making it. 1 Greenl.
Ev. § 437, n., and cases there cited . }
The witness may also refer to any such writing made
by any other person, and read by the witness within the
time aforesaid , if when he read it he knew it to be
correct.¹
An expert may refresh his memory by reference to
professional treatises.²

ARTICLE 137.

RIGHT OF ADVERSE PARTY AS TO WRITING USED TO

REFRESH MEMORY.

Any writing referred to under article 136 must be

produced and shown to the adverse party if he requires
it ; and such party may, if he pleases, cross-examine the
witness thereupon .8

1 2 Ph. Ev. 480, &c .; T. E. ss . 1264-1270 ; R. N. P. 194–195 ;

1 Greenl. Ev. §§ 436, 437. }
2 Sussex Peerage Case, 11 C. & F. 114-117. In Alabama, the
treatise itself may be read as evidence. Merkle v. State, 37 Ala, 139.
There can be little doubt that an expert may adopt the very words
of a treatise in giving his opinions. But they must be his words and
his opinion. Com. v. Wilson, 1 Gray ( Mass. ) , 338. }
8 See cases in R. N. P. 195 ; 1 Greenl. Ev. § 437. }
CHAP. XVI . ] THE LAW OF EVIDENCE . 193

ARTICLE 138.

GIVING, AS EVIDENCE, DOCUMENT CALLED FOR AND PRO-

DUCED ON NOTICE .

When a party calls for a document which he has given

the other party notice to produce, and such document is
produced to, and inspected by, the party calling for its
production, he is bound to give it as evidence if the party
producing it requires him to do so, and if it is or is
deemed to be relevant.¹

ARTICLE 139.

USING, AS EVIDENCE , A DOCUMENT, PRODUCTION OF

WHICH WAS REFUSED ON NOTICE .

When a party refuses to produce a document which he

has had notice to produce, he may not afterwards use
the document as evidence without the consent of the
other party.2

1 Wharam v. Routledge, 1 Esp. 235 ; Calvert v. Flower, 7 C. & P.

886. This is the general but not uniform rule in this country.
1 Greenl. Ev. § 563.
2 Doe v. Hodgson, 12 A. & E. 135 ; Bogart v. Brown, 5 Pick.
(Mass. ) 18 ; but see remarks in 2 Ph. Ev. 270.

13
194 A DIGEST OF [PART III.

CHAPTER XVII.

OF DEPOSITIONS.¹

ARTICLE 140.

DEPOSITIONS BEFORE MAGISTRATES.

A DEPOSITION taken under 11 & 12 Vict. c. 42, s . 17,

may be produced and given in evidence at the trial of
the person against whom it was taken,
if it is proved [to the satisfaction of the judge] that
the witness is dead, or so ill as not to be able to travel
[although there may be a prospect of his recovery] ; 2
3
[or, if he is kept out of the way by the person accused]
or [probably if he is too mad to testify] , and
if the deposition purports to be signed by the justice
by or before whom it purports to have been taken ; and
if it is proved by the person who offers it as evidence
that it was taken in the presence of the person accused,
and that he, his counsel, or attorney, had a full opportu-
nity of cross-examining the witness ;
Unless it is proved that the deposition was not in fact
signed by the justice by whom it purports to be signed

1 This chapter contains what is, and what the author thinks
ought to be, the law upon the subject-matter of taking and using
depositions. He follows the English statutes so far as they lead , and
bases his suggestions upon decided cases , and upon his experience
and practice. Upon the general subject, see 1 Greenl. Ev. §§ 220,
320-325, 517, 552-555. Each State, however, has its special provi-
sions, a collection whereof would hardly be appropriate to this com-
pendium of general principles . }
2 R. v. Stephenson, L. & C. 165.
8 R. v. Scaife, 17 Q. B. 773. 4 Analogy of R. v. Scaife.
CHAP. XVII. ] THE LAW OF EVIDENCE . 195

[or, that the statement was not taken upon oath ;

or [perhaps ] that it was not read over to or signed by
the witness . ] ¹
If there is a prospect of the recovery of a witness
proved to be too ill to travel, the judge is not obliged to
receive the deposition, but may postpone the trial.2

ARTICLE 141 .

DEPOSITIONS UNDER 30 & 31 VICT. C. 35, S. 6.

A deposition taken for the perpetuation of testimony

in criminal cases, under 30 & 31 Vict. c. 35, s . 6, may be
produced and read as evidence, either for or against the
8
accused, upon the trial of any offender or offence to
which it relates
if the deponent is proved to be dead, or
if it is proved that there is no reasonable probability
that the deponent will ever be able to travel or to give
evidence, and
if the deposition purports to be signed by the justice
by or before whom it purports to be taken, and
if it is proved to the satisfaction of the Court that
reasonable notice of the intention to take such deposition
was served upon the person (whether prosecutor or ac-
cused) against whom it is proposed 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 op-
portunity of cross-examining the deponent .*

1 I believe the above to be the effect of 11 & 12 Vict. c. 42, s. 17,

as interpreted by the cases referred to, the effect of which is given
by the words in brackets, also by common practice. Nothing can be
more rambling or ill-arranged than the language of the section itself.
See 1 Ph. Ev. 87-100 ; T. E. s . 448, & c.
2 R. v. Tait, 2 F. & F. 553. 8 Sic.
4 30 & 31 Vict. c. 35, s. 6. The section is very long, and as the
first part of it belongs rather to the subject of criminal procedure
196 A DIGEST OF [PART III.

ARTICLE 142.

DEPOSITIONS UNDER MERCHANT SHIPPING ACT, 1854.

1 Whenever, in the course of any legal proceedings

instituted in any part of Her Majesty's dominions before
any judge or magistrate or before any person authorized
by law or by consent of parties to receive evidence, the
testimony of any witness is required in relation to the
subject-matter of such proceeding, any deposition that
such witness may have previously made on oath in rela-
tion to the same subject-matter before any justice or
magistrate in Her Majesty's dominions or any British
consular officer elsewhere is admissible in evidence, sub-
ject to the following restrictions : -
1. If such proceeding is instituted in the United King-
dom or British possessions, due proof must be given that
such witness cannot be found in that kingdom or posses-
sion respectively .
2. If such deposition was made in the United Kingdom,
it is not admissible in any proceeding instituted in the
United Kingdom .
3. If the deposition was made in any British possession ,
it is not admissible in any proceeding instituted in the
same British possession.
4. If the proceeding is criminal, the deposition is not

than to the subject of evidence, I have omitted it. The language is

slightly altered. I have not referred to depositions taken before a
coroner (see 7 Geo. IV. c. 64, s . 4) , because the section says nothing
about the conditions on which they may be given in evidence. Their
relevancy, therefore, depends on the common-law principles expressed
in article 33. They must be signed by the coroner ; but these are
matters not of evidence, but of criminal procedure.
1 17 & 18 Vict. c. 104, s . 270. There are some other cases in which
depositions are admissible by statute, but they hardly belong to the
Law of Evidence.
CHAP. XVII. ] THE LAW OF EVIDENCE . 197

admissible unless it was made in the presence of the per-

son accused.
Every such deposition must be authenticated by the
signature of the judge, magistrate, or consular officer
before whom it was made. Such judge, magistrate, or
consular officer must, when the deposition is taken in a
criminal matter, certify (if the fact is so) that the accused
was present at the taking thereof ; but it is not necessary
in any case to prove the signature or the official char-
acter of the person appearing to have signed any such
deposition.
In any criminal proceeding the certificate aforesaid is
(unless the contrary is proved ) sufficient evidence of the
accused having been present in manner thereby certified .
Nothing in this article contained affects any provision
by Parliament or by any local legislature as to the
admissibility of depositions or the practice of any court
according to which depositions not so authenticated are
admissible as evidence .
198 A DIGEST OF [PART III.

CHAPTER XVIII.

OF IMPROPER ADMISSION AND REJECTION OF

EVIDENCE .

ARTICLE 143.

A NEW trial will not be granted in any civil action on

the ground of the improper admission or rejection of evi-
dence, unless in the opinion of the Court to which the ap-
plication is made some substantial wrong or miscarriage
has been thereby occasioned in the trial of the action.¹
If in a criminal case evidence is improperly rejected or
admitted, there is no remedy, unless the prisoner is con-

1 Judicature Act, 1875, Order xxxix. 3. This act is substantially

in affirmance of the common law, which holds that, if it clearly ap-
pears that the error could not affect the verdict, no new trial will be
granted. Wright v. Tatham, 7 A. & E. 330 ; Wing v. Chesterfield,
116 Mass. 353 ; Railroad Co. v. Smith, 21 Wall. (U. S. ) 255. In
Thorndike v. Boston, 1 Met. ( Mass . ) 242, it is said that no new trial
will be granted, if the Court would feel bound to set aside a different
verdict, based upon the erroneously admitted or excluded evidence.
The improper admission of evidence will be a ground for a new
trial, although the jury accompany their verdict by a statement that
they have arrived at their conclusion independently of the evidence
improperly admitted. Bailey v. Haines, 19 L. J. Q. B. 73. In Mis-
souri, even in a criminal case, it has been held that, though evidence
be improperly excluded, yet a new trial will not be granted, if, upon
all the evidence, it appears to the court that the defendant is so
clearly guilty that the admission of the evidence would not have
aided the defendant. State v. Hays, 23 Mo. 287. And so it seems
to have been held in South Carolina, where improper evidence was
admitted, State v. Ford, 3 Strobh . 517, n.; and in Texas, Boon v.
State, 42 Texas , 237 ; and in Connecticut, State v. Alford , 31 Conn.
40. Contra, in California. People v. Williams, 18 Cal . 187.
CHAP . XVIII . ] THE LAW OF EVIDENCE. 199

victed, and unless the judge, in his discretion, states a

case for the Court for Crown Cases Reserved ; but if that
Court is of opinion that any evidence was improperly
admitted or rejected, it must set aside the conviction.¹

1 The practice in this country is different. We believe that in

all the States the defendant may except to the improper admission
or exclusion of adverse evidence, and in some of the States the gov
ernment may also except. }
200 A DIGEST OF [NOTES.

APPENDIX OF NOTES.

NOTE I.

(TO ARTICLE 1. )

THE definitions are simply explanations of the senses

in which the words defined are used in this work. They
will be found , however, if read in connection with my
" Introduction to the Indian Evidence Act," to explain
the manner in which it is arranged.
I use the word " presumption " in the sense of a
presumption of law capable of being rebutted. A pre-
sumption of fact is simply an argument. A conclusive
presumption I describe as conclusive proof. Hence the
few presumptions of law which I have thought it neces-
sary to notice are the only ones I have to deal with.
As to the definition of the word " relevant," I have
considerably modified what I formerly said on the sub-
ject, for reasons given in the preface to this edition. The
definition of " relevancy " is substituted for the following,
which in the earlier editions of the work formed the last
article of the first chapter, and to which the remainder
of the present note was appended as a note.
Facts, whether in issue or not, are relevant to each
other when one is, or probably may be, or probably may
have been -
the cause of the other ;
the effect of the other ;
an effect of the same cause ;
a cause of the same effect :
NOTES . ] THE LAW OF EVIDENCE. 201

or when the one shows that the other must or cannot

have occurred, or probably does or did exist , or not ;
or that any fact does or did exist, or not, which in the
common course of events would either have caused or have
been caused by the other ;
provided that such facts do not fall within the exclusive
rules contained in Chapters III ., IV. , V. , VI.; or that they
do fall within the exceptions to those rules contained in
those chapters .
This is taken (with some verbal alterations) from a
pamphlet called " The Theory of Relevancy for the pur-
pose of Judicial Evidence, by George Clifford Whit-
worth, Bombay Civil Service . Bombay, 1875."
The 7th section of the Indian Evidence Act is as follows :
"Facts which are the occasion , cause, or effect, immediate
or otherwise, of relevant facts or facts in issue, or which
constitute the state of things under which they happened,
or which afforded an opportunity for their occurrence or
transaction, are relevant."
The 11th section is as follows :
"Facts not otherwise relevant are relevant ;
" (1) If they are inconsistent with any fact in issue or
relevant fact ;
" (2) If by themselves, or in connection with other
facts, they make the existence or non-existence of any fact
in issue, or relevant fact, highly probable or improbable."
In my " Introduction to the Indian Evidence Act," I
examined at length the theory of judicial evidence, and
tried to show that the theory of relevancy is only a par-
ticular case of the process of induction , and that it de-
pends on the connection of events as cause and effect .
This theory does not greatly differ from Bentham's,
though he does not seem to me to have grasped it as dis-
tinctly as he probably would if he had lived to study Mr.
Mill's Inductive Logic.
My theory was expressed too widely in certain parts,
202 A DIGEST OF [NOTES.

and not widely enough in others ; and Mr. Whitworth's

pamphlet appears to me to have corrected and completed
it in a judicious manner. I accordingly embodied his
definition of relevancy, with some variations and additions,
in the text of the first edition. I now reprint it here for
reasons given in the preface. The necessity of limiting
in some such way the terms of the 11th section of the
Indian Evidence Act may be inferred from a judgment
by Mr. Justice West (of the High Court of Bombay) , in
the case of R. v. Parbhudas and Others, printed in the
" Law Journal," May 27, 1876 .
As to the coincidence of this theory with English law,
I can only say that it will be found to supply a key which
will explain all that is said on the subject of circumstantial
evidence by the writers who have treated of that subject.
Mr. Whitworth goes through the evidence given against
the German, Müller, executed for murdering Mr. Briggs
on the North London Railway, and shows how each item
of it can be referred to one or the other of the heads of
relevancy which he discusses.
The theory of relevancy thus expressed would , I be-
lieve, suffice to solve every question which can arise upon
the subject ; but the legal rules based upon an uncon-
scious apprehension of the theory exceed it at some points
and fall short of it at others, as I have pointed out in the
preface to this edition.

NOTE II.

(TO ARTICLE 2. )

See 1 Ph. Ev. 493, &c.; Best, ss. 111 and 251 ; T. E.
chap. ii. pt. ii .; { 1 Greenl . Ev. § 49 et seq.}
For instances of relevant evidence held to be insufficient
for the purpose for which it was tendered on the ground
of remoteness , see R. v. " 2 C. & P. 459 ; and Mann v.
Langton, 3 A. & E. 699.
NOTES . ] THE LAW OF EVIDENCE . 203

Mr. Taylor (s. 867) adopts from Professor Greenleaf the

statement that " the law excludes on public grounds . . .
evidence which is indecent or offensive to public morals,
or injurious to the feelings of third persons." The authori-
ties given for this are actions on wagers which the Court
refused to try, or in which they arrested judgment, be-
cause the wagers were in themselves impertinent and
offensive, as, for instance, a wager as to the sex of the
Chevalier D'Eon (Da Costa v. Jones, Cowp. 729) . No
action now lies upon a wager, and I fear that there is no
authority for the proposition advanced by Professor
Greenleaf. I know of no case in which a fact in issue or
relevant to an issue which the Court is bound to try can
be excluded merely because it would pain some one who
is a stranger to the action . Indeed , in Da Costa v. Jones,
Lord Mansfield said expressly, " Indecency of evidence is
no objection to its being received where it is necessary to
the decision of a civil or criminal right " (p . 734) . (See
article 129, and Note XLVII .)
Greenleaf says that such evidence is excluded when it is " im-
pertinently " brought into Court by parties " having no interest in the
matter," an important limitation , inadvertently, no doubt, omitted by
the author. See 1 Greenl. Ev. § 253.

NOTE III.

(TO ARTICLE 4. )

On this subject see also 1 Ph. Ev. 157-164 ; T. E. ss . 527-

532 ; Best, s. 508 ; 3 Russ. on Crimes, by Greaves, 161-
167. (See, too, The Queen's Case, 2 Br. & Bing. 309-310. )
{ 1 Greenl. Ev. § 111.}
The principle is substantially the same as that of prin-
cipal and accessory, or principal and agent. When
various persons conspire to commit an offence each makes
the rest his agents to carry the plan into execution . ( See,
too, article 17, Note XII.)
204 A DIGEST OF [NOTES.

NOTE IV.

(TO ARTICLE 5.)

The principle is fully explained and illustrated in Mal-
colmson v. O'Dea, 10 H. L. C. 593. See particularly the
reply to the questions put by the House of Lords to the
Judges, delivered by Willes, J., 611–622.
See also 1 Ph. Ev. 234-239 ; T. E. ss. 593-601 ; Best,
s. 499 ; { 1 Greenl. Ev. §§ 141-146.}
Mr. Phillips and Mr. Taylor treat this principle as an
exception to the rule excluding hearsay. They regard the
statements contained in the title-deeds as written state-
ments made by persons not called as witnesses. I think
the deeds must be regarded as constituting the transactions
which they effect ; and in the case supposed in the text,
those transactions are actually in issue. When it is
asserted that land belongs to A, what is meant is, that A
is entitled to it by a series of transactions of which his
title-deeds are by law the exclusive evidence ( see article
40). The existence of the deeds is thus the very fact
which is to be proved .
Mr. Best treats the case as one of " derivative evidence,"
an expression which does not appear to me felicitous.

NOTE V.

(To ARTICLE 8.)

The items of evidence included in this article are often
referred to by the phrase " res gestæ," which seems to
have come into use on account of its convenient obscurity.
The doctrine of " res gestæ "" was much discussed in the
case of Doe v. Tatham ( p. 79, &c. ) . In the course of the
argument, Bosanquet, J., observed , " How do you trans-
late res gesta ? gestæ, by whom ? " Parke, B., afterwards
observed, " The acts by whomsoever done are res gestæ,
NOTES . ] THE LAW OF EVIDENCE . 205

if relevant to the matter in issue. But the question is,

what are relevant ? " (7 A. & E. 353. ) In delivering his
opinion to the House of Lords, the same Judge laid down
the rule thus : " Where any facts are proper evidence
upon an issue [ i. e. when they are in issue, or relevant to
the issue] all oral or written declarations which can ex-
plain such facts may be received in evidence." (Same
case, 4 Bing. N. C. 548.) The question asked by Baron
Parke goes to the root of the whole subject, and I have
tried to answer it at length in the text, and to give it the
prominence in the statement of the law which its impor-
tance deserves.¹
Besides the cases cited in the illustrations, see cases as
to statements accompanying acts collected in 1 Ph. Ev.
152-157, and T. E. ss . 521 , 528 ; {1 Greenl. Ev. § 108.}
I have stated, in accordance with R. v. Walker, 2 M. & R.
212, that the particulars of a complaint are not admissible ;
but I have heard Willes, J. , rule that they were on several
occasions, vouching Parke, B., as his authority. R. v.
Walker was decided by Parke, B., in 1839. Though he
excluded the statement, he said , " The sense of the thing
certainly is, that the jury should in the first instance know
the nature of the complaint made by the prosecutrix, and
all that she then said. But for reasons which I never
could understand, the usage has obtained that the prose-
cutrix's counsel should only inquire generally whether a
complaint was made by the prosecutrix of the prisoner's
conduct towards her, leaving the prisoner's counsel to
bring before the jury the particulars of that complaint by
cross-examination . "
Baron Bramwell has been in the habit, of late years, of
admitting the complaint itself. The practice is certainly
in accordance with common sense.

1 Res gestæ are the circumstances, facts, and declarations which

grow out of the main fact, are extemporaneous with it, and serve to
illustrate its character. Carter v. Buchannan, 3 Ga. 513. )
206 A DIGEST OF [NOTES.

NOTE VI.

(TO ARTICLES 10, 11 , 12.)

Article 10 is equivalent to the maxim, " Res inter alios

acta alteri nocere non debet," which is explained and
commented on in Best, ss. 506–510 (though I should
scarcely adopt his explanation of it), and by Broom
( " Maxims," 954-968) . The application of the maxim
to the Law of Evidence is obscure, because it does not
show how unconnected transactions should be supposed
to be relevant to each other. The meaning of the rule
must be inferred from the exceptions to it stated in arti-
cles 11 and 12, which show that it means, You are not
to draw inferences from one transaction to another which
is not specifically connected with it merely because the
two resemble each other. They must be linked together
by the chain of cause and effect in some assignable way
before you can draw your inference.
In its literal sense the maxim also fails, because it is
not true that a man cannot be affected by transactions to
which he is not a party. Illustrations to the contrary are
obvious and innumerable ; bankruptcy, marriage, indeed
every transaction of life, would supply them.
The exceptions to the rule given in articles 11 and 12
are generalized from the cases referred to in the illustra
tions. It is important to observe that though the rule is
expressed shortly, and is sparingly illustrated, it is of
very much greater importance and more frequent appli-
cation than the exceptions. It is indeed one of the most
characteristic and distinctive parts of the English Law
of Evidence, for this is the rule which prevents a man
charged with a particular offence from having either to
submit to imputations which in many cases would be
fatal to him , or else to defend every action of his whole
life in order to explain his conduct on the particular
NOTES.J THE LAW OF EVIDENCE . 207

occasion. A statement of the Law of Evidence which

did not give due prominence to the four great exclusive
rules of evidence of which this is one would neither
represent the existing law fairly nor in my judgment
improve it.
The exceptions to the rule apply more frequently to
criminal than to civil proceedings, and in criminal cases
the Courts are always disinclined to run the risk of preju-
dicing the prisoner by permitting matters to be proved
which tend to show in general that he is a bad man , and
so likely to commit a crime. In each of the cases by
which article 12 is illustrated , the evidence admitted
went to prove the true character of facts which, standing
alone, might naturally have been accounted for on the
supposition of accident- a supposition which was re-
butted by the repetition of similar occurrences. In the
case of R. v. Gray ( Illustration a) , there were many other
circumstances which would have been sufficient to prove
the prisoner's guilt, apart from the previous fires . That
part of the evidence, indeed, seemed to have little influ-
ence on the jury. Garner's Case (Illustration c, note)
was an extraordinary one, and its result was in every way
unsatisfactory. Some account of this case will be found
in the evidence given by me before the Commission on
Capital Punishments which sat in 1866.

NOTE VII.

(TO ARTICLE 13. )

As to presumptions arising from the course of office or

business, see Best, s. 403 ; 1 Ph. Ev. 480-484 ; T. E. s . 147 ;
{ 1 Greenl. Ev. § 40. The presumption, " Omnia esse
rite acta," also applies . See Broom's " Maxims," 942 ;
Best, ss. 353-365 ; T. E. s. 124, &c.; 1 Ph. Ev. 480 ; and
Star. 757, 763 ; { 1 Greenl. Ev. § 38 a, note.}
208 A DIGEST OF [NOTES.

NOTE VIII.

(TO ARTICLE 14.)

My reasons for partially rearranging this chapter are

given in the preface to this edition.
The unsatisfactory character of the definitions usually
given of hearsay is well known. See Best, s. 495 ; T. E.
ss. 507-510 ; 1 Greenl. Ev. § 98 et seq.} The definition
given by Mr. Phillips sufficiently exemplifies it : " When
a witness, in the course of stating what has come under
the cognizance of his own senses concerning a matter in
dispute, states the language of others which he has heard,
or produces papers which he identifies as being written
by particular individuals, he offers what is called hearsay
evidence. This matter may sometimes be the very mat-
ter in dispute," &c. ( 1 Ph. Ev. 143 ) . If this definition is
correct, the maxim , " Hearsay is no evidence,” can only
be saved from the charge of falsehood by exceptions
which make nonsense of it. By attaching to it the mean-
ing given in the text, it becomes both intelligible and
true. There is no real difference between the fact that a
man was heard to say this or that, and any other fact.
Words spoken may convey a threat, supply the motive
for a crime, constitute a contract, amount to slander, &c. ,
&c.; and if relevant or in issue, on these or other grounds,
they must be proved , like other facts, by the oath of some
one who heard them . The important point to remember
about them is that bare assertion must not, generally
speaking, be regarded as relevant to the truth of the
matter asserted.
The doctrine of hearsay evidence was fully discussed
by many of the judges in the case of Doe d. Wright v .
Tatham on the different occasions when that case came
before the Court (see 7 A. & E. 313-408 ; 4 Bing. N. C.
489-573). The question was, whether letters addressed
NOTES . ] THE LAW OF EVIDENCE . 209

to a deceased testator, implying that the writers thought

him sane, but not acted upon by him, could be regarded
as relevant to his sanity, which was the point in issue .
The case sets the stringency of the rule against hearsay
in a light which is forcibly illustrated by a passage in the
judgment of Baron Parke (7 A. & E. 385-388) , to the
following effect :· —- He treats the letters as " statements of
the writers, not on oath, of the truth of the matter in
question, with this addition, that they have acted upon
the statements on the faith of their being true by their
sending the letters to the testator." He then goes
through a variety of illustrations which had been sug-
gested in argument, and shows that in no case ought
such statements to be regarded as relevant to the truth
of the matter stated, even when the circumstances were
such as to give the strongest possible guarantee that such
statements expressed the honest opinions of the persons
who made them . Amongst others he mentions the
following : - " The conduct of the family or relations
of a testator taking the same precautions in his absence
as if he were a lunatic — his election in his absence to
some high and responsible office ; the conduct of a phy-
sician who permitted a will to be executed by a sick
testator ; the conduct of a deceased captain on a question
of seaworthiness, who, after examining every part of a
vessel, embarked in it with his family ; all these, when
deliberately considered , are, with reference to the matter
in issue in each case, mere instances of hearsay evidence
mere statements, not on oath, but implied in or vouched
by the actual conduct of persons by whose acts the
litigant parties are not to be bound ." All these matters
are therefore to be treated as irrelevant to the questions
at issue.
These observations make the rule quite distinct, but
the reason suggested for it in the concluding words of
the passage extracted appears to be weak. That passage
14
210 A DIGEST OF [NOTES.

implies that hearsay is excluded because no one " ought

to be bound by the act of a stranger." That no one
shall have power to make a contract for another or com-
mit a crime for which that other is to be responsible
without his authority is obviously reasonable, but it is
not so plain why A's conduct should not furnish good
grounds for inference as to B's conduct, though it was
not authorized by B. The importance of shortening pro-
ceedings, the importance of compelling people to procure
the best evidence they can, and the importance of ex-
cluding opportunities of fraud, are considerations which
probably justify the rule excluding hearsay ; but Baron
Parke's illustrations of its operation clearly prove that in
some cases it excludes the proof of matter which, but for
it, would be regarded not only as relevant to particular
facts, but as good grounds for believing in their existence.

NOTE IX.

(TO ARTICLE 15.)

This definition is intended to exclude admissions by

pleading, admissions which, if so pleaded, amount to
estoppels, and admissions made for the purposes of a
cause by the parties or their solicitors . These subjects
are usually treated of by writers on evidence ; but they
appear to me to belong to other departments of the law.
The subject, including the matter which I omit, is treated
at length in 1 Ph. Ev. 308-401 , and T. E. ss . 653-788 .
{ 1 Greenl. Ev. § 169 et seq. } A vast variety of cases
upon admissions of every sort may be found by referring
to Roscoe, N. P. (Index, under the word Admissions.)
It may perhaps be well to observe that when an admis-
sion is contained in a document, or series of documents,
or when it forms part of a discourse or conversation,
so much and no more of the document, series of docu-
NOTES . ] THE LAW OF EVIDENCE. 211

ments, discourse or conversation, must be proved as is

necessary for the full understanding of the admission,
but the judge or jury may of course attach degrees of
credit to different parts of the matter proved . This rule
is elaborately discussed and illustrated by Mr. Taylor, ss .
655-665. It has lost much of the importance which
attached to it when parties to actions could not be wit-
nesses, but could be compelled to make admissions by
bills of discovery. The ingenuity of equity draughts-
men was under that system greatly exercised in drawing
answers in such a form that it was impossible to read
part of them without reading the whole , and the ingenu-
ity of the Court was at least as much exercised in
countermining their ingenious devices. The power of
administering interrogatories, and of examining the
parties directly, has made great changes in these matters.

NOTE X.

(TO ARTICLE 16.)

As to admissions by parties, see Moriarty v. L. C. & D.
Railway, L. R. 5 Q. B. 320, per Blackburn, J .; Alner v.
George, 1 Camp. 392 ; Bauerman v. Radenius, 7 T. R. 663.
As to admissions by parties interested, see Spargo v.
Brown, 9 B. & C. 938.
See also on the subject of this article 1 Ph. Ev. 362-
363, 369, 398 ; and T. E. ss. 669–671 , 685, 687, 719 ; Ros-
coe, N. P. 71 .
As to admissions by privies, see 1 Ph. Ev. 394-397,
and T. E. (from Greenleaf) , s. 712 ; { 1 Greenl. Ev. § 189. }

NOTE XI.

(TO ARTICLE 17.)

The subject of the relevancy of admissions by agents

is rendered difficult by the vast variety of forms which
212 A DIGEST OF [NOTES.

agency assumes, and by the distinction between an agent

for the purpose of making a statement and an agent for
the purpose of transacting business. If A sends a mes-
sage by B, B's words in delivering it are in effect A's ;
but B's statements in relation to the subject-matter of
the message have, as such, no special value. A's own
statements are valuable if they suggest an inference which
he afterwards contests because they are against his inter-
est ; but when the agent's duty is done, he has no special
interest in the matter.
The principle as to admissions by agents is stated and
explained by Sir W. Grant in Fairlie v. Hastings, 10 Ve.
126-127.
NOTE XII .

(TO ARTICLE 18.)

See, for a third exception (which could hardly occur
now), Clay v. Langslow, M. & M. 45.

NOTE XIII.

(TO ARTICLE 19.)

This comes very near to the case of arbitration. See,
as to irregular arbitrations of this kind, 1 Ph. Ev. 383 ;
T. E. ss. 689–690 ; { 1 Greenl. Ev. § 182. }

NOTE XIV.

(TO ARTICLE 20.)

See more on this subject in 1 Ph. Ev. 326-328 ; T. E.
ss. 702, 720-723 ; R. N. P. 66 ; { 1 Greenl. Ev. § 192
et seq. }
NOTE XV.
(TO ARTICLE 22.)
On the law as to Confessions, see { 1 Greenl. Ev. § 213
et seq.;} 1 Ph. Ev. 401-423 ; T. E. ss. 796-807, and s. 824 ;
NOTES. ] THE LAW OF EVIDENCE . 213

Best, ss. 551-574 ; Roscoe, Cr. Ev. 38-56 ; 3 Russ. on

Crimes, by Greaves, 365-436. Joy on Confessions re-
duces the law on the subject to the shape of 13 proposi-
tions, the effect of all of which is given in the text in a
different form .
Many cases have been decided as to the language which
amounts to an inducement to confess (see Roscoe, Cr. Ev.
40-43, where most of them are collected ) . They are,
however, for practical purposes, summed up in R. v. Bal-
dry, 2 Den. 430, which is the authority for the last lines
of the first paragraph of this article.

NOTE XVI.

(TO ARTICLE 23.)

Cases are sometimes cited to show that if a person is
examined as a witness on oath, his deposition cannot be
used in evidence against him afterwards (see T. E. ss . 809
and 818, n . 6 ; also 3 Russ . on Cri. by Greaves, 407, &c.).
All these cases, however, relate to the examinations be-
fore magistrates of persons accused of crimes, under the
statutes which were in force before 11 & 12 Vict. c. 42.
These statutes authorized the examination of prisoners,
but not their examination upon oath. The 11 & 12 Vict.
c. 42, prescribes the form of the only question which the
magistrate can put to a prisoner ; and since that enact-
ment it is scarcely possible to suppose that any magistrate
would put a prisoner upon his oath. The cases may
therefore be regarded as obsolete.

NOTE XVII.

(TO ARTICLE 26.)

As to dying declarations, see { 1 Greenl. Ev. § 156 et
seq.; } 1 Ph . Ev. 239–252 ; T. E. ss . 644-652 ; Best, s.
505 ; Starkie, 32 & 38 ; 3 Russ. Cri. 250-272 (perhaps
214 A DIGEST OF [ NOTES.

the fullest collection of the cases on the subject) ; Ros-

coe, Crim. Ev. 31-32 . R. v . Baker, 2 Mo. & Ro . 53, is
a curious case on this subject. A and B were both poi-
soned by eating the same cake. C was tried for poison-
ing A. B's dying declaration that she made the cake in
C's presence, and put nothing bad in it, was admitted as
against C, on the ground that the whole formed one
transaction.
NOTE XVIII.

(TO ARTICLE 27. )

1 Ph. Ev. 280-300 ; T. E. ss . 630-643 ; Best, 501 ;
R. N. P. 63 ; and see note to Price v. Lord Torrington ,
2 S. L. C. 328 ; { 1 Greenl. Ev. §§ 116, 120, and notes. }

NOTE XIX.
(TO ARTICLE 28. )
The best statement of the law upon this subject will
be found in Higham v. Ridgway, and the note thereto,
2 S. L. C. 318. See also { 1 Greenl. Ev. §§ 147–155 ; }
1 Ph. Ev. 252-280 ; T. E. ss. 602-629 ; Best, s. 500 ;
R. N. P. 584.
A class of cases exists which I have not put into the
form of an article, partly because their occurrence since
the commutation of tithes must be very rare, and partly
because I find a great difficulty in understanding the
place which the rule established by them ought to occupy
in a systematic statement of the law. They are cases
which lay down the rule that statements as to the receipts
of tithes and moduses made by deceased rectors and other
ecclesiastical corporations sole are admissible in favor of
their successors . There is no doubt as to the rule (see,
in particular, Short v. Lee, 2 Jac. & Wal . 464 ; and
Young v. Clare Hall, 17 Q. B. 537) . The difficulty is to
see why it was ever regarded as an exception . It falls
directly within the principle stated in the text, and would
NOTES . ] THE LAW OF EVIDENCE. 215

appear to be an obvious illustration of it ; but in many

cases it has been declared to be anomalous, inasmuch as
it enables a predecessor in title to make evidence in favor
of his successor. This suggests that article 28 ought to
be limited by a proviso that a declaration against interest
is not relevant if it was made by a predecessor in title of
the person who seeks to prove it, unless it is a declara-
tion by an ecclesiastical corporation sole, or a member of
an ecclesiastical corporation aggregate (see Short v . Lee) ,
as to the receipt of a tithe or modus.
Some countenance for such a proviso may be found in
the terms in which Bayley, J., states the rule in Gleadow
v. Atkin, and in the circumstance that when it first ob-
tained currency the parties to an action were not com-
petent witnesses. But the rule as to the indorsement of
notes, bonds, &c. , is distinctly opposed to such a view.

NOTE XX .

(TO ARTICLE 30. )

Upon this subject, besides the authorities in the text,

see { 1 Greenl. Ev. § 127 et seq.; } 1 Ph . Ev. 169–197 ;
T. E. ss. 543-569 ; Best, s. 497 ; R. N. P. 50-54 (the
latest collection of cases ) .
A great number of cases have been decided as to the
particular documents, &c., which fall within the rule
given in the text. They are collected in the works re-
ferred to above, but they appear to me merely to illus-
trate one or other of the branches of the rule, and not to
extend or vary it. An award, e.g., is not within the last
branch of illustration (b) , because it " is but the opinion
of the arbitrator, not upon his own knowledge " (Evans
v. Rees, 10 A. & E. 155) ; but the detailed application of
such a rule as this is better learnt by experience, applied
to a firm grasp of principle, than by an attempt to recol-
lect innumerable cases.
216 A DIGEST OF [ NOTES.

The case of Weeks v . Sparke is remarkable for the

light it throws on the history of the Law of Evidence.
It was decided in 1813, and contains inter alia the fol-
lowing curious remarks by Lord Ellenborough : " It is
stated to be the habit and practice of different circuits to
admit this species of evidence upon such a question as
the present. That certainly cannot make the law, but it
shows at least, from the established practice of a large
branch of the profession, and of the judges who have pre-
sided at various times on those circuits, what has been
the prevailing opinion upon this subject amongst so large
a class of persons interested in the due administration of
the law. It is stated to have been the practice both of
the Northern and Western Circuits. My learned prede-
cessor, Lord Kenyon, certainly held a different opinion ,
the practice of the Oxford Circuit, of which he was a
member, being different." So in the Berkeley Peerage
Case, Lord Eldon said , " when it was proposed to read
this deposition as a declaration , the Attorney-General
(Sir Vicary Gibbs) flatly objected to it. He spoke quite
right as a Western Circuiteer, of what he had often heard
laid down in the West, and never heard doubted " (4
Cam. 419, A.D. 1811 ) . This shows how very modern
much of the Law of Evidence is. Le Blanc, J., in Weeks
v. Sparkes, says, that a foundation must be laid for evi-
dence of this sort " by acts of enjoyment within living
memory." This seems superfluous, as no jury would
ever find that a public right of way existed , which had
not been used in living memory, on the strength of a
report that some deceased person had said that there
once was such a right .

NOTE XXI.
(TO ARTICLE 31. )
See { 1 Greenl. Ev. § 134 ; } 1 Ph . Ev. 197–233 ; T. E.
ss. 571-592 ; Best, 633 ; R. N. P. 49–50.
NOTES. ] THE LAW OF EVIDENCE . 217

The Berkeley Peerage Case (Answers of the Judges to

the House of Lords) , 4 Cam. 401 , which established the
third condition given in the text ; and Davies v. Lowndes,
6 M. & G. 471 (see more particularly pp. 525-529, in
which the question of family pedigrees is fully discussed)
are specially important on this subject.
As to declarations as to the place of births, &c., see
Shields v. Boucher, 1 De G. & S. 49–58.

NOTE XXII .
(TO ARTICLE 32.)

See also {1 Greenl . Ev. § 163 et seq.; } 1 Ph. Ev. 306-

308 ; T. E. ss. 434-447 ; Buller, N. P. 238, and following.
In reference to this subject it has been asked whether
this principle applies indiscriminately to all kinds of evi-
dence in all cases. Suppose a man were to be tried twice
upon the same facts - e. g. for robbery after an acquittal
for murder, and suppose that in the interval between
the two trials an important witness who had not been called
before the magistrates were to die, might his evidence be
read on the second trial from a reporter's short-hand
notes ? This case might easily have occurred if Orton
had been put on his trial for forgery as well as for per-
jury. I should be disposed to think on principle that such
evidence would be admissible, though I cannot cite any
authority on the subject. The common-law principle on
which depositions taken before magistrates and in Chan-
cery proceedings were admitted seems to cover the case.

NOTE XXIII.

(TO ARTICLES 39-47.)

The law relating to the relevancy of judgments of
Courts of Justice to the existence of the matters which
they assert is made to appear extremely complicated by
218 A DIGEST OF [NOTES.

the manner in which it is usually dealt with. The method

commonly employed is to mix up the question of the
effect of judgments of various kinds with that of their ad-
missibility, subjects which appear to belong to different
branches of the law.
Thus the subject, as commonly treated , introduces into
the Law of Evidence an attempt to distinguish between
judgments in rem, and judgments in personam or inter
partes (terms adapted from, but not belonging to, Roman
law, and never clearly defined in reference to our own or
any other system) ; also the question of the effect of the
pleas of autrefois acquit, and autrefois convict, which
clearly belong not to evidence, but to criminal procedure ;
the question of estoppels, which belongs rather to the law
of pleading than to that of evidence ; and the question of
the effect given to the judgments of foreign Courts of
Justice, which would seem more properly to belong to
private international law. These and other matters are
treated of at great length in { 1 Greenl . Ev. § 523 et seq.; }
2 Ph. Ev. 1-78 , and T. E. ss . 1480-1534 , and in the note
to the Duchess of Kingston's Case, in 2 S. L. C. 777-880.
Best (ss. 588-595) treats the matter more concisely.
The text is confined to as complete a statement as I
could make of the principles which regulate the relevancy
of judgments considered as declarations proving the facts
which they assert, whatever may be the effect or the use
to be made of those facts when proved. Thus the lead-
ing principle stated in article 40 is equally true of all
judgments alike. Every judgment, whether it be in rem
or inter partes, must and does prove what it actually
effects, though the effects of different sorts of judgments
differ as widely as the effects of different sorts of deeds.
There has been much controversy as to the extent to
which effect ought to be given to the judgments of foreign
Courts in this country, and as to the cases in which the
Courts will refuse to act upon them ; but as a mere ques-
NOTES. ] THE LAW OF EVIDENCE. 219

tion of evidence, they do not differ from English judg-

ments. The cases on foreign judgments are collected in
the note to the Duchess of Kingston's Case, 2 S. L. C.
813-845. There is a convenient list of the cases in R. N. P.
201-203. The cases of Godard v. Gray, L. R. 6 Q. B. 139,
and Castrique v . Imrie, L. E. 4 R. & I. A. 414, are the
latest leading cases on the subject.

NOTE XXIV.

(TO CHAPTER V.)

On evidence of opinions, see { 1 Greenl. Ev. § 446 et

seq.; } 1 Ph. Ev. 520–528 ; T. E. ss . 1273-1281 ; Best,
ss. 511-517 ; R. N. P. 193–194 . The leading case on the
subject is Doe v. Tatham, 7 A. & E. 313 ; and 4 Bing.
N. C. 489, referred to above in Note IX. Baron Parke ,
in the extracts there given, treats an expression of opinion
as hearsay, that is, as a statement affirming the truth of the
subject-matter of the opinion.

NOTE XXV.

(TO CHAPTER VI.)

See { 1 Greenl. Ev. § 461 et seq.; } 1 Ph . Ev. 502–508 ;

T. E. ss . 325-336 ; Best, ss . 257-263 ; 3 Russ. Cr. 299-
304. The subject is considered at length in R. v. Row-
ton, 1 L. & C. 520. One consequence of the view of the
subject taken in that case is that a witness may with perfect
truth swear that a man, who to his knowledge has been
a receiver of stolen goods for years, has an excellent
character for honesty, if he has had the good luck to
conceal his crimes from his neighbors. It is the essence
of successful hypocrisy to combine a good reputation
with a bad disposition, and according to R. v. Row-
ton, the reputation is the important matter. The case is
220 A DIGEST OF [NOTES.

seldom if ever acted on in practice. The question always

put to a witness to character is, What is the prisoner's
character for honesty, morality, or humanity ? as the case
may be ; nor is the witness ever warned that he is to con-
fine his evidence to the prisoner's reputation. It would
be no easy matter to make the common run of witnesses
understand the distinction.

NOTE XXVI.

(TO ARTICLE 58.)

The list of matters judicially noticed in this article is

not intended to be quite complete. It is compiled from
1 Ph. Ev. 458-467, and T. E. ss . 4-20, where the subject
is gone into more minutely. { 1 Greenl. Ev. §§ 4–6, and
notes.} A convenient list is also given in R. N. P. ss.
88-92, which is much to the same effect. It may be
doubted whether an absolutely complete list could be
formed, as it is practically impossible to enumerate every
thing which is so notorious in itself, or so distinctly
recorded by public authority, that it would be superfluous
to prove it. Paragraph ( 1 ) is drawn with reference to
the fusion of Law, Equity, Admiralty, and Testamentary
Jurisdiction effected by the Judicature Act.

NOTE XXVII.

(TO ARTICLE 62.)

Owing to the ambiguity of the word " evidence,"

which is sometimes used to signify the effect of a fact
when proved, and sometimes to signify the testimony by
which a fact is proved, the expression "hearsay is no
evidence " has many meanings. Its common and most
important meaning is the one given in article 14, which
might be otherwise expressed by saying that the connec-
tion between events, and reports that they have happened,
NOTES . ] THE LAW OF EVIDENCE. 221

is generally so remote that it is expedient to regard the

existence of the reports as irrelevant to the occurrence
of the events, except in excepted cases . Article 62 ex-
presses the same thing from a different point of view,
and is subject to no exceptions whatever. It asserts that
whatever may be the relation of a fact to be proved to
the fact in issue, it must, if proved by oral evidence,
be proved by direct evidence . For instance, if it were
to be proved under article 31 that A, who died fifty years
ago, said that he had heard from his father B, who died
100 years ago, that A's grandfather C had told B that D,
C's elder brother, died without issue, A's statement must
be proved by some one who, with his own ears , heard
him make it. If (as in the case of verbal slander) the
speaking of the words was the very point in issue, they
must be proved in precisely the same way. Cases in
which evidence is given of character and general opinion
may perhaps seem to be exceptions to this rule, but they
are not so. When a man swears that another has a good
character, he means that he has heard many people,
though he does not particularly recollect what people,
speak well of him, though he does not recollect all that
they said.
NOTE XXVIII.

(TO ARTICLES 66 & 67. )

This is probably the most ancient, and is, as far as it
extends, the most inflexible of all the rules of evidence .
The following characteristic observations by Lord Ellen-
borough occur in R. v. Harringworth, 4 M. & S. 353 :
“ The rule, therefore, is universal that you must first
call the subscribing witness ; and it is not to be varied
in each particular case by trying whether, in its applica-
tion, it may not be productive of some inconvenience ,
for then there would be no such thing as a general rule.
A lawyer who is well stored with these rules would be no
222 A DIGEST OF [NOTES.

better than any other man that is without them, if by mere

force of speculative reasoning it might be shown that the
application of such and such a rule would be productive
of such and such an inconvenience, and therefore ought
not to prevail ; but if any general rule ought to prevail,
this is certainly one that is as fixed, formal, and universal
as any that can be stated in a Court of Justice ."
In Whyman v. Garth , 8 Ex. 807 , Pollock, C. B., said ,
" The parties are supposed to have agreed inter se that
the deed shall not be given in evidence without his [the
attesting witness ] being called to depose to the circum-
stances attending its execution."
In very ancient times, when the jury were witnesses as
to matter of fact, the attesting witnesses to deeds (if a
deed came in question ) would seem to have been sum-
moned with, and to have acted as a sort of assessors to,
the jury. See as to this, Bracton , fo . 38 a ; Fortescue de
Laudibus, ch . xxxii . with Selden's note ; and cases col-
lected from the Year-books in Brooke's Abridgment, tit.
Testmoignes.
For the present rule, and the exceptions to it, see 1 Ph.
Ev. 242-261 ; T. E. ss. 1637-1642 ; R. N. P. 147-150 ;
Best, ss. 220, &c.; { 1 Greenl. Ev. § 569 et seq. }
The old rule which applied to all attested documents
was restricted to those required to be attested by law, by
17 & 18 Vict. c . 125 , s . 26 , and 28 & 29 Vict. c. 18, ss.
1 & 7.
NOTE XXIX.

(TO ARTICLE 72.)

For these rules in greater detail, see { 1 Greenl. Ev.
§ 560 et seq.; } 1 Ph. Ev . 452-453, and 2 Ph. Ev. 272-289 ;
T. E. ss. 419-426 ; R. N. P. 8 & 9.
The principle of all the rules is fully explained in the
cases cited in the footnotes, more particularly in Dwyer
v. Collins, 7 Ex. 639. In that case it is held that the
NOTES. ] THE LAW OF EVIDENCE. 223

object of notice to produce is " to enable the party to

have the document in Court, and if he does not, to enable
his opponent to give parol evidence . . . to exclude the
argument that the opponent has not taken all reasonable
means to procure the original, which he must do before
he can be permitted to make use of secondary evidence "
(pp . 647-648) .

NOTE XXX.

(TO ARTICLE 75. )

Mr. Phillips (ii . 196) says, that upon a plea of nul tiel
record, the original record must be produced if it is in
the same Court.
Mr. Taylor (s . 1379) says, that upon prosecutions for
perjury assigned upon any judicial document the original
must be produced . The authorities given seem to me
hardly to bear out either of these statements. They
show that the production of the original in such cases in
the usual course , but not, I think, that it is necessary.
The case of Lady Dartmouth v . Roberts, 16 Ea. 334, is
too wide for the proposition for which it is cited . The
matter, however, is of little practical importance.

NOTE XXXI.

(TO ARTICLES 77 & 78. )

The learning as to exemplifications and office-copies
will be found in the following authorities : { 1 Greenl. Ev .
§ 501 et seq.; } Gilbert's Law of Evidence , 11–20 ; Buller,
Nisi Prius, 228, and following ; Starkie, 256-266 (fully
and very conveniently) ; 2 Ph . Ev. 196-200 ; T. E. ss .
1380-1384 ; R. N. P. 112-115. The second paragraph
of article 77 is founded on Appleton v. Braybrook, 6 M.
& S. 39.
As to exemplifications not under the Great Seal, it is
224 A DIGEST OF [NOTES.

remarkable that the Judicature Acts give no Seal to the

Supreme Court, or the High Court, or any of its divisions.

NOTE XXXII .

(TO ARTICLE 90. )

The distinction between this and the following article
is, that article 90 defines the cases in which documents
are exclusive evidence of the transactions which they
embody, while article 91 deals with the interpretation of
documents by oral evidence. The two subjects are so
closely connected together, that they are not usually
treated as distinct ; but they are so in fact . A and B
make a contract of marine insurance on goods, and re-
duce it to writing. They verbally agree that the goods
are not to be shipped in a particular ship, though the
contract makes no such reservation. They leave un-
noticed a condition usually understood in the business of
insurance, and they make use of a technical expression,
the meaning of which is not commonly known. The law
does not permit oral evidence to be given of the excep-
tion as to the particular ship . It does permit oral evi-
dence to be given to annex the condition ; and thus far
it decides that for one purpose the document shall, and
that for another it shall not, be regarded as exclusive
evidence of the terms of the actual agreement between
the parties . It also allows the technical term to be ex-
plained, and in doing so it interprets the meaning of the
document itself. The two operations are obviously
different, and their proper performance depends upon
different principles. The first depends upon the principle
that the object of reducing transactions to a written form
is to take security against bad faith or bad memory, for
which reason a writing is presumed as a general rule to
embody the final and considered determination of the
parties to it. The second depends on a consideration of
NOTES .] THE LAW OF EVIDENCE . 225

the imperfections of language, and of the inadequate

manner in which people adjust their words to the facts
to which they apply.
The rules themselves are not, I think, difficult either to
state, to understand , or to remember ; but they are by no
means easy to apply, inasmuch as from the nature of the
case an enormous number of transactions fall close on
one side or the other of most of them. Hence the expo-
sition of these rules, and the abridgment of all the illus-
trations of them which have occurred in practice , occupy
a very large space in the different text writers. They
will be found in {1 Greenl. Ev . § 275 et seq.; } 2 Ph. Ev.
332-424 ; T. E. ss . 1031-1110 ; Star. 648-731 ; Best (very
shortly and imperfectly), ss. 226-229 ; R. N. P. (an im-
mense list of cases) 17-35.
As to paragraph ( 4) , which is founded on the case of
Goss v. Lord Nugent, it is to be observed that the para-
graph is purposely so drawn as not to touch the question
of the effect of the Statute of Frauds. It was held in
effect in Goss v. Lord Nugent that if by reason of the
Statute of Frauds the substituted contract could not be
enforced, it would not have the effect of waiving part of
the original contract ; but it seems the better opinion
that a verbal rescission of a contract good under the Stat-
ute of Frauds would be good. See Noble v. Ward, L. R.
2 Ex. 135, and Pollock on Contracts, 411 , note (6) . A
contract by deed can be released only by deed, and this
case also would fall within the proviso to paragraph (4) .
The cases given in the illustrations will be found to
mark sufficiently the various rules stated . As to para-
graph (5) a very large collection of cases will be found .
in the notes to Wigglesworth v. Dallison, 1 S. L. C. 598-
628, but the consideration of them appears to belong
rather to mercantile law than to the Law of Evidence.
For instance, the question what stipulations are consistent
with, and what are contradictory to, the contract formed
15
226 A DIGEST OF [ NOTES.

by subscribing a bill of exchange, or the contract between

an insurer and an underwriter, are not questions of the
Law of Evidence.

NOTE XXXIII.
(TO ARTICLE 91. )
Perhaps the subject-matter of this article does not fall
strictly within the Law of Evidence, but it is generally
considered to do so ; and as it has always been treated
as a branch of the subject, I have thought it best to deal
with it.
The general authorities for the propositions in the text
are the same as those specified in the last note ; but the
great authority on the subject is the work of Vice-
Chancellor Wigram on Extrinsic Evidence. Article 91 ,
indeed, will be found, on examination, to differ from the
six propositions of Vice-Chancellor Wigram only in its
arrangement and form of expression , and in the fact that
it is not restricted to wills. It will, I think, be found , on
examination, that every case cited by the Vice-Chancellor
might be used as an illustration of one or the other of
the propositions contained in it.
It is difficult to justify the line drawn between the rule
as to cases in which evidence of expressions of intention
is admitted and cases in which it is rejected (paragraph 7,
illustrations (k), ( ), and paragraph 8, illustration (m) ) .
When placed side by side, such cases as Doe v. Hiscocks
(illustration k) and Doe v. Needs (illustration m ) pro-
duce a singular effect . The vagueness of the distinction
between them is indicated by the case of Charter v.
Charter, L. R. 2 P. & D. 315. In this case the testator
Forster Charter appointed " my son Forster Charter " his
executor. He had two sons, William Forster Charter
and Charles Charter, and many circumstances pointed to
the conclusion that the person whom the testator wished
to be his executor was Charles Charter. Lord Penzance
NOTES. ] THE LAW OF EVIDENCE . 227

not only admitted evidence of all the circumstances of

the case, but expressed an opinion (p . 319) that, if it
were necessary, evidence of declarations of intention
might be admitted under the rule laid down by Lord
Abinger in Hiscocks v. Hiscocks, because part of the
language employed ( " my son Charter " ) applied
correctly to each son, and the remainder, " Forster," to
neither. This mode of construing the rule would admit
evidence of declarations of intention both in cases falling
under paragraph 8, and in cases falling under paragraph 7,
which is inconsistent not only with the reasoning in the
judgment, but with the actual decision in Doe v. Hiscocks.
It is also inconsistent with the principles of the judgment
in the later case of Allgood v . Blake, L. R. 8 Ex. 160,
where the rule is stated by Blackburn , J., as follows : -
"In construing a will, the Court is entitled to put itself
in the position of the testator, and to consider all mate-
rial facts and circumstances known to the testator with
reference to which he is to be taken to have used the
words in the will, and then to declare what is the inten-
tion evidenced by the words used with reference to those
facts and circumstances which were (or ought to have
been) in the mind of the testator when he used those
words." After quoting Wigram on Extrinsic Evidence,
and Doe v. Hiscocks, he adds : " No doubt, in many cases
the testator has, for the moment, forgotten or overlooked
the material facts and circumstances which he well knew.
And the consequence sometimes is that he uses words
which express an intention which he would not have
wished to express, and would have altered if he had been
reminded of the facts and circumstances. But the Court
is to construe the will as made by the testator, not to
make a will for him ; and therefore it is bound to execute
his expressed intention, even if there is great reason to
believe that he has by blunder expressed what he did not
mean." The part of Lord Penzance's judgment above
228 A DIGEST OF [NOTES .

referred to was unanimously overruled in the House of

Lords ; though the Court, being equally divided as to the
construction of the will, refused to reverse the judgment,
upon the principle " præsumitur pronegante."
Conclusive as the authorities upon the subject are, it
may not, perhaps, be presumptuous to express a doubt
whether the conflict between a natural wish to fulfil the
intention which the testator would have formed if he had
recollected all the circumstances of the case ; the wish to
avoid the evil of permitting written instruments to be
varied by oral evidence ; and the wish to give effect to
wills, has not produced in practice an illogical compro-
mise. The strictly logical course, I think, would be
either to admit declarations of intention both in cases
falling under paragraph 7, and in cases falling under
paragraph 8, or to exclude such evidence in both classes
of cases, and to hold void for uncertainty every bequest
or devise which was shown to be uncertain in its applica-
tion to facts. Such a decision as that in Stringer v.
Gardiner, the result of which was to give a legacy to a
person whom the testator had no wish to benefit, and
who was not either named or described in his will ,
appears to me to be a practical refutation of the prin-
ciple or rule on which it is based.
Of course every document, whatever, must to some
extent be interpreted by circumstances. However accu-
rate and detailed a description of things and persons may
be, oral evidence is always wanted to show that persons
and things answering the description exist ; and therefore
in every case whatever, every fact must be allowed to
be proved to which the document does, or probably may,
refer ; but if more evidence than this is admitted, if the
Court may look at circumstances which affect the proba-
bility that the testator would form this intention or that,
why should declarations of intention be excluded ? If
the question is, " What did the testator say ? " why should
NOTES. ] THE LAW OF EVIDENCE. 229

the Court look at the circumstances that he lived with

Charles, and was on bad terms with William ? How can
any amount of evidence to show that the testator intended
to write " Charles " show that what he did write means
" Charles "? To say that " Forster " means " Charles,"
is like saying that " two " means " three ." If the question
is, " What did the testator wish ? " why should the Court
refuse to look at his declarations of intention ? And what
third question can be asked ? The only one which can
be suggested is, " What would the testator have meant
if he had deliberately used unmeaning words ? " The
only answer to this would be, he would have had no
meaning, and would have said nothing, and his bequest
should be pro tanto void .

NOTE XXXIV.
(TO ARTICLE 92. )
See 2 Ph. Ev. 364 ; Star. 726 ; T. E. (from Greenleaf) ,
s. 1051 ; {1 Greenl. Ev. § 279.} Various cases are quoted
by these writers in support of the first part of the propo-
sition in the article ; but R. v. Cheadle is the only one
which appears to me to come quite up to it. They are
all settlement cases.

NOTE XXXV .

(TO CHAPTER XIII .)

In this and the following chapter many matters usually
introduced into treatises on evidence are omitted , because
they appear to belong either to the subject of pleading,
or to different branches of Substantive Law. For instance,
the rules as to the burden of proof of negative averments
in criminal cases ( 1 Ph. Ev. 555, &c.; 3 Russ . on Cr.
276-279) belong rather to criminal procedure than to evi-
dence. Again , in every branch of Substantive Law there
are presumptions, more or less numerous and important,
230 A DIGEST OF [NOTES.

which can be understood only in connection with those

branches of the law. Such are the presumptions as to
the ownership of property, as to consideration for a bill
of exchange, as to many of the incidents of the contract
of insurance . Passing over all these, I have embodied in
Chapter XIV . those presumptions only which bear upon
the proof of facts likely to be proved on a great variety
of different occasions, and those estoppels only which
arise out of matters of fact, as distinguished from those
which arise upon deeds or judgments.

NOTE XXXVI.
(TO ARTICLE 94.)
The presumption of innocence belongs principally to
the Criminal Law, though it has, as the illustrations show,
a bearing on the proof of ordinary facts. The question,
" What doubts are reasonable in criminal cases ? " belongs
to the Criminal Law.

NOTE XXXVII.
(TO ARTICLE 101.)
The first part of this article is meant to give the effect
of the presumption, omnia esse rite acta, { 1 Greenl. Ev.
§ 20 ;} 1 Ph. Ev. 480, &c.; T. E. ss. 124, &c.; Best, s.
353, &c. This, like all presumptions, is a very vague and
fluid rule at best, and is applied to a great variety of dif-
ferent subject-matters.

NOTE XXXVIII.
(TO ARTICLES 102-105. )
These articles embody the principal cases of estoppels
in pais, as distinguished from estoppels by deed and by
record. As they may be applied in a great variety of
ways and to infinitely various circumstances, the appli-
cation of these rules has involved a good deal of detail.
NOTES. ] THE LAW OF EVIDENCE . 231

The rules themselves appear clearly enough on a careful

examination of the cases. The latest and most extensive
collection of cases is to be seen in 2 S. L. C. 851–880,
where the cases referred to in the text and many others
are abstracted. See, too, 1 Ph. Ev. 350–353 ; T. E. ss.
88-90, 776, 778 ; Best, s. 543.
Article 102 contains the rule in Pickard v . Sears, 6 A.
& E. 474, as interpreted and limited by Parke, B., in
Freeman v. Cooke, 6 Bing. 174, 179. The second para-
graph of the article is founded on the application of this
rule to the case of a negligent act causing fraud. The
rule, as expressed , is collected from a comparison of the
following cases : Bank of Ireland v. Evans, 5 H. L. C.
389 ; Swan v. British and Australasian Company, which
was before three courts, see 7 C. B. N. s. 448 ; 7 H. & N.
603 ; 2 H. & C. 175, where the judgment of the majority
of the Court of Exchequer was reversed ; and Halifax
Guardians v. Wheelwright, L. R. 10 Ex. 183, in which all
the cases are referred to. All of these refer to Young v.
Grote (4 Bing. 253) , and its authority has always been
upheld, though not always on the same ground. The
rules on this subject are stated in general terms in Carr
v. L. & N. W. Railway, L. R. 10 C. P. 316–317.
It would be difficult to find a better illustration of the
gradual way in which the judges construct rules of evi-
dence, as circumstances require it, than is afforded by a
study of these cases.

NOTE XXXIX.

(TO CHAPTER XV.)

The law as to the competency of witnesses was for-

merly the most, or nearly the most, important and exten-
sive branch of the Law of Evidence. Indeed, rules as to
the incompetency of witnesses, as to the proof of docu-
ments, and as to the proof of some particular issues, are
232 A DIGEST OF [NOTES.

nearly the only rules of evidence treated of in the older

authorities. Great part of Bentham's " Rationale of Ju-
dicial Evidence " is directed to an exposure of the funda-
mentally erroneous nature of the theory upon which these
rules were founded ; and his attack upon them has met
with a success so nearly complete that it has itself be-
come obsolete. The history of the subject is to be found
in Mr. Best's work, book i . part i. ch . ii . ss. 132–188 ;
{ 1 Greenl. Ev. §§ 386 et seq. } See, too, T. E. 1210–1257 ,
and R. N. P. 177-181 . As to the old law, see 1 Ph. Ev.
1-104.
NOTE XL.

(TO ARTICLE 107.)

The authorities for the first paragraph are given at
great length in Best, ss. 146-165. See, too, T. E. s . 1240 ;
{ 1 Greenl. Ev. §§ 365 et seq.} As to paragraph 2, see
Best, s. 148 ; 1 Ph. Ev. 7 ; 2 Ph. Ev. 457 ; T. E. s . 1241 .
The concluding words of the last paragraph are framed
with reference to the alteration in the law as to the com-
petency of witnesses made by 32 & 33 Vict. c. 68, s. 4.
The practice of insisting on a child's belief in punishment
in a future state for lying as a condition of the admissi-
bility of its evidence leads to anecdotes and to scenes
little calculated to increase respect either for religion or
for the administration of justice. The statute referred
to would seem to render this unnecessary . If a person
who deliberately and advisedly rejects all belief in God
and a future state is a competent witness, à fortiori, a
child who has received no instructions on the subject
must be competent also.

NOTE XLI.

(TO ARTICLE 108. )

At Common Law the parties and their husbands and
wives were incompetent in all cases. This incompetency
NOTES. ] THE LAW OF EVIDENCE. 233

was removed as to the parties in civil, but not in criminal

cases, by 14 & 15 Vict. c. 99, s. 2 ; and as to their hus-
bands and wives, by 16 & 17 Vict . c. 83, ss . 1, 2. But sec. 2
expressly reserved the Common Law as to criminal cases
and proceedings instituted in consequence of adultery.
The words relating to adultery were repealed by 32 &
33 Vict. c. 68, s. 3, which is the authority for the next
article.
Persons interested and persons who had been convicted
of certain crimes were also incompetent witnesses, but
their incompetency was removed by 6 & 7 Vict. c. 85.
The text thus represents the effect of the Common Law
as varied by four distinct statutory enactments.
By 5 & 6 Will. IV. c. 50, s. 100, inhabitants, &c ., were
made competent to give evidence in prosecutions of par-
ishes for non-repair of highways, and this was extended
to some other cases by 3 & 4 Vict. c. 26. These enact-
ments, however, have been repealed by 37 & 38 Vict.
c. 35, and c. 96 (the Statute Law Revision Acts, 1874) ,
respectively. Probably this was done under the impres-
sion that the enactments were rendered obsolete by 14 &
15 Vict. c. 99, s. 2, which made parties admissible wit-
nesses. A question might be raised upon the effect of
this, as sec. 3 expressly excepts criminal proceedings, and
a prosecution for a nuisance is such a proceeding. The
result would seem to be, that in cases as to the repair of
highways, bridges, &c., inhabitants and overseers are in-
competent, unless, indeed , the Courts should hold that
they are substantially civil proceedings, as to which see
R. v. Russell, 3 E. & B. 942 .

NOTE XLII.

(TO ARTICLE 111.)

The cases on which these articles are founded are only
Nisi Prius decisions ; but as they are quoted by writers of
234 A DIGEST OF [NOTES.

eminence ({ 1 Greenl. Ev. § 249 ; } 1 Ph. Ev. 139 ; T. E.

s. 859) , I have referred to them .
In the trial of Lord Thanet, for an attempt to rescue
Arthur O'Connor, Serjeant Shepherd, one of the special
commissioners, before whom the riot took place in court
at Maidstone, gave evidence, R. v. Lord Thanet, 27 S. T.
836.
I have myself been called as a witness on a trial for
perjury to prove what was said before me when sitting as
an arbitrator. The trial took place before Mr. Justice
Hayes at York, in 1869.
As to the case of an advocate giving evidence in the
course of a trial in which he is professionally engaged ,
see several cases cited and discussed in Best, ss. 184–186 .
In addition to those cases, reference may be made to
the trial of Horne Tooke for a libel in 1777, when he
proposed to call the Attorney-General (Lord Thurlow) ,
20 S. T. 740. These cases do not appear to show more
than that, as a rule , it is for obvious reasons improper
that those who conduct a case as advocates should be
called as witnesses in it. Cases, however, might occur
in which it might be absolutely necessary to do so. For
instance, a solicitor engaged as an advocate might, not at
all improbably, be the attesting witness to a deed or will.

NOTE XLIII.

(TO ARTICLE 115.)

This article sums up the rule as to professional commu-

nications, every part of which is explained at great length,
and to much the same effect. { 1 Greenl. Ev. § 237 et seq.;}
1 Ph. Ev. 105–122 ; T. E. ss . 832-839 ; Best, s. 581. It is
so well established and so plain in itself that it requires
only negative illustrations. It is stated at length by Lord
Brougham in Greenough v. Gaskell, 1 M. & K. 98.
NOTES. ] THE LAW OF EVIDENCE. 235

NOTE XLIV.

(TO ARTICLE 117.)

The question whether clergymen, and particularly
whether Roman Catholic priests, can be compelled to dis-
close confessions made to them professionally has never
been solemnly decided in England, though it is stated bythe
text writers that they can. { 1 Greenl . Ev. § 247.} See 1 Ph.
Ev. 109 ; T. E. ss. 837-838 ; R. N. P. 190 ; Starkie, 40. The
question is discussed at some length in Best, ss. 583-584 ;
and a pamphlet was written to maintain the existence of
the privilege by Mr. Baddeley in 1865. Mr. Best shows
clearly that none of the decided cases are directly in
point, except Butler v. Moore (MacNally, 253-254 ) , and
possibly R. v. Sparkes, which was cited by Garrow in argu-
ing Du Barré v. Livette before Lord Kenyon (1 Pea. 108) .
The report of his argument is in these words : " The
prisoner being a Papist, had made a confession before a
Protestant clergyman of the crime for which he was in-
dicted ; and that confession was permitted to be given in
evidence on the trial (before Buller, J.), " and he was
convicted and executed." The report is of no value, rest-
ing as it does on Peake's note of Garrow's statement of a
case in which he was probably not personally concerned ;
and it does not appear how the objection was taken , or
whether the matter was ever argued. Lord Kenyon ,
however, is said to have observed : " I should have paused
before I admitted the evidence there admitted ."
Mr. Baddeley's argument is in a few words, that the
privilege must have been recognized when the Roman
Catholic religion was established by law, and that it has
never been taken away.
I think that the modern Law of Evidence is not so old
as the Reformation , but has grown up by the practice of
the Courts, and by decisions in the course of the last two
centuries. It came into existence at a time when excep-
236 A DIGEST OF [NOTES.

tions in favor of auricular confessions to Roman Catholic

priests were not likely to be made. The general rule is
that every person must testify to what he knows. An
exception to the general rule has been established in
regard to legal advisers, but there is nothing to show
that it extends to clergymen, and it is usually so stated
as not to include them. This is the ground on which the
Irish Master of the Rolls ( Sir Michael Smith ) decided the
case of Butler v. Moore in 1802 (MacNally, Ev. 253-254) .
It was a demurrer to a rule to administer interrogatories
to a Roman Catholic priest as to matter which he said he
knew, if at all, professionally only. The Judge said, " It
was the undoubted legal constitutional right of every
subject of the realm who has a cause depending, to call
upon a fellow-subject to testify what he may know of the
matters in issue ; and every man is bound to make the
discovery, unless specially exempted and protected by
law. It was candidly admitted, that no special exemp-
tion could be shown in the present instance, and analagous
cases and principles alone were relied upon.'99 The anal-
ogy, however, was not considered sufficiently strong.
Several judges have, for obvious reasons, expressed
the strongest disinclination to compel such a disclosure.
Thus Best, C. J. , said, " I, for one, will never compel a
clergyman to disclose communications made to him by
a prisoner ; but if he chooses to disclose them I shall
receive them in evidence ( obiter, in Broad v. Pitt, 3 C. &
P. 518). Alderson , B., thought ( rather it would seem as
a matter of good feeling than as a matter of positive law)
that such evidence should not be given. R. v. Griffin ,
6 Cox, Cr. Ca. 219.

NOTE XLV.
(TO ARTICLES 126, 127 , 128.)
These articles relate to matters almost too familiar to
require authority, as no one can watch the proceedings of
NOTES . ] THE LAW OF EVIDENCE . 237

any Court of Justice without seeing the rules laid down

in them continually enforced . The subject is discussed
at length in 2 Ph. Ev. pt . 2 , chap. x. p . 456, &c.; { 1 Greenl.
Ev. § 431 et seq.;} T. E. s. 1258, &c.; see, too , Best,
s. 631 , &c . In respect to leading questions, it is said
"It is entirely a question for the presiding judge whether
or not the examination is being conducted fairly :"
R. N. P. 182.

NOTE XLVI.

(TO ARTICLE 129.)

This article states what is now the well-established
practice of the Courts, and it never was more strikingly
illustrated than in the case referred to in the illustration.
But the practice which it represents is modern ; and it
may perhaps be doubted whether upon solemn argument
it would be held that a person who is called to prove a
minor fact, not really disputed , in a case of little impor-
tance, thereby exposes himself to having every transaction
of his past life, however private, inquired into by persons
who may wish to serve the basest purposes of fraud or
revenge by doing so. Suppose, for instance, a medical
man were called to prove the fact that a slight wound
had been inflicted , and been attended to by him, would
it be lawful, under pretence of testing his credit, to com-
pel him to answer upon oath a series of questions as to
his private affairs, extending over many years, and tend-
ing to expose transactions of the most delicate and secret
kind , in which the fortune and character of other persons
might be involved ? If this is the law, it should be
altered . The following section of the Indian Evidence
Act (1 of 1872) may perhaps be deserving of considera-
tion. After authorizing, in sec. 147, questions as to the
credit of the witness, the Act proceeds as follows in
sec. 148 :
238 A DIGEST OF [ NOTES.

"If any such question relates to a matter not relevant

to the suit or proceeding, except in so far as it affects the
credit of the witness by injuring his character, the Court
shall decide whether or not the witness shall be compelled
to answer it, and may, if it thinks fit, warn the witness
that he is not obliged to answer it. In exercising this
discretion, the Court shall have regard to the following
considerations :
"(1) Such questions are proper if they are of such a
nature that the truth of the imputation conveyed by
them would seriously affect the opinion of the Court as
to the credibility of the witness on the matter to which
he testifies .
" (2 ) Such questions are improper if the imputation
which they convey relates to matters so remote in time
or of such a character that the truth of the imputation
would not affect, or would affect in a slight degree, the
opinion of the Court as to the credibility of the witness
on the matter to which he testifies.
"(3) Such questions are improper if there is a great
disproportion between the importance of the imputation
made against the witness's character and the importance
of his evidence."

NOTE XLVII.

(TO ARTICLE 131. )

The words of the two sections of 17 & 18 Vict. c. 125,

meant to be represented by this article are as follows :
22. A party producing a witness shall not be allowed
to impeach his credit by general evidence of bad charac-
ter ; but he may, in case the witness shall, in the opinion
of the judge, prove adverse, contradict him by other
evidence, or, by leave of the judge, prove that he has
made at other times a statement inconsistent with his
present testimony ; but before such last-mentioned proof
NOTES. ] THE LAW OF EVIDENCE. 239

can be given, the circumstances of the supposed state-

ment, 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.
23. If a witness, upon cross-examination as to a former
statement made by him relative to the subject-matter of
the cause, and inconsistent with his present testimony,
does not distinctly admit that he made such statement,
proof may be given that he did in fact make it ; but be-
fore 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.
The sections are obviously ill-arranged ; but apart from
this, s. 22 is so worded as to suggest a doubt whether a
party to an action has a right to contradict a witness
called by himself whose testimony is adverse to his in-
terests. The words " he may, in case the witness shall,
in the opinion of the judge, prove adverse, contradict
him by other evidence," suggest that he cannot do so
unless the judge is of that opinion . This is not, and
never was, the law. In Greenough v . Eccles, 5 C. B.
N. s. p. 802, Williams, J., says : "The law was clear that
you might not discredit your own witness by general
evidence of bad character ; but you might, nevertheless,
""
contradict him by other evidence relevant to the issue ;
and he adds (p. 803) : " It is impossible to suppose that
the Legislature could have really intended to impose any
fetter whatever on the right of a party to contradict his
own witness by other evidence relevant to the issue — a
right not only established by authority, but founded on
the plainest good sense."
Lord Chief Justice Cockburn said of the 22d section :
" There has been a great blunder in the drawing of it,
and on the part of those who adopted it." . . . “ Per-
haps the better course is to consider the second branch
240 A DIGEST OF [NOTES .

of the section as altogether superfluous and useless

(p. 806). " On this authority I have omitted it.
For many years before the Common-Law Procedure
Act of 1854 it was held , in accordance with Queen Caro-
line's Case (2 Br. & Bing. 286-291 ) , that a witness could
not be cross-examined as to statements made in writing,
unless the writing had been first proved. The effect of
this rule in criminal cases was that a witness could not
be cross-examined as to what he had said before the
magistrates without putting in his deposition , and this
gave the prosecuting counsel the reply. Upon this sub-
ject rules of practice were issued by the judges in 1837,
when the Prisoner's Counsel Act came into operation.
The rules are published in 7 C. & P. 676. They would
appear to have been superseded by the 28 Vict. c. 18.

NOTE XLVIII.

The Statute Law relating to the subject of evidence

may be regarded either as voluminous or not, according
to the view taken of the extent of the subject.
The number of statutes classified under the head
" Evidence " in Chitty's Statutes is 35. The number
referred to under that head in the Index to the Revised
Statutes is 39. Many of these, however, relate only to
the proof of particular documents, or matters of fact
which may become material under special circumstances.
Of these I have noticed a few which, for various reasons ,
appeared important. Such are : 34 & 35 Vict. c. 112, s.
19 (see article 11 ) ; 9 Geo. IV. c. 14, s. 1, amended by 19
& 20 Vict. c. 97, s. 13 ( see article 17 ) ; 9 Geo. IV. c. 14,
s. 3; 3 & 4 Will. IV. c. 42 (see article 28) ; 11 & 12
Vict. c. 42, s . 17 (article 33) ; 30 & 31 Vict. c. 35, s. 6
(article 34) ; 7 James I. c. 12 (article 38) ; 7 & 8 Geo. IV.
c. 28, s. 11 , amended by 6 & 7 Will. IV. c. 111 ; 24 & 25
NOTES.] THE LAW OF EVIDENCE. 241

Vict. c. 96, s. 116 ; 24 & 25 Vict. c. 90, s. 37 (see article

56) ; 8 & 9 Vict. c. 10, s . 6 ; 35 & 36 Vict. c . 6, s. 4 (article
121 ) ; 7 & 8 Will. III. c. 3, ss . 2-4 ; 39 & 40 Geo . III. c.
93 (article 122).
Many, again, refer to pleading and practice rather than
evidence, in the sense in which I employ the word. Such
are the Acts which enable evidence to be taken on com-
mission if a witness is abroad, or relate to the administra-
tion of interrogatories .
Those which relate directly to the subject of evidence,
as defined in the Introduction, are the ten following
Acts : -
1.

46 Geo. III. c. 37 (1 section ; see article 120 ) . This

Act qualifies the rule that a witness is not bound to
answer questions which criminate himself by declaring
that he is not excused from answering questions which
fix him with a civil liability.

2.
6 & 7 Vict. c. 85. This Act abolishes incompetency
from interest or crime (4 sections ; see article 106).

3.
8 & 9 Vict. c. 113 : " An Act to facilitate the admission
in evidence of certain official and other documents " (8th
August, 1845 ; 7 sections) .
S. 1 , after preamble reciting that many documents are, by
various Acts, rendered admissible in proof of certain par-
ticulars if authenticated in a certain way, enacts inter alia
that proof that they were so authenticated shall not be re-
quired ifthey purport to be so authenticated. (Article 79.)
S. 2. Judicial notice to be taken of signatures of cer-
tain judges. (Article 58 , latter part of clause 8. )
S. 3. Certain Acts of Parliament, proclamations, &c.,
16
242 A DIGEST OF [NOTES .

may be proved by copies purporting to be Queen's printer's

copies. (Article 81. )
S. 4. Penalty for forgery, &c. This is omitted as
belonging to the Criminal Law.
Ss. 5, 6, 7. Local extent and commencement of Act.

4.
14 & 15 Vict. c. 99 : " An Act to amend the Law of
Evidence," 7th August, 1851 (20 sections) :-
S. 1 repeals part of 6 & 7 Vict. c. 85, which restricted
the operation of the Act.
S. 2 makes parties admissible witnesses, except in cer-
tain cases. (Effect given in articles 106 & 108.)
S. 3. Persons accused of crime, and their husbands and
wives, not to be competent. (Article 108.)
S. 4. The first three sections not to apply to proceed-
ings instituted in consequence of adultery. Repealed by
32 & 33 Vict. c. 68. (Effect of repeal, and of s . 3 of the
last-named Act given in article 109.)
S. 5. None of the sections above mentioned to affect
the Wills Act of 1838, 7 Will. IV. & 1 Vict. c. 26.
(Omitted as part of the Law of Wills. )
S. 6. The Common-Law Courts authorized to grant
inspection of documents. (Omitted as part of the Law
of Civil Procedure.)
S. 7. Mode of proving proclamations, treaties, &c.
(Article 84.)
S. 8. Proof of qualification of apothecaries. (Omitted
as part of the law relating to medical men. )
Ss. 9, 10, 11. Documents admissible either in England
or in Ireland, or in the colonies, without proof of seal, &c.,
admissible in all. (Article 80.)
S. 12. Proof of registers of British ships. (Omitted as
part of the law relating to shipping.)
S. 13. Proof of previous convictions. (Omitted as be-
longing to Criminal Procedure.)
NOTES. ] THE LAW OF EVIDENCE . 243

S. 14. Certain documents provable by examined copies,

or copies purporting to be duly certified . (Article 79, last
paragraph.)
S. 15. Certifying false documents a misdemeanor.
(Omitted as belonging to Criminal Law.)
S. 16. Who may administer oaths. (Article 125. )
S. 17. Penalties for forging certain documents.
(Omitted as belonging to the Criminal Law.)
S. 18. Act not to extend to Scotland. (Omitted. )
S. 19. Meaning of the word " Colony." (Article 80,
note 1.)
S. 20. Commencement of Act.

5.
17 & 18 Vict. c. 125. The Common-Law Procedure Act
of 1854 contained several sections which altered the Law
of Evidence .
S. 22. How far a party may discredit his own witness.
(Articles 131 , 133 ; and see Note XLVII .)
S. 23. Proof of contradictory statements by a witness
under cross-examination. (Article 131.)
S. 24. Cross-examination as to previous statements in
writing. (Article 132.)
S. 25. Proof of a previous conviction of a witness may
be given. (Article 130 (1) .)
S. 26. Attesting witnesses need not be called unless
writing requires attestation by law. (Article 72. )
S. 27. Comparison of disputed handwritings. ( Articles
49 and 52.)
After several Acts, giving relief to Quakers, Moravians,
and Separatists, who objected to take an oath , a general
measure was passed for the same purpose in 1861 .

6.
24 & 25 Vict. c. 66 (1st August, 1861, 3 sections) :-
S. 1. Persons refusing to be sworn from conscientious
244 A DIGEST OF [NOTES.

motives may make a declaration in a given form. (Article

123.)
S. 2. Falsehood upon such a declaration punishable as
perjury. (Do.)
S. 3. Commencement of Act.

7.

28 Vict. c. 18 (9th May, 1865 , 10 sections) :-

S. 1. Sections 3-8 to apply to all courts and causes,
criminal as well as civil.
S. 3. Re-enacts 17 & 18 Vict. c. 125, s . 22.
S. 4. 99 99 "" s. 23.
S. 5. ‫وو‬ "" 99 8. 24.
S. 6. "" 99 99 8. 25.
S. 7. 8. 26.
88

99 99 ""
S. 8. "9 99 8. 27.

The effect of these sections is given in the articles

above referred to by not confining them to proceedings
under the Common-Law Procedure Act, 1854.
The rest of the Act refers to other subjects.

8.
31 & 32 Vict. c. 37 (25th June, 1868, 6 sections) :-
S. 1. Short title.
S. 2. Certain documents may be proved in particular
ways. ( Art. 83, and for schedule referred to see note to
the article .)
S. 3. The Act to be in force in the colonies. (Article
83.)
S. 4. Punishment of forgery. (Omitted as forming part
of the Criminal Law.)
S. 5. Interpretation clauses embodied (where neces-
sary) in article 83 .
S. 6. Act to be cumulative on Common Law. (Implied
in article 73. )
NOTES. ] THE LAW OF EVIDENCE. 245

9.

32 & 33 Vict. c. 68 (9th August, 1869, 6 sections) : -

S. 1. Repeals part of 14 & 15 Vict. c. 99, s. 4, and part
of 16 & 17 Vict . c . 83, s . 2. (The effect of this repeal is
given in article 109 ; and see Note XLI .)
S. 2. Parties competent in actions for breach of promise
of marriage, but must be corroborated. (See articles 106
and 121.)
S. 3. Husbands, and wives competent in proceedings in
consequence of adultery, but not to be compelled to answer
certain questions. (Article 109.)
S. 4. Atheists rendered competent witnesses. (Articles
106 and 123.)
S. 5. Short title.
S. 6. Act does not extend to Scotland.

10.

33 & 34 Vict. c. 49 (9th August, 1870, 3 sections) : -

S. 1. Recites doubts as to meaning of " Court " and
"Judge " in s. 4 of 32 & 33 Vict. c. 68, and defines the
meaning of those words. (The effect of this provision is
given in the definitions of " Court " and " Judge " in
article 1 , and in s. 125.)
S. 2. Short title.
S. 3. Act does not extend to Scotland .
These are the only Acts which deal with the Law of
Evidence as I have defined it. It will be observed that
they relate to three subjects only - the competency of
witnesses, the proof of certain classes of documents, and
certain details in the practice of examining witnesses.
These details are provided for twice over, namely, once
in 17 & 18 Vict. c . 125, ss . 22-27, both inclusive, which
concern civil proceedings only ; and again in 28 Vict. c. 18,
ss. 3–8, which re-enact these provisions in relation to pro-
ceedings of every kind.
246 THE LAW OF EVIDENCE . [NOTES.

Thus, when the Statute Law upon the subject of Evi-

dence is sifted and put in its proper place as part of the
general system, it appears to occupy a very subordinate
position in it. The ten statutes above mentioned are the
only ones which really form part of the Law of Evidence,
and their effect is fully given in twenty¹ articles of the
Digest, some of which contain other matter besides.

1 1 , 49, 52, 58, 72, 79, 80, 81, 83, 84, 106, 108, 109, 120, 121, 123,
125, 131 , 132, 133.
IN DE X.

Accomplice, evidence of, 177.

Acts of Parliament, not public, how proved , 133.
public, how proved, 133.
"Admission," definition of, 65.
by one joint contractor in writing not binding on re-
mainder to bar Statute of Limitations , 68.
by partners and joint contractors, 68 ; illustration of, 69.
by persons having a common interest, 68 ; illustration
of, 69.
by person referred to by party, 71 ; illustration of, 71.
cannot be made in criminal cases, 117.
made under duress, 72.
made without prejudice, 72.
principal not agent of surety to make, 68 ; illustration
of, 70.
statement by agent when not, 68 ; illustration of, 70.
statement made by person interested in action, or privy,
when, 66 ; illustration of, 67.
statement of person sued in a representative character
when, 66.
Admissions by agents, 66 ; illustrations of, 67.
by barrister or solicitor, 67.
by strangers to action when relevant, 71.
by whom, may be made, 64 ; illustrations of, 66.
" statements by barrister or solicitor when not, 67.
Advocates privileged as to certain questions , 168.
Affirmation and declaration in place of oath, form of, 179.

Bankers' books , judges ' powers as to, 93.

Bills of lading, 165.
Bodily feeling, acts showing, relevant, 57.
statements showing, relevant, 57.

Certified copies of documents admissible, 131 , 132.

Character as affecting damages in civil cases generally irrelevant, 112.
248 INDEX.

Character, evidence of general reputation and not of particular acts

may be given, 112.
generally irrelevant, 111.
good, when evidence given of, in particular cases, previous
convictions may be proved , 112.
in criminal proceedings when relevant, 111.
Clergymen compelled to disclose confidential communications, 173.
Communications during marriage privileged, 168.
Complaint of person against whom crime committed , fact of, relevant,
but terms not, 51 ; illustration of, 52.
" Conclusive proof," definition of, 36.
Conduct of person against whom crime committed, relevancy of facts
showing, 51 ; illustration of, 51.
" Confession," definition of, 72.
facts discovered in consequence of, though improperly
obtained, relevant, 73 ; illustration of, 74.
made by accused person without warning, 76.
made in consequence of deception, relevancy of, 76.
made under promise of secrecy, relevancy of, 76.
made when drunk, relevancy of, 76.
to persons in authority, 72.
when impression produced by threat, inducement, or
promise is removed , 73 ; illustration of, 74.
when made as a religious duty, 72 ; illustration of, 73.
when made by inducement collateral to the proceeding,
72; illustration of, 73.
when made to a person not in authority, 72 ; illustration
of, 73.
when not deemed voluntary, 72 ; illustration of, 73.
when relevant, 72 ; illustration of, 73.
Confessions made on oath when relevant, 75 ; illustration of, 76.
made on oath when witness improperly compelled to
answer, 75.
Conspirators, acts of, 46.
judge must be satisfied of primâ facie case against, 46.
-, relevancy of facts as against, 46 ; illustration of, 46.
Copies of documents when equivalent to exemplifications , 131.
Corroboration of mother of bastard child required, 177.
of plaintiff required in breach of promise of marriage,
176.
required when evidence given by accomplice, 177.
Course of business , relevancy of, 63 ; illustrations of, 63.
Credit of witness, impeaching, 189.
Cross-examination of witnesses , 183.
INDEX . 249

Cross-examination, to what must be directed , 184.

-, questions lawful in, 185 ; illustration of, 185.
as to inconsistent statements, 187.
as to statements in writing, 189.
Custom , relevancy of facts as to , 49 ; illustrations of, 49.

Death, presumption of, 159.

Declaration against interest, endorsement of payment on bond, 81.
against interest, endorsement of payment on bond by
deceased person, 82.
against interest not relevant unless interest pecuniary or
proprietary, 82 ; illustration of, 83.
against interest pecuniary or proprietary, relevancy of, 81.
against interest when not relevant, 81 ; illustrations of, 83.
against interest when relevant, 81 ; illustrations of, 83.
as to general right relevant when made by persons having
means of knowledge, 85.
as to public right relevant by whomever made, 85.
by testator as to contents of will relevant, 84.
2 dying, as to cause of death, when relevant, 77 ; illustra-
tions of, 78.
, dying, not irrelevant because intended to be made as
deposition, 77 ; illustration of, 78.
irrelevant except made in ordinary course of business or
duty, 79 ; illustrations of, 80.
made in course of business, relevancy of, 79 ; illustrations
of, 80.
made in discharge of professional duty, relevancy of,
79; illustrations of, 80.
when oath not binding, form of, 179.
Declarations as to facts from which public rights may be inferred
not relevant, 85 ; illustration of, 86.
as to pedigree when relevant, 87.
by whom to be made, 87.
conditions under which they are to be made, 87, 88 ;
illustrations of, 88.
as to public or general rights relevant, 85 ; illustrations
of, 86.
relevant under Articles 25-33, what may be proved in
reference to, 191.
Definition of terms, 35.
Depositions before magistrates, when relevant, 194.
when irrelevant, 194.
judge may reject, and postpone trial, 195.
250 INDEX.

Depositions, same objection may be made to reading, as when origin-

ally taken, 194.
under Merchant Shipping Act, 1854, when admissible,
196, 197 ; how to be taken, 197.
under 30 & 31 Vict. c . 35, s . 6, when admissible, 195.
"Document," definition of, 35.
date of, presumption as to, 138 ; illustrations of, 138.
person other than party to, may prove fact not vary-
ing or altering right or liability, 150 ; illustrations of,
151.
-, public , may be proved by examined copy, 129.
-, stamp of, presumption as to , 139.
used to refresh memory, 191.
using, as evidence when production refused on notice,
193.
when called for and produced and inspected must be
given in evidence if party producing requires it, 193.
66'Documentary evidence," definition of, 36.
of contracts, 142.
cannot be varied by oral evidence, 142.
exceptions, 142, 143 ; illustrations of, 144.
Documents admissible throughout the Queen's dominions, 132.
" certified copies of, admissible, 131 , 132.
construction of, what evidence may be given, 146, 147 ;
illustrations of, 148, 149.
contents of, when irrelevant, 64.
how proved by primary evidence, 121.
" notice to produce, rules as to, 127.
not required by law to be attested, proof of, 124.
persons entitled to refuse production of, not compelled
to give evidence of contents, 174.
presumption as to alteration of, 140.
−, production of, when another could refuse to produce,
174.
proof of execution of, when required to be attested, 121,
122.
proof of, must be by primary evidence, 121.
exceptions, 122.
" proof of, when attesting witness denies execution, 124.
-, proof of, when attesting witness need not be called,
122.
" public, proof of, 129.
public, proved by production from proper custody,
129.
INDEX. 251

Documents thirty years old, presumption as to, 139.

when secondary evidence of contents may be given, 125,
128.

Entries in bankers' books, when relevant, 92 ; exceptions to, 93.

Entry in public record made in performance of duty relevant, 91.
Estoppel by conduct, 161 ; illustrations of, 162, 163.
of acceptor of bill of exchange, 164.
of bailee, agent, and licensee, 164.
of tenant or licensee, 163.
" Evidence," definition of, 35.
as to affairs of state, 169.
false, on affirmation or declaration punishable as per-
jury, 180.
, improper admission of, 198.
" improper rejection of, 198.
in former proceedings when relevant, 89.
conditions under which it may be given, 89.
need not be given of admitted facts, 117.
oral, how taken , 179.
" oral, may be taken before an examiner, 180.
oral, may be taken on affidavit, 181 .
oral, may be taken under a commission, 181.
oral, must be direct, 119 .
oral, not excluded by a documentary memorandum of
fact, 144.
oral, reduced to writing, when may be objected to,
182.
-, proof of facts by oral, 119.
to be on oath, or affirmation and declaration, 179.
"Evidence, secondary," definition of, 124.
Examination of witnesses , 182.
Examined copy of public document, what is, 129.
Exemplifications, what are, 130.
Experts, facts bearing on opinions of, 106 ; illustrations of, 106, 107.
-, opinions of, on points of science and art, 104.

"Fact," definition of, 35.

that particular person held particular office when relevant, 64.
" Facts in issue," definition of, 36.
in issue and relevant to issue may be proved, 41 ; illustration
of, 43.
necessary to introduce or explain relevant facts, relevancy of,
52; illustrations of, 53, 54.
252 INDEX.

Facts necessary to support or rebut an inference suggested by fact

in issue, relevancy of, 52 ; illustrations of, 53, 54.
of which Court takes judicial notice, 114-116.
of which Court takes judical notice need not be proved, 116.
relevant to facts in issue may be proved, 41 ; illustration of, 43.
showing system, relevancy of, 61 ; illustrations of, 62.
similar to but unconnected with the facts in issue when rele-
vant, 55 ; illustrations of, 55.
supporting or contradicting opinions of experts relevant, 106 ;
illustrations of, 107.
too remote may be excluded by judge, 41.
which establish identity of any thing or person, relevancy of,
53 ; illustration of, 53.
which fix time or place at which any fact in issue or relevant
happened, relevancy of, 53 ; illustration of, 53.
which show genuineness of document produced, relevancy of,
53; illustration of, 53.
which show opportunity, relevancy of, 53 ; illustration of, 53.
which show relation of parties, relevancy of, 53 ; illustration
of, 53.
which show relevancy of other facts, relevancy of, 53.
Foreign and Colonial Acts of State, how proved , 135, 136 .
judgments, same rules apply to such, as can be enforced by
law in this country, 102.

General right common to considerable number of persons, 85.

Good faith, acts showing, relevant, 56 ; illustrations of, 58.
statements showing, relevant, 56.

Handwriting, comparison of disputed, with genuine, 108.

opinion as to, 107.
when person deemed acquainted with, 107 ; illustrations
of, 108.
Hearsay irrelevant, 64 ; illustrations of, 64.
Husbands and wives, when competent witnesses in proceedings re-
lating to adultery, 168.

Information as to the commission of offences, 169.

Intention, acts showing, relevant, 56 ; illustrations of, 58.
-, statements showing, relevant, 56.

Journals of Houses of Parliament, how proved, 133.

' Judge," definition of, 35.
may exclude facts too remote, 41.
INDEX. 253

Judges privileged as to certain questions, 168.

"Judgment," definition of, 94.
conclusive when party had no opportunity of pleading
it as an estoppel, 99 ; illustrations of, 99.
not pleaded as estoppel relevant but not conclusive, 98 ;
illustration of, 99.
offered as evidence may be proved to be procured by
fraud, 101 .
offered as evidence may be proved to have been re-
versed, 102.
that Court had no
jurisdiction, 101.
Judgments conclusive in favor of judge, 101 ; illustration of, 101.
conclusive proof, 94 ; illustrations of, 95
statements in, when irrelevant, 97 ; illustration of, 98 ;
conclusive except in Courts of Admiralty condemning
ship as prize, 97 ; illustrations of, 98.
when conclusive between parties and privies, 96 ; illustra-
tions of, 96, 97.
when irrelevant between strangers, 97 ; illustration of, 98,
100.
between parties and privies where issue different, 99 ;
illustration of, 100.
in favor of strangers against parties and privies, 99 ; illus-
tration of, 100.
except as being an admission, or if it relates to a matter
of public or general interest, 100 ; illustration of, 101 .
Judicial notice, facts need not be proved of which Court takes, 116.
facts of which Court takes, 114-116.
Jurors not competent to give evidence, 170.

Knowledge, acts showing, relevant, 57 ; illustration of, 58.

statements showing, relevant, 57.

Leading questions, 184.

Legitimacy, when presumed, 158.

Magistrates, depositions before, 194.

Malice, acts showing, relevant, 56 ; illustration of, 58.
" statements showing, relevant, 56.
Marriage, communications during, 168.
-, opinion as to existence of, 108.
opinion as to validity of, 108.
254 INDEX .

Medical men compelled to disclose confidential communications, 173.

Merchant Shipping Act, definitions under, 196 , 197 .
Motive, relevancy of facts supplying, 49 ; illustrations of, 49.

Notice to produce, rules as to, 127.

Oaths, by whom they may be administered, 180.

form of, 179.
when binding, 179.
Offences against women, what evidence is relevant, 190.
Opinion as to existence of marriage relevant, 108 ; not to prove
bigamy or proceedings for divorce, 108.
when relevant, grounds of, relevant, 109 ; illustration of, 110.
Opinions as to handwriting relevant when made by person acquainted
with writing of supposed writer, 107.
duty of judge to decide whether person offering, is an
expert, 104.
generally irrelevant, 103 ; illustration of, 103.
of experts as to existence of facts on which opinion founded,
irrelevant, 105 ; illustration of, 106.
of experts as to foreign laws relevant, 104.
of experts in matters of science or art relevant, 104 ; illus-
trations of, 105.

Perjury, number of witnesses , 178.

on declaration or affirmation , 180.
Preparation, relevancy of facts constituting, 49 ; illustrations of, 49.
'Presumption," definition of, 36.
as to alteration of document, 140.
as to date of document, 138 ; illustrations of, 138.
as to documents thirty years old, 139.
as to sealing and delivery of deeds, 139.
as to stamp of document, 139.
of death from seven years' absence, 159.
of execution of deeds to complete title, 161.
of innocence, 152 ; illustrations of, 153.
of legitimacy, 158.
of lost grant, 160 ; illustrations of, 160, 161.
of regularity of judicial or official acts, 161.
that alterations in deed made before completed,
141.
that alterations in will made after execution, 141 .
that alteration of deed not under seal would not
constitute offence, 141.
INDEX . 255

Previous conviction, proof of, when relevant in cases of possession of

stolen goods, 57, 58.
Proclamations and orders in council issued by her Majesty in the
Privy Council, how proved, 134, 135.
orders, or regulations issued by certain departments
of the Government, how proved, 134, 135.
Professional communications, when privileged, 170 ; illustrations of,
171.
Proof, burden of, as to particular fact, 155 ; illustrations of, 156.
burden of, lies on him who affirms, 152.
burden of, of fact to be proved to make evidence admissible,
157 ; illustrations of, 157.
" burden of, on whom it lies, 153 ; illustrations of, 154.
Public right common to all her Majesty's subjects, 85.
Records under charge of the Master of the Rolls may be proved by
certified copy, 130.
Refreshing memory by document, when admissible, 191 .
"Relevancy," definition of, 36.
Relevancy of facts forming part of the same transaction as facts in
issue, 43 ; illustrations of, 44.
" Relevant," definition of, 36.
Royal proclamation, how proved, 134.

State of body, acts showing, relevant, 57.

statements showing, relevant, 57.
State of mind, acts showing, relevant, 57.
statements showing, relevant, 57.
Statement of Act of State or fact of public nature when relevant, 90.
relevancy of, accompanying or explaining act, 51 ; illustra-
tions of, 52.
Statements by deceased persons , relevancy of, 77.
causing state of mind , relevancy of, 56.
inconsistent with testimony may be proved if desired by
witness, 187.
in works of history, maps, charts, and plans relevant when
they relate to matters of general public interest, 91 ;
irrelevant when they relate to private matters, 91.
made in presence of person whose conduct in issue are
relevant, 51 .
presenting state of mind, relevancy of, 56.
Statute of Limitations, endorsement on memorandum or promissory
note of a payment does not exclude, 82.
declaration by deceased person to whom pay-
ment is made will exclude operation of, 82.
256 INDEX.

Statutes, Irish, how proved, 133.

Stolen goods, possession of, relevancy of, 57 ; illustration of, 58.
Subsequent conduct of person accused, relevancy of facts showing,
49; illustrations of, 49.

" Terms," definition of, 35.

Title, relevancy of facts as to, 48 ; illustrations of, 48.
Treason, 177.
number of witnesses, 177.

Witness cannot be contradicted as to credit generally, 186.

cross-examination of, 182.
cross-examination of, as to previous statements in writing,
189.
deaf and dumb, not incompetent, but may give evidence by
writing or signs in court, 166.
dying or becoming incapable, evidence given by, good, 183.
examination of, 182.
examination of, must be directed to relevant facts, 184.
found to be incompetent, evidence may be withdrawn, 183.
husbands and wives when competent witnesses in proceed-
ings relating to adultery, 167.
husband or wife when competent, 167.
husband or wife when incompetent, 167.
may be contradicted to show conviction of felony or misde-
meanor, 186 ; to show that he is not impartial, 186.
may be cross-examined as to credit, 185.
may be cross-examined as to veracity, 185.
may not be asked leading questions in examination in chief
or re-examination, 185.
not bound to criminate himself, 174.
not party to suit not compelled to produce his title-deeds ,
173.
not party to suit when not compelled to produce document,
173.
not party to suit when not entitled to refuse to produce docu-
ment, 173.
producing document on a subpoena not subject to cross-
examination, 183.
re-examination of, must be confined to facts referred to in
cross-examination, 184.
refreshing memory , 191.
-, when, incompetent from youth or incapacity, 166.
when, may be cross-examined by party calling him, 188.
INDEX. 257

Witness, when, not entitled to refuse to produce document, 173.

Witnesses, number of, in high treason, 177.
number of, in high treason in compassing or imagining
the Queen's death, 177.
number of, in perjury, 178.
Women, offences against, 190.

THE END .

Cambridge: Press of John Wilson & Son.