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And  Presented  February  14,  1893 

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PRACTICAL   TREATISE 


LAW  OF  EVIDENCE. 


By  THOMAS  SJABKIE,  Esq., 

OP     THE     INXER    TEMPLE,    ONE     OP     HER    MAJESTY'S     COUNSEL. 


Khz  SSffihth  amtrfcan  from  the  iTourtli  HonJJon  3EiiUim. 

BY 

GEORGE  MOELEY  DOWDESWELL, 

AND 

JOHN"  GEOEGE  MALCOLM,   Esquires, 

OP   THE   INNER   TEMPLE,   BAREISTEnS-AT-LAW. 


"WITH  BTOTBS  ABTD  KEFEBESTCES  TO  AMEEICABT  CASES, 

BY  GEOEGE  SHAESWOOD. 

TOGETHER  WITH  THE  NOTES  TO  FOEMEK  AMEEICAN  EDITIONS, 

By  THBEON  METCALF,  BDWAED   D.   INGEAHAM, 

AND 

BENJAMIN  GEEHAED,  Esquires. 


PHILADELPHIA : 

T.   &  J.  W.  JOHNSON  &  CO., 

LAW  BOOKSELLERS,  PUBLISHERS  AND  IMPORTERS, 

No.   535    CHESTNUT   STREET. 

MDCCCLX. 


Entered,  according  to  the  Act  of  Congress,  in  the  year  1S60, 

BY  T.  &  J.  W.  JOHNSON  &  CO. 

In  the  Office  of  the  Clerk  of  the  District  Court  for  the  Eastern  District  of  PenTi3y]rania. 


^IO\'S'?^ 


EINQ  k  DAIRD,  PRINTERS, 


NOTE  BY  THE  EDITOE 

OF    THE 

EIGHTH   AMERICAN    EDITION. 


Of  the  merits  of  Starkie  on  Evidence  it  is  entirely 
unnecessary  to  speak.  Tt  has  been  too  long  and  favourably 
known  to  the  profession  to  require  commendation.  The 
Fourth  English  Edition  has  been  adapted  to  the  present 
state  of  the  law  in  England.  It  is  true  that  some  of  the 
alterations  recently  adopted  by  statute  in  that  country  have 
not  yet  been  universally  introduced  into  this.  But  it  will 
not  be  long  before  they  are.  The  experience  of  those 
states  Avhere  the  law  of  evidence  has  been  simplified  by  the 
repeal  of  all  arbitrary  rules  of  exclusion  speaks  so  loudly  in 
favour  of  that  reform,  that  the  example  must  spread.  The 
labours  of  former  American  Editors  have  been  carefully 
retained,  and  notes  and  references  to  the  more  recent 
decisions  have  been  added  to  bring  up  the  work  to  the 
present  time. 

G.  S. 

June,  1860. 


ADVERTISEMENT 

TO  THE  FOUETH  LONDON  EDITION. 


The  Editors,  in  preparing  for  publication  this  edition  of 
the  first  volume  of  Mr.  Starkie's  work,  have  used  their  best 
endeavors  to  render  that  volume,  which  contains  the  Prin- 
ciples of  the  Law  of  Evidence,  perfect  in  itself  and  available 
for  the  purposes  not  only  of  the  Student  but  also  of  the  Prac- 
titioner. They  have  subdivided  it  into  chapters,  so  as  to 
render  it  more  easy  for  perusal  and  reference.  They  have 
introduced  into  it  those  heads  from  the  second  and  third 
volumes  which  relate  to  Parol  Evidence  and  Presumptions, 
and  have  relieved  it  of  much  matter  which  more  properly 
belonged  to  the  Digest  of  proofs  contained  in  those  volumes. 
They  have  also  added  a  copious  Index,  still  retaining  the  full 
analysis  of  the  matter  contained  in  the  Table  of  Contents, 
and  have  thus,  they  trust,  rendered  this  volume  as  complete  a 
Treatise  in  itself  as  the  present  state  of  the  Law  will  permit. 


PREFACE 

TO    THE   FIEST   EDITION. 


The  investigation  of  truth,  the  art  of  ascertaining  that  which  is 
unknoATO.  from  that  which  is  known,  has  occupied  the  attention,  and 
constituted  the  pleasure  as  well  as  the  business  of  the  reflecting  part 
of  mankind  in  erery  civilized  age  and  country.  But  inquiries  of 
this  nature  are  nowhere  more  essential  to  the  great  temporal  interests 
of  society  than  where  they  are  applied  to  the  purposes  of  judicial 
investigation  in  matters  of  fact.  Their  importance  is  obviously 
commensurate  with  the  interests  of  justice  and  of  right ;  the  best  and 
wisest  laws  are  useless  until  the  materials  be  provided  upon  which 
they  can  safely  be  exercised ;  in  other  words,  the  administration  of 
a  law  assumes  the  truth  of  the  facts  or  predicament  to  which  it  is 
applied. 

With  those  who  regard  law  as  a  science  which  rests  on  certain 
fixed  and  equitable  foundations,  and  who  view  its  decisions  not  as 
arbitrary  precedents,  but  valuable  only  as  they  illustrate  the  great 
principles  from  which  they  emanate,  this  branch  of  jurisprudence, 
which  comprises  the  rules  and  practice  of  judicial  investigation,  must 
exceed  all  others  in  point  of  interest.  However  widely  dififerent  codes 
may  vary  from  each  other  in  matters  of  arbitrary  positive  institution, 
and  of  mere  artificial  creation,  the  general  means  of  investigating  the 
truth  of  contested  facts  must  be  common  to  all.  Every  rational 
system  which  provides  the  means  of  proof  must  be  founded  on 
experience  and  reason,  on  a  well-grounded  knowledge  of  human 
nature  and  conduct,  on  a  consideration  of  the  value  of  testimony, 


VI  P  B  E  F  A  C  E. 

and  on  tlie  weiglit  due  to  coincident  circumstances.  Here,  there- 
fore, the  object  of  the  law  is  identified  with  that  of  pure  science ;  the 
common  aim  of  each  is  the  discovery  of  truth;  and  all  the  means 
within  the  reach  of  philosophy,  all  the  connections  and  links,  physi- 
cal or  moral,  which  experience  and  reason  can  discover,  are  thus 
rendered  subservient  to  the  purposes  of  justice.  In  different  systems 
of  law,  the  great  principles  on  which  the  rules  of  evidence  depend 
may  be  and  are  variously  modified ;  but  every  departure  from  those 
principles,  wheresoever  it  occurs,  must  constitute  a  corresponding 
and  commensurate  imperfection. 

Notwithstanding,  however,  the  universality  of  the  great  principles 
of  the  science,  it  is  essential  in  practice  to  guard  and  limit  the  recep- 
tion of  evidence  by  certain  definite  and  positive  rules.  Nature  has 
no  limits;  but  every  system  of  positive  law  must,  on  grounds  of 
policy  prescribe  artificial  boundaries,  even  in  its  application  to  a 
subject  which  from  its  independent  nature  least  of  all  admits  of  such 
restraint.  These,  however,  are  necessarily  for  the  most  part  of  a 
negative  description,  the  effect  of  which  is  to  exclude  evidence  in 
particular  cases,  and  under  special  circumstances,  on  general  grounds 
of  utility  and  convenience ;  yet  even  here  so  dif&cult  is  it  to  prescribe 
limits  on  such  a  subject,  without  the  hazard  of  committing  injustice, 
that  rules,  the  general  policy  of  which  is  obvious,  are  by  no  means 
favoured.  Thus,  although  according  to  the  law  of  England,  he  who 
is  interested  is  also  incompetent  to  be  a  witness,  yet  the  courts  are 
ever  anxious  to  apply  the  objection,  as  natural  reason  would  apply 
it,  to  the  credibility  rather  than  to  the  competency  of  a  party ;  to 
receive  and  to  weigh  his  testimony,  rather  than  wholly  and  peremp- 
torily to  exclude  it.  It  is  true,  that  in  many  instances  the  law  may 
by  rules  of  a  positive  nature  annex  a  technical  and  arbitrary  efi'ect 
to  particular  evidence,  which  does  not  actually  appertain  to  it. 
Thus,  by  our  law,  a  judgment  is  frequently  absolute  and  conclusive . 
evidence  of  the  facts  which  have  been  already  contested;  but  one 
general  observation  is'  applicable  to  this  and  to  most  instances  of  a 
similar  nature,  including  the  numerous  cases  of  legal  presunaption, 


PREFACE.  VU 

that  they  are  not  used  as  the  means  or  instruments  of  truth,  but  are 
in  virtue  and  effect  nothing  more  than  mere  technical  and  positive 
rules,  which  are  wholly  independent  of  the  principles  of  evidence, 
and  whose  only  foundation  is  their  general  utility  and  convenience. 

To  go  farther,  and  by  any  positive  and  arbitrary  rules  to  annex 
to  particular  evidence  any  technical  and  artificial  force  which  it  does 
not  naturally  possess,  or  to  abridge  and  limit  its  proper  and  natural 
efScacy,  must  in  all  cases,  where  the  object  is  simply  the  attainment 
of  truth,  not  only  be  inconsistent  and  absurd  in  a  scientific  view,  but 
what  is  worse,  would  frequently  be  productive  of  absolute  injustice. 
To  admit  every  light  which  reason  and  experience  can  supply  for 
the  discovery  of  truth,  and  to  reject  that  only  which  serves  not  to 
guide  but  to  bewilder  and  mislead,  are  the  great  principles  which 
ought  to  pervade  every  system  of  evidence.  It  may  safely  be  laid 
down  as  an  universal  position,  that  the  less  the  process  of  inquiry  is 
fettered  by  rules  and  restraints,  founded  on  extraneous  and  collateral 
considerations  of  policy  and  convenience,  the  more  certain  and 
efGicacious  will  it  be  in  its  operation. 

To  pursue  such  general  observations  further  in  this  place  would 
interfere  too  much  with  the  arrangement  of  the  present  work,  the 
objects  of  which  are  now  to  be  announced. 

It  is  proposed  in  the  following  Treatise  to  consider  the  practice  of 
the  law  in  England  on  the  subject  of  judicial  proofs.  With  this 
view,  the  elementary  principles,  by  which  the  admissibility  of  evi- 
dence to  prove  matters  of  fact  before  a  jury  is  governed,  will  first  be 
considered.  A  second  division  will  contain  an  enumeration  of  the 
different  instruments  of  evidence.  In  a  third,  the  application  of 
these  principles  and  instruments  to  the  purposes  of  proof  will  be 
considered,  as  also  the  distinction  between  law  and  fact,  and  the 
force  and  effect  of  direct  and  circumstantial  evidence ;  and,  lastly, 
the  evidence  essential  to  the  proof  of  particular  issues  will  be 
detailed,  and  references  made  to  the  leading  decisions  connected 
with  the  particular  subject  of  proof 


Vm  PREFACE. 

Nothing  can  be  more  agreeable  than  to  compare  the  Law  of 
Evidence  as  it  now  exists,  with  the  rude  practice  which  formerly 
prevailed,  when  its  principles  were  so  dubious  and  unsettled,  that 
the  very  means  devised  for  the  discovery  of  truth  and  advance- 
ment of  justice  were  not  unfrequently  perverted  to  the  purposes  of 
injustice,  and  made  the  instruments  of  the  most  grievous  and  cruel 
oppression.  "Whoever  institutes  that  comparison  will  find  great 
reason  to  approve  of  the  changes  which  have  taken  place ;  but  no 
mistake  can  be  more  injurious  to  the  law,  as  a  system,  or  oppose 
a  greater  obstacle  to  all  future  improvement,  than  to  suppose  that 
the  Law  of  Evidence  has  attained  to  its  highest  perfection.  It  is, 
however,  far  from  the  Author's  present  purpose  to  enter  into  any 
discussion  on  the  subject  of  the  imperfections  and  anomalies  which 
yet  encumber  this  branch  of  the  law.  To  the  learned  judges  of 
modern  times  the  highest  praise  is  due  for  the  strenuous  exertions 
which  they  have  made  to  reduce  the  Law  of  Evidence  to  a  system, 
founded  on  just  and  liberal  principles ;  and  it  is  to  be  hoped  not 
only  that  those  imperfections  which  still  subsist,  which  have  been 
spared  from  their  antiquity,  and  exist  as  a  kind  of  prescriptive 
evils,  will  in  time  be  removed  by  legislative,  if  they  be  beyond  the 
reach  and  scope  ^f  judicial  authority;  but  that  such  other  improve- 
ments will  be  made  as  reason  exercised  on  mature  experience  shall 
warrant. 


TABLE    OF    CONTENTS. 


The  paging  referred  to  ifl  that  between  brackets  [  ]. 


PART  I.      Containing  the  General  Peinciplbs  of  the  Law  op  Evidence, 
p.  1  to  101. 

PAET  II.     The  Insteuments  of  Evidence,  p.  102  to  583. 

PART  III.  The  Application   or  the   above   Peinciples   and   Insteuments 
TO  THE  Proof  of  Issues  genbeally,  p.  584  to  the  end. 


PAET  I. 

PRINCIPLES  OF  BYIDENCE. 


INTEODUCTION. 

Rlementart  Divisions  ...... 

The  division  of  law  into  preventive  and  remedial  .... 

The  necessity  for  rules  of  investigation  to  efifectuate  such  provisions 
Issues  in /aci  result  from  pleadings,  and  are  triable  by  jury 
Observations  on  the  origin  and  functions  of  the  jury 

on  the  fitness  of  the  tribunal  .... 

What  is  comprised  under  evidence  ;  distribution  of  the  subject 

CHAP.  I. — Natural  Peinciples  of  Evidence. 

The  general  principles  of  evidence  are  the  ordinary  ones  naturally  used  for 
the  purpose  of  investigating  past  transactions        .  .  .  .15 

These  are  subject  to  artificial  rules,  which  either  restrain  natural  evidence, 
or  create  some  artificial  effect  ......  11 12 


ih. 
2 
3 
5 


14 


CHAP.  II. — Excluding  Principles. 

Principles  of  excluding  rules  .... 

Evidence  distinguishable  as  direct  and  indirect  . 

Direct  distinguishable  as  immediate  and  mediate 

Principles  which  regulate  the  admission  of  immediate  testimony 

Oath      ........ 

Tests  of  truth ;  disqualification  from  turpitude    . 
Disqualification  from  interest   ..... 

Necessity  for  defining  the  rule        ..... 


18 
21 
ib. 
ih. 
22 
ih. 
ib. 


TABLE    OV    CONTENTS. 


Nature  of  the  interest 

Exceptions  .... 

Operation  of  this  excluding  principle  . 

Obligation  of  an  oath 

What  belief  is  necessary 

Force  of  an  oath    .... 

Oath  must  be  judicial   . 

Declaration  by  party  in  extremis  . 

Affirmation  by  a  Quaker 

Witnesses  for  prisoners  are  now  to  be  sworn 

Bankrupts  and  their  wives 

Test  of  cross-examination 

Excludes  hearsay  evidence 

Exception,  judgments  in  rem 

Exception,  dying  declaration    . 

Exclusion  of  secondary  evidence    . 

from  policy — husband  and  wife 
Confidential  communication 
Witness  not  bound  to  criminate  himself 
Exclusion  from  state  policy 


CHAP.  Ill — Mediate  and  Secondaey 


EviDEKCB. 


General  reputation  .... 

Eeputation  in  case  of  pedigree 

Ancient  facts  ..... 

Presumptions,  why  founded  on  reputation 

Eeputation,  in  what  cases  admissible 

The  facts  must  be  of  a  public  nature  . 

Must  be  general      ..... 

Support  by  acts  of  enjoyment  .... 

Admission   ...... 

Declaration  accompanying  an  act 

Secondary  mediate  testimony        ... 

Depositions  of  witnesses  (in  former  proceedings)  since  deceased 

Traditionary  evidence         .... 

Of  public  nature  .... 

Confined  to  general  declaration 

Derived  from  persons  likely  to  know  the  facts 

Must  be  free  from  suspicion 

Declarations,  &c.,  made  against  interest,  &c.   . 

In  course  of  business  .  .  .  "  . 

CHAP.  IV. — Indibect  Evidence. 

Necessity  for  resorting  to  indirect  evidence 
Evidence  of  circumstances  connected  with  the  fact    . 
Juries  formerly  returned  from  the  vicinage 
Foundation  of  presumptions  as  to  motives 
Presumptions  from  conduct 
Omission  to  produce   evidence  within  the  knowledge 

party         ...... 

Presumptions  from  the  course  of  dealing 

Presumption  as  to  continuance 

Circumstantial  and  presumptive  evidence  in  general 

General  rule  that  all  facts  are  admissible  which  afford  reasonable 

ences  ........ 

Natural  course  of  inquiry  on  failure  of  direct  evidence 
Circumstantial  evidence  .... 

To  what  extent  admissible 


and  power  of 


the 


infer- 


24 
ib. 
28 
30 
ib. 
ib. 
31 
32 
ib. 
33 
34 
ib. 
35 
ib. 
38 
39 
ib. 
40 
41 
ib. 


43 

45 
46 
ib. 
47 
ib. 
49 
50 
ib. 
51 
55 
61 
62 
ib. 
62 
ib. 
ib. 
64 
65 


67 
ib. 
69 
70 
71 

75 
ib. 
76 

77 

78 
79 
80 
81 


TABLE    OF    CONTENTS.  xi 

Res  inter  alios  acta,  grounds  of  the  rule        .            .            .            .  .81 

Declarations  by  strangers  .......  ib. 

Acts  of  strangers         .            .            .            .            .            .            .  .82 

Effect  of  the  rule    ........  84 

Does  not  exclude  the  acts  and  admissions  of  a  party             .            .  .85 

Or  laws  and  customs           .......  ih. 

Or  facts  which  have  a  legal  operation  on  the  question            .            .  .      ib. 

Effects  of  the  rule  as  to  declarations,  &c.              ....  86 

Declarations  accompanying  acts,  why  admissible        .            .            .  .87 

Declarations  when  part  of  the  res  gestae,  how  proved      ...  88 

Declarations  may  be  evidence  for  some  purposes  although  not  for  others  .      89 

Collateral  facts  and  circumstances         .....  90 

Possession,  ancient  instruments           .            .            .            .            .  .93 

Declarations  admissible  as  explanatory  evidence              ...  95 
On  questions  of  skill     ........      96 

CHAP.  V. — Aktificial  Evidence. 

Of  AETiPiciAL  and  conventional  evidence        .            .            .            .  .96 

Records       .........  97 

Verdict  .........       98 

Conventional  evidence        .......  ii. 

Estoppels  .........      99 

Presumptions          ........  100 


PART  II. 

OP  THE  INSTRUMENTS  OP  EVIDENCE. 


CHAP  I. — Oral  Evidence. 

Oral  evidence,  its  natural  priority            .....  102 

I. — Mode  of  enforcing  the  attendance  of  a  witness  in  civil  and  criminal 
cases,  and  also  of  enforcing  his  production  of  writings  in  his  pos- 
session, and  the  incidents  of  his  attendance  or  default. 

Compulsory  ^JTOcess  on  witness  not  in  custody      ....  103 

Expenses  of  witness     ........  ib. 

Consequence  of  disobedience         .            .                        .            .            .  ib. 

Where  witness  is  in  custody     .......  104 

In  criminal  cases     ........  105 

In  bankruptcy  and  other  cases             ......  108 

Proceeding  where  the  witness  cannot  be  procured            .            .            .  109 

Subpoena  duces  tecum  .            .            .            .            .            .            .            .  110 

Writings  to  be  produced  where  the  production  will  not  prejudice            .  112 

Witness,  obligation  of,  to  be  sworn  and  give  evidence            .            .            .  113 

Protection  of  witness         .......  ib. 

II. — Objections  in  exclusion  of  the  testimony  of  witnesses. 

Time  of  objecting  .'           .            .            .            .            .            .            .  115 

Examination  as  to  religious  belief        ......  116 

Infant          .........  117 

Incompetency  from  turpitude  .            .            .            .            .            .            .  ib. 

from  interest             ......  118 


xu 


TABLE    or    CONTENTS. 


Effect  of  Stat.  6  &  7  Vict.  c.  85 
Husband  and  wife    . 
Mode  of  objecting  to  competency 
Proof  of  interest  by  evidence 
Time  of  objecting 


III.- 


-Mode  of  examination  in  chief — Gross-examination, — and  re-exami- 
nation. 


ExAMiNATio>f  in  chief;  leading  questions 

When  necessary 

When  allowed  . 

Witness  as  to  what  examinable 

His  belief 

Questions  of  skill    . 

Foreign  law 

Opinion 

(Jeneral  result    . 

Witness  may  refresh  his  memory 

Examination  as  to  hearsay 

Reputation  . 

Matters  of  hearsay 

Matters  of  confidence 

Cross-examination         .... 

Practice  as  to  ckoss-examination 

Leading  questions  .... 

Witnesses  may  be  examined  apart  from  each  other 

Cross-examination  as  to  collateral  facts 

How  far  the  witness  is  bound  to  answer    . 

Cross-examination  in  order  to  discredit  a  witness 

Whether  a  witness  must  answer  a  question  tending  to  disgrace  him 

Question  to  be  put  to  warrant  evidence  in  contradiction 

Effect  of  answer  on  cross-examination 

Cross-examination  as  to  writings 

He-examination  of  witness 

Recalling  witness 

IV. — Tlie  mode  of  rebutting  the  testimony  of  witnesses. 

Credit  of  witness,  how  impeached 

By  proof  of  declarations,  &o.,  of  the  witness 

Inquiry  previous  to  contradiction 

Evidence  in  contradiction  .... 

A  party  not  allowed  to  discredit  his  own  witness 

A  party  when  allowed  to  contradict  his  own  witness 

V. — The  mode  of  confirming  the  testimony  of  witnesses. 

Evidence  in  confirmation  of  witness    ..... 
On  appeal    ........ 


125 
138 
143 
144 
ih. 


166 

ih. 
167 
172 

ih. 
173 
175 
176 

ih. 
177 
185 
186 
191 

ih. 
194 
197 

ih. 
198 
200 
203 
207 

ih. 
213 
215 
216 
231 
236 


237 

238 

ih. 

242 

244 

ih. 


252 
254 


CHAP.  II. — Written  Evidence. 
Proof  of  PUBLIC  DOCUMENTS  in  general 

I. — Documents  of  a  public  nature,  not  judicial. 

How  procured  .  . 

Proof  by  exemplification    ...... 

Copies  by  authorized  officers    ... 


255 


256 
257 
260 


TABLE    OF    CONTENTS. 


XUl 


Proof  by  office  copy 

Statutory  office  copy     . 

Proof  of  public  document  by  a  sworn  copy 

Copy  not  admissible  where  the  original  is  produced 

Record,  &c.,  how  proved  when  lost 

Public  documents,  not  judicial,  admissibility  of 

Acts  of  Parliament,  public 

Irish  statutes    . 

Private  act  of  Parliament    '. 

Becitals  in  acts  of  Parliament 

Acts  of  State — Gazette 

Public  documents  printed  by  Queen's  printer 

Journals  of  the  Lords  and  Commons 

Public  acts  of  the  Crown 

Ancient  surveys  under  authority    . 

InquisKions  post  mortem 

Terriers       .... 

Proof  as  to  place  of  deposit 

Public  licenses — grants  and  certificates 

Certificates 

Public  registers  of  a  parish 

Parish  books 

Books  and  documents  of  public  offices 

Poll  books 

Prison  books 

Corporation  books 

Chancellor's  book   . 

Books  of  clerk  of  the  peace 

Ships'  registers 

Stage  coach  licenses 

Heralds'  books 

Armorial  bearings 

Duchy  book 

Commissioners'  books    . 

Land  tax  book 

Public  histories  and  chronicles 

Public  documents,  how  proved. 

II. — Judicial  documents. 

Judgments,  &c.,  general  principles  of  admissibility 
Conclusive,  when  ...... 

Judgment  in  rem    ...... 

Judgment  evidence  as  a  fact,  and  as  to  all  legal  consequences 

Judgment  in  matter  oi private  litigation  . 

Identity  of  parties         ...... 

Those  claiming  in  privity    ..... 

Against  one  who  might  have  been  a  party 

Want  of  mutuality  ..... 

Verdict  in  c«?)z7  proceeding,  whether  evidence  in  a  criminal  case 
Identity  of  the  fact  ..... 

Manner  of  the  adjudication      .... 

Application  of  the  judgment  in  proof 

Effect  of  a  judgment     ..... 

When  conclusive     ...... 

Foreign  judgments,  when  conclusive 

How  far  examinable  ..... 

Judgments  of  inferior  courts,  how  far  examinable 

In  private  matters,  efiect  of  ...  . 

Verdicts  and  judgments  in  criminal  cases,  admissibility  of 
Verdict  in  criminal  case  not  evidence  in  civil  action 


XIV 


TABLE    OF    OOKTENTS. 


Judgment  in  criminal  cases,  effect  of,  in  evidence 

A  penal  judgment  conclusive  as  to  all  legal  consequences 

Judgments  and  convictions  in  inferior  courts 

Convictions  by  justices 

Sentences-  by  colleges  and  visitors 

Judgments  in  rem,  general  principles 

Of  the  ordinary  and  spiritual  court 

Sentence  of  a  spiritual  court 

Of  condemnations  in  the  Exchequer     . 

Admiralty  decisions 

Order  of  justices  .... 

Judgments  in  quo  warranto 
Conclusive  against  parties,  when 
To  prove  custom,  SfC. 
Pkoof  of  judgments,  verdicts,  &c. 
of  a  decree  in  Chancery  . 
Sentences  of  spiritual  courts     . 
Judgment  of  an  inferior  court 
Proof  of  convictions  by  justices  of  the  peace 
Of  an  award  .... 

Of  a  foreign  judgment    .... 

Judgment,  Iww  rebutted 
Inquisitions,  when  admissible   . 
Depositions,  when  admissible 
Witness  must  be  dead  or  absent 
Identity  of  parties  .... 

Identity  of  subject-matter 

Privity  of  claim       .... 

In  a  legal  proceeding    .... 

Power  to  cross-examine 

Depositions,  when  evidence  to  prove  reputation 

India,  examination  of  witnesses  in  . 

Depositions  of  witnesses  resident  abroad 

Bill  to  perpetuate  testimony 

Preparatory  facts,  how  proved 

Existence  of  a  lawful  cause 

Identity  of  deponent      .... 

Proof  by  copy,  &c. 
Leading  interrogatories 
Depositions  in  Ecclesiastical  Courts 
Writs  warrants  Sfc,  when  evidence   . 
For  what  purposes  admissible 
Eifect  of  the  writ  in  evidence 
Sheriff's  return  on  a  writ    . 
Writs,  PROOF  of  .... 

Bill  in  equity,  when  evidence 

Answer  in  Chancery,  v/hen  evidence 

The  whole  of  an  answer  is  evidence 

Proof  of  bill  and  answer 

Affidavits      ...... 

Eules  and  orders  .... 

Pleadings  in  an  action  at  law 

Protestations     ..... 

III. — Mixed  documents. 

Public  companies  under  statutes 

Court  rolls   ...... 

Corporation  books         .... 

Books  of  public  companies,  &c. 
Proof  of  corporation  books 


TABLE    OF    CONTENTS. 


XV 


IV. — Private  documents. 

Express  admissions  by  a  party  .  .  , 

Estoppel      ....... 

Privies  bound  by  estoppel        .... 

The  sense  of  contracts  not  to  be  altered  by  parol  evidence 
Declaration  or  entry  by  third  person  admissible,  when 
Entry  or  declaration  accompanying  an  act 
Title  deeds  ...... 

Surveys  and  maps    ...... 

Ancient  deeds,  maps,  &c.  .... 

Declarations  or  entries  made  against  the  interest  of  the  party 
Entry  by  rector  ..... 

Entries  by  receivers,  stewards,  &c.,  charging  themselves  . 
Entry  in  the  usual  course  of  professional  business 
Pboof  of  private  instruments         .... 

Production         ...... 

Stamp,  inrolment,  &o.  ..... 

Proof  by  'attesting  witness       .... 

Proof  of  the  sealing  of  a  deed        .... 

Proof  of  delivery  ..... 

Proof  on  denial  by  subscribing  witness 

Excuse  for  the  absence  of  subscribing  witness 

Proof  by  one  of  several  attesting  witnesses 

Secondary  proof  in  the  absence  of  the  attesting  witness 

Proof  of,  when  30  years  old  .... 

Proof  as  to  custody  of  ancient  documents 

Proof  where  there  is  no  attesting  witness  . 

Proof  of,  in  case  of  loss  .... 

Evidence  of  search  ..... 

Evidence  of  execution  .  .  ,  .  . 

Proof  by  secondary  evidence        .... 

Of  a  letter  copied  by  a  clerk    .... 

Secondary  evidence  ..... 

Of  an  instrument  when  in  ih&  possession  of  the  adversary 
Notice  to  produce  the  deed,  &c.     .... 

Proof  of  notice  to  produce      .... 

When  unnecessary  ...... 

Proof  of  deed  coming  from  the  adversary's  possession 
Proof  of,  by  admission      ..... 

Proof  of,  by  inrolment  .... 

Deed  to  lead  the  uses  of  a  fine       .... 

Recital  in  a  deed  ..... 

An  intrinsic  objection  will  not  preclude  the  reading 
The  whole  of  an  entire  document  to  be  read    . 
Jury  to  judge  of  the  credit  due  to  the  whole,  or  part 


459 
461 
463 
ib. 
ib. 
466 
412 
473 
ib. 
474 
476 
479 
492 
498 
499 
503 

ib. 
508 
509 
510 
512 
518 
519 
521 
524 
529 
530 
531 
541 
542 
547 
548 
5.50 
554 
558 
561 
565 
571 
573 
577 

ib. 
578 
579 
583 


PART   III. 

OF   PEOOP. 


OHAP.   I. — BviDEKCE  TO   BE   SUPPLIED   BY   THE   PaETIES. 

General  division       ....... 

Onus  probandi  ....... 


585 
lb. 


XVI 


TABLE    OF    CONTKNTS, 


Negative  to  be  proved,  when 
Person  most  likely  to  possess  best  proof 
Where  the  law  presumes  the  affirmative     . 
Where  negative  involves  criminal  omission 
Appeal         .  .  .  .  • 

Right  to  begin  . 

Plaintiff       .... 

Defendant 

Ejectment    .... 

Supplying  defects  after  case  closed 

Order  of  proof  where  several  issues 

Evidence  in  reply 

Evidence,  where  defendant  begins, 

Arguments 

Several  defendants  .  .  .  _  . 

Statement  of  counsel  as  to  the  cause  of  action 

Order  of  trial  where  several  issues 

Order  of  address  where  different  counsel  appear 

Evidence  must  be  relevant 

Must  be  confined  to  the  issue    . 

Collateral  facts  .  .  .  • 

Variances — evidence  to  correspond  with  proceedings 

Surplusage         ..... 

Partial  proof  ..... 

Descriptive  allegation  .... 

Redundant  proof     ..... 

General  inference  .... 

Reconcilement  of  variance  by  amendment 
What  matters  admitted  by  the  pleadings 
Quality  of  evidence  .... 

The  test  evidence  must  be  adduced 

The  rule  is  of  a  comparative  nature 

In  what  cases  the  rule  applies 

The  rule  does  not  exclude  inferior  when  superior  evidence  fails 

Or  is  unattainable 

Or  where  no  presumption  of  fraud  arises  from  the  substitution 

Parol  evidence  not  admissible  to  every  written  document 

Purposes  for  which  it  may  be  offered  in  relation  to  written  evidence 

To  supersede  it  .... 

By  supplying  defect 

Where  instrument  ambiguous 

Patent  and  latent  ambiguity 

Removing  apparent  ambiguity 

Not  admissible  to  contradict  written  evidence 

Deed      ...... 

Not  admissible  to  vary,  extend,  or  limit  it 
Consideration    ..... 

Written  agreement 

Parol  evidence  of  intention  to  alter     . 

Will 

To  vary  legal  constuction 

To  disprove  existence  or  to  rebut  operation 

Fraud    ...... 

To  avoid  illegality  .... 

Mistake  ..... 

Discharge  by  other  matter 

To  give  effect  to  written  instrument    . 

To  apply      .  . 

Latent  ambiguity  ... 

To  explain  charter 


TABLE    OF    CONTENTS 


Private  deed     ..... 

Mercantile  contracts 

Annex  customary  incidents 

Rebut  presumption 

Independent  form  and  effect  of  parol  evidence 

Written  instrument,  when  conclusive 

Receipt  ..... 

Confession  .... 

As  to  what  inconclusive 

Operation  against  strangers 

Independent  operation  of  parol  evidence 

Oral  evidence  of  a  contract,  when  excluded 

Distinction  between  secondary  and  defective  evidence 

Quantity  and  measure  of  evidence 

Matter  judicially  noticed 

Legal  presumptions 

Kinds  of 

Artificial 

Of  mere  law 

Of  law  and  fact 

Natural 

Of  innocence 

Omnia  riM  esse  acta 

From  time 

Of  continuance 

Prom  conduct 

From  experience 

From  course  of  dealing 


XVll 


CHAP.  II.    Duty  of  the  Court. 

Questions  of  law  .  ... 

In  special  verdicts  the  jury  must  ini  facts,  and  not  mere  evidence 

Law  and  fact 

General  distinction  between  questions  of  law  and  fact     . 

Instances  of  reasonable  time,  &c.         ... 

General  terms  involve  questions  of  law  as  well  as  of  fact 

Reasonable  time,  when  a  question  of  law,  when  of  fact 

Notice  of  dishonour  of  bill  of  exchange    .... 

Reasonable  time,  &c.,  when  a  question  of  fact 

Standard  of  comparison  in  the  absence  of  a  legal  rule     . 

Reasonable  time,  &c.,  is  not  in  the  abstract  a  question  of  mere  law 

fact    .  ... 

Mixed  questions  of  law  and  fact    . 
Reasonable  time 
Probable  cause 

Fraud    .... 
Malice  and  intention 
Negligence,  &c. 

Construction  of  written  documents 
Collateral  matters  of  law 
BiUs  of  exceptions 
Form  of  the  bill 
Course  of  proceedings  upon  it 
Demurrer  to  evidence 
New  trial 

Mistake  or  misdirection  of  the  judge 
Misdirection,  waiver  of 

New  trial  not  granted  on  an  objection  not  taken  at  the  trial 
Mistake  or  misunderstanding  of  the  jury 
B 


or  mere 


XVIU 


TABLE    OF    CONTENTS. 


Practice  as  to^nonsuits 
Charge  to  juries 


806 
810 


CHAP.  III.     The  Duty  op  the  Jury. 

Province  of  juries  to  weigh  prohahilities 

Juries,  how  far  limited  by  law 

Juries  bound  by  legal  rules 

Degrees  of  evidence 

Mere  preponderance 

Primd facie  and  oonclusiTe  evidence 

Direct  evidence 

Integrity  of  witnesses 

Influence 

Manner  of  the  witness 

Ability  of  witnesses 

Number  of  witnesses 

Consistency  of  testimony 

Effect  of  inconsistency 

Partial  variances 

Aggregate  force 

Conformity  with  experience 

Conformity  with  circumstances 

Grounds  of  circumstantial  proof 

Coincidence  between  the  facts  and  the  hypothesis 

Moral  coitbcid'ences        . 

Conduct  and  intention         .... 

Coincidences  from  ordinary  experience 

Absence  of  evidence  tending  to  a  different  conclusion 

Dependent  and  independent  circumstances     . 

Force  of  concurring  probabilities 

Basis  of  circumstances  .... 

Nnmbjcr  of  circumstances 

False  circumstances      ..... 

Conclusive  tendency  .... 

Exclusion  to  a  moral  certainty 

The  corpus  delicti  must  be  proved 

Inquiry  as  to  other  hypotheses 

To  the  exclusion  of  all  reasonable  doubt 

Circumstantial  evidence  ought  not  to  supercede  direct  evidence 

Observations  on  conflicting  evidence 

Conflicting  testimony    . 

Positive  and  negative  testimony 

Demeanor  of  the  witnesses 

Consistency  of  testimony,  and  comparison  with  circumstances 

With  written  documents 

Total  rejection  of  testimony 

Comparison  of  direct  with  circumstantial  evidence 

Consistency  of  positive  testimony  with  circumstances 

Conflict  in  circumstances 

Rejection  of  circumstances  inconsistent  with  those  which  are  fully  established 

Fraud  in  circumstances 

Conflict  of  established  circumstances 


812 

814 

816 

817 

818 

819 

820 

ih. 

821 

822 

823 

827 

828 

829 

830 

832 

ih. 

838 

841 

842 

845 

849 

850 

851 

ib. 

853 

856 

857 

ih. 

859 

862 

ih. 

863 

865 

866 

ih. 

ih. 

867 

871 

ih. 

872 

873 

874 

876 

877 


879 


APPENDIX. 


Statute  6  &  7  Vict.  c.  85 
Statute  14  &  15  Vict.  c.  99 
Statute  15  &  16  Vict.  c.  76 


881 
882 
887 


TABLE   OF   CASES. 


The  paging  referred  to  is  that  between  brackets.    [  ] 


Abbey  v.  Lill,  174. 

Abbot  V.  Massie,  650. 

V.  Plumbe,  504,  605. 

Abbott  V.  Hendricks,  661. 

V.  Parsons,  802. 

Abel  V.  Potts,  305. 

Abignye  v.  Clifton  294. 

Abrahams  v.  Bunn,  118.  122. 

Acerro  v.  Petroni,  172. 

Ackerley  v.  Parkinson,  401. 

Aokworth  v.  Kempe,  436. 

Adam  v.  Kerr,  509.  513.  519,  520. 

Adams  v.  Andrews,  796. 

V.  Canon,  172 

V.  DaTis,  122 

V.  Peters,  712 

V.  Savage  (Terre-tenants  of,)  738. 

V.  Wordley,  660. 

Adamthwaite  v.  Singe,  271.  503.  579. 

Adey  v.  Bridges,   582 

Aflalo  V.  Fourdrinier,  120.  129.  555. 

Agriculturist  Cattle  Insurance  Company, 
V.  Fitzgerald,  501. 

Aitcheson  v.  Madock,  590. 

Alcock  V.  Cooke,  285. 

V.  Royal  Exchange  Insurance  Com- 
pany, 425. 

Aldridge  v.  Haines,  321. 

Alexander  v.  Barker,  808. 

V.  Gibson,  244,  245. 

AliTon  !).  Fumival,  355.  540.  543. 

Allay  V.  Hutchings,  250. 

Aldred  v.  Halliwell,  605. 

Allen   V.  Denstone,  464. 

V.  Dundas,  375.  400.  403. 

V.  Pink,  656.  724. 

Allen's  case,  643. 

AUibone  v.  Attorney-General,  414. 

Alner  v.  George,  718. 

Altham  (Lord)  v.  Anglesea  (Lord, )  410. 
714. 

Aires  V.  Bunbury,  399,  400. 

Amey  v.  Long,  110.  112. 

Amos  V.  Hughes,  585.  600. 

Anderson  v,  Hamilton,  42.  192. 

V.  May,  500.  563. 

V.  Pitcher,  704.  706. ' 

V.  Shaw,  807. 

V.  Weston,  602.  521.  758. 

Anderton  v.  Magawley,  408, 
Andrews  v.  Askey,  240. 


Andrews  v.  Beauehamp,  411. 

V.  Emmett,  688. 

V.  Harris,  436,  437. 

Angell  V.  Angell,  427,  428. 

Angle  V.  Alexander,  741. 

Anglesea  (Marquis  of)  v.  Lord  Hatherton, 
187.  189.  619. 

Anius  V.  Smith,  240. 

Annesley  v.  Anglesea  (Earl  of),  252. 

Anonymous,  256.   259.   277.   484.    564. 
571.  675.  764. 

Ansley,  v.  Birch,  110. 

Apothecaries'    Company  v.  Eently,  590. 

Appleton  V.  Bray  brook  (Lord,)  259,  260. 
265.  399,  400.  464. 

Arden  v.  Tucker,  611. 

Arding  v.  Flower,  113,  114. 

Armit  v.  Breame,  666. 

Armory  v.  Delamirie,  756.  818. 

Armstrong  v.  Hewett,  290. 

V.  Lewis,  792,  793. 

Arnold  v.  Bath  and  Wells  (Bishop  of, ) 
309. 

Arnott  V.  Redfern,  349. 

Arundell  v.  Falmouth  (Lord,)  452. 

V.  White,  397. 

Ashby  V.  Bates,  596.  601. 

V,  Power,  444. 

Ashley's  (Sir  Anthony)  case,  782. 

Ashmore  v  Hardy,  608. 

Asliu  V.  Parkin,  327. 

Astley  V.  Mills,  714. 

Athlone  Peerage,  300. 

Atkins  V.  Drake,  291. 

V.  Hatton,  290.  293. 

».  Humphreys,  413. 

V.  Meredith,  655.  557. 

V.  Owen,  500.  540. 

V.  Palmer,  424.  426. 

V.  Watson,  290. 

Atkinson  v.  Carter,  567. 

V.  Warne,  598. 

Attorney-General  t:  Bond,  220.  224.  228. 

V.  Bovett,  423. 

K.  Brazen   Nose   Col- 
lege, 467. 

V.  Briant,  193. 

V.  Bulpit,  199,  200. 

V.  Davison,  418. 

V.  Donaldson  739. 

V.  Foster,  697. 


XX 


TABLK    OF    CASES. 


Attorney- General  v.  Hitchcock,  114. 
202.  615. 

V.    Hotham     (Lord, ) 

400. 

V.  King,  379. 

r.  Le  Merchant,  555. 

569. 

V.  Parker,  694.  697. 

V.  Plate  Glass  Com- 
pany, 654.  700. 

D.Randall,   719. 

V.  Eellly,  423. 

^ V.  Rogers,  802.  805. 

V.  Taylor,  268.  392. 

V.  Theakstone,  279. 

V.    Warwick    (Corp.) 

455. 

Attwood  v.,  Small,  617. 

Atty  V.  Parish.  657. 

Augustien  v.  Challis,  729. 

Austin  V.  Bewley,  738. 

V.  Chambers,   617. 

V.  Prince,  206. 

V.  Rumsey,  517. 

Australasia,  (Bank  of,)  v.  Nias,  353. 
358.  402. 

Avery  v.  Hoole,  809. 

Aveson  v.  Kinuaird  (Lord,)  88.  468. 

Ayrey  v.  Davenport,  2J7.  391. 

Baber  v.  HarrLs,  657. 
Backhouse  v.  Jones,  619. 

V.  Middleton,  416. 

Bagely  w.  MoUard,  687. 
Bagot  (Lord,)  v.  Williams,  336. 
Baikie  v.  Chandless,  573. 
Baildon  v.  Walton,  44  i.  787. 
Bailey  v.  Bidwell,  504.  693. 

-J V.  Colverwell,  751. 

V.  Harris,  320.  373.  378. 

Bain  v.  Mason,  299. 
Baiubridge  v.  Wade,  709. 
Baker  v.  Dewey,  657. 

V.  Fairfax  (Lord,)  411. 

V.  Heard,  657. 

V.  Paine,  675,  676,  677. 

V.  Sweet,  430.  703. 

Baker's  case,  798. 

Baldney  v..  Ritchie,  551.  553. 

Baldwin  v.  Karver,  670. 

Ball  V.  Dunsterville,  508. 

Ball's  case,  622. 

Ballard  v.  Way,  275. 

Banbury  Peerage  case,  421,  422.   439. 

503. 
Barbat  v.  Allen,  142,  143.  790. 
Barber  v.  Birch,  125. 

V.  Holmes,  299.  305. 

V.  Stead,  521. 

Barclay's  case,  404. 
Barden  v.  De  Keverberg,  619. 
Barford  v.  Nelson,  311. 
Baring  v.  Clagett,  355. 


Baring  «.  Claggett,  380.  382. 

V.  Royal    Exchange    Assurance 

Company,   380,  381. 

Barker  v.  Macrae,  122. 

V.  Ray,  465.  491. 

Parley's  case,  431. 

Barnard  v.  Duthy,  627. 

Barnard's  case,  860. 

Barne  v.  Whitmore,  444. 

Barnes  v,  Lucas,  568. 

V.  Mawson,  67.  186.  188. 

V.  Ransom,  478. 

V.  Trompowski,  512. 

V.  Winckler,  350. 

Barnstaple  (Corporation  of)  v.  Lathey, 
456. 

Barough  v.  White,  492. 

Barrett  v.  Wilson,  349. 

Barrett  Navigation  (Company   of    Pro- 
prietors of  the )  V.  Shower,  740. 

Barron  v.  Grillard,  442. 

Barrs  v.  Jackson,  323.  338. 

Barry  v.  Bebington,  65.  477.  481. 

Barrymore  v.  Taylor,  459.  580.  581. 

Barstow  v.  Kilvington,  676. 

Bartlett  v.  Gillard,  445.  679. 

V.  Pickersgill,  332.  863,  364. 

V.  Purnell,  663. 

V.  Smith,  789. 

Barton  v.  Brioknell,  370. 

Barzillay  v.  Lewis,  380. 

Baskerville  v.  Brown,  390. 

Bastard  v.  Smith,  227. 423.  697.  602.  611. 

Bastin  v.  Carew,  168. 

Bate  V.  Kinsey,  563.  569. 

Bateman  v.  Bailey,  467. 

V.  PhiUips,  464.  565. 

Bates  V.  Grabham,  661. 

V.  Wells,  591. 

Bath   (Earl  ofj  v.  Bathersea,  415.  444. 
579. 

Bauerman  v.  Radeuius,  127. 

Baxter.!).  Pritchard,  784. 

Bayham  v.  Guy's  Hospital,  700. 

Bayley  v.  Hole,  120. 

V.  Warden,  363. 

V.  Wylie,  289.  407,  408.  431. 

Baylis  v.  Attorney-General,  660. 

V.  Strickland,  469. 

Bayley  v.  Snelham,  689. 

Beachcoft  v.  Beachcroft,  689. 

Beale  v.  Mouls,  615. 

Beamon  v.  EUice,  199,  200. 

Beasley  v.  Magrath,  442. 

Beauohamp  v.  Parry,  492. 

Beaufort  (Duke  of)  v.  Smith,  275.  278. 
288.  482. 

Beaumont  v.  Pell,  685.  689.  693. 
V.  Field,  692. 

V.  Mountain,   275,   276,   277, 

a7S. 

Beaurainw  Scott,  (SirW.)  393.  737. 

Beck  V.  Beverly,  735. 


TABLK    OF    CASES. 


XXl 


Beck  V.  Bree,  289. 
Beckham  v.  Drake,  665,  721. 

•  V.  Osborne,  583. 

Beckrow's  case,  502. 
Beokwith  v.  Bonner,  554. 

V.  Philliby,  781. 

■  V.  Sydebotham,  174. 

Beoquet  v.  M'Carthy,  355.  357. 
Bedell  v.  Russell,  697. 
Bedell's  case,  659. 
Beech  v.  Jones,  185. 
Beeching  v.  Gower,  115.  145. 
Beer  v.  Ward,  522,  523. 
Belcher  v.  Drake,  135. 

V.  M'Intosh,  602. 

Bell  V.  Banks,  130. 

V.  Chaytor,  566. 

V.  Harwood,  325. 

— —  V.  Howard,  725. 
V.  Hull  and    Selby  Railway  Com- 
pany, 791. 

V.  Smith,  119.  234. 

V.  Warden,  770.  773. 

Bellamy's  case,  759. 

Bendyshe  v.  Pearse,  643. 

Bendy' s  case,  448. 

Bennett  v.  Coster,  452. 

Bengough  v.  Walker,  671. 

Bennett  v.  Hertford  ^Hund.  of),  764. 

Bennion  v.  Davison,  451.  592.  639. 

Benson  v.  Olive,  330.  409,  410.  429.  444. 

679. 
Bent  V.  Baker,  118.  122.  136.  791. 
Bentley  v.  Griffiin,  785. 
Berkeley  Peerage  case,  63. 190.  253.  421. 
Bermon  v.  Woodbridge,  444.  583.  873. 
Bernard,  (Lord)  v.  Saul,  274. 
Bernard!  v.  Motteux,  381,  382. 
Bernasconi  v.  Farebrother,  810. 

V.  Fairbrother,  249. 

Bernett  v.  Taylor,  512. 

Berney  v.  Read,  399.  449.  505. 

Berry  v.  Banner.  387. 

Berryman  v.  Wise,  646. 

Bertie  v.  Beaumont,  522,  523.  527. 

V.  Falkland,  669. 

Berty  v.  Dormer,  587.  590. 
Berwick-upon-Tweed  (Mayor,  &c.,  of;  v. 

Murray,  197. 
Bessy  v.  Windham,  385.  389.  403.  436. 

799. 
Betsworth  v.  Betsworth,  375. 
Bevan  v.  Williams,  758. 
Beverley  v.  Craven,  258.  408. 
Bedulph  V.  Ather,  387. 
Bingham  v.  Stanley,  451.  592. 
Birch  V.  Depeyster,  701.  703. 
Bird  V.  Appleton,  382. 

V.  Randall,  344. 

Bird's  case,  403. 

Birt  V.  Barlow,  288.  299.  302. 

V.  Rothwell,  735,  736. 

V.  Leigh,  603. 


Bittleston  v.  Cooper,  559. 

Black  V.  Draybrooke  (Lord),   259,  260, 

261.  295.  399.  737. 
Blaokham's  case,  338.  376. 
Blacquiere  v.  Hawkins,  736. 
Blake  v.  Pilfold,  42.  193. 
Blakemore     v.    Glamorganshire     Canal 

Company,  326.  328.  332.  365. 
Bland  v.  Ansley,  120. 
Blankley  v.  Winstanley,  696,  697. 
Blatch  V  Archer,  846. 
Bledstynv.  Sedgwick,  717. 
Blewett  V.  Tregonning,  216.  232.  236. 
Bligh  V.  Wellesly,  533. 
Blinkhorne  v.  Feast,  670. 
Blower  v.  Hollis,  268.  392,  393. 
Blundell  v.  Howard,  286. 
Blurton  v.  Toon,  521. 
Bode's  (Baron  de)  case,  175.  412.  429. 

487. 
Boehtlinck  v.  Schneider,  175. 
Boilea  v.  Rutlin,  334.  392.  439.  450.  641. 
Bold  V.  Rayner,  653.  705. 
Bolton  V.  Gladstone,  380,  381,  382. 

(Lord)  V.  Tomlin,  181.   656.  729. 

Bonfleld  v.  Smith,  599. 
Bonner  v.  Wilkinson,  99. 
Bonzi  V,  Stewart,  640. 
Booth  V.  Cooke,  675. 

0.  Miln,  590. 

V.  Millns,  590.  598.  600.  605. 

Bootle  V.  Blundell,  670. 
Borthwick  v.  Caruthers,   591. 
Botham  v.  Swingler,  144. 
Bottings  V.  Pirby,  342.  403. 
Bottomley  v.  Forbes,  705. 
Boucher  v.  Murray,  637. 
Boulter  v.  Murray,  637. 

V.  Peplow,  506. 

Bounty  (case  of  the),  371. 
Bourne  v.  Gatleffe,   702. 

V.  Whitmore  (Sir  T.),  442. 

Bowden  v.  Home,  336. 

Bowles  V.  Langworthy,  419.  505. 

V.  Neale,  603. 

Bowman  v.  Bowman,  169. 

V.  Horsey,  702. 

V.  Rostron,  343,  345. 

V.  Taylor,  659. 

Boxer  v.  Rabeth,  511.  518.  530. 
Boydell  v.  Drummond,  650. 
Boyle  V.  Boyle,  361. 
Boys  V.  Williams,  688,  689. 
Bradley  v.  Eyre,  402. 

V.  Ricardo,  245. 

V.  Urquhart,  402. 


Bradshaw  v.  Bennett,  566. 
Murphy,  205. 


Bradwin  v.  Harper,  684.  690. 
Brady  v.  Cubitt,  715. 
Brain  v.  Preece,  64.  498. 
Braine  v.  Dew,  188. 
Bramston  v.  Robins,  718. 


xxu 


TABLE    OF    CASES. 


Brandao  v.  Barnett,  736. 

Brandford  v.  Freeman,  59G. 

Brashier  v.  Jackson,  637. 

Brazier's  case,  117.  254.  469. 

Bree  v.  Beck,  285. 

Breedon  v.  Gill,  254.  417.  435. 

Breeze  v.  Hawker,  308. 

Breton  v.  Cope,  269.  309.  456.  504.  507. 

Brett  V.  Beales,  188.  275,  276.  278.  455. 

529. 

V.  Ward,  294. 

Brewer  f.  Palmer,  656. 
Brewster  v.  Sewell,  538. 
Brickell  v.  Hulse,  413. 
Bridges  v.  Fisher,  423. 

V.  Hawkes,  819. 

Bridgman  v.  Holt,  795. 

V.  Jennings,  473. 

Briggs  V.  Aynsworth,  609. 

BrigM  V.  Eynon,  798. 

Bringloe  v.  Goodson,  178.  511. 

Brindley  v.  Woodhonse,  545. 

Brisco.  V.  Lomax,  49.  186.  408.  619.  721. 

Briscoe  v.  Stephens,  359. 

Bristol  (Governors  of  Poor  of)  u.  Wait, 

539. 
Bristow  V.  Sequeville,  176. 
Bristowe  v.  Fairclough,  334. 
Brittain  v.  Kinnaird,  321. 
Brookbank  v.  Anderson,  144. 
Brodie  v.  St.  Paul,  650. 
Bromfield  v.  Jones,  626. 
Brook  V.  Carpenter,  328. 

V.  Middleton,  805. 

Brooks  V.  Warwick,  781. 
Brough  V.  Parkings,  738. 

V.  Perkins,  738. 

Broughton  v.  Randall,  737. 

Brounker   (Lord)   v.   Atkins   (Sir  R.,) 

330. 
Brown  v.  Brown,  120.  128. 

V.  BuUen,  348.  379.  401. 

V.  Capel,  308. 

V.  Fox,  130. 

V.  Giles,  237. 

V.  Langley,  660.  ^70.  689. 

V.  M'Kinnally,  348. 

V.  Murray,  606.  609. 

V.  Philpot,  592. 

V.  Ricks,  736. 

V.  Selwin,  668.  670. 

V.  Thompson,  715.  738. 

V.  Thornton,  295. 

V.  Woodman,  642,  543,  544. 

V.  Wootton.  342. 

Brown's  case,  419.  421. 
Brownsword  v.  Edwards,  204.  364. 
Bruce  v.  Hurlry.  467. 

V.  Wait,  358.  402. 

Bruin  v.  Knott,  736. 
Brune  v.  Thompson,  483. 
Bryan  v.  Wagstalf,  555. 
Buchanan  v.  Kinning,  640. 


Buchanan u.  Rucker,  349.  354,  355.  399. 

402.  740.- 
Buckhouse  v.  Crosby,  725. 
Buckinghamshire    (Earl  of)    v.   Hobart, 

714. 
Buckler  v.  Millerd,  652. 
Buckley  v.  Smith,  513. 
Buckmaster  v.  Harrop,  664. 
Balkeley  v.  Butler,  791.  794.  797. 
BuUen  v.  Michel,  285.  309.  523.  528.  546. 

549.  579.  792. 
Bunbury  v.  Matthews,  646.  740. 
Bunter  v,  Warre,  143. 
Bunting  v.  Lepingwell,  375. 
Burdett  v.  Colman,  77. 
Burdon  v.  Rioketts,  316.  364. 
Burgess  v.  Langley,   805. 
Burgess's  case,  678. 
Burghert  v.  Angerstein,  299. 
Bu  kitt  o.  Blanshard,  450.  641. 
Burleigh  v.  Stibbs,  508.  564.  578. 
Burley  v.  Bethune,  763. 
Burnand  v.  Nerot,  261.  295. 
Burnett  v.  Lynch,  508.  544.  566. 
Burrell  v.  Nicholson,  596.  599. 
Burridge  v.  Essex  (Earl  of),  406. 
Burrough  v.  Martin,  180.  306. 
Burrows  v.  Jemino,  352.  380,  381. 
V.  Lock,  511. 

V.  Unwin,  764. 

Burt  V.  Walker,  412.  514.  515. 
Burton  v.  Griffiths,  780. 

V.  Hinde,  131. 

c.  Payne,  55B. 

V.  Plummer,  180.  183,  184. 

Bushell's  case,  368. 

Butcher  v.  Jarratt,  561. 

V.  Stewai-t,  709. 

Butcher  and  Alworth's  case,  257. 
Butchers'  Company  v.  Jones,  144. 
Butler  V.  AUnut,  541. 

V.  Carver  and  others,  226. 

V.  Dorant,  807. 

V.  Ford,  646,  647. 

V.  Moore,  40. 

Butler's  case,  562.  591.  594. 
Buxton  V.  Cornish,  656. 

V.  Mingay,  771. 

Byam  v.  Booth,  430,  431. 
Byrne  v.  Harvey,  455.  557. 
Bywater  v.  Richardson,  655.  708. 

Cadby  v.  Martinez,  359. 

V.  Barlow,  622. 

Galcraft  v.  Gibbs,  801. 
Calder  v.  Rutherford,  585. 
Call  V.  Dunning,  505. 
Callander  v.  Dittrioh,  334.  358. 
Calliard  v.  Vaughan,  423. 
Callow  V.  Hawle,  442. 
Calvert  v.  Bovill,  355.  381,  382. 

V.  Canterbury  (Archbishop  of,) 

494. 


TABLE    OF    CASES. 


XXIU 


Calvert  v.  Flower,  221.  224.  561. 
Camden  v.  Anderson,  310. 
Cameron  v.  Lightfoot,  449. 

'■ —  V.  Reynolds,  342. 

Campbell  u.  Hodgson,  660. 

V.  Riokards,  176. 

Ex  parte,  418. 

Campbell's  case,  789. 

Candell  v.  London,  781. 

Cannam  v.  Farmer,  590.  598. 

Cannell  v.  Curtis,  646,  647- 

Careless  v.  Careless,  679.  686. 

Carllle  v.  Eady,  143. 

Carlisle  (Mayor  of)  v.  Blamire,  664. 

Camaby  v.  "Welby,  640. 

Carnarvon  (Lord)  v.  Villebois,  189.  278. 

287.  387.453.  677.  759. 
Carne  v.  Nioholl,  471. 
Carol  V.  Jeans,"  644. 
Carpenter  v.  BuUer,  461.  659. 

V.  Wall,  203.  214.  242. 

Carr  v.  Burdis,  565,  566.  568. 

V.  Heatou.  330. 

V.  Mostyn,  189.  287. 

Carruthers  v.  Graham  and  others,   429. 

V.  Sheddon,  692. 

Carstairs  v.  Stein,  804. 
Carter  v.  Boehm,  176. 
V.  Dovmish,  736. 

V.  James,  333.  340.  640. 

V.  Jones,  597. 

V.  Pearoe,  119. 

V.  Pryke,  618. 

Cartwright  v.  Green,  204. 

V.  Vawdry,  687.  . 

Carey  v.  Abbott,  673. 

V.  Pitt,  174. 

Castleton  v.  Turner,  668.  670. 
Cates  V.  Hardacre,  204. 

V.  Winter,  551,  555. 

Catherwood  v.  Chabaud,  585.  690. 
Cator  V.  Stokes,  437. 

Catt  V.  Howard,  181.  580. 
Catteris  v.  Cowper,  819. 
Cattlin  V.  Barker,  216. 
Cavau  V.  Stewart,  356.  399.  402. 
Cave  V.  Mountain,  321.  369.  781. 
Cazenove  v.  Vaughau,  419,  420,  421. 
Chad  V.  Tilsed,  697. 
Chad  wick  v.  Bunting,  467. 
Chambers  v.  Bernasooni,  419.  496. 

V.  Caulfield,  804. 

V.  Robinson,  266.  449.  622. 

Champion  v.  Atkinson,  118.  619. 

Champneys  v.  Peck,  494,  496. 

Chandler  v.  Home,  199. 

Chaney  v.  Payne,  398. 

Chanter  v.  Lesse,  100. 

Chapman  v.  Cowlan,  187.  290.  453. 

V.  Emden,  599. 

V.  Graves,  128. 

V.  Pointon,  103,  104. 

V.  Rawson,  602. 


Chapman  v.  Smith,  285. 

u.  Walton,  176. 

Chappell  V.  Purday,  431.  444. 
Charlton  v.  Gibson,  702. 

Chaurand  v.  Angerstein,  174.  701.  706. 
Chelsea  Waterworks    (Governor    of)  o. 

Cowper,  522. 
Cherry  v.  Heming,  509. 
Chettle  V.  Pound,  260.  523. 
Chetwynd  v.  Lindon,  204. 
Cheyne  v.  Koops,  120. 
Cheyney's  (Lord)  case,  655.  669.  679. 
Chichester  v.  Phillips,  793. 
Christian  v.  Herwood,  142. 
Christie  v.  Seoretan,  381. 
Christy  v.  Tancred,  330. 
Chuck  V.  Freen,  722. 
Churchill  (Lord)  v.  Hunt,  626. 
Clanricard's  case,  294. 
Clarges  v.  Sherwin,  322.  337.  408.  415. 
Clark  V.  Bell,  135. 

I).  Dunsford,  809. 

V.  MuUick,  740. 

Clarke,  In  re,  737. 

V.  East  India  Company,  424. 

V.  Lucas,  126. 

V.  Savery,  168,  169. 

Wilmot,  475. 


Clarkson  v.  Hanway,  674. 

—V.  Woodhouse,  96.  623. 

Clay  V.  Stephenson,  426. 
Clayton  v.  Gregson,  653.  705.  707. 

— ^ V.  Lord  Nugent,  650.  663. 

Cleave  v.  Jones  564.  614.  789. 
Clegg  V.  Levy,  176. 
Clements  v.  Scudamore,  736, 
Clerk  V.  Bedford,  493. 
Cleve  V.  Powell,  329.  337.  361. 
Cliff  u.  Gibbons,  666. 
Clifford  V.  Hunter,  196. 

V.  Parker,  600. 

V.  Turrell,  660.  674. 

Clifton  v.-  Walmsley,  652.  701. 
Clinan  v.  Cooke,  726. 
Clinton  v.  Hooper,  706.  712.  714. 
Clothier  v.  Chapman,  49.  187. 
Cobbett  V.  Grey,  436.  446. 
Cochran  v.  Retberg,  701.  701. 
Cochrane' s  (Lord)  case,  213. 
Cock  V.  Gent,  276. 
Cockman  v.  Mather,  314. 
Cocks  V.  Nash,  541.  644. 
Cocksedge  v.  Fanshaw,  797. 
Coe  V.  Westemham,  394. 
Coghlan  v.  Williamson,  513.  519. 
Coker  v.  Farewell,  409. 
Colbum  V.  Dawson,  709. 
Cole  V.  Rawlinson,  66H. 
Coleman  t.  Gibson,  780. 
Coles,  Ex  parte,  418. 
CoUettf.  Keith  (Lord,)  581.  677. 
Collier  v.  Clark,  601. 
V.  Nokes,  228.  738. 


XXIV 


TABLE    OF    CASES. 


Collier  v.  Simpson,  176. 
Collins  V.  Bayntun,  568. 

V.  Blantem,  100.  675. 

V.  Carnegie,  457.  647.  740. 

V.  Maule,  545. 

Colling  !).  Treweek,  558.  561.  563. 
Colombine  v.  Penhall,  136. 
Colpoys  V.  Colpoys,  653.  689. 
Colt  V.  Button,  30,  31. 
Combe  v.  Pitt,  626,  627. 
Compagnon  v.  Martin,  627. 
Compton  V.  Chandless,  576. 
Connop  V.  Hayward,  579. 
Coooh  V.  Goodman,  508. 
Cood  V.  Cood,  297. 
Cook  V.  Field,  363. 
Cooke  ».  Bankes,  186.  304. 

V.  Blake,  640. 

V.  Booth,  700. 

V.  Fountain,  412.  415. 

V.  Lloyd,  299. 

V.  Loxley,  762. 

V.  Maxwell,  42. 192.  256.  267.  644. 

V.  Nethercote,  199. 

V.  Riddellen,  712. 

V.  Shell,  345.  379. 

V.  Stocks,  565. 

V.  Tanswell,  542.  670,  571. 

Cooke's  case,  207,  208. 

Coombs  V.  Coether,  186.  283.  309. 

Cooper  V.  Gibbons,  569.  749. 

V.  Smith,  582. 

V.  South,  310. 

V.  Wakley,  597. 

Coote  V.  Boyd,  714. 
Cope  V.  Bedford,  294. 

V.  Cope,  299. 

V.  Thames  Haven  Dock  Company, 

228.  609. 

Copeland  v.  Stanton,  420. 

V.  Watts,  112.  748. 

Copland  v.  Toulmin,  617. 
Corbet  v.  Corbet,  411.  431,  432. 
Corfield  v.  Parsons,  789. 
Cornfoot  v.  Fowke,  678. 
Corsar  v.  Reed,  791.  807. 
Corseu  v.  Dubois,  112. 
Cort  V.  Birkbeck,  386.  421.  798. 

V.  St.  David's  (Bishop  of, )  791. 

Cossens,  Ex  parte,  re  Worrall,  205. 
Cotton  V.  James,  95.  597. 
Couch  V.  Goodman,  740. 
Coule  V.  Braham,  486. 
Couling  V.  Coxe,  639. 
Courteen  v.  Touse,  169. 
Cowan  V.  Braidwood,  354.  358. 
Cowling  V.  Ely,  442. 
Cowlishaw  v.  Cheslyn,  640. 
Cowper's  case,  863. 
Cox  V.  Allingham,  395. 

V.  Glue,  699. 

V.  Kitchen,  802. 

V.  Reid,  782. 


Coxe  V.  Wirrall,  781. 

Cragg  V.  Norfolk,  577,  578. 

Craig  V.  Fenn,  601. 

Crank  v.  Frith,  512. 

Crawford  and  Lindsay  Peerage  case,  543. 

549. 
Crease  v.   Barrett,  145.    189,   190.  444. 

480.  485.  800. 
Crepps  V.  Durden,  369,  401. 
Crerar  v.  Sodo,  613. 
Crippa  V.  Yates,  598. 
Crisp  V.  Anderson,  541.  569. 
Croane  v.  Odell,  689. 
Crokatt  v.  Jones,  435. 
Crook  V.  Dowling,  266. 
Crooke  v.  Dowling,  447. 
Crosby  v.  Hetherington,  736. 

V.  Leng,  401. 

V.  Percy,  514.  517. 

Cross  V,  Eglin,  706. 

V.  Salter,  385. 

Crotty  o.  Price,  796. 

Croughton  v.  Blake,  292,  293.  386.  524. 

Crowley  v.  Page,  240,  241.  642. 

Crowther  v.  Solomons,  541.  570. 

Croydon  Hospital  v.  Farley,  510. 

Crozer  v.  Pilling,  763. 

Cufft).  Penn,  663.  725. 

CuUey  V.  Taylerson,  793. 

Cundell  v.  Pratt,  412. 

Cunliffe    u.  Sefton,  514.  516.  518,  519. 

621. 
Curling  v.  Robertson,  311. 
Currie  v.  Child,  512. 
Curry  v.  Walter,  194. 
Curtis  V.  Greated,  731. 

U.Wheeler,  685.  605. 

Cnssons  v.  Skinner,  504.  517.  529. 
Cuthbert  v.  Peacock,  713. 
Cutter  V.  Powell,  704. 

Da  Costa  v.  Villa  Real,  325.  349.  360. 

375. 
Dacy  V.  Clinch,  435. 
D'Aguilar  v.  Tobin,  802. 
Daintree  v.  Brooklehurst,  591. 

V.  Hutchinson,  710. 

Dalby  v.  Hirst,  711. 

Dalgleish  v.  Hodgson,  382. 

Dalison  v.  Stark,  656.  729.  731. 

Dalrymple  v,  Dalrymple  175. 

Dandridge  v.  Corden,  204. 

Dane  v.  Kirkwall  (Lady),  406. 

Darbishire  v.  Parker,  776,  777.  780. 

Darrose  v.  Newbott,  798. 

Dartmouth  (Countess  of)  v.  Roberts,  441. 

443.  447. 
Daitnall  v.  Howard,  447,  448. 
Davenport  v.  Tyrrell,  796. 
Davidson  v.  Cooper,  501. 
Davies   «.   Davies,  220.  227.  261.  388. 
423.  448. 

V.  Humphreys,  476. 


TABLE    OF    OASES. 


XXY 


Daviea  v.  Lewis,  187. 

V.  Lowndes,  321.  322.  439.  738. 

792.  794,  795. 

V.  Morgan,  422.  503. 

V.  Pearce,  488. 

V.  Waters,  112. 

0.  Williams,  683. 

Davis  V.  Capper,  781. 

V.  Dale,  196. 

V.  Dinwoody,  138. 

V.  Lloyd,  300.  498. 

V.  Morgan,  188.  131. 

V.  Russell,  -782. 

V.  Spurling,  444. 

i;.  West,  328.  379. 

V.  Williams,  394. 

Dayrell  v.  Glasscock,  510. 
Decan  v.  Fuller,  539. 
Deady  v.  Harrison,  441. 
De  Berenger's  case,  167. 
Debeze  v.  Man,  714. 

De  Fleming  (Lady)  v.  Simpson,  122. 
Delamotte  v.  Lane,  619. 
Delamotte's  case,  238. 
Deluney  v.  Mitchell,  606. 
De  Medina  v.  Grove,  348. 
Denn  v.  Barnard,  394. 

V.  Fulford,  261.  266. 

V.  Roake,  688. 

V.  Spray,  453. 

Purvis,  628. 

Derby's  (Lord)  case,  405. 

De  Rome.   Fairlie.      See   De   Rosue  v. 

Fairlie. 
De  Rosne  v.  Fairlie,  118. 145. 
De  Rutzen  (Baron)   v.  Farr,  482.   497. 

800,  801. 
De  Sailly  v.  Morgan,  238. 
De  Symonds  v.  De  la  Cour,  122. 
Devon  v.  Jones,  439. 
Dew  V.  Clarke,  428. 
Dewar  t).  Purday,  80^!.  809. 
Dewdney  v.  Palmer,  145. 
Deybel's  case,  738. 
Dioas  V.  Lord  Brougham,  369.  737. 
Dickinson  v.  Shee,  168.  198. 
Dickson  v,  Evans,  590. 
Dickson  v.  Fisher,  672. 

V,  Lodge,  464. 

Digby  V.  Atkinson,  761. 

17.  Stedman,  493. 

Dillon  V.  Harpur,  737. 
U.Parker,  796. 

Dimes  v.  Grand  Junction  Canal  Com- 
pany, 343. 
D'lsraeli  v.  Jowett,  305. 
Ditchbum  v.  Spracklin,  310. 
Dixon  V.  Vale,  206. 
Dobson  V.  Bell,  737,  738. 
Dodd  V.  Norris,  205. 
Dodsworth  v.  Anderson,  771. 
Doe  V.  Allen,  672,  783. 
V.  Amey,  761. 


Arundel  v.  Fowler,  299. 

Ashley,  688.  692. 

Askew  V.  Askew,  308. 

Bacon  v.  Brydges,  276.  326. 

Barnes,  299.  604.  647. 

Barrett  v.  Kempt,  620. 

Bather  v.  Brayne,  506.  605.  610. 

Beach  v.  Jersey  (Earl  of,)  691. 

Beckett,  488. 

Bengo  V.  NichoUs,  136. 

Benjamin,  802. 

Bennington  v.  Hall,  454. 

Benson,  713. 

Beviss,  696.  699. 

Beyon,  522.  525.  684. 

Bingham,   132.   501,    502,    503. 

677.  695. 
Bingham  v.  Cartwright,  729. 
Bird,  605. 

Bland  v.  Smith,  436. 
Blayney  v.  Savage,  297.  488. 
Bluck,  360. 

Bodenham  v.  Coloombe,  483. 
Bowdler  v.  Owen,  625. 
Bower,  688. 
Bray,  298.  604. 
Bridger  v.  Whitehead,  588. 
Brown  v.  Brown,  667.  693. 
Brown,  646. 
Burdett,  523. 
Burt,  691. 
Burton,  475. 

Cartwright,  313.  481.  656.  731. 
Chandler  v.  Ford,  100. 
Chichester  v.  Oxendeu,  692. 
Clarke,  118. 

Cleveland  (Marquis,)  565. 
Clifford,  677. 
Cockell,  671. 
Cole,  648. 

Corbett  v.  Corbett,  610. 
Counsell ».  Caperton,  649. 
Coyle  V.  Cole,  543. 
Croydon  (Churchwardens  of)  v. 

Cook,  454. 
Daniel  v.  Coulthred,  471.  487. 
Date,  204.  214. 
Davis,  754. 

Davies  ».  Davies,  511. 
Derby  (Earl  of,)  328,  329.  409. 

420. 
Dobell,  761. 
Bring,  669. 
Durnford,  604.  507. 
Egremont  (Earl  of,)  204. 
Egremont  (Earl  of,)  v.  Date,  111. 
Egremont  v.  Pulman,  565. 
England  (Bank  of,)  v.  Chambers, 

504. 
Errington,  331. 
Evans,  518.  760. 
Fleming  v.  Somerton,  558. 
Foster  v.  Sisson,  188,  189. 


XXV] 


TABLE    OF    OASES. 


Doe  d. 


d.  Foster  v.  "Williams,  132. 

Doe  d. 

V.  Freeman,  454,  455. 

d. 

V.  Fyldes,  669.  671. 

d. 

d.  Grains  v.  Rouse,  684.  686. 

d. 

d.  Gallop  V.  Vowles,  475. 

V. 

V.  Galloway,  692. 

d. 

d.  Garrod  v.  Oley,  454. 

d. 

V.  Gartham,  403. 

V. 

V.  Gatacre,  299. 

—  d. 

d.  Gilbert  v.  Koss,  413.   430.    503. 

V. 

540.  544. 

—  d. 

d.  Gord  V.  Needs,  670.  681. 

V. 

V.  Gore,  757.  760. 

V. 

V.  Gosely,  607. 

V. 

d.  Graham  v.  Hawkins, 482. 

—  d. 

ti.  Grazebrook,  531.  590. 

V. 

V.  Green,  489. 

—  d. 

■V.  Gunning,  394. 

V. 

V.  Guy,  557. 

V. 

V.  Haddon,  371. 

V. 

V.  Harcourt,  287. 

—  d. 

V.  Hawthorn,  595. 

—  d. 

V.  Hellier,  453. 

V. 

V.  Heming,  567. 

V, 

V.  Hiscooks,    650.    655.    680,   681. 

d. 

685.  690,  691. 

d.  Hogg  V.  Tindale,  615. 

V, 

u.  Home,  460. 

V. 

V.  Hubbard,  686.  688.  694. 

d. 

V.  Huddart,  327.  545 

V. 

d.  Human  v.  Pettett,  471. 

V, 

V.  Huthwaite,  690. 

V. 

V.  Jackson,  628. 

—  d. 

d  Jenkins  v.  Davies,  19.  190.  788, 

—  d. 

789. 

V. 

V.  Jersey  (Earl  of,)  794. 

d. 

V.  Johnson,  688. 

V. 

d.  Johnson  v.  Johnson,  514. 

■ V, 

V.  Keeling,  292.  525,  526. 

V. 

V.  Kempt,  790. 

—  d. 

V.  Kibier,  545.  575. 

—  d. 

d.  Kinglake  v.  Beviss,  480. 

—  d. 

d.  Knight  v.  Nepean,  77.  761. 

V. 

V.  Lakin,  290.  473. 

V. 

V.  Langton,  713. 

—  d. 

d.  Lawrence  v.  Shawoross,  808. 

—  d. 

V.  Lea,  659. 

V, 

V.  Lewis,  491.  531.  696.  604. 

d.  Linsey  v.  Edwards,  490 

—  d. 

V.  Lloyd,  261.  299. 

V. 

d.  Losoombe  v.  Clifford,   111.  505. 

V. 

545. 

V. 

V.  Lyford,  693. 

—  d. 

V.  Manning,  784. 

d. 

V.  Martin,  555.  689. 

V.  Mason,  453.  577.  758. 

d. 

!;.  Mee,  455. 

d. 

V.  Mobbs,  608. 

V. 

d.  Moore  v.  Williams,  544. 

—  d. 

V.  Morgan,  694. 

V. 

V.  Morris,  551.  564. 

V. 

V.  Munro,  673. 

V. 

V.  Nepean,  593. 

V. 

■  Nepean  v.  Budden,  100. 
'.  Norton  v.  "Webster,  143.  791. 
,  Oldham  v.  WoUey,  521.  761. 
i.  Orrel  v.  Madox,  299. 
.  Owen,  540. 

.  Oxeuden  v.  Chichester,  671.  693. 
.  Padwick  v.  Skinner,  498. 
.  Palmer,  761. 
.  Patteshall  v.  Turford,  495. 
.  Paul,  513. 

.  Pearson  v.  Ries,  551.  553. 
.  Penry,  800. 

.  Perkins,  180.  183,  184,  185. 
.  Perratt,  687. 
.  Perry  v.  Newlor,  202. 

Phillips,  292.  525,  526. 
.  Phillips  V.  Evans,  757. 
,  Powell,  514. 
,  Pulman,  508.  524.  577. 
.  Rawlins,  477. 

.  Richards  v.  Lewis,  534.  553. 
.  Richardson  v.  "Watson,  688. 
,  Rickarby,  471. 

Ries,  562. 

Roberts  v.  Roberts,  796. 
,  Robson,  465.  475. 

Ross,  540.  542. 

Rosser,  349.  399. 
.  Rowlandson  v.  "Wainwright,  544. 
.  Samples,  525. 
.  Sandham,  774. 
.  Seaton,  313. 
.  Shallcross  v.  Palmer,  684. 
.  Shearwood  v.  Pearson,  731. 
,  Sisson,  619. 
.  Small  V.  Allen,  672. 
.  Smart,  604. 

Smith,  772. 

Spence,  777. 

Spencer  v.  Beckett,  489. 

Spicer  v.  Lea,  708. 

Spilsbury  v.  Burdett,  621. 

Spitty,  556. 

Stacy,  482. 

Stansbury  v.  Arkwright,  314. 

Stephenson  ti.  Walker,  252. 

Stillwell,  758. 

Strode  v.  Seaton,  327.  343. 

Start  V.  Mobhs,  482. 
.  Suckermore,  174. 

Sybourn,  439. 

Taniere,  761. 

Tatham  v.  Cattermore,  501. 

Tatham  v.  Wright,  53.  89.  162. 
340.  403. 
.  Templeman  v.  Martin,  688. 

Teynham  (Lord)  v.  Tyler,  800. 

Thomas,  48.  190. 
,  Thompson  v.  Hodgson,  571. 
.  Thynne,  483.     ' 

Trapaud,  542. 

Tucker,  604. 
,  Tyler,  327. 


TABLE    OF    CASES. 


XXVU 


Doe   V.  Ulph,  666. 

V.  Wainwright,  491.  508.  543.  568. 

642. 
d.  Walker  v.  Stephenson,  252,  253. 

512. 

d.  Wartney  v.  Grey,  113.  563. 

V.  Waterton,  577. 

V.  Webber,  329.  492. 

V.  Webster,  657.  592. 

d.  Wellard  v.  Hawthorn,  673. 

V.  Wellsman,  327. 

w.Westlake,  654.  688.  692. 

d.  Wetherell  v.  Bird,  573. 

d.  Wheeldon  v.  Paul,  519,  520. 

V.  Whitefoot,  542. 

V.  Wilde,  132. 

V.  Wilford,  691. 

V.  Wilkins,  667. 

d.  William  IV.  (King)  v.  Roberts, 

270.  283.  287. 

V.  Williams,  487.  489. 

d.  Williams  v.  Lloyd,  100.  295.  577. 

d.  Willis  V.  Blrohmore,  132. 

V.  Wilson,  785. 

d.  Winnall  v.  Broad,  617. 

V.  WoUey,  523. 

V.  Wood,  266. 

d.  Wood  V.  Morris,  731. 

d.  Wood  V.  Wilkins,  303. 

d.  Woodmas  v.  Mason,  259.  739. 

d.  Worcester  School  i  Trustees   of) 

V.  Rowlands,  602. 

V.  Wright,  327.  433.  475. 

Don  V.  Lippman,  358. 
Donaldson  v.  Forster,  707. 

V.  Thompson,  380.  382. 

Donoaster  (Mayor  of)  v.  Day,  191.  409. 

433. 
Donnison  v.  Elsely,  187. 
Doran's  case,  33.  507. 
Douglas  V.  Forrest,  349.  356,  357. 

Peerage  case,  847.  879. 

Downes  v.  Moreman,  269. 
Dowsett  V.  Sweet,  686.  690.  693. 
Doxon  V.  Haigh,  543.  565.  570. 
Drable  v.  Donner,  558. 

Drake  v.  Marryat,  295. 

V.  Smyth,  290.  302. 

Drakeford  v.  Hodges,  661. 

Draper  v.  Garratt,  626.  629. 

Dresser  v.  Clarke,  128. 

Drew  V.  Durnbough,  553. 

Drinkwater  v.  Porter,  187,  188. 

Driver  v.  Thompson,  808. 

Druce  v.  Dennison,  688. 

Drummond  v.  Attorney-General,  653. 

Du  Barr^  v.  Livette,  40. 

Duberley  v.  Gunning,  804. 

Du  Bost  V.  Beresford,  43. 

Ducker  v.  Wood,  804. 

Dufferin  and  Clandebov's  (Lord)  claim, 

738. 
Dufiferin's  (Lord)  case,  282. 


Duins  V.  Donovan,  299,  300. 
Dunbar  v.  Harvie,  296. 

V.  Roxburghe  (Duchess,)  699. 

Duncan  v.  Scott,  433. 

Dunford  v.  Trattles,  639. 
Dunn  V.  Aslett,  236.  249. 

V.  Fulford,  432. 

V.  Murray,  335. 

Dunn's  case,  622.- 

Dunraven  (Lord)  v.  Llewellyn,  187.  190. 

Dunstan  v.  Tresider,  639.  641. 

Dupays  v.  Shepherd,  279. 

Durham  (Bishop  of)  v.  Beaumont,  252. 

Dutton  V.  Colt,  419. 

Dutton's  case,  420,  421.  430. 

Dyson  v.  Wood,  396. 

Dwyer  v.  Collins,  564. 

Earl  V.  Lewis,  290,  291,  292.  526. 

East  V.  Chapman,  206.  214. 

Eastern    Union    Railway    Company    v. 

Symonds,  552. 
Eastmure  v.  Laws,  336,  337. 
Eastou  V.  Pratchett,  592. 
Eaton  V.  Southby,  769. 
Eccleston  v.  Petty,  442.  569. 
Eden  v.  Blake,  656. 

V.  Chalkill,  574. 

Edger  v.  Knapp,  802. 
Edie  V.  East  India  Company,  702. 
Edinburgh  v.  Crudell,  t07. 
Edmonds  v.  Challis  and  others,  571. 

V.  Groves,  592. 

V.  Lowe,  121. 

V.  Rowe,  31. 

V.  Walker,  169. 

V.  Walter,  243. 

Edmondson  v.  M.ichell,  800. 
Edmondstone  v.  Webb,  643. 
Edmondstone  v.  Plaisted,  438. 
Edmunds  v.  Downes,  721. 

V.  Groves,  451. 

Edwards  v.  Cooper,  656. 

V.  Evans,  145.  801. 

V.  Jevons,  709. 

V.  Matthews,  596. 

V.  Sherratt,  605. 

Egremont(EarI  of  )  v.  Saul,  799. 
Ehrensperger  «.  Anderson,  558. 
Ekins  V.  Macklish,  703. 

Eiden  v.  Keddell,  394. 
Elkin  V.  Janson,  -588. 
Elliott  V.  South  Devon  Railway  Company, 

799. 
Ellis  V.  Abrahams,  617. 

V.  Watson,  311. 

Ellison  V.  Cookson,  714. 

V.  Isles,  617. 

Elston  V.  Wood,  442. 

Elton  V.  Larkins,  202.  505.  573. 

Ely   (Dean,  &c.)  v.  Caldeoott,  480. 

(Dean  of)  v.  Stewart,  522,  523.  525. 

Emden's  case,  448. 


XXVIU 


TABLE    OF    CASES. 


Enfield  v.  HUls,  796. 
England  v.  Bourke,  363.  385. 
Engstrom  v.  Brightman,  766. 
Entick  V.  Carriugton,  569. 
Erskine  v.  Murray,  736. 
Estwick  V.  CalUaud,  784. 
Evans  v.  Birch,  590. 

V.  Curtis,  516. 

V.  Getting,  315. 

V.  Ogilvie,  639. 

V.  Pratt,  705. 

V.  Rees,  186.  292.  386.  525. 

V.  Sweet,  554. 

V.  Taylor,  288,  289.  407,  408. 

V.  Williams,  122. 

V.  Yeatherd,  120. 

Everett  v.  Lowdham,  199. 

V.  Youells,  335.  805,  806. 

Everingham  v.  Eoundell,  543. 
Everth  v.  Hannam,  381. 
Ewbank  v.  Nutting,  616. 

Ewer  V.  Ambrose,  227.  245.  249.  251. 423. 

432.  441.  447,  448. 
Exeter   (Marquis   of)   v.   Exeter   (Mar- 
ohionesa  of,)  676. 

(Mayor  of )  v.  Warren,  484. 

Ex  parte  Syne,  113,  114. 

Lyne,  114. 

Eosooe,  103. 

. Tillotson,  104. 

Eyre  ti.  Palsgrave,  270. 

Fabrigas  v.  Mostyn,  795. 

Faoey  v.  Hurdom,  774. 

Faohina  v.  Sabine,  29.  31. 

Fagan  v.  Dawson,  388. 

Pairtitle  d.  Mytton  v.  Gilbert,  100. 

Faith  V.  M'Intyre,  124.  613. 

Falconer  v.  Hanson,  412.  580. 

Falmouth  (Earl  of)  v.  Moss,  112.  569. 

(Lord)  V.  Roberts,  501.  517. 

Fassett  v.  Brown,  518.  529,  530. 
Faulder  v.  Silk,  380.  406. 
Fazakerley  v.  Wiltshire,  738. 

Fearn  v.  Filica,  641. 
Fellingham  o.  Sparrow,  115. 145. 
Fenn  v.  Granger,  131. 

V.  Griffith,  651.  656.  731. 

V.  Johnson,  604.  610. 

Fennell  v.  Tait,  105. 
Fenner  v.  Mears,  657. 
Fentum  v.  Pooock,  660. 
Fenwick  v.  Bell,  175. 

V.  Reed,  522. 

Fenwick's  (Sir  John)  case,  35. 
Ferguson  v.  Mahon,  353.  356.  402. 
Feme  d.  Pewtress  v.  Granger,  132. 
Fernley  v.  Worthington,  439.  539. 
Ferrand  v.  Milligan,  802. 
Ferrers  v.  Arden,  323. 

V.  Wignal,  759. 

Field  V.  Beaumont,  110.  112. 
V.  Woods,  614. 


Fielder  ».  Ray,  731. 

Filmer  v.  Gott,  673. 

Finch  V.  Finch,  204. 

Finney  v.  Finney,  658.  666. 

Firkin  v.  Edwards,  556. 

Fisher  v.  Kitchinghman,  267.  390. 

V.  Lane,  358.  396,  397. 

V.  Ogle,  381,  382. 

Fishmongers'  Company  v.  Dimsdale  and 

others,  506. 
Fitz  V.  Rabbits,  531. 
Fitzgerald  v.  Elsee,  511.  518.  530. 

V.  Eustace,  577. 

V.  Fauconberge,  667. 

■   V.  Fitzgerald,  573. 

Fitzwalter's  (Lord)  case,  547. 
Flad  Oyen  case  (The)  382. 
Fletcher  v.  Kraddyll,  174. 

V.  Crosbie,  616. 

V.  Froggatt,  582. 

u.  Gillespie,716. 

0.  Greenwell,  131. 

Flindt  V.  Atkins,  399. 
Flower  v.  Young,  310,  311. 
Folkes  V.  Chadd,  173,  174. 
Fonnereau  v.  Poyntz,  686. 
Fonsick  v.  Agar,  412. 
Forbes  v.  Wale,  524. 
Ford  V.  Elliott,  623. 

V.  Grey,  (Lord)  441.  577. 

V.  Hopkins,  703. 

V.  Yates,  665. 

Fordyce  v.  Willis,  721. 
Forman  v.  Dawes,  275. 
Forrester  v.  Pigou,  118,  119. 
Forty  V.  Imber,  628. 
Foster  v.  Bonner,  435. 

V.  Compton,  390. 

V.  Jolly,  660. 

V.  Munt,  713. 

V.  Pointer,  551.  558. 

Fotheringham  v.  Greenwood,  118. 
Fountain  v.  Boodle,  763. 
Fowler  v.  Coster,  595.  599.  602. 

V.  Fowler,  713. 

Fox  ti.  Frith,  660. 
Foxcroft  V.  Devonshire,  784. 
France  v.  Lucy,  560. 
Francia's  case,  62. 
Francisco  v.  Gilmore,  424. 
Frank  v.  Frank,  380.  601. 

V.  Smith,  406. 

Frankes  v.  Gary,  481. 
Frankland  v.  M'Gusty,  356.  402. 
Franklin's  case,  282. 

Fraser  v.  Hopkins,  310. 
Free  v.  Hawkins,  660. 
Freeman  v.  Arkell,  193.  539. 

V.  Cooke,  100.  343.  462.  762. 

V.  Phillips,  189,  190.  421,  422. 

503. 

V.  Steggal,  571. 

Fremoult  v.  Dedire,  400. 


TABLE    OF    CASES. 


XXIX 


Friedlander  v.  London  Assurance  Com- 
pany, 245.  248. 
Friend's  case,  204.  206.  253. 
Frontine  v.  Frost,  590. 
Frost  V.  HoUoway,  212. 
Fry  V.  Hill,  774,  775. 

V.  Monoton,  605. 

V.  Wood,  409,  410.  522.  525. 

Fuller  V.  Fotch,  270.  306.-369.  379.  398. 

V.  Pattrick,  566. 

u.  Prentice,  103,  104. 

Furley  v.  Wood,  713. 
Furly  V.  Newnham,  423. 
Fumeaux  v.  Hutchins,  189.  619. 
Furness  v.  Cope,  464.  645. 
Fursden  v.  Clogg,  474.  480. 
Fyler  v.  Newcombe,  127. 
Fyson  v.  Kempp,  271. 

Gahan  v.  Maingay,  349. 

Gainsford  v.  Grammar,  672. 

Galbraith  v.  Neville,  347.  351. 

Gale  V.  Capern,  478. 

V.  Lewis,  639. 

V.  Williamson,  660.  674. 

Galway  v.  Baker,  794. 

Ganer  v.  Lanesborough,  (Lady)  400. 

Gape  V.  Handley,  697. 

Garden  v.  Cresswell,  104. 

Gardiner  ».'  Crosedale,  627. 

. II.  Gray,  661. 

Gardener  Peerage  case,  88.  468. 

Garland  v.  Scoones,  390. 

Garnett  v.  Ferraud,  321.  404. 

Garnons  v.  Swift,  541.  570. 

Garrell  v.  Lister,  395.  565. 

Garrells  v.  Kensington,  380. 

Garrick  v.  Williams,  261.  575. 

Garth  v.  Howard,  763. 

Gascoyne  v.  Smith,  800. 

Gathercole  v.  Miall,  631.  537. 

Gaunt  V.  Wainman,  331.  365. 

Geaoh  v.  Ingall,  596.  601. 

Geary  v.  Hoskins,  466.    . 

General  Steam  Navigation  Company  v. 
Guillen,  364. 

George  v.  Surrey,  630. 

Gerish  v.  Chartier,  622. 

Gervis  v.  Grand  Western  Canal  Com- 
pany, 371. 

Gevers  v.  Mainwaring,  126. 

Geyer  v.  Aguilar,  378.  380. 

Gibbons  v.  Powell,  556.  657. 

Gibbs  V.  Pike,  736.  802. 

V.  Ralph,  336. 

V.  Rumsey,  713. 

V.  Sunaley,  804. 

Gibson- w.  Gell,  689. 

V.  Hunter,  623.  791.  797,  798. 

V.  Macarty,  332,  364. 

Gilbert  v.  Stanislaus,  628. 
Giles  V.  Powell,  237.  605. 
. V.  Smith,  118.  550. 


Gill  V.  Shelley,  687. 

Gillies  V.  Smither,  570. 

Girdlestone  v.  M'Gowran,  133. 

Girdwood's  case,  786. 

Gist  V.  Mason,  802. 

Glascock  V.  Warren,  577. 

Gleadow  v.  Aikin,  474.  478. 

Glossop  V.  Pole,  289.  408. 

Glubb  V.  Edwards,  514. 

Glynn  v.  Bank  of  England,  411.  479. 

V.  Houston,  234. 

Goblet  V.  Beechy,  654.  709. 
Goddard's  case,  343.  640.  720. 
Godefroy  v.  Jay,  267. 
Godfrey  v.  Davis,  687. 

V.  Macauley,  280. 

v.  Norris,  613. 

Godfrey's  (Sir  Edmondbury)  case,  858. 

Godmanchester  Bailiffs,  &c.  v.  Phillips, 
124.  131.  699. 

Godson  V.  Smith,  335. 

Gold  and  Silver  Wire-drawers  (Com- 
pany of)  V.  Hammond,  118. 

Goldie  V.  Shuttleworth,  672. 

Golding  V.  Crowle,  781. 

V.  Nias,  133. 

Goldshede  v.  Swan,  709. 

Goldsmith  v.  Sefton  (LordJ,  804. 

Golightly  V.  Jellicoe,  336. 

Goodered  u.  Armour,  661. 

Goodhay  v.  Hendry,  143. 

Goodier  v.  Lake,  531.  541.  542. 

Goodinge  v.  Goodinge,  689. 

Goodman  v.  Cotherington,  763. 

Goodright  v.  Corder,  785. 

V.  Moss,  441. 

Goodtitle  v.  Braham,  604. 

V.  Chandos  (Duke  of,)  475. 

V.  Otway,  715,  716. 

d.  Bevett  v.  Braham,  172,  610. 

d.  Richardson  v.  Edmonds,  670, 

671. 

V.  Saville,  663. 

V.  Southern,  691,  692. 

Goodwin  V.  West,  104. 

Gordon  v,  Secretan,  566.  567. 

Gordon's  case,  87.  651.  646,  647. 

Gorham  v.  Thompson,  280. 

Gorton  v.  Dyson,  395. 

Goslin  V.  Wilcook,  803. 

Goss  V.  Nugent  (Lord,)  655.  724,  725. 

V.  Quinton,  680. 

V.  Tracy,  411.  513. 

V.  Watlington,  481. 

Gough  ;;.  Cecil,  519,  520. 

Gould  V.  Oliver,  232.  460.  641. 

Graham  v.  Dyster,  224.  661. 

V.  Hope,  280. 

Grant  v.  Astle,  628. 

V.  Gould,  371. 

V.  Jackson,  443. 

V.  Maddox,  702. 

V.  Moser,  738. 


XXX 


TABLE    OF    CASES. 


Granville  v.  Beaufort  (Duchess  of,)  663. 

Grater  v.  CoUard,  799. 

Graves  v.  Key,  677.  718. 

Gray  v.  Cookson,  369,  370.  398. 

Graysbrook  v.  Fox,  451. 

Greaves  v.  Ashlin,  664,  665. 

Green  v.  Gatewiok,  410.  414. 

V.  Hewett,  287. 

V.  New  River  Company,  322. 

V.  Fronde,  272.  286. 

V.  Sutton,  128. 

V.  Waller,  739. 

V.  Weston,  660.  728. 

GreensMelds  v.  Crawford,  448.  521. 
Gregory  v.  Brunswick  (Duke  of, )  452, 
613. 

V.  Tavernor,  184.  229. 

V.  Tuffs,  802. 

V.  Williams,  285. 

Grellier  v.  Neale,  511.  518.  523.  529. 
Greswolde  v.  Kemp,  607. 
Grevelle  v.  Atkins,  675. 

u.  Chapman,  176. 

V.  Lamb,  232.  236. 

V.  Stulz,  426. 

Grew  V.  Bevan,  784. 

V.  Hill,  639. 

Grey  v.  Smith,  583. 

V.  Smithyes,  604.  716.  730. 

Grey's  (Lord)  case,  792. 
Griffith  V.  Moore,  577. 
Griffiths  V.  Payne,  6:^3. 

V.  Williams,  572. 

Griffits  V.  Ivery,  202. 
Groenvelt  v.  Burwell,  369. 
Groom  v.  Bradley,  137. 

V.  Watson,  136. 

Groome  v.  Forrester,  370. 
Grove  v.  Ware,   559. 
Gryffyth  v.  Jenkins,  737. 
Guest  V.  Elwes,  637. 
Guilliam  v.  Hardy,  257. 
Guinness  v.  Carroll,  349.  355. 

Gully  V.  Exeter  (Bishop  ofj,  441.  486. 

531. 
Gunnis  v.  Erhart,  556.  664. 
Gunston  v.  Downs,  129. 
Gurney  v.  Langlands,  174.. 
Gurr  V.  Rutton,  43. 
Gutteridge  v.  Smith,  807. 
Guy  V.  Gregory,  640. 
Gwinnett  v.  Phillips,  628. 
Gwynne  v.  Sharpe,  617.  640. 
Gyfford  v.  Woodgate,  437,  718. 
Gyles  V.  Hill,  271. 

Haddow  v.  Parry,  485. 

Haddrick  v.  Heslop,  128,  622.  783.  810. 

Hadley  v.  Green,  335. 

Hagedorn  u.-Reid,  493.  548.  551. 

Haigh  V.  Belcher,  201.  618. 

V.  Brooks,  -709. 

Haire  v.  Wilson,  763. 


Halhead  v.  Abraham,  807. 
Halifax's  (Lord)  case,  594.  756. 
Hall  t>.  Bainbridge,  510. 

V.  Ball,  542.  544. 

V.  Cazenove,,  720. 

V.  Cecil  and  Rex,  120. 

V.  Chandless,  502. 

V.  Hoddesdon,  420.  431. 

V.  Stone,  335. 

V.  Wiggett,  678. 

HaUett  V.  Cousens,  169.  171.  243. 

V.  Mears,  103. 

Halliley  v.  Nicholson,  650.  664. 
Hamber.t).  Roberts,  521. 
Hammond  v.  Howell,  369. 
Hampshire  v.  Pierce,  668.  680. 
Hanbury  v.  Ella,  637. 
Hancock  v.  Podmore,  807. 

V.  Welsh,  329.  334.  360. 

Hanley  v.  Ward,.  197. 

Hannaford  v.  Hunn,  343. 

Hanson  v.  Shackleton,  738. 

Hanwell  v.  Lyon,  266. 

Harcourt's  case,  190. 

Hardcastle  v.  Sclater,  408. 

Hardwood  v.  Wallace,  677. 

Hardy's  case,  184.  192.  197.  204.  213. 

Hare  v.  Cator,  628. 

V.  Munn,  596. 

V.  Shearwood,  658. 

Hargest  v.  Fothergill,  556. 
Harrap  v.  Bradshaw,  390. 
Harratt  v.  Wise,  280.  785. 
Harrington  v.  Macmorris,  450.  641. 
Harris  v.  Goodwyn,  747. 

V.  Lincoln  (Bishop  of,)  655. 

V.  Lloyd,  687. 

V.  Tippett,  200,  201.  210.  213. 

Harris's  case,  230.  863. 
Harrison  u.  Bamaby,  628. 

V.  Blades,  410.  518. 

V.  Borwell,  271. 

V.  Gordon,  201. 

V.  Gould,  599. 

V.  Harrison,  608, 

V.  Turner,  582., 

Harrison's  case,  253. 
Harscot's  case,  756. 
Hart  V.  Harrison,  581, 

V.  Hart,  542. 

V.  Maouamara,  378, 

V.  Stephens,  135. 137. 

Hartley  v.  Cooke,  304.  309. 

V.  Wharton,  691.  721. 

Hartshorne  v.  Watson,  120.  143,  144. 
Harvey  v.  Harvey,  312.  658. 
V.  Hewitt^  805. 

V.  Mitchell,  541.  614,  615. 

V.  Morgan,  559. 

Harvy  v.  Broad,  738. 

Harwood  v.  Goodright,  V66.  818.  847. 

V.  Sims,  60. 

Basting's  case,  244.  282, 


TABLE    OF    CASES. 


XXXI 


Hatch  V.  Blisset,  113.. 
Hatfield  v.  Hatfield,  375. 
Hathaway  v.  Barrow,  332.  364,  365. 
Hattam  v.  Withers,  562. 
Havelook  v.  Kookwood,  880.  382. 
Hawkesworth  v.  Showier,  139. 
Hawkins  v.  Kemp,  509. 
Haworth  v.  Whalley,  806. 
Haws  V.  Hand,  411. 
Hayne  v.  Maltby,  100. 
Haynesu.  Hare,  662.  658. 

V.  Holliday,  706. 

Hayslip  v.  Gymer,  468. 
Hazy's  case,  643. 
Healey  v.  Story,  660. 

V.  Thatcher,  582. 

Hearne  v.  Turner,  137. 
Hedges'  case,  185.  862. 
Hemming  w.  Parry,  636. 

V.  Trenery  and  another,  501. 

Henderson  v.  Henderson,  335.  342.  353, 

354.  357.  402. 
Henkle   v.   Royal  Exchange  Assurance 

Company,  676.  703. 
Hi-nley  v.  Soper,  341.  358. 
Henman  v.  Dickenson,  500. 
Hennell  v.  Lyon,  432.  447,  448. 
Henry  v.  Adey,  259,  399,  400.  737.  740. 

V.  Lee,  180. 

V.  Leigh,  309.  552. 

Henshaw  v.  Pleasance,  348.  379. 
Herbert  v.  Cooke,  358.  400. 

r-  V.  Reld,  691. 

— ' V.  Walters,  798. 

Hervey's  case,  375.  403. 
Hetheringtou  v.  Kemp,  551. 
Heudehourck  v.  Langley,  121. 
Hewitt  V.  Macquire,  540. 

^  V.  Pigott,  447. 

Hewlett  V.  Crutchley,  804. 
Hewson  v.  Brown,  257. 
Heysham  v.  Forster,  312. 
Hibbert  v.  Knight,  112,  113,  540. 
Hibblewhite,  v.  M'Morine,  503. 
Higgins  V.  Senior,  665,  721. 
Higginson  Clowes,  664. 
Eiggs  V.  Dixon,  507. 

V.  Mortimer,  435. 

V.  Taylor,  540. 

Higham  v.  Ridgway,  64,  65,  465,  474, 475. 
Highfleld.  v.  Peake,  227,  261.  423.  432. 

447. 
Hiliard  v.  Phaley,  376. 
Hill  V,  Bateman,  369,  370. 

V.  Coombe,  197. 

V.  Kitching,  135. 

V.  Manchester  and  Salford  Water- 
work  Company,  309,  659. 

V.  Unett,  519,  520. 

Hiliard  v.  Phaley,  339. 
Hillyard  v.  Grantham,  363,  364. 
Hilton  V.  Shepherd,  775. 
HinchclifFe  v.  Hinchdiflfe,  714. 


Hintou  V.  Heather,  783. 

V.  Campbell,  329,  333,  334. 

V.  Groom,  675.  787. 

Hoare  v.  Graham,  660.  666. 
Hobart  v.  Hammond,  770.  773. 
Hobhouse  v.  Hamilton,  573. 
Hobman  v.  Burrow,  739. 
Hookin  v.  Copke,  700.  702.  741. 
Hodges  V.  Drakeford,  655. 

V.  Holder,  597. 

Hodgkinson  v.  Willis,  447. 
Hodgson  V.  Ambrose,  687. 

V.  Glover,  790. 

Hodnett  v.  Forman,  513,  514. 
Hodson  V.  Marshall,  121. 

V.  Merest,  442. 

Hoe  V.  Nathorp,  268,  269. 

V.  Nelthrope,  395. 

Hogarth  v.  Perring,  603. 
Hogg  V.  Snaith,  666. 
Hoggett «.  Exley,  599. 

J/.  Oxley,  600. 

Holoombe  v.  Hewson,  619. 
Holcroft  V.  Smith,  411.  575. 
Holding  V.  Pigott,  711,  712. 
Holdsworth  v.  Dartmouth     (Mayor  of,) 

250. 
Holland  v.  Reeves,  228.  563.  581. 
Holland's  case,  735. 
Holliday  v.  Pitt,  113. 
HoUis  V.  Goldfinch,  470. 
HoUoway  v.  Rakes,  489. 
Holmes  v.  Pontin,  513. 

V.  Walsh,  403. 

Holsten  v.  Jumpson,  677.  720. 
Holt  V.  Miers,  340.  555.  557. 
Home  V.  Bentnick,  42.  192.  256. 
Honeywood  v.  Peacock,  505.  513. 
Hood  V.  Reeve,  702.  706. 
Hooley  v.  Hatton,  714. 
Hooper  v.  Hooper,  326. 

V.  Lane,  779.  785. 

Hope  V.  Atkins,  661,  662. 
Hopkins  v.  Jones,  389,  390. 
Horford  v.  Wilson,  145.  800. 
Horn  D.  Baker,  786. 

V.  Swinford,  114. 

Home  V.  Mackenzie,  178.  182. 

V.  Smith,  104. 

Horneyer  v.  Lushington,  382. 
Houlditch   u.  Donegal   (Marquis,)   351, 

353. 
Houlisten  v.  Smyth,  393. 
Househill  Coal  Company  v.  Neilson,  797. 
Houseman  v,  Roberts,  555. 
Hovill  V.  Stephenson,  513. 
How  V.  Hall,  561,  562. 

V.  Piokard,  809. 

V.  Strode,  799. 

Howard  «.  Burtonwood,  299. 

V.  Canfleld,  180.  184. 

II.  Gossett,  305. 

u.  Smith,  506. 


xxxu 


TABLE    OF    CASES. 


Howard  v.  Tremaine,  409.  420. 

V.  Williams,  S'ie. 

Howell  V.  Locke,  115.  144. 

V.  Wilkins,  740. 

Hoyle  V.  Cornwallis,  738. 

V.  Coupe,  124. 

V.  Hamilton,  687. 

Hubbard  «.  Johnstone,  766. 
Hubbart  v.  Phillips,  324. 
Huckman  v.  Femie,  596. 
Hudson  V.  Brown,  586.  603. 

V.  Revett,  502. 

•^——  V.  Robinson,  361.  365. 
Hudson's  case,  511. 

Huet  V.  Le  Mesurier,  300. 
Hughes  V.  Cornelius,  380. 

u.  Gordon,  701.  712. 

V.  Hughes,  799.  801. 

V.  Rogers,  201,  202. 

V.  Turner,  688. 

■ V.  Wilson,  307. 

Hughes'  case,  643. 

Hull  (Mayor  of)  v.  Horner,  387. 
Humble  v.  Hunt,  270.  283.  309. 

V.  Hunter,  665. 

Humphreys  v.  Budd,  738. 

V.  Knight,  285. 

V.  Millur,  118. 

— ^^— ^—  u.  Pensam,  416. 
Hunt  V.  Alewyn,  530. 

V.  Andrews,  310. 

V.  Hort,  650. 

Hunter  v.  Caldwell,  780.  785. 

V.  Potts,  737. 

Huntingtower  (Lord)  v.  Gardiner,  809. 
Huntley  v.  Donovan,  306. 

Huntley  Peerage,  284.  526. 
Hurst  Vi  Beach,  715. 

V.  Royal  Exchange  Assurance  Com- 

pany, 772. 
Hussey  v.  Field,  757. 
Hutchins  v.  Soott,  501. 
Hutchinson  j;.  Bernard,  434. 

■ —  V.  Bowker,  705. 

Hutchinson's  case,  366.  383. 
Huthwaite  v.  Phaire,  400. 
Hutt  V.  Morell,  334. 
Hutton  V.  Warren,  712.  761. 
Huxham  v.  Smith,  350.  359. 

Iggulden  V.  May,  700,  701. 

Ilderton  v.  Atkinson,  122. 

lUingworth  v.  Leigh,  291.  430,  431.  477. 

Inoledon  v.  Burgess,  326. 

Ingram  v.  Lawson,  452.  613. 

V.  Lea,  729. 

Ireland  v.  Powell,  49. 

Irish  Society  v.  Derry  (Bishop  of,)  260, 

287.  309.  406.  492.  579. 
Irnham  (Lord)  v.  Child,  658.  672. 
Isaacs  V.  Brand,  781. 
Isham  V.  Wallace,  309. 
Islington  Market  Bill,  In  re,  757. 


Ivatt  V.  Finch,  486. 

Jack  V.  M'Intyre,  692. 
Jackson  v.  Allen,  571. 

V.  Bull,  27. 

c.  Duchaire,  803. 

V.  Hesketh,  597.  605. 

Jacob  V.  Lee,  560. 

Jacobs  u.  Laybom,  144,  145. 

V.  Laybourn,  115.  615. 

V.  Lindsay,  180,  181,  729. 

V.  Tarleton,  608. 

James  v.  Phelps,  783. 

V.  Salter,  605. 

James's  case,  266.  447. 
Jameson  v.  Drinkald,  175. 
Janson  v.  Wilson,  419. 
Jarrett  v,  Leonard,  799. 
Jeacock  v.  Falkener,  666.  670.  689. 
Jeans  v.  Wheadon,  544.  718. 
JeflFery  v.  McTaggart,  346. 

V.  Walton,  656.  724. 

Jenkins  v.  Blizard,  280 
Jenkinson  v.  Pepys,  664. 
Jennings  v.  Griffiths,  311. 
Jewison  v.  Dyson,  312.  524.  620. 
Johnson  «.  CoUings,  657. 

t.  Durant,  349. 

V.  Gilson,  560.  580. 

V.  Graham,  135,  136. 

V.  Lewellin,  565. 

c.  Mason,  505. 

V.  St.  Peter,  Hereford,  761. 

V.  Ward,  306. 

Johnstone  v.  Sutton,  781. 
Johnstone's  case,  626. 
JoUey  V.  Taylor,  561. 
Jones  V.  Bow,  375,  376. 

u.  Brewer,  423.  505.  510.  518. 

u.  Edwards,  559. 

V.  Fort,  614. 

V.  Gibson,  810. 

V.  Hilton,  559. 

V.  Howell,  656. 

V.  Jones,  410.  521. 

V.  Kenrick,  595. 

V.  Littledale,  665.  707. 

V.  Mason,  521. 

V.  Morgan,  670. 

u.  Newsam,  679. 

V.  Randall,  281.  389.  393. 

V.  Sparrow,  804. 

V.  Stevens,  309. 

V.  Stroud,  180.  183. 

V.  Tarleton,  555. 

V.  Tucker,  688. 

V.  Waller,  527. 

■   V.  White,  361.  364.  406. 

V.  Williams,  620. 

Jory  V.  Orchard,  500.  558. 
Joynes  v.  Statham,  672. 
Joy's  (Lady)  case,  803. 
Jupp  V.  Grayson,  349. 


TABLE    OF    CASES, 


XXSUl 


Kain  v.  Old,  661.  678. 

Kaines  v.  Knightly,  661. 

Kay  V.  Brookman,  517.  519,  520. 

V.  Clarke,  394. 

Keable  v.  Payne,  367. 

Kearle  v.  Boulter,  771. 

Kearney  v.  King,  738.  741. 

Keelin  v.  Ball,  571. 

Kellington  v.  Trinity  College,  Cambridge 

(Master,  &c.  of)  286.  407. 
Kemp  V.  Mackerill,  616. 
Kempson  v.  Yorke,  583. 
Kempton  v.  Cross,  259. 
Kenn's  case,  375. 

Kensington  v.  Inglis,  184,  185.  637.  548. 
Kent  V.  Loweu,  89.  174.  467. 
Kerslake  v.  White,  691. 
Keys  V.  Harwood,  729.  731. 
Kieran  v.  Johnson,  552. 
Kmington  (Vioar  of  J  v.  Trinity  College, 

289. 
Kinder  v.  Williams,  113,  114. 
Kindersley  v.  Chaee,  380,  381,  382. 
Kine  v.  Beaumont,  558. 
King  V.  BakeJ-,  133. 

V.  Cole,  506. 

V.  Dixon,  111. 

V.  Foster,  312. 

V.  Norman,  321,  322.  639. 

V.  Simmonds,  792. 

V.  Williamson,  615. 

Kinsman  v.  Crooke,  410. 
Kingston-upon-HuU  (Mayor  of)  v.  Homer, 

455. 
Kingston's  (Duchess  of)  case,  180.  319. 

323,  324.  337.  341.  354.  374.  377.  385. 

402. 
Kinnersley  v.  Orpe,  261.  283.  294.  324. 

329. 
Kirby  v.  Hickson,  738. 
Kirk  V.  Nowill,  735. 
Kirwan  v.  Cockburn,  280. 

V.  Kirwan,  280. 

Kitchen  v.  Campbell,  318. 

7j.  Mainwaring,  764. 

Kite  V,  Queinton,  678. 
Knapp  V.  Haskall,  609. 
Knapton  v.  Cross,  394. 
Knight  V.  Clements,  500. 
V.  Dauler,  272. 

V.  M'Donall  and  others,  641. 

■ V.  Martin,  553.  567. 

V.  Waterford  (Marquis  of),  480, 

551. 

V.  Woore,  124. 

KnoUy's  case,  282. 
Koster  v.  Reed,  732: 

Lacey  v.  Forrester,  592. 
Lacon  v.  Hooper,  306. 
Lagbourn  v.  Crisp,  189. 
Laing  v.  Kaine,  505.  572. 
Lainson  v.  Tremere,  657.  659.  666. 
C 


Lake  v.  Billers,  436. 

V.  Kink,  736. 

V.  Lake,  713. 

, V.  Skinner,  291. 

Lambert  v.  Hale,  603. 
Lanauze  v.  Palmer,  559. 
Lanoum  v.  Lovell,  386.  472. 
Lane  v.  Hegberg,  379. 

V.  Stanhope,  (Lord),  689. 

Lane's  case,  737. 

Lanesborough's  (Lord)  case,  266.  545. 
Langfleld  d.  Banton  v.  Hodges,  713. 
Langley  v.  Oxford,  505.  573. 

Lano  V.  Neale,  661. 
Latkow  V.  Earner,  289.  407. 
Latour  v.  Bland,  719. 
Launder  v.  Brooks,  736. 
Lavie  v.  Phillips,  736. 
Lawes  v.  Reed,  180. 
Lawler  v.  Murray,  796. 
Lawranee  v.  Dixon,  299. 
Lawrence  v.  Clark,  551.  555.  557.  559. 
562. 

■ V.  Hooker,  503. 

Lawson  v.  Sherwood,  569. 

Layburn  v.  Crisp,  392. 

Layer's  case,  42.  209.  238. 

Leader  v.  Barry,  300. 

Leaf  V.  Butt,  557. 

Leake  v.  Westmeath  (Marquis  of,)  268. 

393. 
Leary  v.  Patrick,  370. 
Le  Caux  v.  Eden,  380. 
Lechmere  v.  Fletcher,  342. 

■- V.  Toplady,  333. 

Lee   q.  t.  v.  BirreU,  193. 

V.  Lee,  30. 

V  Meecook,  267.  298.  389. 

Lee's  case,  201. 
Leeds  v.  Cook,  113.  553.  562. 
Leeson  v.  Holt,  280. 
Legatt  V.  Reed,  785. 

V.  Tollervey,  322. 

Le  Gross  v.  Lovemore,  477. 
Leighton  v.  Leighton,  406.  408.  416. 
Lemon  v.  Dean,  511.  518.  530. 
Lendon  v.  Sharp,  784. 
Lepping  v.  Kedgewin,  334. 
Leslie  v.  De  la  Torre,  657.  661. 
LethuUier's  case,  703,  704. 
Levy  V.  Baillie,  803. 
Lewiok  v.  Lucas,  338. 
Lewis  V.  Clarges,  360. 

V.  Hartley,  571. 

V.  Marshall,   618.   653.  702.  707. 

788,  789. 

1/.  Rogers,  467. 

V.  Simpson,  467. 

u.  Wells,  598. 

Ley  V.  Ballard,  511.  518. 

Liebman  v.  Pooley,  543.  548.  643,  644. 
Lightfoot  V.  Cameron,  113. 
Lilly  V.  Ewer,  703.  705. 


XXXIV 


TABLE    OP    CASES. 


Lincoln  (Bishop  of)  v.  Ellis,  327. 
Lingham  v.  Briggs,  786. 
Linton  v.  Bartlett,  784. 

School  V.  Scarlett,  696. 

Littler  v.  Holland,  663.  725. 
Lloyd  V.  Freshfield,  184. 

V.  Maddox,  402. 

V.  Mostyn,  540.  543.  556. 

V.  Wait,  497. 

<,.  Wynne,  658. 

Lobb  V.  Stanley,  721. 
Lock  V.  Hayton,  27. 
Locke  V.  Norbone,  326. 
Lookett  V.  Nioklin,  656.  664. 

London  and  Birmingham  Railway  Com- 
pany V,  Winter,  675. 

(City  of)  V.  Clarke,  386. 

(Mayor,  &c.  of)  v.  Long,  697. 

(Mayor  of)  a.  Lynn  (Mayor  of,) 

455. 
Long  V.  Champion,  447. 

V.  Hitchcock,  203.  240,  241. 

Longchamp  v.  Fish,  784. 
Lorton  (Lord)  v  Gore,  550. 
Lothian  v.  Henderson,  380. 
Lovat's  (Lord)  case,  115.  143,  144. 
Lovelace's  case,  508. 

Lowe  V.  Jollilfe,  511. 

V.  Peers,  747. 

Lowfield  V.  Stoneham,  668. 
Lucas  V.  De  la  Cour,  443. 

V.  Groning,  701. 

Lugg  V.  Lngg,  715. 
Lunniss  v  Row,  143,  144. 
Lutterell  v.  Raynell,  253. 
Luttrell  V.  Lea,  257. 

Lygon  V.  Strutt,  290.  312.  526. 
Lynch  v.  Clerke,  268.  315.  444. 
Lynn  v.  Beaver,  715. 

V,  (Mayor  of)  v.  Denton,  456. 

Lynn's  (Mayor  and  Burgesses  of)  case, 

510. 
Lysons  v.  Barrow,  400. 
Lytton  V.  Lytton,  670. 

Macallum  v.  Thurton,  204. 
M'Alpine  v.  Mangnall,  795. 
Macbeath  v.  Haldimand,  677.  720.  730. 

787. 
M'Brain  v.  Fortune,  121. 
Macbride  v.  Macbride,  207.  210. 
M'Carthy's  case,  718. 
Macclesfield's  (Lord)  case,  204. 
M'Combie  v.  Anton,  420.  426. 
Macdonnell  v.  Evans,  227. 
Maodougal  v.  Young,  272. 
M'Craw  v.  Gentry,  518.  529. 
M'Gahey  v.  Alston,  131.  481.   534.  538. 

646,  647. 
M'Guire's  case,  643. 
M'Intyre  v.  Layard,  432. 
M'lver  V.  Humble,  311. 
Mackalley's  case,  397. 


Mackally's  case,  626. 
Mackell  v.  Winter,  689. 
M'Naghten's  case,  174,  175. 
M'Neil  V.  Perchard,  271. 
Maddison  v.  Nuttall,  476. 
Magee  v.  Atkinson,  665.  707. 
Magrath  v.  Hardy,  343. 
Makarell  v.  Bachelor,  773. 
Malkin  v.  Vickerstaff,  802. 
Mallabar  v.  Mallabar,  713. 
Mallan  v.  May,  701.  705. 
Maloney  v.  Bartley,  204,  205. 
Malony  v.  Gibbons,  351. 
Malpas  V.  Clements,  759. 
Maltoir  v.  Nesbitt,  175. 
Man  V.  Gary,  269. 
Manby  v.  Curtis,  522,  523.  528. 
Manley  v.  Shaw,  8 1 6. 
Mann  v.  Davers,  370. 

V.  Lovejoy,  807. 

V.  Musgrave,  566. 

V.  Owen,  360. 

Manners  v.  Postan,  507. 

Manning  u.  Eastern    Counties    Railway 
Company,  757. 

V.  Lechmere,  481. 

Mant  V.  Mainwaring,  120.  128. 
Manton  v.  Bales,  804. 
Markham  v.  Middleton,  335. 
Marks  u.  Lahee,  485.  496. 

Marleys   a,   Drayton.      See    Masters   v. 

Drayton. 
Marriage  v.  Lawrence,  309.  455. 
Marriot  v.  Marriot,  400. 
Marriott  v.  Hampton,  348. 
Marsh   v.  CoUnett,  269. 

V.  Colnett,  309.  522,  523. 

V.  Robinson,  310. 

Marshall  ■;.  Cliff,  572. 

V.  Lamb,  646.  758. 

V.  Lynn,  655.  663.  725. 

V.  Parker,  381. 

Marston  v.  Downes,  214.  540. 

V.  Roe  d.  Pox,  715,  716. 

Marten  v.  Thornton,  336. 
Martin  v.  Bell,  437. 

V.  NicoUs,  346.  352,  353. 

Martin  Lolly's  case,  402. 
Martyn  v.  Podger,  436. 
Mascal  v.  Mascal,  658.  667. 
Mash  V.  Smith,  130. 
Mason  v.  Ditchbourne,  615. 
Massey  v.  Goyder,  615. 

V.  Johnson,  398. 

Masters  v.  Barnwell,  804. 

V.  Drayton,  119,  120. 

I V.  Masters,  654.  670.  690. 

Mathews  v.  Smith,  809. 
Matthews  v.  Haydou,  122. 
Maugham  v.  Hubbard,  178, 16r>.  181   511 
729.  ' 

Mawson  v.  Hartsink,  23§. 
Maxwell  v.  Sharp,  722. 


TABLE    OF    CASES. 


XXXV 


May  V.  Chapman,  593. 

V.  May,  298.  414. 

Maytank  v.  Brooks,  689. 
Mayer  (Assignees  of)  v.  Sefton,  645. 
Mayfleld  v.  Wadsly,  804. 
Mayo  V.  Browne,  403. 
Mead  v.  Robinson,  269.  308. 
Meagoe  v.  Simmons,  180.  202.  605. 
Mease  v.  Mease,  652.  659.  666. 
Meatli  (Bishop  of)  v.  Belfleld  (Lord,)  49. 
190.  309.  730. 

V.  Winchester  (Marquis  of, )  292. 

444.  459.  524,  527.  767.  789.  791. 
Meddoworoft  v.  Huguenin,  402. 
Medlicot  v.  Joyner,  543. 
Mee  V.  Reed,  31. 
Meekins  v.  Smith,  113. 
Melhuish  v  Collier,  132.  168. 
Mellish  V.  Rawdon,  770. 
Melville's  (Lord)  case,  282.  548.  756. 
Mendham  v.  Thompson,  464. 
Mercer  v.  Whall,  697.  599,  600.  605. 
Meres  v.  Ansell,  662.  684.  725. 
Merrick  v.  Wakely,  309. 
Mayer  v.  Everth,  661. 
Meyer's  Assignees  v.  Sefton,  177. 
Meyrick  v.  Woods,  557. 
Michell  V.  Rabbetts,  292.  526. 

V.  Williams,  782. 

Middleton  v.  Barned,  755.  760. 
Milbanke  v.  Grant,  647. 

V.  Melton,  481. 

V.  Sandford,  520, 

Milbourn  v.  Ewart,  722. 
Mildmay's  case,  659. 
Mildroue's  case,  31. 

Miles  V.  Bough,  313. 
Millar  v.  Heinrick,  175. 
Millar's  case,  173. 
Millard's  case,  622. 
Miller  v.  Falconer,  122. 

V.  Foster,  293. 

V.  Miller,  615.  522. 

V.  Travers,  686,  687.  690.  694. 

V.  Warre,  791.  798. 

Miller's  case,  293. 
Millman  v.  Tucker,  213. 
Mills  V.  Barber,  592. 
V.  Oddy,  540.  592. 

Milton  (Lord)  v.  Edgworth,  655.  663. 
Milward  u.  Forbes,  581. 

V.  Hibbert,  621. 

. 0.  Temple,  520.  572.  753. 

Minchin  v.  Clement,  809. 

MinshuU  v.  Lloyd,  538. 

Minton's  case,  626. 

Mires  v.  Solebay,  766. 

Mitchell  V.  Johnston,  519,  520. 

Moises  V.  Thornton,  259.  457.  647.  740. 

Molier  v.  Living,  702. 

Molony  v.  Gibbons,  358. 

Molton  V.  Harris,  545.  575. 

Monday  v.  Guyer,  127. 


Mondell  v.  Steel,  337,  338.  426. 

Money  v.  Leach,  795. 

Monke  v.  Butler,  594.  756. 

Monktou  V.  Attorney-General,    63.   190. 

422. 
Montague  (Earl  of)  v.  Preston,  (Lord,) 

.444. 
Montgomery  v.  Clarke,  389,  390. 
Moodaylay  ti.*  Morton,  428. 
Moody  V.  King,  120.  129. 

• .  V.  Thurston,  348.  401. 

Moon  V.  Raphael,  544. 

V.  Whitney  Guardians,  710. 

Moore  v.  Booth,  114. 

'V.  Garwood,  786. 

V.  Hastings,  (Mayor  of,)  578,  579. 

V.  Taylor,  803. 

V.  Tuckwell,  801. 

Moravia  v.  Sloper,  737. 

Morland  v.  Bennett,  750. 

Morewood  v.  Wood,  48,  49.  62. 187.  620. 

Morgan  v.  Brydges,  196. 

V.  Hughes,  369. 

0.  Moore,  345. 

V.  Morgan,  517. 

V.  Whitmore,  759. 

Morgan's  case,  29.  31. 
Morish  v.  Foote,  115.  122. 
Morrell  v.  Fisher,  688.  692.       ^ 
V.  Frith,  787. 

Morris  v.  Davies,  814. 

V.  Davis,  299. 

— ^— ^  V.  Hannen,  560. 

V.  Hauser,  560. 

V.  Lotan,  599. 

V.  Pugh,  435. 

V.  Vivian,  806. 

Morrish  v.  Murrey,  801. 

Morrison  v.  Lennard,  114. 

Mortimer  v.  M'Callan,  266.  269.  456.  801. 

Morton  v.  Burn,  657. 

Moscati  V.  Lawsou,  611. 

Moseley  v.  Davies,  189. 

V.  Hanford,  660. 

Moses  V.  Macfarlane,  347. 

Mostyn  v.  Fabrigas,  423.  737. 

Motteux  «.  London  Assurance  Company, 

676. 
Mould  V.  Williams,  270. 
Mounsey  v.  Blamire,  692. 

V.  Bumham,  505. 

Mounson  v.  Bourn,  737. 
Mulvany  v.  Dillon,  419. 
Munn  V.  Baker,  280. 

V.  Godbold,  541.  543,  544. 

Murley  w.  M'Dermott,  723. 
Murphy  v.  Donlan,  810. 
Murray  v.  Gregory,  506. 

V.  Stair  (Earl  of,)  510. 

V.  Wise,  416. 

Musgrave  v.  Emmerson,  481 .  484. 
Mytton  V.  Harris,  291. 


XXXV] 


TABLE    OP    CASES. 


Naish.  V.  Brown,  613. 
Kannocfc  v.  Horton,  6S8. 
Napier  v,  Napier,  688. 
Nathan  v.  Buokland,  800. 
Naylor  v.  Taylor,  382. 
Neale  v.  Fry,  314. 

V.  Wilding,  387. 

Needham  v.  Fraser,  104.  64O. 

V.  Law,  119. 

Neilson  v.  Harford,  787. 
Nelson  v.  WMttall,  519,  520. 
Newcastle  (Dnke  ot)  v.  Broxtowe  Hun- 
dred, 187. 

New  College  (case  of,)  371.  401. 
Newhall  v.  Holt,  807. 
Newham  v.  Eaithby,  300. 
Newton  v.  Boodle,  793. 

V.  Chantler,  784. 

V.  Chaplin,  112.  540. 

Newys  v.  Larke,  798. 
NiohoUs  V.  Dowding,  146. 

V.  Parker,  49.  63.  186. 

Nicholson  v.  Brook,  615. 
Nichols  v.  Eoss,  755. 

Nicol  V.  Alison,  427. 
Nind  V.  Arthur,  793. 
Noble  V.  Kennaway,  780. 

V.  Einnoway,  621. 

Noden  v.  Johnson,  629. 
Noel  V.  Wells,  374.  400. 
Norman  v.  Morrell,  654. 
Northam  v.  Latouche,  398. 
Norton  v.  Melbourne  (Lord, )  425. 
Novelli  V.  Rossi,  354. 

Noyder  v.  Peacock,  416. 

Oakden,  v.  Clifden,  689. 
Gates  d.  Wigfall  v.  Brydon,  671. 
Obicini  v.  Bligh,  341.  355,  356. 
O'Coigly's  case,  210. 
O'Connor  v.  Malone,  390. 
O'Connor's  case,  210. 
Oddy  V.  BoTill,  381,  382. 
Ofley  V.  Hicks,  666. 
Ogle  V.  Norcliffe,  737. 

V.  Paleski,  115.  145. 

Okill  V.  Whittaker,  675. 
Oldman  v.  Slater,  713. 
Oldroyd'9  case,  231.  239. 
Olive  V.  Guin,  739. 

V.  Gwyn,  259.  576. 

Oliver  v.  Bartlett,  43. 

V.  Latham,  125. 

Omichund  v.  Barker,  29.  116.  294. 
Orr  V.  Morrice,  666. 

Osbom  V.  Thompson,  601. 
Osgathorpe  v.  Diseworth,  383. 
Osterman  v.  Bateman,  622. 
Outhwaite  v.  Hudson,  807. 
Outram  v.  Morewood,  48,  49.  323.  326. 

329.  334.  343.  473.  476,  477.  480. 
Overton  v.  Harvey,  334. 


Paddock  v.  Fradley,  691. 
Page  J).  Faucet,  738. 

V.  Mann,  519,  520. 

Pain  V.  Beeston,  241. 
Pallant  v.  EoU,  626. 

Palmer  v.  Aylesbury  (Lord,)  411,  431, 

432. 
Palmerston''s  (Lord)  case,  191.  414,  433. 
Panton  v.  Williams,  770.  782. 
Pardee  v.  Price,  500.  535.  657. 
Pargeter  v.  Harris,  460. 
Parker  v.  Hoskins,  514.  516. 

V.  M 'Williams,  200. 

V.  Palmer,  780. 

V.  Whitby,  118. 

Parkhurst  v.  Lowten,  204. 
Parkin  v.  Moon,  168.  197. 
Parkins  v.  Hawkshaw,  520.  572. 
Parkinson  v.  CoUier,  707. 
Parry  v.  May,  554. 
Parsons  v.  Parsons,  686. 
Parteriche  v.  Powlet,  725. 
Partington  v.  Butcher,  444.  583. 
Partridge  v.  Coates,  553. 

V.  Strange,  684.  735. 

Pasmore  v.  Bousfield,  647. 
Patchett  V.  Bancroft,  379. 
Patrick's  (Dr.)  case,  371.  401. 
Paxtou  V.  Douglas,  204. 

V.  Popham,  672.  675.  807. 

Peaceable  v.  Watson,  490. 
Peacock  v.  Bell,  737. 

V.  Monk,  659,  660. 

Pearce  v.  Gray,  337.  361. 

V.  Hooper,  565. 

V.  Whale,  758. 

Pearoy  v.  Fleming,  120. 
Peardon  v.  Underbill,  620. 
Pearse  v.  Morris,  500.  564.  578. 
Pearson  v.  Cole,  602. 

V.  Henry,  658. 

Pease  v.  Naylor,  774. 

Pedder  v.  M 'Master,  346. 

Pedler  v.  Paige,  512. 

Pedley's  case,  173. 

Pegg  V.  Stead,  640. 

Pember  v.  Mathers,  664. 

Penu  V.  Ward,  618, 

Pennell  v.  Meyer,  439.  444. 

Penny  v.  Foy,  589. 

Penaon  v.  Lee,  616. 

Pepper  v.  Winyeve,  670. 

Percival  v.  Frampton,  592. 

Perigal  v.  Nicholson,  65.  115.  144.  477. 

Perring  v.  Tucker,  616. 

Perrott  v.  Perrott,  502. 

Perry  v.  Gibson,  196. 

Fetch  V.  Lyon.  572. 

Petersborough  (Lord)  v.  Mordaunt,  531. 

Peters  v.  Fleming,  773. 

Petit  V.  Smith,  670. 

Petre  (Lord)  v.  Blencoe,  699. 

Philipson  v.  Chase,  563. 


TABLE    OF    CASES, 


XXXVll 


Phillipsonu.  Egremont  (Lord)  324.  385. 

402,  403. 
Phillips  V.  AUan,  342. 

V.  Bury,  371,  401. 

V.  Carew,  428. 

V.  Cole,  491,  492.  788. 

V.  Crawley,  375. 

V.  Earner,  196. 

V.  Hunter,  346,  347,  348. 

V.  Irving,  780. 

V.  Willetts,  616. 

Phipps  V.  Parker,  511.  518.  530. 
Physicians  (College  of)  v.  West,  276. 
Piokard  v.  Sears,  100.  762. 
Pickering  v.  Dowson,  661.  678. 
Pickton's  case,  175.  279. 

Pieroy's  case,  314. 
Piers  V.  Piers,  754. 
Piesley  v.  Von  Esch,  120. 
Pike  V.  Badmering,  511. 
Pike's  case,  33. 

Pilgrim  v.  Southampton  Railway  Com- 
pany, 572. 
Pim  d.  Curell,  189.  340.  386.  422. 
Pinkney  v.  Hall,  786. 

V.  De  Rosel,  Inhah.,  27. 

. V.  Steel  and  another,  128. 

Piper  V.  Chappell,  756. 
Pirie  v.  Anderson,  310,  311. 
Pitcairn  v.  Ogbourne,  676. 
Pitcher  v.  King,  261.  438. 

V.  Rinter,  396. 

Pitman  v.  Maddox,  493. 

V.  Woodbury,  500.  508, 

Pitt  V.  Knight,  257. 

V.  Shew,  774.  779. 

Pitton  V.  Walter,   267.   312.   389,   390. 

414. 
Plaxton  V.  Dare,  286.  481. 
PleydeU  v.  Dorchester  (Lord,)  804. 
Plumer  v.  Brisco,  507.  568.  577.  646. 
Plumer's  case,  174. 
Plummer  v.  Woodburne,  341.  352. 
Plunkett  V.  Cobbett,  193. 
Pooock  V.  Lincoln  (Bishop  of,)  689. 
Pole  V.  Rogers,  426.  601. 

V.  Somers  (Lord,)  714. 

Polhill  V.  Polhill,  394. 
Pollard  V.  Bell,  355.  381,  382. 

V.  Scott,  290. 

Pomeroy  v.  Baddeley,  199. 
Pontifex  v  Bignold,  763. 
Poole  V.  Dicas,  496,  497. 

V.  Warren, '542.  570. 

Pooley  V.  Goodwin,  541,  542.  569. 
Poter  V.  Cooper,  267.  391. 
Portmore  (Lord)  v.  Morris,  658,  659. 
Portez  V.  Glossop,  467.  502.  521.  758. 
Pott  V.  Todhunter,  674. 

Potter  V.  Brown,  346. 

Potts  V.  Duraut,  290,  291,  292,  293,  294. 

527. 
Powel  V.  Gordon.     See  Powell  v.  Gordon. 


Powel  V.  Milbank,  594. 

Powell  V.  Edmonds,  656,  661.  664. 

V.  Farmer,  628.   ; 

w.  Gordon,  118. 

V.  Horton,  705. 

V.  Layton,  322. 

V.  Milburn,  756. 

Powis  V.  Smith,  ^85. 

Poynton  v.  Forsfer,  389. 

Pratt  V.  Parkinson,  370. 

Preston  v.  Merceau,  655.  658.  662. 

Preston's  (Lord)  case,  113. 

Price  V.  Dewhurst,  355. 

■  17.  Edmunds,  660. 

V.  Green,  792. 

V.  HoUis,  277. 

^.  Littlewood,  303. 

V.  Moulton,  657. 

V.  Oldfleld,  403. 

V.  Page,  650. 

V.  Seaward,  600. 

V.  Torrington  (Lord,)  64.  465.  494. 

V.  Woodhouse,  454.  529.  547. 

Price's  case,  448. 

Priohard  v.  Powell,  187. 

Prince  v.  Blackburn,  513.  519,  520. 

V.  Samo,  171.  234,  235.  252.  582. 


Pritohard  v.  Bagshawe,  435.  506. 

t>.  Draper,  443. 

V.  Hitchcock,  321. 

V.  Symonds,  543.  551.  554. 

V.  Powell,  48. 

V.  Walker,  646. 

Pritt  V.  Fairclough,  494.  547.  569. 

Proctor  V.  Lainson,  411,  412. 

Pressor  v.  Gwillim,  486. 

Provis  V.  Reed,  252.  512. 

Prudham  v.  Phillips,  385.  403. 

PuUenu.  White,  614. 

Pulley  V.  Hilton,  290. 

Purcell  V.  Macnamara,  318. 

Purnell  v.  Young,  819. 

Pye's  case,  636. 

Pyke  V.  Crouch,  327.  408.  414.  485. 

Pym  V.  Blackburn,  655. 

Pvne  V.  Dor,  575. 

Pytt  V.  Griffith,  514. 

Quartermau  v.  Cox,  143. 

Queen's  (The)  case,  116.  213,  214.  216. 

231,  232.  239,  240,  241,  242,  243,  244. 

262.  423.  642,  643. 
Quelch's  case,  279. 
Quin  V.  Shea,  346. 

Radbum's  case,  414. 
Radnor  (Lord)  v.  Reeve,  379.  401. 
Ramadge  v.  Ryan,  176. 
Rambert  v.  Cohen,  180.  729. 
Ramkissensent  v.  Barker,  29.  31. 
Ramsbottom  v.  Buckhurst,  438. 

V.  Tunbridge,  729.  731. 

Randal  v.  Randal,  676. 


XXXVlll 


TABLE    OF    CASES. 


Eandall  v.  Gurney,  113,  114. 

V.  Lynch,  505. 

Randle  v.  Blackburn,  444.  459.  582,  583. 

Eandolph  v.  Gordon,  526. 

Eaper  v.  Birkbeck,  355. 

Eavee  v.  Farmer,  335. i 

Eaven  v.  Hamilton,  570. 

Rawlings  v.  Desborough,  581.  595.  600, 

601.  611. 
Eawson  v.  Haigb,  468. 

V.  Walker,  660. 

Eead  v.  Gamble,  561. 

V.  Jackson,  386.  759. 

Eearden  v,  Minter,  567. 
Eeason  and  Tranter's  case,  730. 

Eeed  v.  Jackson,  188. 190.  338.  386.  403. 

677. 

• V.  James,  112. 

V.  Passer,  299. 

Eees  V.  Bowen,  266.  447. 

d.  Howell  V.  Bowen,  432. 

V.  Mansell,  522,  523. 

V.  Smith,  606. 

V.  "Walters,  24.  329.  525.  536. 

Eeeve  v.  Underbill,  598,  599. 
Eeeves  v.  Newenham,  666. 
Eeid  V.  Margison,  271. 
Eendall  v.  Hayward,  803,  804. 
Eeniger  v.  Fogossa,  735. 
Eeusse  v.  Myers,  311. 
Eevett  «.  Brown,  810. 
Eex  aut  Eeg.  v.  Adderbnry,  131. 

V.  Addis,  734. 

V.  Adey,  214.  611. 

V.  Aickles,  308.  562. 

V.  AUgood,  454. 

V.  Allen,  594. 

V.  Antrobus,  188,  189.  308. 

V.  Appeals  (Commissioners  of,)  254. 

V.  Arundel  (Countess  of,)  431. 

V.  Atwood,  698.  734. 

V.  Austrey,  509. 

V.  Babb,  456. 

V.  Baker,  738. 

V.  Baldwin,  403. 

V.  Ball,  168.  800. 

V.  Balls,  622. 

V.  Barber,  204,  205. 

V.  Barber  and  others,  616. 

II.  Barnes,  394. 

V.  Bamett,  277. 

V.  Barnoldswiok,  621. 

V.  Bathwick  (Inhabitants  of,)  457. 

737. 

V.  Baynes,  268. 

V.  Beard,  612. 

V.  BedeU,  760. 

V.  Beezley,  194.  231. 

V.  Bell,  718. 

V.  Bellamy,  267.  391. 

V.  Bellringer,  699. 

V.  Bennett,  805. 

V.  Benson,  448. 


Eex  t.  Best,  383. 

V.  Biokley,  405. 

V.  Biers,  736. 

V.  Bignold,  613. 

V.  BilUnghay,  651. 

V.  Bilmore,  129. 

V.  Birch,  267. 

V.  Bispham,  238. 

V.  Blacksmiths'  Company,  738. 

V.  Blick,  368. 

V.  Bliss,  51.  89.  188.  468.  471. 

V.  Bodle,  195. 

V.  Bolton,  369.  400. 

V.  Borrett,  647. 

V.  Boston,  118,  119.  363,  364. 

V.  Boucher,  610. 

V.  Boutler,  734. 

V.  Bourdon,  320.  391. 

V.  Bourne,  738. 

V.  Bowler,  364.  407.  612. 

V.  Boynes,  579. 

V.  Brasier,  33. 

V.  Bray,  118. 

V.  Bromsgrove,  534. 

V.  Brooke,  196. 

V.  Broughton,  792. 

V.  Browne,  267.  391. 

V.  Brownell,  106,  107. 

V.  Buokworth,  423. 

V.  Budd,  761. 

V.  Buggs,  735. 

V.  Bull,  194. 

V.  Burbon  (Inhabitants  of,)  366. 

V.  Burdett,  560,  803. 

V.  Burrows,  610. 

V.  Buttery  and  another,  839. 

V.  Battery    and    Macnamara,    378. 

400. 

V.  Cadogan  (Earl  of,)  455. 

V.  Cambridge  (Chancellor  of,)  737. 

V.  Carey,  110. 

V.  Carlisle,  613. 

V.  Carr,  444. 

V.  Castleton,    532,   533,    534,    535. 

543. 

V.  Cator,  174. 

V.  Catterall,  383. 

V.  Chapman,  195. 

u.  Cheadle   (Inhabitants    of,)    651. 

674.  726. 

V.  Chester  (Bishop  of,)  371. 

V.  Chester  (Mayor  of,)  697. 

V.  Chilverscoton,  383. 

V.  Christian,  268.  271. 

V.  Christopher,  230. 

V.  Clapham,  299. 

V.  Clarke.  252.  254.  469. 

V.  Clegg,  403. 

V.  Clewes,  617. 

V.  Cohen,  805. 

V.  Cole,  118. 

V.  College,  33. 

V.  CoUey,  199,  200. 


TABLE    OF    CASES. 


XXXIX 


,  Coode,  786. 

Cook,  199. 

Cooke,  106.  194. 

Coombs,  594.  756. 

Corsham,  383. 

Cotton,  63.  403.  421. 
,  Courvoisier,  612. 
,  Cresswell,  646. 
.  Crossley,  309. 
,  Culpepper  (Sir  T.,)  541,  542. 
,  Curtis,  231. 
.  Darlington  School  (Grovemors  of,) 

371,  401. 
.  Davies,  697. 
.  Davis,  308. 
.  Debenham,  304. 
.  De   Berenger    and    others,    204. 

278,  279.  738. 
.  De  la  Motte,  562. 
.  Denio  (Inhabitants  of,)  534. 
.  Dent,  175. 
.  Donnall,  617. 
.  Doran,  642. 
.  Dossett,  617.  623. 
.  Douglas,  424.  540. 
.  Dukinfleld,  495. 
.  Duncombe,  184.  228. 
.  Durham,  734. 
.  Eardisland,  366,  367. 
.  East  Parleigh,  531.  537,  638. 
,  Edmunds,  414. 
.  Edwards,  206,  207.  211.  229. 
.  Elderton,  735. 
.  Elkins,  437. 
.  Ellioombe,  555. 
.  Ellis,  128.  623. 
.  Ely  (Bishop  of,)  371. 
.  Entrehman,  29. 
.  Eriswell,  49. 
.  Erith,  35. 

.  Essex  (Justices  of,)  786. 
.  Everett,  768.  786. 
.  Evesham  (Mayor  of,)  313. 
.  Exeter  County  Treasurer,  106. 
■  Fagg,  718. 
.  Farringdon,  522. 
.  Fitzgerald,  305. 
,  Fitzpatriok,  31. 
,  Fleet  (Warden  of,)  331.  363. 

Fletcher,  129. 

Forsyth,  281.  739. 

Foster,  88.  254.  469. 

Eraser,  130. 

Frederick,  130. 

Fursey,  468. 

Garbett,  41.  206,  207.  214. 
,  Gardner,  614.  280. 
.  Gascoine,  612. 
,  Gaskin  (Dr.,)  403. 

Genge,  829. 
,  George,  128. 

Gibson,  339.  378.  507. 

Gilham,  31.  40.  628. 


Rex  V.  Gisburn,  144. 

V.  Goldshede,  441. 

V.  Goodere,  199. 

V.  Gordon,  267. 

V.  Gordon  (Lord  George,)  204.  281. 

V.  Grant,  806. 

V.  Gray,  129. 

o.  Greep,  738. 

V.  Greenaway,  110. 

V.  Griffiths,  230. 

V.  Grimes,  328.  385. 

V.  Grimwood,  306. 

. V.  Groombridge,  748. 

V.  Grundon,  371.  401. 

V.  Guttridge,    88.    254.    410.    468, 

469. 

V.  Gwyn,  456. 

V.  Haines,  315.  395,  396.  454. 

V.  Hall,  468. 

V,  Hammersmith  (Parish  of,)  49. 

V.  Hammond  Page,  322.  390. 

V.  Hanson,  590. 

V.  Harberton,  552. 

V.  Harbin,  129. 

V.  Harborne,  594.  755. 

V.  Hardy,  193. 

V.  Hare,  740. 

V.  Hargrave,  734. 

V.  Harringworth,  504,  505.  507.  510. 

V.  Harris,  198.  321. 

. ■  V.  Harrow  and  Ryslip,  383. 

V.  Hartel,  612. 

V.  Haslingfield,  749.  756.  760.  818. 

V.  Hastings,  734. 

V.  Hawkins,  556.  594.  756. 

V.  Haworth,  555. 

V.  Hayes,  613. 

V.  Hazy,  594. 

V.  Hebden,  326.  384,  385. 

V.  Hedges,  180. 

V.  Heyford  (Lower)  Inhabitants  of, 

475. 

V.  Hiokling,  383. 

V.  Higgins,  792. 

V.  Hilditoh,  609. 

V.  Hill,  410.  512.  627. 

— —  V.  Hinks,  128. 

V.  Hodgson,  205. 

V.  Hogg,  410.  696. 

V.  Holden,  195.  230. 

V.  Holt,  279. 

V.  Hopper,  573,  574. 

(in  aid  of  Reed)  v.  Hopper,  261. 

V.  Home,  613. 

■  V.  Howard,  646. 

V.  Howe,  243. 

V.  Hube,  643. 

V.  Huoks,  790. 

V.  Hughes,  308. 

V.  Hunt,  563.  627. 

V.  lies,  322.  390.  430. 

V.  Ipswich  (Justices  of,)  738. 

V.  Jarvis,  590.  734. 


xl 


TABLE    OF    OASES. 


Rex  V.  Jefferies,  277. 

V.  Johnson,  88.  418.  537. 

V.  JoUiffe,  409.  416. 

V.  Jones,  424.  507.  646.  734. 

V.  Jordan,  613. 

V.  Kenilwortti,  383.  536.  541. 

V.  King,  270.  389. 

V.  Kingston  (Dncliess  of,)  185. 

•  V.  Kingston-npon-HuU,  729. 

V.  Kinloch,  184. 

V.  Kirby  Stephen,  543. 

V.  Knaptoft,  338.  383. 

V.  KniU,  695. 

V.  KnoUys,  736. 

V.  Koops,  737. 

V.  Lafone,  129. 

V.  Laindon,  651.  674.  727. 

V.  Lamhe,  717. 

V.  Layer,  562. 

V.  Ledgard,  308. 

V.  Lee,  408. 

V.  Leeds,  384. 

V.  Leicester,  552. 

V.  Leigh,  189.  386. 

V.  Leominster,  367. 

V.  Lewis,  207.  209. 

V.  Lisle,  328.  384,  385. 

V.  Littleton,  612. 

V.  Liverpool  (Mayor  of,)  309. 

V.  Llandillo,  758. 

V.  Llangunnor,  651.  674.  726. 

V.  Looker,  139. 

V.  Lookup,  27. 

V.  London  (Mayor,  &o.,  of,)  131. 

V.  Long,  623. 

V.  Long  Buckby,  524.  542. 

V.  Longnor  (Inhabit,  of,)  510. 

V.  Lubbenham,  299. 

V.  Lucas,  454. 

V.  Luflfe,  735.  72. 

V.  Lutton,  735. 

V.  Lyme  Regis,  735. 

V.  Maddox  and  others,  246. 

V.  Malings,  611. 

V.  Mann,  805. 

V.  Marsh,  194. 

».  Marshall,  410. 

V.  Martin,  303. 

V.  Mattingley,  672.  674. 

V.  Mead,  32.  437. 

V.  Megson,  88.  254.  469. 

V.  Merceron,  206. 

V.  Merthyr  Tydvil,  729. 

V.  Middlezoy,  505,  565. 

V.  Mildrone,  31. 

V.  Miller,  699.  740. 

V.  Milton  (Inhabitants  of,)  275. 

V.  Minns,  390. 

V.  Moors,  562. 

V.  Morphew,  412.  423. 

V.  Morris,  448. 

V.  Mortlook,  267.  396. 

V.  Morton,  532,  533. 


Rex  V.  Motheringham,  544. 

V.  Mothersell,  309.  455,  456,  457. 

V.  Mnrlis,  196. 

V.  Murphy,  199.  646. 

V.  Muscot,  143,  144. 

V.  Nesbitt,  737. 

V.  Netherthong,  457,  458.  522.  525. 

V.  Newton,  646. 

V.  Nicholas,  117. 

u.  North  Bedburn,  534. 

V.  Northfeatherton,  383. 

V.  North  Petherton,  299. 

V.  North  Wingfield,  651.  674. 

V.  Nutt,  792.| 

V.  Gates,  204.  282. 

V.  Oddy,  622. 

V.  Oldbury,  383. 

V.  Oldroyd,  246. 

V.  Olney,  726. 

V.  Orchard,  195. 

V.  Orrell,  612. 

V.  Orton  (Inhabitants  of,)  110. 

V.  Osborne,  88. 

V.  Osbourne,  697. 

V.  Owen,  130. 

V.  Padstow,  731. 

V.  Paget,  (Lord,)  792. 

V.  Paine,  416. 

V.  Parker,  734.  253. 

V.  Pearce,  651.  558. 

V.  Pegler,  204. 

I).  Pembridge  (Inhabitants  of,)  304. 

V.  Phillips,  371.  766.  785.  810. 

V.  Pioton,  581. 

V.  Piddlehinton,  533. 

V.  Pike,  32.  117. 

V.  Pitre.     See  Rex  v.  Pike. 

V.  Poole,  779. 

V.  Powell,  30.  610. 

V,  Preston  (Inhabitants  of,)  792. 

V.  Preston  (Lord,)  33. 

V.  Ramsbottom,  396. 

V.  Ramsden,  184. 

V.  Ratcliffe,  367. 

!>.  Rawden   (Inhabitants    of,)   533. 

661.  656. 

V.  Reader,  403. 

aut.  Reg.  V.  Reading,  206. 

V.  Reed,  645. 

V.  Rees,  647. 

V.  Reynell,  805. 

V.  Rhodes,  305.  339.  373. 

V.  Richards,  370. 

V.  Rider,  610. 

V.  Ridsdale,  469. 

V.  Ring,  105.  107. 

V.  Roddam,  106. 

V.  Rogers,  594.  643. 

V.  Rosser,  816. 

V.  Rowley,  793. 

V.  Ruston,  114.  116. 

V.  Ryton,  526. 

V.  Sadler,  113. 


TABLE    OF    GASES. 


Xli 


Eex   V.  St.  Allan's  (Mayor,  &o.  of),  697. 
V.  St.  Andrew  tlie  Great  Cambridge, 

804. 
V.  St.   Ann's,    Westminister,   335. 

383. 

V.  St.  George,  232.  252. 

V.  St.  Helen's,  in  Abingdon,  531. 

V.  St.  Katherine,  299. 

V.  St.  Martin,   Leicester,  178,  179. 

511. 

V.  St.  Mary,  Lambeth,  383. 

V.  St.  Mary  Magdalen,  119. 

V.  St.  Mary's,  Nottingham,  205. 

V.  St.  Pancras,  336.  345.  366.  386. 

V.  St.  Peter's,  Droitwioh,  383. 

V.  St.  Sepulchre,  535. 

V.  Sarratt,  383. 

V.  Savage,  410. 

V.  Soammonden,  673,  674.  725. 

V.  Schlesinger,  173. 

V.  Scott,  699. 

V.  Searle,  175. 

V.  Serva,  30.  116. 

V.  Sewell,  261.  295.  449. 

V.  Shaftesbury  (Earl  of),  206. 

. V.  Sharpe,  738. 

V.  Shaw,  277.  322. 

V.  Shellard,  220.  224.  230. 

V.  Shelley,  454. 

V.  Sheppard,  762. 

— —  V.  Sherman,  130. 

V.  Shinfield,  727. 

V,  Silchester,  383. 

V.  Sills,  139. 

V.  Simmonds,  194. 

• V.  Skibthwaite,  501. 

V.  Slaney,  204. 

V.  Smith,  139.  267,  268.  367.  389. 

391.  396.  414.  590.  730.  792. 

V.  Sow,  338.  340. 

V.  Spencer,  448. 

V.  Spragge,  562. 

V.  Stacey,  100. 

V.  Staffordshire  (Justices  of),  256. 

V.  Stamford,  647. 

V.  Stannard,  613. 

V.  Sterling,  339. 

V.  Stimpson,  609. 

V.  Stockton,  759. 

V.  Stoke,  674. 

V.  Stoke  Golding,  539.  551. 

V.  Stoke-upon-Trent,  651.  712. 

V.  Stone,  590. 

V.  Stonebeckup,  275. 

■  V.  Stourbridge,  534. 

V.  Stratford-upon-Avon  (Mayor  of), 

697. 

V.  Stratton,  792. 

V.  Stroner,  195. 

V.  Sutton,  188,  189.  278.  280.  386. 

407.  627.  805. 

V.  Swatkins,  741. 

V.  Sympson,  738. 


Rex  V.  Tanner,  761. 

V.  Tawell,  617. 

V.  Taylor,  29,  30.  116.  231.  403. 

V.  Teale,  201. 

V.  Thring,  267. 

V.  Throgmorton,  33. 

V.  Thursfleld,  612. 

V.  Tooke,  389. 

V.  Tower,  454. 

V.  Townsend,  367.  647. 

V.  Treble,  800. 

V.  Tucker,  117. 

V.  Turk,  398. 

V.  Turner,  106.  367.  374.  448.  590. 

733. 

V.  Twyning,  594.  749.  755.  759. 

V.  Upper  Boddington,  112. 

V.  Upton  Gray,  758. 

V.  Upton  St.  Leonards,  423. 

V.  Utterby,  275. 

V.  Varlo,  694.  697. 

V.  Verelst,  646,  757. 

V.  Viokery,  646. 

V.  Vincent,  194.  339.  378. 

V.  Virrier,  734.  806. 

V.  Voke,  617. 

V.  Wakefield  and  another,  143. 

V.  Walker,  118.  254.  469. 

V.  Wandsworth,  805. 

V.  Ward,  267.  391.  397. 

V.  Washbrooke,  402. 

V.  Watson,  41.  115.  174.  192.  194. 

201.  210.  213.   237,   238.    551. 

555.  558.  563.  623. 

V.  Watts,  786. 

V.  Webb,  199.  734. 

V.  Welsh,  577. 

V.  Wheelook,  335.  338.  383. 

V.  Whiston,  749   757. 

V.  Whitchurch  (Inhabitants  of>,  522. 

V.  White,  30.  460. 

V.  Whiting,  118.  613. 

V.  Whittlebury,  778. 

V.  Wick,  St.   Lawrence,    338.   345. 

383. 

V.  Wickham,  675.  726. 

V.  Wilde,  735. 

V.  Williams,  33.  117.  627. 

V.  Wilshaw,  410. 

V.  Witherby,  540. 

V.  Withers,  281. 

V.  Witney,  191. 

V.  Woburn,  131.  240. 

V.  Wood,  423,  424. 

V.  Woodchester,  383. 

V.  Woodfall,  776. 

V.  Woodhead,  231. 

V.  Woodley,  112. 

V.  Wooldale,  679. 

V.  Wooler,  806. 

V.  Worthing  (Inhabitants  of),  486. 

491.  493.  729. 
V.  Wrangle,  656.  729. 


xlii 


TABLE    OF    CASES. 


Rex  V.  Wye,  383. 

V.  Wylde,  199. 

V.  Wylie,  623. 

V.  Yates,  734. 

V.  Yeovely,  267.  391.  393.  396. 

V.  Yewin,  213. 

V.  Yorkshire      (Justices     of     East 

Eiding  of),  786. 

V.  York  (Mayor  of  >,  384. 

Eeynolds  v.  Fenton,  358.  737. 

V.  Kennedy,  781. 

Rliind  V.  Wilk  nson,  548. 
Eioardo  v.  Garciag,  333.  352.  354. 
Rich  V.  Jackson,  659.  662.  664. 
Eichards  v.  Bassett,  190.  453. 

. V.  Easto,  276. 

Richardson  v.  Allan,  245. 

.V.  Anderson,  268.  281. 

V.  Fell,  603. 

V.  Fisher,  805. 

V.  Hellish,  305,  306. 

V.  Watson,  654. 

V.  Williams,  364. 

Rickards  v.  Murdock,  176. 
Eidgway  v.  Ewbank,  600. 

V.  Philip,  615. 

Eidley  v.  Gyde,  468. 

Ridout  V.  Bristow,  659. 

Rigby  V.  Walthew,  120. 

Rigge  V.  Burbidge,  338. 

Ripley  v.  Thompson,  121. 

Eishton,  v.  Nishett,  114. 

Ritchie  v.  Bousfleld,  802. 

Roach  V.  Garvan,  380,  381.  383.  386. 

Robb  V.  Starkey,  552. 

Roberts  v.  AUat,  206. 

V.  Barker,  712. 

V.  Bradshaw,  548. 

V.  Croft,  809. 

V.  Doxon,  177.  645. 

V.  Eddington.  279. 

V.  Fortune,  349. 

V.  Hayward,  761. 

V.  Herbert,  627. 

V.  Hughes,  805. 

V.  Justice,  486. 

Eobertson  v.  French,  703. 

V.  Jackson,  653.  702.  705. 

V.  Money,  704. 

V.  Struth,  354. 


Eobins,  v.  Cruchley,  377. 

V.  Maidstone   (Lord), 

Eobin's  case,  325.  339. 
Eobinson  v.  Brown,  559. 

V.  Cook.  801. 

V.  Gleadow,  800. 

V.  Lawrence,  807. 

V.  Maodonnell,  661. 

V.  Markis,  429. 

Eobinson's  case,  337. 
Robson  V.  Eaton,  324. 
Roche  V.  Chapman,  603. 
Roche's  case,  383. 


451.   641. 


Eoden  v.  Ryde,  448.  521. 

Eodwell  V.  Eedge,  757. 

Roe  d.  Brune  v.  Rawlings,  486. 

V.  Davis,  508.  564 

V.  Day,  237.  606.  609. 

d.  Haldame  v.  Harvey,   563.  569 

847. 

V.  Ireland,  286. 

V.  Parker,  453. 

d.  Pellatt  V.  Ferrars,  445,  446. 

V.  Popham,  714. 

V.  Rawlings,  568. 

V.  Ward,  761. 

V.  Wilkins,  567. 

Rogers  v.  Allen,  94.  454. 

V.  Custanoe,  560. 

V.  Goddard,  342. 

V.  Wood,  188.  360. 

Rolf  V.  Dart,  271.  550. 

Rolfe  V.  Hampden,  172. 

RoUeston  v.  Hibbert,  661. 

Rookwood's  case,  209.  238. 

Roscommon's  (Earl  of)  case,  302. 

Rose  V.  Blakemore,  213. 

V.  Bryant,  479. 

Rose  V.  Haycock,  784. 

V.  Savory,  5S2. 

Rosewell  v.  Bennett,  714. 

Ross  V.  Hunter,  591. 

Rothero  v.  Elton,  122. 

Eouoh  V.  Great  Western  Railway  Com- 
pany, 467,  468. 

Rowe   V.   Brenton,   177.  284.  287.   293. 
407.  431.  434.  480.  609.  619.  645.  790. 

Rowland  v.  Ashby,  719. 

V.  Bemes,  599. 

Rowlands  v.  Samuel,  622. 

Rowley's  case,  433. 

Rowntree  v.  Jacob,  719. 

Roxburghe  (Duke  of)  v.  Roberton,  711. 

Rudd  V.  Wright,  189. 

Ending  v.  Newell,  619. 

Eush  V.  Peacock,  499. 

. .  V.  Smith,  196,  197. 

Rushworth  v.  Pembroke  (Countess  ofj, 
329.  412. 

Russell  V.  Dickson,  438.  737. 

V.  Dunskey,  729. 

V.  Smyth,  358.  448. 

Rutland's  (Countess  ofj  case,  652.  662. 
Rutter  V.  Chapman,  371. 

Sadler  v.  Robins,  341. 
Sage  V.  Eobinson,  137. 
St.  George  and  St.  Margaret,  760. 
Sainthill  v.  Bound,  197. 
Saloucci  V.  Woodmass,  380,  381. 
Salte  V.  Thomas,  308. 
Salvador  v.  Hopkins,  703. 
Sampson  v.  Tothill,  361. 
Samuel  v.  Evans,  274. 
Sanchar's  (Lord)  case,  385. 
Sanderson  v,  Nestor,  335. 


TABLE    OP    CASES. 


xliii 


Sandwell  v.  Sandwell,  180. 
Saunderson  v.  Piper,  654.  675. 
Saville  v.  Farnham  (Lord),  805. 

V.  Robertson,  622. 

Saxby  V.  Kirkua,  274. 

Saye  and  Sele  (Barony  of),  545. 

Sayer  v.  Glossop,  266.  299.  302.  448. 

V.  Kitolien,  560. 

Sayer' s  case,  730. 
Sayre  v.  Roohford  (Earl  of),  618. 
Scheibel  x>.  Fairbain,  772. 
Schmalz  v.  Avery,  665. 
Scboles  V.  Chadwiok,  486. 
Soott  V.  Clare,  827. 

o.  Jones,  561. 

V.  Lewis,  448.  596.  599. 

V.  Shearman,  378. 

V.  Waithman,  568. 

Scott  w.  Watkinson,  805. 
Seago  V.  Deane,  716. 

Seale  v.  Evans  and  another,  615. 
Searle   v.  Barrington  (LordJ,  478,  479. 

750. 
Seddon  v.  Tutop,  335,  336. 
Selby  V.  Harris,  449. 

V.  Hills,  114. 

, Sells  V.  Hoare,  117. 
Senior  v.  Armitage,  711. 
Sergeson  v.  Sealy,  289.  380.  406. 
Serjeant  v.  Chafy,  806. 
Sewell  V.  Corp,  295. 

V.  Evans,  448.  521. 

Seymour's  (Sir  E.)  case,  544.  568. 
Sharp  V.  Scoging,  238. 
Sharpe  v.  Lamb,  554. 
Shatter  v.  Friend,  734. 
Shaw  V.  Roberts,  790. 
Shearm  u.  Burnard,  340. 
Shelburne  v.  Inchiquin,  675. 
Shelling  v.  Farmer,  659. 
Shelton  v.  Cross,  737. 

V.  Livius,  656.  664. 

Shepherd  v.  Chester  (Bishop  of),  807. 

o.  Shepherd,  715. 

— — -  V.  Shorthose,  259.  395. 

Shepherdess  (case  of  the),  382.^ 

Sheppard  v.  Gosnold,  699. 

Shergold  v.  Boone,  677. 

Sherriff  v.  Cadell,  311,  312. 

Sherwin  v.  Clarges,  322.  337.  408.  415. 

Shillito  V.  Claridge,  429. 

Shipton  V.  Thornton,  app. 

Shore  v.  Wilson,  702. 

Short  V.  Lee,  474.  476,  477.  482.  647. 

Shute  V.  Robins,  770. 

Shuttleworth  v.  Nicholson,  611. 

Sidaway  v.  Hay,  346. 

Sideways  v.  Dyson,  224.  561. 

Siebert  v.  Spooner,  784. 

Sills  V.  Brown,  175. 

Simons  t).  Henderson,  427. 

».  Johnson,  722. 

t).  Smith,  120. 


Simpson  w.  Clayton,  807. 

V.  Dismore,  448.  521. 

V.  Henderson,  659. 

V.  Margitson,    653.     702.     709, 

787. 

V.  Pickering,  329. 

V.  Smith,  196. 

V.  Thoreton,  543.  563. 

Sims  V.  Kitchen,  657. 
Sinclair  v.  Baggaley,  502.  758. 
V.  Fraser,  346,  347. 

W.Sinclair,   131,  132.  137.  324. 

V.  Stevenson,  184.  553. 

Singleton  v.  Barrett,  729. 
Sissons  V.  Dixon,  767. 
Skilbeck  v.  Garbett,  763. 
Skipwith  V.  Green,  461.  720. 

V.  Shirley,  544. 

Slade's  case,  737. 

Slane  Peerage,  271.  273.  287.  527.  545. 

650. 
Slaney  u.  Wade,  190. 
Slark   a.  Highgate  Archway  Company, 

729. 
Slater  v.  Hodgson,  524. 
Slatterie  v.  Pooley,  506.  648.  729.  827. 
Smart  v.  Hyde,  656. 

V.  Prujean,  663. 

V.  Rayner,  600. 

Smartle  v.  Williams,  495.  574,  575. 
Smith  V.  Beadnell,  206.  214. 

V.  Boucher,  738. 

V.  Bradshaw,  636. 

ti.  Buchanan,  346. 

V.  Cartwright,  647.  758. 

V.  Doe  d.  Jersey,  772.  774. 

V.  East  India  Company,  42.  192. 

256. 

V.  Fuge,  310. 

V.  Gibson,  333. 

V.  Harris,  118. 

V.  Henderson,  448. 

V.  Hixon,  627. 

V.  Jeffreys,  702. 

V.  Johnson,  335. 

V.  Lyon,  763. 

V.  Martin,  451.  592,  593. 

V.  Morgan,  180,  181. 

V.  NichoUs,  403. 

V.  NiooUs,  341.  353. 

V.  Page,  803. 

V.  Prager,  118.  122. 

V.  Royston,  334. 

V.  Rummens,  332.  364,  365. 

V.  Sleap,  615.  790. 

V.  Thompson,  786. 

V.  Veale,  416. 

V.  Walton,  659.  713. 

V.  Whittingham,  474. 

V.  Wilkins,  619. 

u.  Wilson,  654.  702.  712. 

1).  Woodward,  500. 

V.  Young,  469.  657. 


xliv 


TABLE    OF    CASES. 


Smithson's  (Sir  Hugh.)  case,  406. 
Smyth  V.  Latham,  797. 
Snaith  v.  Mingay,  674. 
Snook  V.  Mattock,  792. 
Snow  V.  Phillips,  439. 
Snowball  v.  Vicaris,  725. 
Solly  V.  Hinde,  660,  661. 
Solomons  v.  Campbell,  183. 
Somerset  (Duke  of)  v.  France,  619. 
Southampton  Dock   Company  v.  Rich- 
ards, 313. 
Southey  v.  Nash,  199. 
f  Soward  v.  Leggatt,  602. 
Sowell  V.  Champion,  803. 
Spargo  V.  Brown,  85.  464.  474. 
Sparing  v.  Drax,  444. 
Sparkes  v.  Barratt,  615. 
Sparry's  case,  333. 
Spence  v.  Stuart,  113,  114. 
Spencer  v.  Billing,  177.  645. 

V.  Goulding,  122. 

Spicer  v.  Burgess,  502. 

V.  Cooper,  653.  705. 

Spiers  v.  Morris,  484. 

V.  Parker,  590.  759. 

Spilsbury  v.  Mioklethwaithe,  627. 

■  Spink  V.  Tenant,  736. 
Spooner  v.  Gardiner,  606,  607. 

V.  Payne,  514   516. 

Spring  V.  Eve,  277.  735. 

Stafford  v.  Clarke,  335. 

Stafford's  (Lord)  case,  201; 

Stainer  v.  Droitwich  (Burgesses  of),  314. 

Stammers  v.  Dixon,  699.  701.  787. 

Stamp  V.  Ayliffe,  285. 

Stancliffe  v.  Clarke,  806. 

Standen  v.  Standen,  670.  685.  754. 

Stanley  v.  Fielden,  583. 

V.  White,  620. 

Stanton  v.  Paton,  599. 

V.  Styles,  359. 

Stapletou  V.  Croft,  141,  142. 
Startup  V.  Macdonald,  774.  780. 
Statutes  : 

4  Edw.  1,  287,  288.  292.  407,  408. 
34  Edw.  3,  c.  13,  404. 

36  Edw.  3,  c.  13,  404. 
46  Edw.  3,  256. 

9  Hen.  6,  o.  11,  372. 
23  Hen.  6,  c.  9,  274. 

1  Hen.  8,  c.  8,  288.  403. 
21  Hen.  8,  o  13,  285. 

27  Hen.  8,  o.  16,  573. 

2  &  3  Edw.  6,  c.  1,  738. 
2  &  3  Edw.  6,  c.  404. 

5  &  6  Edw.  6,  0.  1,  738. 

1  &  2  Phil.  &  Mary,  c.  10,  38. 

1  &  2  Phil.  &  Mary,  c.  13,  61. 

2  &  3  PhU.  &  Mary,  c.  10,  61. 
2  &  3  Phil.  &  Mary,  «.  13,  38. 
5  Eliz.  c.  4,  277. 

5  Eliz.  c.  9,  103,  104. 
27  Eliz.  u.  9,  s.  8,  259. 


Statutes  '.—continued. 

1  Jac.  1,  c.  11,  744. 

4  Jac.  1,  c.  1,  33. 
21  Jac.  1,  c.  16,  750. 
21  Jac.  1,  c.  27,  744. 
13  &  14  Car.  2,  o.  4,  756. 
19  Car.  2,  „.  6,  744. 
29  Car.  2,  c.  3,  459. 

3&4  W.  &M.  0.  11,  131. 

4  &  5  Will.  3,  0.  23,  771. 

7  Will.  3,  c.  3,  33,  107,  610. 

7  &  8  Will.  3,  0.  7,  295. 

8  &  9  Will.  3,  c.  30,  508. 

9  &  10  Win.  3,  c.  15,  399,  505. 
1  Anne,  c.  9,  s.  3,  34,  106. 

1  Anne,  o.  18,  131. 

4  &  5  Anne,  c.  16,  274. 

5  Anne,  a.  14,  771. 

7  Anne,  o.  20,  504.  577. 

10  Anne,  c.  18,  574.  576. 

4  Geo.  2,  c.  28,  483. 

5  Geo.  2,  c.  30,  418. 

8  Geo.  2,  u.  6,  576. 

8  Geo.  2,  c.  16,  131. 

9  Geo.  2,  c.  36,  294. 

11  Geo.  2,  c.  19,  449. 
17  Geo.  2,  c.  38,  304. 

19  Geo.  2,  ^.  37,  790. 
24  Geo.  2,  u.  23,  738. 
26  Geo.  2,  c.  33,  297. 

2  Geo.  3,  0.  22,  304. 
13  Geo.  3,  c.  31,  105. 

13  Geo.  3,  u.  63,  424.  427. 

20  Geo.  3,  u.  57,  521. 
26  Geo.  3,  c.  77,  647. 

26  Geo.  3,  c.  82,  647. 

27  Geo.  3,  c.  29,  131. 
34  Geo.  3,  c.  64,  383. 

41  Geo.  3,  c.  90,  276. 

42  Geo.  3,  c.  46,  304. 
42  Geo.  3,  c.  85,  424. 

42  Geo.  3,  c.  107,  594. 

43  Geo.  3,  u.  140,  104. 

44  Geo.  3,  u.  92,  105. 

44  Geo.  3,  c.  102,  104. 

45  Geo.  3,  c.  92,  105. 

45  Geo.  3,  c.  126,  204. 

46  Geo.  3,  u.  37,  203.  205. 

47  Geo.  3,  c.  1,  418. 

47  Geo.  3,  o.  68,  307. 

48  Geo.  3,  o.  149,  455. 

49  Geo.  3,  u.  121,  418. 

50  Geo.  3,  0.  48,  311. 

52  Geo.  3,  c.  146,  297.  302,  803. 

53  Geo.  3,  c.  70.     See  54  Geo.  3,  c. 

70. 

54  Geo.  3,  c.  15,  424. 

54  Geo.  3,  c.  70,  127.  131. 
54  Geo.  3,  e.  137,  346. 
54  Geo.  3,  c.  170,  204. 
58  Geo.  3,  „.  45,  280. 

58  Geo.  3,  c.  69,  205. 

59  Geo.  3,  c.  12,  419. 


TABLE    OF    CASES. 


xlv 


Statutes  : — continued. 
1  Geo.  4,  c.  101,  424. 
1  &  2  Geo.  4,  c.  21,  204. 

3  Geo.  4,  ^.  126,  500. 

4  Geo.  4,  c.  16,  297. 

5  Geo.  4,  0.  96,  127. 

5  &  6  Geo.  4,  c.  84,  295. 

6  Geo.  4,  c.  16,  550. 
6  Geo.  4,  K>.  50,  319. 

6  Geo.  4,  0.  86,  418. 

7  Geo.  4,  0.  57,  398. 

7  Geo.  4,  0.  64,  34.  38.  61.  105,  106. 

416,  417.  433.  719. 
7&  8  Geo.  4,0.  27,  594. 
7  &  8  Geo.  4,  c.  28,  295.  405. 
7  &  8  Geo.  4,  o.  29,  131. 
7  &  8  Geo.  4,  c.  30,  398. 
7  &  8  Geo.  4,  o.  53,  647. 
9  Geo.  4,  0.  14,  826. 
9  Geo.  4,  u.  15,  633. 
9  Geo.  4,  0.  31,  365. 
9  Geo.  4,  0.  32,  32. 
9  Geo.  4,  0.  40,  383. 
9  Geo.  4,  c.  56,  398. 
1  Will.  4,  c.  22,  424.  434. 

1  &  2  Will.  4,  0.  56,  739. 

2  Will.  4,  0.  1,  283. 

2  &  3  Will.  4,  c.  39,  362.  438. 

2^3  Will.  4,  c.  42,  809. 

2  &  3  Will.  4,  o.  64,  738. 

2  &  3  Will.  4,  0.  71,  750. 

2  &  3  Will.  4,  V.  114,  264.  418.  739. 

2  &  3  Will.  4,  0.  120,  311. 

3  &  4  Will.  4,  0.  27,  490. 

3  &  4  Will.  4,  c.  42,  24.  109.  124. 

134.  325.  388.  634.  742.  750. 
3  &  4  Will.  4,  0.  49,  32. 
3  &  4  Will.  4,  ^.  53, 127. 
3  &  4  Will.  4,  o.  82,  33. 

3  &  4  Will.  4,  0.  93,  306. 

4  &  5  Will.  4,  c.  75,  309. 

4  &  5  Will.  4,  c.  76, 109.  739. 

5  &  6  Will.  4,  0.  19,  307. 

5  &  6  Will.  4,  e.  62,  414.  416. 

5  &  6  Will.  4,  u.  76,  438,  458. 

6  &  7  Will  4,  c.  71,  109. 
6  &  7  Will.  4,  0.  76,  307. 

6  &  7  Wm.  4,  0.  86,  297.  299.  302. 

739. 
6  &  7  Will.  4,  i;.  89,  106. 
6  &  7  Will.  4,  0.  106,  739. 

6  &  7  Will.  4,  c.  114,  319.  610.  612. 

7  Will.  4  &  1  Vict.  0.  22,  209. 

7  WUl.  4  &  1  Viot.  0.  26,  126.  511. 

513.  667.  688.  715. 
7  Will.  4  &  1  Vict  0.  68,  106. 
7  Will.  4  &  1  Vict.  «.  73. 
1  Viot.  0.  26,  156. 
1  Viot.  u.  44,  106. 
1  Viot.  i;.  76,  371. 
1  Viot.  c.  78,  458. 
1  &  2  Viot.  0.  77,  33. 
1  &  2  Viot.  c.  94,  255.  258.  262.  739. 


Statutes  ; — continued. 


1&2  V: 
1&2  Vi 
3&4V: 
3&4V: 
3&4V 
3  &4  V 
5  &  6  V: 
5  &  6  V: 
5&6  V: 
5&  6  V: 
5  &  6  V 
6&7  V 
6&7  V: 
6&7V: 

131 
7&8  V: 
7&8V: 
7&8Vi 
7&8  V: 
7&  8  V: 
7&8  V 
7&8  V: 
8  &9  V: 
8&9  V 
8  &  9  V: 
8&9  V 
8&  9  V 
8&9  V 
8&9  V: 
8  &9  V: 
8&9  V 
8&9  V: 
8&9  V: 
8&  9V: 

281 


ot.  u.  105,  30.  31. 
ot.  0.  110,  108.  265. 
ot.  c.  26,  127.  131. 
,ct.  0.  65,  792. 
ot.  u.  92,  299.  300. 
ot.  u.  110,  127. 
ot.  0.  69,  428. 
.ct.  0.  7.',  311. 


ot.  0.  84,  406, 

ot.  u.  100,  739. 

ot.  «.  116,  108.  504.  739. 

ot.  c  18,  308. 

ot.  0.  65,  739. 

ct.  0.  85,  22.  25.  118.  125. 

513. 
ot.  u.  65,  283. 
ct.  0.  81,  302. 
ot.  0.  96,  108. 
ct.  0.  101,  281.  734. 
ct.  0.  110,  456. 
ct.  o.  112,  307. 
ct.  o.  113,  307. 
ot.  0.  10,  734. 
ct.  c.  16,  127.  457. 
ct.  0.  18,  127. 
.ct.  o.  20,  127. 
ot.  0.  48,  34. 
ot.  0.  85,  647. 
ct.  0.  87,  647. 
ct.  0.  89,  310. 
ct.  u.  93,  647. 
ct.  u.  100,  406. 
ot.  u.  106,  459. 
ot.  c.  113,  269.  277.  279. 

282.  297.    388.   735.   736. 


740 

8  &  9  Vict.  0.  118,  109. 

9  &  10  Vict.  11.  95,  27.  39.  108.  127. 

140.  265.  396.  739. 

10  &  11  Viot.  0.  82,  398. 
10  &  11,  Vict.  0.  102,  108. 

10  &  11  Viot.  c.  104,  109. 

11  &  12  Viot.  0.  42,   105.  107.  108. 

110.  408.  433.  651.  719. 
11  &  12  Vict.  u.  43,  110.  398. 
11  &  12  Viot.  c.  44,  370.  397.  398. 

401. 
11  &  12  Viot.  0.  59,  398. 
11  &  12  Viot.  u.  70,  260. 

11  &  12  Viot.  0.  83,  283. 

12  Viot.  0.  11,  398. 

12  &  13  Viot.  0.  29,  310. 
12  &  13  Vict.  V.  68,  302. 
12  &  13  Vict.  0.  106,  34.  108.  110. 
264.  401.  418. 

12  &  13  Vict.  0.  109,  258.  261,  262. 

13  Vict.  0.  5,  109. 
13  &  14  Vict. 


13  &  14  Vict. 

13  &  14  Vict. 

565. 

14  &  15  Viot. 


7,  311. 

21,  278. 

93,  306.  307.  427. 


c.  6,  s.  16,  295. 


xlvi 


TABi;.E    OF    CASES. 


Statutes  : — continued. 

14  &  15  Viot.  c.  90,  499. 

14  &  15  Viot.  c.  99,  28.  140.  271. 
281.  310.  388.  391.  399.  411. 
518.  739.  740. 

14  &  15  Vict.  c.  100,  637. 
Stead  V.  Heaton,  65,  480. 
Steadman  v.  Duhamel,  674. 
Stedmau  v.  Uooch,  393. 
Steel  V.  Prickett,  187. 
Steele  o.  Mart,  666. 
Steinkeller  v.  Newton,   180,   425.  426. 

434. 
Stennel  v.  Hogg,  747. 
Stephen  v.  Gwenap,  474. 
Stevens  v.  Aldridge,  799. 

V.  Clarke,  370. 

Stewart  v.  Barnes,  124,  125. 

V.  Lawton,  696. 

Still  V.  Halford,  449. 
Stirling's  case,  400. 

Stebart  v.  Dryden,  191.  215.  240.   253. 

512. 
Stock  V.  Denew,  416. 
Stockdale  v.  Hansard,  349.  360. 
Stookfletli  u.  De  Tastet,  206,  214. 
Stoddart  v.  Palmer,  629. 
Stodden  v.  Harvey,  772,  773. 
Stokes  V.  Bate,  400. 

V.  Came,  310. 

Stone  V.  Bale,  720. 

V.  Blackburn,  115. 

V.  Metcalf,  507. 

Stones  V.  Byron,   611. 
Storke  v.  Storke,  668. 
Strothert  v.  James,  486. 
Stracy  v.  Blake,  641. 
Straker  v.  Graham,  776.  780. 
Stratford's  case,   371. 
Stratton  v.  Rastall,  660.  719. 
Streeter  v.  Bartlett,  449.  504. 
Strickland  v.  Ward,  369. 
Strode  „.  Falkland,   669. 

V.  Russell,  670. 

Strode  v.  Winchester,  474. 
Strong  V.  Dickenson,  113. 
Strother  v.  Barr,  642. 

!/.  Hutchinson,   791,   792.   797. 

809. 

V.  Willan,  311. 

Strutt  V.  Bovingdon,  328.  330.  336.  409. 
Stuart  V.  Barnes,  See  Stewart  v.  Barnes. 

V.  Greenall,  291. 

V.  Rogers,  810. 

Studdy  V.  Sanders,  447. 

Sturge  V.  Buchanan,  235.  548.  558.  560. 

580.  582. 
Sturm  V.  Jaffier,  557. 
Style  V.  Wardle,  665.  720. 
Summers  v.  Moseley,  196. 
Summersett  v.  Adamson,  827. 
Surtees  v.  Hubbard,  558. 
Sussex  (Earl  of)  v.  Temple,  444. 


Sussex  Peerage  case,  63.  175,  176.  465. 

474.  480.  492.  512. 
Sutton  St.  Nicholas  v,  Lererington,  383. 

V.  Temple,  708. 

Swain  v.  Kenuerley,  687. 

V.  Lewis,  558. 

Sweetapple  v.  Jesse,  747. 

Swinnerton  v.  Stafford,  (Marq^uis  of)  292. 

526. 
Swire  v.  Bell,  513.  521. 
Syers  v.  Bridge,  176.  702. 

V.  Jonas,  7l3. 

Sykes  v.  Dimbar,  193. 
Sylvester  v.  HaU,  606. 
Symes  v.  Larby,  808. 
Symmers  v.  Regem,  796. 

Talbot  V.  Hodson,  509,  510,  511.  518.  530. 
758. 

V.  Lewis,  443. 

Tamm  v.  Williams,  358. 
Tanner  v.  Bean,  626. 

V.  Taylor,  180.  185. 

Taplin  v.  Atty,  583. 
Tapp  V.  Lee,  763. 
Tarleton  v.  Tarleton,  351. 
Tatlock  V.  Harris,  798. 
Taylor  v.  Barclay,  739. 

V.  Briggs,  705. 

V.  Clemson,  321.  270. 

V.  Cohen,  654. 

V.  Cole,  439. 

V.  Cooke,  760. 

V.  Devey,  304. 

V.  Jones,  574. 

V.  Lawson,  199. 

1).  Osborne,  565. 

V.  Parry,  621. 

V.  Willans,  95.  797. 

Ex  parte,  300. 

Tebbutt  V.  Selby,  759. 

Teed  v.  Martin,  543.  310. 

Temperley  v.  Scott,  432. 

Tennant  v.  Hamilton,  200. 

Terry  v.  Huntington,  379. 

Tewkesbury  (Bailiffs  of)  t'.  Brioknell,  697. 

Thacker  v.  Moates,  763. 

Thanet  (Lord)  v.  Forster,  289. 

Thellussou  v.  Gosling,  279. 

Theobald  v.  Treggott,  122. 

Thetford  case,  309.  455. 

Thetford  {Mayor  of)  v.  Tyler,  761. 

Thomas  v.  Ansley,  390. 

V.  Connell,  468. 

V.  David,  199,  200,  201. 

V.  Fraser,  676.  703. 

d.  Evans  v.  Thomas,   684,   685, 

686. 

u.  Jenkins,  49.  186,  187. 

V.  Newton,  214. 

V.  Tucker,  205. 

Thomkins  v.  Hill,  800. 
Thompson  w.  Blaokhurst,  359. 


TABLE    OF    CASES. 


slvii 


Thompson!).  Donaldson,  339. 

V.  Giles,  766. 

c.  Trevanion,  254.  469. 

Thomson  v.  Southwell,  738. 
Thorpe  v.  Barber  and  another,  131. 

V.  Howden,  792. 

Thornton  v.  Eoyal  Exchange  Assurance 

Company,  174. 
Thoroughgood's  case,  510. 
Thresh  v.  Rake,  725. 
Throgmorton  v.  Walton,  761. 
Thurle  v.  Madison,  576. 
Thurston  v.  Delahay,  543. 

V.  Slatford,  791,  792. 

Tickle  V.  Brown,  471.  487. 

Tidmus  v.  Lees,  342. 

Tiley  v.  Cowling,  362. 

Tilley's  case,  409.  411. 

Tindal  v.  Brown,  774.  776,  777.  780. 

Tinkler  v.  Walpole,  310.  574.  575. 

Tinkler's  case,  800. 

Tinney  v.  Tinney,  652. 

Title  V.  Grevet,  204. 

Tod  V.  Winchelsea,  (Earl  of,)  191.  433. 

Todd  V.  Maxfleld,  324.  342. 

V.  Stewart,  335. 

Toll  V.  Lee,  506. 
Tomkins  v.  Ashby,  452. 

Tomkins  v.  Attorney-General,  306. 

Tooker  v.  Beaufort,  (Duke  of,)  259.  287. 

V.  Beaufort,  421. 

Tooke's  case,  268. 

Toomes  v.  Etherington,  405. 

Topham  v.  McGregor,  177.  183.  645. 

Toosey  v.  Williams, .  548.  551. 

Torrington's  case,  76.  493. 

Touissant  v.  Martinnant,  667. 

Towers  v.  Moore,  675.   678. 

Townend  v.  Downing,  121. 

Toymbee  v.  Brown,  290. 

Tracy  Peerage  case,  174.  838. 

Travis  v.  Chaloner,  330.  444. 

Tregany  v.  Fletcher,  737. 

Trelawney  v.  Coleman,  759. 

Trelawny  v.  Colman,  469. 

Trethewy  v.  Aokland,  402. 

Trevivan  v.  Lawrence,  343.  461,  462. 

Trewhitt  v.  Lambert,  541.  656.  729. 

Trimlestown  (Lord)  v.  Kemmis,  325,  441. 
485.  487.  492.  523.  529.  580.  795. 

Trimmer  v.  Bayne,  714. 

Trist  V.  Johnson,  555. 

Truyman  v.  Loder,  665.  707.  761. 

Tucker  v.  Inman,  737. 

V.  Wilkins,  293.  315. 

Tuftou  V.  Whitmore,  414.  432.  434. 

Turner  v.  Ambler,  782,  783. 

V.  Crisp,  479.  750. 

V.  Deane,  722. 

V.  M'jrryweather,  109. 

V.  Pearte,  115.  143,  144,  145. 

Twyne's  case,  784. 

Tyler's  case,  786. 


Tyrrell  v.  Holt,  595. 

Tyrrwhit  v.  Wynne,  550.  568.  619. 

Udall  V.  Walton,  136. 
Uhde  V.  Walters,  661.  704. 
Uncle  V.  Watson,  65. 
Underbill  i,.  Durham,  286. 

V.  Witts,  643. 

Upton  V.  Curtis,  120.  133. 
Urguhart  v.  Barnard,  702. 

Vacher  v.  Cocks,  89.  467.  568. 

Vaillant  v.  Dodemead,  40. 

Vain  V.  Whittington,  672. 

Valine  V.  Dumergue,  358. 

Vanderdonokt  v.  Thelluson,  176. 

Van  Nyvel  v.  Hunter,  806. 

Van  Sandau  v.  Turner,  737. 

Vane's  (SirH.)  case,  792. 

Van  Omeron  v.  Dowick,  279.  757.  763. 

Varioas  v.  French,  412.  429:  518. 

Vaughan  v.  Martin,  180. 

Vaux  Peerage,  282.  302.  314. 

Venafra  c.  Johnson,  717.  719. 

Vere  v.  Lewis,  798. 

Vernon  v.  Hankey,  802. 

Vernon's  case,  660. 

Vice  V.  Anson  (Lady,)  555. 

Villers  V.  Beamont,  660.  723. 

V.  Villiers,  543. 

Vincent  v.  Cole,  642.  656. 
Vines  v.  Reading  (Corporation  of,)  797. 
Vooght  V.  Winch,  323,  326.  343,  344. 
Vowles  V.  Miller,  626. 

Wade  V.  Simeon,  135.  145. 
Wadley  v.  Bayliss,  700. 
Wagstaff  V.  Wilson,  572. 
Wainwright  v.  Clement,  784. 
Wakeman  v.  West,  290.  472,  473. 
Wal burgh  M).  Saltonstall,  731. 
Waldron  v.  Coombe,  279.  295. 
Walker  v.  Beauohamp,  303.  535. 

</.  Broadstock,  471.  490. 

V.  Burnell,  786. 

V.  CoUick,  435. 

V.  Giles,  133,  134. 

V.  Walker,  678. 

V.  Wingfleld,  298. 

J.  Wittar,  346,  347.  351.  381. 

Wallace  v.  (Administrator)  v.  Cook,  305. 
Waller  v.  Drakeford,  808. 

V.  Horsfall,  541.  570. 

Wallis  V.  Delancey,  513.  515.  519.  520. 

V.  Atoheson,  237. 

Walpole  (Lord)  v.  Cholmondeley  (Lord\ 

692. 
Walsh  V.  Stockdale,  467. 

V.  Tre vannion,  '676. 

Walter  v.  Haynes,  763. 

. V.  Thompson,  136. 

Walters  v.  Lewis,  468. 

V.  Rees,  114. 


xlviii 


TABLE    OF    CASES, 


Walton  V.  Shelley,  728. 
Ward    V.  Man,  128. 

V.  Mason,  808. 

V.  Wells,  412.  513.  518. 

Wardell  v.  Fermor,  516. 
Waring  V.  Bowles,  514. 
Warren  v.  Greenville,  474. 

V.  Stagg,  663.  725. 

Warringer  v.  Giles,  309. 
Washington  v.  Brymer,  750. 
Watkins  v.  Towers,  806. 
Watson  V.  Severn,  204. 

V.  King,  305. 

V.  Moore,  580,  581. 

V.  Peache,  786. 

Watson's  case,  167.  194.  215. 
Waugh  V.  Bussell,  501. 
Weaver  v.  Clifford,  737. 
Webb  V.  Plummer,  712. 

V.  Pritcliett,  435. 

V.  Salmon,  660.  666. 

Webb  V.  Smith,  244. 

V.  Taylor,  114. 

Webber  v.  Budd,  130. 

Wedgworth  v.  Hartley.  See  Wedg- 
wood V.  Hartley. 

Wedgewood  v.  Hartley,  120. 

Wedrington's  (Dr.)  case,  401. 

Week's  v.  Sparke,  46.  48.  50.  187. 

Weld  V.  Hornby,  696,   697. 

Weller  v.  Foundling  Hospital  (Governors 
of,)  131. 

Wells  Harbor  case,  621. 

Wells  V.  Jesus  College,  Oxford,  189. 

V.  Williams,  31. 

Welsh's  case,  417. 

Welstead  v.  Levy,  788. 

West  I).  Baxendale,  782. 

u.  Blakely,  657. 

V.  Steward,  502. 

West's  case,  205.  t. 

Weston  V.  Emes,  661.  % 

V.  Vaughton,  285. 

Wey  V.  Yalley,  737. 
Wetherston  v.  Edgington,  565.  572. 
Wharam  v.  Eoutledge,  561.  580. 
Wharton  v.  Mackenzie,  773. 
Wharton  Peerage  Case,  278.  392.  441. 
Whately  v.  Menheim  and  Levy,  831. 
Wheeler  v.  Alderson,  175. 

V.  Atkins,  432.  580. 

V.  Lowth,  392. 

V.  Senior,  137. 

Whitaker  v.  England  (Bank  of),  90. 

V.  Izod,  111. 

V.  Tatham,  713. 

Whitbread  v.  May,  693. 
White  V.  Beard,  315. 

V.  Parking,  657.  717. 

V.  Sayer,  711. 

Whitehead  v.  Scott,  90.  561. 

V.  Wynn,  300. 

Whitelock  v.  Musgrove,  520. 


Whitfield  V.  Aland,  180.  235.  560. 

V.  Brand,  729.  731. 

Whitford  v.  Tutin,  499.  554. 
Whittington  v.  Boxall,  819. 
Whitmore  v.  Wilks,  119. 
Whitnash  v.  George,  481. 
Whittaker  v.  Mason,  708. 
Whittingham  v.  Bloxham,  609. 
Whittuck  V.  Waters,  300. 
Whitwell  V.  Scheer,  636. 
Whyte  V.  Rose,  400. 
Widdrington's  ;Dr. )  case,  371. 
Wigglesworth  v.  Dallison,  711. 
Wihen  v.  Law,  254.  299. 
Wilder's  case,  689. 
Wiles  V.  Woodman,  659. 
Wiles  u.  Woodward,  461. 
Wilkes  V.  Hopkins,  505.  572,  573. 
Wilkinson  v.  Adam,  689. 

V.  Gordon,  362. 

V.  Jolmson,  255. 

V.  Payne,  754.  804. 

Willans  v.  Taylor,  796. 

Williams  v.  Bagot  (Lord),  359.  403. 

V.  Bryant,   679. 

V.  Davies,  596.  607. 

V.  East  India  Company,   593. 

732.  756,  757. 

V.  Greaves,  480. 

V.  Hulie,  199. 

V.  Jones,  664. 

V.  Morgan,  657.  692. 

V.  Munnings,  499.  539. 

V.  Sills,  639. 

V.  Smith,  774,  775. 

■■  V.  Thomas,  586.  605. 

V.  Wilcox,  649. 

V.  Williams,  433.  736. 

V.  Woodward,  720. 

V.   Younghusband,    532.    534, 

535. 
Williamson  v.  Allison,  626. 
Willies  V.  Parley,  486. 
Willingham  v.  Matthews,  113,  114. 
Willington  v.  Brown,  578. 
Willis  V.  Bernard,   90. 
Wilman  v.  Worrall,  517. 
Wilson  V.  Bowie,  561. 

V.  Day,  784. 

V.  Hart,  665.  721. 

V.  Magnay,  137. 

V.  Poulter,  719. 

V.  Rastall,  801. 

V.  Turner,  572. 

V.  Weller,  369. 

Wilton  V.  Webster,  759. 
Wimbush  v.  Talbois,  639. 
Wingfield  v.  Atkinson,  713. 
Winter  v.  Butt,  236.  250. 
Wise  V.  Wilson,  600. 
Wishow  V.  Barnes,  118. 
WithneU  v.  Gartham,  696.  698,  690. 
Wolff  V.  Oxholm,  355. 


TABLE    OF    OASES. 


xlix 


Wollaston  v.  Hakewell,  145.  575. 
Wood  V.  Braddiok,  443. 

V.  Cooper,  180,  181.  184. 

V.  Drury,  512. 

V.  MacMnson,  196. 

V.  Pringle,  598. 

V.  Rowcliffe,  127.  688.  692. 

V.  Strickland,  561. 

Woodbridge  v.  Spooner,  660. 
Woodoook  V.  Houldsworth,  174. 
Woodgate  v.  Potts,  138.  603. 
Woodham  v.  Edwards,  737, 
Woodlioiase  v.  Swift,  702. 
Woodliouselee  v.  Dalrymple,  689. 
Woodmas  v.  Mason,  457. 
Woodnoth  v.  Cobtam  (Lord),  477. 
Woodward  ».  Cotton,  276,  277. 
WooUam  v.  Hearn,  650. 
Woolway  v.  Rowe,  491. 
Wooton  V.  Barton,  598. 
Worlioh.  V.  Massey,  737. 
Worrall  v.  Jones  and  another,  128. 
Worslfiy  V.  Filisker,  798. 
Wright  V.  Beckett,  245.  249. 
Wright  V.  Colls,  460. 
V.  Court,  773. 

V.  Crookes,  672. 

V.  Doe  d.  Tatham,  53.  89. 

341. 


145. 


Wright  V.  Lainson,  502.  759. 

V.  littler,  215. 

V.  Pindar,  797. 

V.   Sharp,  ,793. 

o.   Shawcross,  774. 

V.  Tatham,  327.   408.  420.  431. 

468.  791.  800,  801. 

V.  Wilson,  607. 

Wright's  case,  174. 
Wrottesley  v.  Bendish,  442.  733. 
Wyatt  V.  Bateman,  412.  514,  515.  517. 
V.  Gore,  42.  192.  256. 

Wych  V.  Meal,  443. 
Wylie's  case,  622. 
Wymark's  case,  574.  737. 
Wynne  v.  Tyrrwhitt,  622,  523. 


Yard  v.  Ford,  757. 

Yardley  v.  Arnold,  115.  120. 

Yates  V.  Aston,  657. 

—  V.  Carnsew,  582. 

Yeates  v.  Pirn,  708. 
Yeomans  v.  Legh,  124. 
Yewin's  case,  203.  211.  213. 
Young  V.  Brander,  311. 

V.  Wright,  572. 

Yrissarri  v.  Clement,  739. 


LAW  OF  EVIDENCE. 


INTRODUCTION. 

Every  system  of  municipal  law  consists  of  provisions,  wMch 
either  define  primary  rights"  and  duties ;  or  provide  means  for 
preventing  or  remedying  tlie  violation  of  them. 

If  all  were  both  able  and  willing  to  fulfil  the.  former  provisions 
of  the  law,  the  latter  would  be  unnecessary.  But  without  pro- 
visions for  preventing  and  remedying  violations  of  the  mandatory 
branches  of  the  law,  by'  imposing  actual  restraint  in  some  instances, 
and  annexing  penal  or  remedial  consequences  to  disobedience,  in 
others,  such  laws  would  be  of  no  greater,  frequently  *of  less 
effect,  than  mere  moral  precepts.  It  is  of  the  very  essence  of  '-' 
a  municipal  law,  not  only  to  prescribe  a  rule  of  conduct,  but  to 
compel  obedience,  either  by  actual  restraint,  or  by  annexing  such 
consequences  to  disobedience  as  are  on  the  whole  the  most  con- 
venient, so  that  any  addition  or  excess  would  be  productive  of 
more  evil  than  good. 

Such  provisions  are  ei^ei:  preventive  or  remedial. 

"  Eight,  in  its  primitive  legal  sense,  is  that  T/hich  the  law  directs :  in  popular 
acceptation,  that  which  is  so  directed  for  the  protection  or  advantage  of  an  indi- 
vidual, ia  said  to  be  his  right. 

^hen  it  is  said  that  A.  has  a  right  to  an  estate  or  to  damages,  it  is  meant,  that 
under  the  circumstances  the  law  directs  that  he  shall  have  the  estate  or  shall  have 
damages.  When  it  is  said  that  B.  has  a  right  of  action,  it  is  meant,  that  the  law 
under  the  circumstances  provides  means  for  enforcing  his  claim. 

When  the  learned  author  of  the  Commentaries,  in  the  language  of  the  civil  law, 
speaks  of  the  rights  of  things,  he  uses  the  term  in  its  primitive  sense,  and  treats  of 
those  legal  incidents  which  the  law  prescribes  as  to  things,  such  as  possession, 
enjoyment,  succession,  or  transfer. 

1 


^  LAW    OF    EVIDENCE. 

Preventive,  wliich  are  devised  for  tlie  actual  prevention  of  viola- 
tions of  tlie  law ; 

Remedial,  wliicli  are  devised  for  tlie  purpose  of  repairing  tlie 
consequences  of  disobedience. 

Preventive  provisions,  again,  are  eitlier  sucli  as  are  designed  to 
prevent  violations  of  tlie  law  by  interposing  actual,  forcible,  cor' 
poreal  restraint ;  as  wliere  one  is  prevented  by  force  from  doing 
some  special  injury  to  tlie  person  or  tlie  property  of  another,  or  is 
restrained  from  doing  miscHef  generally  by  imprisonment ;  or  tbey 
are  such  as  operate  on  the  mind  by  the  fear  of  penal  consequences 
annexed  to  defined  transgressions. 

Eemedial,  wbicb  afford  a  remedy  or  reparation  in  respect  of 
some  violation  of  right,  consist  either  in  awarding  specific  resti- 
tution, as  by  an  .actual  restoration  of  goods  wrongfally  detained 
from  the  owner ;  or  in  giving  damages  co-extensive  with  the  parti- 
cular injury. 

In  order  to  annex  either  remedial  or  penal  consequences  to  their 
proper  predicaments  in  fact,  it  is  essential  that  the  true  state  of 
facts  should  be  investigated  by  competent  means ;  that  the  legal 
consequences  appertaining  to  such  ascertained  facts,  as  previously 
defined  by  the  law,  should  be  declared  by  judicial  authority ;  and, 
lastly,  that  the  legal  consequences,  if  not  already  annexed,  should 
be  actually  annexed  by  an  executive  process. 

To  the  investigative  process,  again,  it  is  essential  that  the  parties 

should  mutually  state  what  each  deems  to  be  essential  to  his  claim 

or  charge,  or  defence,  and  that  each  *should  be  allowed  to 

-■  dispute  or  deny  the  statement  of  his  adversary.  By  this 
means,  if  any  facts  be  disptited,  they  are  distinguished  from  the 
admitted  facts,  in  order  to  be  submitted  to  inquiry  before  the 
proper  tribunal. 

These  mutual  statements  are,  in  the  law  of  England,  styled  the 
pleadings. 

By  that  law,  it  is  in  the  first  place  incumbent  on  the  party  who 
makes  a  claim  or  charge,  to  state  facts  which,  if  true,  show  that  the 
charge  or  claim  is  founded  in  law :  the  defendant  is  then  required 
either  by  a  demurrer  to  admit  the  facts  and  deny  the  legal  conse- 
quence contended  for  by  the  plaintifi"  or  prosecutor,  or  to  deny  the 
facts  so  alleged,  wholly  or  in  part,  or,  admitting  the  fact  so  alleged 
to  be  true,  to  state  others,  which,  taken  in  connection  with  the 
facts  already  stated,  show  that  the  claim  or  charge  is  unfounded 
in  law. 


INTEODUCTIOK.  3 

Again,  wliere  sucli  additional  facts  are  pleaded  in  defence,  it  is 
for  the  prosecutor  or  plaintiff,  in  his  turn,  either  to  deny  some 
material  fact  so  pleaded  in  defence,  or,  admitting  those  facts  to  be 
true,  either  to  demur,  so  as  to  raise  a  mere  question  of  law,  or  to 
allege  additional  facts ;  and  in  like  manner,  so  long  as  further  facts 
'are  pleaded  by  the  one  party,  the  other  may  either  deny  one  or 
more  of  such  facts,  or  demur,  or  allege  other  facts.  It  is  obvious 
that  such  a  series  of  mutual  allegations,  where  the  condition  is  that 
each  which  does  not  terminate  the  series  must  contain  the  aver- 
ment of  some  new  and  material  fact,  must  rapidly  converge  to  an 
issue  either  of  law  or  fact.*" 

"  The  law,  however,  frequently  sanctions  a  generality  in  pleading,  which  leaves 
the  fact  which  is  to  be  tried  intennixed  with  most  important  legal  considerations. 
For  instance;  the  declaration  in  an  action  of  trover  alleges  in  substance  nothing 
more  than  the  conversion  by  the  defendant  of  the  plaintiff's  goods  ;  the  defendant 
by  his  plea  may  deny  that  they  were  his  goods ;  and  this  issue  frequently  involves 
not  merely  one  or  more  simple  facts,  but  difficult  legal  considerations,  such  as 
questions  of  title,  the  law  of  bankruptcy,  the  right  of  stoppage  in  transitu,  and 
many  others.  It  is  obvious  that  such  an  intermixture  of  law  and  fact  could  not 
be  avoided  without  the  aid  of  minute  and  particular  pleadings,  in  the  course  of 
which  the  real  merits  and  justice  of  the  case  would  frequently  be  embarrassed  with 
difBoulties,  arising  from  a  necessary  adherence  to  technical  rules. 

It  is  interesting  to  observe  how  nearly  the  law  of  England  corresponds  with  the 
ancient  Roman  law  in  several  most  important  points  of  its  practical  administration. 
In  the  first  place,  the  pleadings  in  the  practice  of  the  Eoman  law  were  transacted 
before  the  praetor,  as  they  are  with  us  in  the  courts  above,  or,  as  it  is  technically 
called,  in  Banc.  The  plaintiff,  when  he  had  brought  his  adversary  into  court,  and 
had  not  agreed  with  him  upon  an  Imparlance,  then  formally  (edehat  actionem) 
declared  against  him  :  "  Quod  si  nee  vindices  dati,  nee  de  lite  in  via  transactum  in 
jus  veniri  solebat,  ubi  actor,  impetrata  loquendi  potestate,  reo  edebat  actionem,  id 
est,  indicabat  qua  demum  actione  adversus  reum  experiri  vellet.  Quum  enim  de 
uno  eodemque  facto  plures  ssepe  actiones  competerent,  eligenda  erat  una,  eaque 
edenda  reo."— Hein.  A.  R.  v.  2,  226. 

It  must  be  allowed  that,  however  our  modem  system  of  pleading  may  excel  that 
of  the  Romans  in  other  respects,  the  latter  were  at  least  entitled  to  the  merit  of 
conciseness  ;  take,  for  instance,  a  declaration  in  assumpsit  upon  a  special  agree- 
ment. A  Roman  declaration  in  such  a  case  ran  thus :  "  Aio  te  mini  triticum  de 
quo  inter  nos  convenit  ob  polita  vestimenta  tua  dare  oportere."  It  is  amusing  to 
contrast  the  laconic  brevity  of  this  form  with  a  modern  declaration  upon  such  a 
transaction,  expanded  upon  the  record. 

After  the  declaration  followed  the  defendant's  plea,  [exceptio,)  and  upon  that 
the  plaintiff's  replication,  the  defendant's  rejoinder,  [duplicatio,)  &c.,  until  the 
matter  in  difference  was  reduced  to  a  single  question  of  law  or  fact.  If  the  whole 
resolved  itself  into  a  question  of  law,  then,  as  upon  demurrer,  it  was  decided  by 
the  praetor ;  but  if  the  question  ultimately  depended  upon  a  disputed  fact,  then 
came  the  joining  of  issue,  the  "  contestatio  litis,"  by  which  the  litigants  put  them- 


4  LAW    OF    EVIDENCE. 

*By  the  law  of  England,  questions  or  issues  of  fact  tlius 
-'    agreed  upon  are  usually  tried  by  the  country,  that  is,  by  a 
«c-i   *ji^i"y  of  twelve  men,  a  part  of  the  great  body  of  the  com- 
-'   munity." 

selves  to  the  proof  of  the  fact  by  witnesses :  "  Festus  ait,  turn  demurcl  litigante^ 
contestari  litem  dici,  cum  ordinate  judicio  utraque  pars  diceret,  'Testes  estote.'" 

Hein.  A.  B.  v.  2,  256.     The  issue  was  then  sent  to  be  tried  by  Judices,  who  in 

many  respects  bore  a  close  resemblance  to  an  English  jury.  "  Si  enim  de  jure 
disceptabatur,  ipse  prastor  qui  dicebat  extra  ordinem  sin  de  facto  judex  dabatur, 
unde  formula  si  paret  condemna."  Conf.  Seneca  de  Benef.  III.  7.  The  judices 
were,  like  our  jurors,  private  persons,  selected  for  the  trial  of  matters  of  fact  upon 
the  particular  occasion.  Their  decision,  however,  was  final ;  and  instead  of  re- 
turning their  verdict  to  the  Court  above,  in  order  that  final  judgment  might  be 
pronounced,  the  jury  themselves  pronounced  the  sentence,  according  to  the  direc- 
tion in  the  Formula,  "si paret  condemna." 

The  principal  and  characteristic  circumstances  in  which  the  trial  by  a  Roman 
differed  from  that  of  a  modem  jury,  consisted  in  this,  that  in  the  former  case, 
neither  the  prstor,  nor  any  other  officer  distinct  from  the  jury,  presided  over  the 
trial,  to  determine  as  to  the  competency  of  witnesses,  the  admissibility  of  evidence, 
and  to  expound  the  law  as  connecting  the  facts  with  the  allegations  to  be  proved 
on  the  record ;  but  in  order  to  remedy  the  deficiency,  they  resorted  to  this  expe- 
dient ;  the  jury  generally  consisted  of  one  or  more  lawyers,  and  thus  they  derived 
that  knowledge  of  law  from  their  own  members  which  was  necessary  to  enable 
them  to  reject  inadmissible  evidence,  and  to  give  a  con-ect  verdict  as  compounded 
both  of  law  and  fact.  "Denique  ut  tanto  minus  esset  periculi  ne  imperite  judica- 
rent  solebant  aliquando  lis  unus  aut  plures  judicii  socii  jurisperiti  adjungi,  quorum 
consilio  omnia  agerent."  Gell.  Noct.  Att.  XII.,  13  Oonf.  Sigon.  Hein.  A.  R.  lib. 
4,  tit.  5,  s.  3.  Upon  the  trial,  the  plaintiff  proved  his  declaration  or  replication, 
or  the  defendant  his  plea  or  rejoinder  {dupUcatio),  accordingly  as  the  pleadings 
threw  the  burthen  of  proving  the  affirmative  on  the  one  or  the  other.  "  Ubi  ad 
judicium  ventum,  actor  suam  actionem  et  replicationem,  reus  exceptionem  et 
duplicationem  probabat.  Nam  et  reus  excipiendo  actor  fiebat." — L.  1,  D.  de 
Excep.  Hein.  A.  E.  v.  2,  291. 

"  Notwithstanding  the  difierence  of  opinion  which  has  prevailed  among  legal 
antiquaries  as  to  the  origin  of  the  English  jury,  there  seems  to  be  great  reason  for 
supposing  that  it  is  derived  from  the  patria,  or  body  of  suitors  who  decided  causes 
in  the  county  courts  of  our  Saxon  ancestors.  That  the  trial  per  juratam  patrice 
of  GrlanvilUe  was  derived  from  the  trial  per  patriam,  as  used  both  before  and 
after  the  Conquest,  is  rendered  highly  probable,  not  only  by  the  very  description 
of  the  trial  per  patriam,,  yet  retained,  but  even  still  more  strongly  by  the  powers, 
qualifications  and  duties  incident  to  the  jurata  patrice  of  Hen.  II.  and  Hen.  III. 
This  hypothesis  seems  to  explain  many  singular  incidents  to  the  early  trial  per 
juratam  patrice,  incidents  which  it  would  be  diiBcult,  if  not  impossible,  to  account 
for  in  any  other  manner.  The  jurata  patrice,  like  the  patria,  decided  on  their 
oiun  knowledge:  for  this  purpose  they  were  selected  from  the  vicinage;  those  (in 
the  case  of  an  assize)  who  had  no  knowledge  of  the  facts  were  excluded  to  make 
room  for  such  others  as  were  supposed  to  know  them  ;  and  although  the  concur- 


INTRODUCTION.  5 

^Tliis  justly  celebrated  institution  is   not   more   strongly 
recommended    by   its    intrinsic    excellence    as    a    mode    of  '- 

*attaininff  to  "tbe  truth,  tban  by  considerations  of  extrinsic 

r*7 
policy.  ■- 

rence  of  twelve  was  essential  to  the  verdict,  yet  as  eleven  might  have  been  of  a 
contrary  opinion,  a  majority  in  effect  decided :  and  in  the  case  of  a  disputed 
deed,  the  witnesses  were  included  among  the  jury,  and  their  duty  was,  as  it  is 
still,  in  the  language  of  our  records,  Dicere  veritatem.  Such  incidents  afford 
obvious  reasons  for  supposing  that  juries  were  but  selections  from  the  patria  or 
general  assembly,  who  must  have  acted  in  the  double  capacity  of  witnesses  and 
jurors. 

Although  this  jurata  patrice  differed  from  its  original,  the  patria,  both  in 
respect  of  number  and  of  the  obligation  of  an  oath,  these  were  transitions  which 
might  not  only  easily  be  made,  but  which  were  likely  to  be  made,  and  which  we 
know  actually  were  made,  in  the  most  ancient,  perhaps,  of  all  our  courts,  that  is, 
the  county  court ;  where  though,  among  the  Saxons,  and  even  after  the  Conquest, 
the  verdict  was  given  by  the  whole  comitatus,  and  is  still  supposed  to  be  the 
verdict  of  the  suitors,  yet  it  is  in  fact  given  by  twelve  jurors  on  oath.  In  the  reign 
of  Hen.  II.,  Glanville  speaks  of  the  trial  per  juratam  patriae  as  a  known  and 
established  institution.  Whether  the  practice  of  occasionally  delegating  the  duty 
of  decision  to  a  select  portion  of  the  body  of  suitors,  and  that  sworn,  was  coeval 
with  the  popular  tribunal  itself,  or  subsequently  introduced  for  the  trial  of  civil 
rights,  as  we  know  it  to  have  been  for  the  purpose  of  criminal  presentments,  may 
be  doubtful.  It  is  probable,  however,  that  the  complete  and  final  establishment  of 
the  jury  system  is  attributable  to  many  concurrent  causes.  In  the  first  place,  it  is 
clear  that  an  appeal  from  the  patria  to  a  select  number  was  a  practice  of  great 
antiquity ;  of  this  practice  there  is  a  very  curious  memorial  in  the  Monumenta 
Danica,  lib.  1,  p.  72  :  "  Erat  universa  ditio  in  certas  parsecias  sive  curias  divisa, 
hffi  statis  temporibus  locisque  per  se  qusque  seorsim  suis  cum  armis,  patente  sub 
Dio  in  campis  conveniebant,  aderantque  ejusdem  loci  viri  nobiles  qui  velut  testes 
judicia  assiderent.  Ibi  in  medium  prodibant  qui  contra  alios  litem  se  habere 
existimabant,  auditisque  et  cognitis  partis  utriusque  actionibus  defensionibusque, 
conventus  universus  in  concilium  ibat,  idque  temporis  spatium  quod  interim  delibe- 
rando  terrebatur,  curam  vocabant.  Expensis  diligenter  et  velitatis  in  partem 
utramque  controversiis,  in  ooncessum  redibant,  vocatisque  litigatoribus,  de  jure 
pronunciabant.  Si  quis,fstare  judicio  non  vellet,  ad  duodecim  constitutes  sive 
judices  sive  arbitros  et  ab  his  ad  universse  conditionis  conventum  provocare  ei 
licebat."  The  expression  "  sive  judices  sive  arbitros"  is  singularly  coincident  with 
the  doctrine  in  Bracton,  f.  193,  that  the  jurata  was  not  liable  to  a  conviction,  as 
the  assize  was,  for  a  false  verdict,  because  the  parties  had  made  the  jurata  "  quasi 
judicem  ex  consensu." 

In  the  next  place,  there  are  evident  traces  of  this  practice  in  our  own  country ; 
in  illustration  of  which,  the  celebrated  trial  in  the  county  court  before  Odo,  bishop 
of  Baieux,  in  the  time  of  William  the  Conqueror,  may  be  cited,  whdte  the  verdict 
by  the  patria  was  required  to  be  confirmed  by  the  oaths  of  twelve  selected  for  the 
purpose  from  the  body  of  suitors.  There  are  in  fact  many  other  vestiges  of  the 
(at  least)  occasional  practice  of  delegating  the  task  of  decision  to  a  select  part ; 


6  LAW    OF    EVIDENCE. 

*Secret  and  complicated  transactions,  suoli  as  are  usually 

-'    tlie  subject  of  legal  investigation,  are  too  various  in  their 

*circumstances  to  admit  of  decision  by  any  systematic  and 

-'   formal  rules ;  the  only  sure  guide  to  truth,  whether  the  object 

twelve  and  its  multiples  appears  to  have  been  a  favorite  number  for  this  purpose, 
not  only  among  the  Saxons,  but  other  nations  of  antiquity. 

Again,  that  the  modern  jury  are  the  same  with  the  jurata  patrice  of  Glanville 
and  Bracton,  their  name,  number,  and  general  duty,  which  to  this  day  is  dicere 
veritatem,  sufficiently  prove,  although  it  is  clear  that  a  very  great  change  has 
taken  place  as  to  the  manner  of  exercising  their  important  functions.  Even  so 
lately  as  the  reign  of  Hen.  III.  they  exercised  a  kind  of  mixed  duty,  partly  as 
witnesses,  partly  as  judges  of  the  effect  of  testimony ;  in  the  case  of  a  disputed 
deed,  the  witnesses  were  enrolled  amongst  the  jury,  and  the  trial  was  per  patriam 
et  per  testes  ;  and  to  so  great  an  extent  was  their  character  then  of  a  testimonial 
nature,  that  it  was  doubted  whether  they  were  capable  of  deciding  in  the  case  of 
a  crime  secretly  committed,  and  where  the  patria  could  have  no  actual  knowledge 
of  the  fact.  (Bracton,  f.  173.)  It  was,  however,  at  this  period  that  the  capacity 
of  juries  to  exercise  a  far  wider  and  more  important  function,  in  judging  of  the 
weight  of  testimony  and  circumstantial  evidence,  began  to  be  appreciated,  for 
about  this  time  the  trial  by  ordeal  fell  into  disuse ;  and  when  this  superstitious 
invention,  the  ancient  refuge  of  ignorance,  had  been  rejected  as  repugnant  to  the 
more  enlightened  notions  of  the  age,  it  happily  became  a  matter  of  necessity  to 
substitute  a  rational  mode  of  inquiry  by  the  aid  of  reason  and  experience,  for  such 
inefficacious  and  unrighteous  practices.  From  this  sera  probably  may  be  dated 
the  commencement  of  the  important  changes  in  the  functions  of  the  jury,  which 
afterwards,  though  perhaps  slowly,  took  place,  until  they  were  modelled  into  the 
present  form. 

The  learned  author  of  the  Commentaries  is  inclined  to  derive  the  modern  jury 
immediately  from  the  Saxons,  referring  to  the  law  of  Bthelred,  which  provides 
that  twelve  men,  cetate  superiores,  shall,  with  the  proepositus,  swear  that  they 
will  condemn  no  innocent,  absolve  no  guilty  person.  It  is  clear,  however,  that 
this  constitution  of  thirteen  men  was  merely  in  the  nature  of  a  jurata  delatoria, 
or  jury  of  accusation,  not  of  trial,  for  the  effect  of  a  charge  by  the  thirteen  was 
merely  to  consign  the  accused  to  the  triplex  ordalium. — Others  have  asserted, 
that  the  origin  of  the  present  jury  was  the  assize  established  in  the  reign  of  Henry 
II.  It  appears,  however,  very  clearly  from  Glanville's  Treatise,  that  the  jury  of 
twelve  was  of  more  ancient  origin ;  for  it  is  repeatedly  spoken  of  in  that  work  as 
a  known  and  existing  institution,  and  as  the  ordinary  means  of  inquiry  in  the  case 
of  purprestures,  nuisances,  and  trespasses  which  did  not  amount  to  disseisins. 
These  were  then  tried  per  juratam  patrice  sive  vicineti  coram  justiciariis. 
Glan.  1.  9,  c.  11. 

M.  Meyer,  in  his  truly  valuable  and  interesting  work  [Institutions  Judiciares), 
is  disposed  to  fix  the  origin  of  our  juries  at  so  late  a  date  as  that  of  Henry  III. 
Inst.  Jud.  vol*'  2,  p.  165.  But  it  is  remarkable,  that  one  reason  which  he  strongly 
urges  in  support  of  this  opinion,  is  the  total  silence  of  G-lanville  on  this  subject : 
"  Dans  cet  ouvrage  il  ne  se  rencontre  ni  le  nom  de  jury  ni  la  chose  mgme,  quoiqu'il 
soit  souvent  question  de  I'assise,"  &c.    Inst.  Jud.  vol.  ii.  p.  169.    Glanville  himself 


INTEODUCTION.  7 

be  to  explore  tlie  mysteries  of  nature,  or  unravel  tlie  hidden  trans- 
actions of  mankind,  is  reason  aided  by  experience. 

It  is  obvious,  tbat  tlie  experience  wMcli  would  best  enable  those 
whose  duty  it  is  to  decide  on  matters  of  fact,  arising  out  of  the 
concerns  and  dealings  of  society,  to  discharge  that  duty,  must  be 
that  which  results,  and  which  can  only  result,  from  an  intimate 
intercourse  with  society,  and  an  actual  knowledge  of  the  habits 
and  dealings  of  mankind:  and  that  the  reasoning  faculties  best 
adapted  to  apply  such  knowledge  and  experience  to  the  best 
advantage  in  the  investigation  of  a  doubtful  state  of  facts,  are  the 
natural  powers  of  strong  and  vigorous  minds,  unencumbered  and 
unfettered  by  the  technical  and  artificial  rules  by  which  permanent 
tribunals  would  be  apt  to  regulate  their  decisions. 

Nor  is  the  trial  by  jury  less  recommended  by  considerations 
of  extrinsic  policy.  It  constitutes  the  strongest  security  to  the 
liberties  of  the  people  that  human  sagacity  can  devise;  for,  in 
effect,  it  confides  the  keeping  and  guardianship  of  their  liberties 
to  those  whose  interest  it  is  to  preserve  them  inviolate ;  and  any 
temptation  to  misapply  so  great  an  authority  for  unworthy  pur- 
poses,  which  might    sway  a  permanent   tribunal,'^  can   have   no 

affords  the  most  decisive  refutation  of  this  argument.  See  1.  9,  c.  11 ;  1.  14,  o.  3 ; 
see  also  1.  2,  c.  6  ;  1.  5,  c.  4 ;  1.  7,  c.  16  ;  and,  consequently,  the  hypothesis  of  an 
origin  later  than  the  time  when  Glanville  wrote,  necessarily  falls  to  the  ground. 

The  trial  by  jury,  though  undoubtedly  known  and  used  in  the  king's  courts  in 
the  reign  of  Henry  II.,  had  become  much  more  frequent  in  the  reign  of  Henry 
III.,  an  sera  from  which  its  gradual  change  to  its  present  form  may  be  dated.  It 
is  not  improbable,  as  far  as  regards  the  county  court,  that  when  its  powers  had 
been  greatly  abridged,  the  substitution  of  twelve  jurors  for  the  whole  comitates 
was  adopted  as  a  change  of  great  convenience  to  the  suitors  of  the  court,  as  well 
as  the  litigant  parties ;  the  former  would  be  more  rarely  called  on  to  perform  a 
burthensome  duty,  the  latter  would  have  their  causes  more  patiently  tried. 

If  it  was  ever  the  practice,  either  previous  or  subsequent  to  the  Conquest,  that 
the  verdict  by  the  patria  or  comitatus  should  be  subject  to  an  appeal  to  or 
confirmation  by  twelve  of  the  pares  on  an  oath,  and  of  this,  as  has  been  seen, 
some  traces  are  to  be  found,  the  transition  to  the  select  part  would  be  perfectly 
easy ;  it  would  in  effect  be  nothing  more  than  the  mere  omission  of  a  step  in  the 
process  which  had  become  useless  and  burthensome ;  experience  having  shown 
that  justice  was  better  done  by  a  limited  number,  acting  under  the  obligation  of  an 
oath,  than  by  the  precarious  determination  of  a  large  and  indefinite  body,  few  of 
whom  would  possess  any  knowledge  of  the  facts. 

^  The  power  of  deciding  on  matters  of  fact  is  much  more  capable  of  abuse,  and 
liable  to  corrupt  partiality,  without  appearing  to  be  manifestly  unjust,  than  the 
power  of  deciding  on  matters  of  law  is.  A  judgment  in  law  on  ascertained  facts 
must  be  justified  by  comparison  with  precedents  ;  and  it  attracts  public  notice, 


o  LAW    OF    EVIDENCE. 

influence  *wlien  entrusted  to  the  mass  of  the  people,  to  be 
-'    exercised,  hj  particular  individuals  but  occasionally. 

In  addition  to  this,  no  institution  could  be  better  devised  for 
securing,  on  the  part  of  the  people,  a  lively  attachment  to  the 
constitution  and  laws,  in  the  practical  administration  of  which  they 
act  so  important  a  part,  in  diffusing  a  knowledge  of  the  laws  them- 
selves, and  producing  ready  obedience  to  a  system  which  they 
know  to  be  justly  and  impartially  administered. 

For  the  finding  of  a  verdict  on  every  issue,  it  is  essential,  in 
the  first  place,  to  know  what  facts,  when  proved,  will  satisfy  the 
issue  in  point  of  law ;  and,  secondly,  to  inquire  whether  such  facts 
have  been  proved.  The  of&ce  of  the  jury  is  confined  altogether  to 
the  latter  question ;  their  duty  is  to  ascertain  the  existence  of  facts 
by  means  of  the  judgment  which  they  form  of  the  credibility  of 
witnesses,  and  by  the  inferences  which  they  make  from  the  circum- 
stances submitted  to  their  consideration.  For  the  due  discharge  of 
this  important  function,  they  are  supposed  to  be  peculiarly  well 
qualified  by  their  experience  of  the  conduct,  affairs,  and  dealings 
of  mankind,  and  the  manners  and  customs  of  society.  In  this 
respect,  and  to  this  extent,  the  law  confides  implicity  in  their 
knowledge,  experience,  and  discretion.  It  interferes  no  further 
than  by  laying  down  cautionary  rules  to  prevent  the  jury  from 
being  deceived  or  misled.  Having  done  this,  the  rest  is  left  to 
the  conscience  and  discretion  of  the  jury.  And  the  Courts 
*will  only  interfere  with  their  decision  where  the  verdict 
-'    has  been  perverse  or  clearly  contrary  to  the  evidence. 

It  is  with  a  view  to  those  objects  that  the  rtiles  of  evidence  are 
almost  exclusively  framed.  But,  in  the  next  place,  a  knowledge 
whether  particular  facts,  if  established  to  the  conviction  of  the  jury, 
will  satisfy  the  issue,  or  the  allegations  to  be  proved,  is  also  essen- 
tial to  a  verdict ;  and  this  is  usually  a  question  of  law,  and  therefore 
within  the  province  of  the  Judge.  In  such  cases,  therefore,  it  is 
for  the  Court  to  instruct  the  jury  in  point  of  law,  to  inform  them 
what  facts  are  essential  to  the  proof  of  the  issue,  and  that  they 
ought  to  give  their  verdict  in  the  affirmative  or  negative,  according 

because  in  its  turn  it  becomes  a  precedent  for  future  decisions.  It  is  therefore  the 
subject  of  public  attention,  and  any  material  departure  from  ordinary  principles 
would  necessarily  be  remarked  ;  but  the  testimony  and  evidence  offered  in  proof  of 
facts  in  particular  instances,  are  capable  of  such  infinite  complexity  and  variety, 
that  they  admit  of  no  certain  standard  for  judging,  and  consequently  a  corrupt  or 
eiToneous  decision  is  the  less  easy  to  be  detected. 


INTRODUCTION.  V 

to  the  opinion  of  the  jury  that  the  particular  facts  are  proved  or 
disproved. 

The  jury,  in  finding  a  general  verdict,  are  bound  to  find  it 
according  to  the  just  application  of  the  law  as  they  receive  it  from 
the  Court,  and  their  own  judgment  whether  the  facts  are  proved  or 
not ;  and  every  such  verdict  is  presumed  to  be  founded  upon  the 
law  so  expounded,  and  the  facts  so  found. 

If  the  jury,  in  a  civil  proceeding,  misapply  the  law,  the  party 
injured  may  obtain  redress  by  moving  for  a  new  trial.  But  the 
jury  are  not  in  any  case,  whether  civil  or  criminal,  bound  to  apply 
the  law ;  they  are  always  at  liberty  to  find  a  special  verdict,  that  is, 
to  state  specially  what  facts  they  find  to  be  proved ;  and  the  re- 
mainder of  that  process  which  is  essential  to  the  verdict,  that  is,  the 
application  of  the  law  to  the  facts  so  found,  is  left  to  be  executed 
by  the  Court.  In  finding  a  special  verdict,  the  jury  discharge 
the  whole  of  their  of&ce,  for  a  special  verdict  does  not  contain 
merely  a  detail  of  the  evidence  given  by  the  witnesses,  but  is  con- 
clusive as  to  the  existence  of  all  the  ultimate  specific  facts  of  the 
case,  which  are  essential  to  its  determination,  founded  upon  an 
examination  of  the  credit  due  to  the  witnesses,  and  upon  presump- 
tions and  inferences  derived  from  all  the  circumstances  of  the  case 
as  detailed  in  evidence. 

*That  which  is  legally  offered  by  the  litigant  parties  to 
induce  a  jury  to  decide  for  or  against  the  party  alleging  such   '- 
facts,  as  contradistinguished  from  all  comment  and  argument  on  the 
subject,  fall  within  the  description  of  evidence. 

"Where  such  evidence  is  sufficient  to  produce  a  conviction  of  the 
truth  of  the  fact  to  be  established,  it  amounts  to  proof. 

The  origin,  nature  and  quality  of  such  evidence,  the  principles 
and  rules  which  regulate  its  admissibility  and  effect,  and  its  appli- 
cation to  the  purposes  of  proof,  form  the  subject  of  the  present 
Treatise. 

The  brief  outline  which  has  been  given  to  show  the  relation 
which  this  branch  of  the  law  bears  to  the  whole  system,  is  sufficient 
to  manifest  its  great  importance. 

There  is,  perhaps,  no  greater  blessing  incident  to  a  highly 
improved  state  of  civilization,  than  the  substitution  of  a  rational 
and  satisfactory  mode  of  judicial  proof,  for  the  rude,  barbarous, 
and  even  impious  practices  resorted  to  in  the  dark  and  unlettered 
ages.  "Without  certain  modes  of  investigating  truth,  in  cases 
where  its    light    is   ever  liable  to    be    obscured  by  fraudulent 


10  LAW    OF    EVIDENCE. 

practices  exercised  for  the  evasion  of  justice,  the  wisest  laws  are 
but  vain  and  ineffectual :  they  may  embellish  the  statute-book,  as 
beautiful  in  theory,  but  in  other  respects  they  are  a  dead  letter : 
frequently  even  worse;  for  where  offenders  cannot  be  detected 
and  punished,  the  laws  may  do  mischief  in  holding  out  a  show 
of  protection,  which  being  but  delusive,  tends  to  induce  a  false 
and  dangerous  sense  of  security :  what  is  still  worse,  whilst  the 
criminal  escapes,  they  may  stamp  the  innocent  with  infamy,  and 
crush  them  with  judgments  designed  only  for  the  guilty;  and 
under  an  arbitrary  constitution,  may  be  converted  into  a  dangerous 
instrument  in  the  hands  of  power,  for  the  destruction  of  those 
whose  possessions  are  tempting,  or  principles  obnoxious. 

In  order  to  appreciate  the  advantages  which  result  from 

-^  *modes  of  investigation  founded  on  just  and  rational  prin- 
ciples, we  have  only  to  recollect  the  absurd,  monstrous,  and 
impious  practices  resorted  to  by  our  own  ancestors,  in  common 
with  other  nations  of  antiquity.  It  was  for  the  want  of  them  that 
judicial  oaths  were  multiplied  to  an  extent  of  itself  sufficient  to 
bring  the  obligation  into  contempt :  it  was  vainly  hoped  that  the 
rank  and  number  of  compurgators,  who  swore  not  to  any  fact, 
but  to  mere  belief,  would  compensate  for  their  want  of  knowledge. 
Hence  the  superstitious  appeals  to  the  Deity  by  the  trial  by  ordeal, 
and  the  ferocious  and  impious  practice  of  the  trial  by  duel.  They 
did  not  venture  to  rely  on  the  simple  oaths  of  individual  witnesses 
to  facts,  although  with  a  flagrant  degree  of  inconsistency  they  gave 
credit  to  the  cumulative  oaths  of  those  who  knew  nothing  of  the 
facts :  whilst  they  were  either  too  ignorant  or  too  indolent  to  try 
the  credit  of  witnesses  by  diligent  examination  and  comparison  of 
testimony  and  facts,  judicial  oaths  were  multiplied  to  an  absurd 
and  profligate  extent.  Hence  also  the  rude  limits  of  prescription, 
which  were  established  for  the  purpose  of  avoiding  the  necessity 
for  inquiry .°  It  may,  however,  be  recollected  to  their  credit,  that 
the  shocking  expedient  of  applying  torture  to  extort  confession, 
a  practice  sanctioned  by  many,  even  Christian  legislators,  was 
never  resorted  to  by  the  Anglo-Saxons. 

But  however  absurd,  objectionable  and  mischievous  such  prac- 
tices must  appear  at  the  present  day,  the  progress  of  improvement 
has  been  slow ;  for  though  the  trial  by  duel  in  civil  suits  received 

"  If  a  man  wounded  his  slave,  he  was  not  to  be  presumed  to  be  guilty  of  the 
murder,  unless  the  slave  died  the  day  after. 


INTRODUCTION.  11 

a  considerable  clieck  in  the  reign  of  Henry  II.,  in  consequence 
of  the  introduction  of  the  trial  by  the  grand  assize,  yet  the  practice 
was  continued  in  appeals  till  long  afterwards,  and  has  but  lately 
ceased  to  be  the  law ;  and  though  the  trial  by  ordeal  seems  to  have 
fallen  into  disuse  ever  since  the  early  part  of  the  reign  of 
*Henry  III.  without  any  formal  abolition,  the  doctrine  of  '- 
compurgation  by  wager  of  law  is  but  recently  abolished.  It  was 
not  until  long  after  the  establishment  of  the  jury  trial  that  the 
investigation  was  conducted  by  the  open  examination  of  witnesses, 
and  that  the  functions  of  jurors  and  witnesses  were  distinguished 
and  separated;  it  was  not  until  the  reign  of  Queen  Anne  that 
witnesses  for  prisoners  tried  for  felony  were  examined  upon  oath. 

It  is  not,  however,  part  of  the  present  design  to  enter  into  any 
historical  detail  of  the  law  on  this  interesting  subject,  further  than 
as  reference  to  the  ancient  law  may  be  occasionally  connected 
with  its  present  details. 

The  subject  may  be  conveniently  considered,  in  relation. 

First.  To  the  elementary  principles  on  which  the  legal  doctrine 

rests. 
Secondly.  To  the  instruments  of  evidence,  as  governed  by  these 

principles  and  elementary  rules. 
Thirdly.  To  their  application  to  the  purposes  of  proof,  either 
generally  or  particularly. 


PART  I. 

GENERAL  PRINCIPLES  OF  THE  LAW  OF  EYIDENCE. 


CHAPTEE  I. 
NATURAL   PRINCIPLES   OP  EVIDENCE. 

FIRST,  then,  as  to  tlie  general  principles  on  wMcIl  tlie  law  of 
evidence  is  founded. 

The  means  wMcli  the  law  employs  for  investigating  the  truth  of 
a  past  transaction  are  those  which  are  resorted  to  by  mankind  for 
similar,  but  extrajudicial  purposes.  These  are  the  best,  usually 
the  only  means  of  inquiry,  and  it  is  for  this  reason  that  a  jury  of 
the  country  forms  a  tribunal  so  well  qualified  to  judge  of  mere 
matters  of  fact ;  for,  subject  to  certain  exceptions,  they  decide  by 
the  aid  of  experience  and  reason,  as  they  would  do  on  any  ex- 
trajudicial occasion.  "With  these  general  principles  the  law  can 
interfere  in  two  ways  only ;  either  by  excluding  or  restraining 
mere  natural  evidence  by  the  application  of  artificial  tests  of  truth, 
or  annexing  an  artificial  effect  to  evidence  beyond  that  which  '4t 
would  otherwise  possess.  Hence  it  is  that  the  great  principles  of 
evidence  may  be  reduced  to  three  classes,  comprising, 

1st.  The  principles  of  evidence  which  depend  on  ordinary  ex- 
perience and  natural  reason,  independently  of  any  artificial  rules 
of  law ; 

2ndly.  The  artificial  principles  of  law,  which  operate  to  the 
partial  exclusion  of  natural  evidence  by  prescribing  tests  of  ad- 
missibility, and  which  may  properly  be  called  the  excluding 
principles  of  law ; 

^^  *3rdly.  The  principles  of  law  which  either  create  artificial 

^   modes   of  evidence,   or   annex  an  artificial   effect   to   mere 
natural  evidence. 


NATURAL    PRINCIPLES    OP    EVIDENCE.  13 

In  the  first  place,  it  rarely  happens  that  a  jury,  or  other  tribunal," 
whose  business  it  is  to  decide  on  a  matter  of  fact,  can  do  so  by 
means  of  their  own  actual  observation.  It  is  obvious,  that  when 
inquiry  is  to  be  made  into  the  circumstances  of  a  past  transaction 
before  a  jury,  information  must  be  derived  for  the  most  part  from 
the  same  source,  and  must  be  judged  of  and  estimated,  to  a  great 
extent,  by  the  same  rules  that  would  be  resorted  to  and  applied  by 
any  individual  whose  business  or  whose  interest  it  was,  in  the 
ordinary  course  of  human  events,  to  institute  such  an  inquiry. 

What,  then,  are  the  means  to  which  a  person  interested  in  such 
an  inquiry  into  a  past  transaction  would  naturally  resort  ?  He 
would,  in  the  first  place,  ascertain  what  witnesses  were  present  at 
the  transaction,  and  would  obtain  all  the  information  which  they 
could  supply.  If  none  were  present,  or  none  could  be  found  from 
whom  he  could  obtain  immediate  intelligence,  he  would  procure 
information  from  others,  who,  although  they  had  not  acttial  per- 
sonal knowledge  of  the  fact,  had  yet  derived  information  on  the 
subject,  either  directly  or  mediately,  from  others  who  possessed 
or  had  acquired  and  communicated  such  their  knowledge,  either 
orally  or  in  writing. 

Again,  in  the  absence  of  other  information  on  the  subject,  he 
would  endeavour  carefully  to  ascertain  the  circumstances  which 
accompanied  the  transaction,  and  had  such  a  connexion  with  it  as 
enabled  him  to  draw  his  own  conclusions  on  the  subject  of  inquiry. " 

In  short,  where  knowledge  cannot  be  acquired  by  means  of 
actual  and  personal  observation,  there  are  but  two  *modes  by  _^^  „ 
which  the  existence  of  a  by-gone  fact  can  be  ascertained :  *- 

1st.  By  information  derived  either  immediately  or  mediately 
from  those  who  had  actual  knowledge  of  the  fact :  or, 

2ndly.  By  means  of  inferences  or  conclusions  drawn  from  other 
facts  connected  with  the  principal  fact  which  can  be  sufficiently 
established. 

In  the  first  case,  the  inference  is  founded  on  a  principle  of  faith 
in  human  veracity  sanctioned  by  experience.  In  the  second,  the 
conclusion  is  one  derived  by  the  aids  of  experience  and  reason 
from  the  connexion  between  the  facts  which  are  known  and  that 

"  To  a  limited  extent,  a  jury  or  Court,  in  deciding ,  matter  of  fact,  may  have 
actual  personal  knowledge.  Thus  a  jury  may  have  a  view  of  lands,  &c.,  the  subject 
of  litigation :  Judges  may  decide  by  inspection  of  a  record,  or  of  the  person  in 
cases  of  disputed  infancy.  So  also  of  a  jury  of  matrons  in  case  of  alleged  preg- 
nancy, &c. 


14  EXCLUDING    PRINCIPLES. 

■wMcIl  is  unknown.  In  eacti  case  the  inference  is  made  by  virtiie  of 
previous  experience  of  the  connexion  between  the  known  and  the 
disputed  facts,  although  the  grounds  of  such  inference  in  the  two 
cases  materially  differ. 

All  evidence  thus  derived,  whether  immediately  or  mediately, 
from  such  as  have  had,  or  are  supposed  to  have  had,  actual  know- 
ledge of  the  fact,  may  not  improperly  be  termed  direct  evidence ; 
whilst  that  which  is  derived  merely  from  collateral  circumstances 
may  be  termed  indirect  or  inferential  evidence. 

It  is  obvious  that  the  means  of  indirect  proof  must  usually  be 
supplied  by  direct  proof ;  for  no  inference  can  be  drawn  from  any 
collateral  facts  until  those  facts  have  themselves  been  first  satis- 
factorily established,  either  by  actual  observation,  or  information 
derived  from  others  who  have  derived  their  knowledge  from  such 
observation. 


*18]  *CHAPTEE   II. 

EXCLUDING  PEINCIPLBS. 

Such,  then,  being  the  ordinary  sources  of  evidence,  what  are  the 
excluding  principles  which  restrain  the  admission  of  evidence  ?  As 
juries  must  decide  by  the  aid  of  the  same  general  principles  of 
belief  on  which  any  individual  would  act  who  was  desirous  of 
satisfying  himself  by  inquiry  as  to  the  truth  of  any  particular  fact, 
and  as  an  individual  inquirer  would  not  think  it  necessary  to  limit 
himself  by  any  particular  rules,  why  should  the  evidence  to  be 
submitted  to  a  jury  be  limited  or  affected  by  any  technical  rules  ? 

The  answer  is,  that  the  law  interferes  for  two  purposes  :  first,  in 
order  to  provide  more  certain  tests  of  truth  than  can  be  provided, 
or  indeed  than  are  necessary,  in  the  ordinary  course  of  affairs,  and 
thereby  to  exclude  all  weaker  evidence  to  which  such  tests  are 
inapplicable,  and  which,  if  generally  admitted,  would  be  more 
likely  to  mislead  than  to  answer  the  purposes  of  truth ;  and  in 
the  next  place,  to  annex  an  artificial  effect  to  particular  evidence 
which  would  not  otherwise  belong  to  it,  on  grounds  of  general 
policy  and  convenience. 

The  great  principle  on  which  the  law  proceeds  in  laying  down 
rules  of  an  exclusive  operation  is,  not  to  alter  the  value  and  effect 


EXCLU'DIWGPEINCIPLES.  15 

of  evidence  in  tlie  investigation  of  trutli ;  tliat  would  be  absurd, 
especially  wbere  the  tribunal  invested  witli  tbe  power  of  decision 
consists  of  jurors  selected  from  the  great  body  of  tbe  people,  wbo, 
being  unskilled  in  tecbnical  rules  and  unaccustomed  to  judicial 
babits,  must  necessarily  decide  by  tbe  aid  of  tbeir  own  experience 
of  things  and  natural  power  of  their  reason,  by  principles  on  which 
they  would  act  in  the  affairs  of  ordinary  life :  on  the  contrary,  one 
great  object  of  the  law  is  to  aid  *the  natural  powers  of  de- 
cision,  by  adding  to  the  weight  and  cogency  of  the  evidence 
on  which  a  jury  is  to  act.  Another  great  object  is,  to  prevent  the 
reception  of  evidence  which  in  its  general  operation  would  injure 
the  cause  of  truth,  by  its  tendency  to  distract  the  attention  of  a 
jury,  or  even  to  mislead  them.*^ 

The  necessity  for  resorting  to  superior  tests  of  truth,  the  effect 

'^  As  a  consequence  of  these  objects,  the  application  of  these  excluding  principles 
is  entirely  for  the  judge,  who  ought  to  decide  on  any  question  of  fact  which  their 
application  may  involve.  If  the  proof  is  by  witnesses  he  must  weigh  their 
credibility,  and  if  counter  evidence  be  offered  he  must  receive  and  decide  upon  it ; 
and  he  has  no  right  to  ask  the  opinion  of  the  jury  upon  any  such  question,  it  being 
one  purely  preliminary  to  the  reception  of  the  e^^idence  ;  even  though  ultimately 
the  same  fact  is  to  be  submitted  to  the  jury  for  their  opinion  ;  Doe  dem.  Jenkins 
V.  Davies,  10  Q.  B.  314. 

'  Thus  it  has  been  decided  in  many  cases  that  the  competency  of  a  witness, 
though  it  may  depend  upon  a  question  of  fact,  is  the  province  of  the  court 
exclusively ;  Cook  v.  Mix,  11  Oonn.  432  ;  Amory  v.  Fellows,  5  Mass.  219  ;  Tucker 
V.  Welsh,  17  Ibid.  160 ;  Reynolds  v.  Lounsbury,  6  Hill,  534.  "When  an  objec- 
tion is  made,  at  a  trial,  to  the  competency  of  a  witness  on  the  ground  of  interest, 
the  decision  of  the  judge  on  the  question  of  fact  is  conclusive  ;  Bole  v.  Thurlow, 
12  Metcalf,  157.  So,  if  made  before  a,  referee,  his  decision  is  not  the  subject  of 
revision ;  Leach  v.  Kelsey,  7  Barbour  S.  0.  Eep.  466. 

In  Hart  v.  Heilner,  3  Eawle,  410,  a  different  principle  was  declared.  It  was 
there  said  that  if  a  person  be  called  as  a  witness,  and  objected  to  by  the  adverse 
party  on  the  score  of  interest,  the  party  making  the  objection  must  show  the 
existence  of  the  interest,  and  if  it  should  clearly  appear  to  be  so  from  the  testi- 
mony adduced  for  the  purpose  of  proving  it,  the  court  will  decide  upon  it  and 
reject  the  witness ;  but  if  it  be  in  the  least  degree  doubtful,  the  court  will  not 
decide  the  question  of  interest  in  the  witness,  but  receive  his  testimony,  and  leave 
it  to  the  jury  to  determine,  and,  if  they  should  be  of  opinion  that  he  has  such  an 
interest,  then  instruct  them  to  pay  no  regard  whatever  to  his  testimony,  and  leave 
it  altogether  out  of  view.  According  to  this  case,  it  would  be  discretionary  with 
the  court  either  to  decide  the  question  of  fact  directly,  or  to  submit  it  to  the  jury. 
But  in  Chouteau  v.  Searcy,  8  Missouri,  733,  it  was  expressly  held  to  be  error, 
after  admitting  the  testimony  of  a  witness,  to  instruct  the  jury  to  disregard  such 
testimony,  if  they  should  find  that  the  witness  was  interested. 


16  EXCLUDIS'G    PRINCIPLES. 

of  wliicli  is  to  exclude  evidence  not  warranted  by  those  tests,  is 
founded  on  tlie  apprehension  that  the  evidence  on  which  an  indi- 
vidual in  the  ordinary  transactions  of  life  might  safely  rely,  could 
not,  without  the  additional  sanction  of  such  tests,  be  safely  relied 
upon,  or  even  admitted,  in  judicial  investigations.  For,  in  the  first 
place,  in  the  ordinary  business  of  life  neither  so  many  temptations 
occur,  nor  are  so  many  opportunities  afforded  for  practising  deceit, 
as  in  the  course  of  judicial  investigations,  where  property,  repu- 
tation, liberty,  even  life  itself,  are  so  frequently  at  stake :  in  the 
common  business  of  life  each  individual  uses  his  own  discretion 
with  whom  he  shall  deal  and  to  whom  he  shall  trust ;  he  has  not 
only  the  sanction  of  general  reputation  and  character  for  the  confi- 
dence which  he  reposes,  but  slight  circumstances,  and  even  vague 
reports,  are  sufficient  to  awaken  his  suspicion  and  distrust,  and 
place  him  on  his  guard  ;  and  where  doubt  has  been  excited,  he  may 
suspend  his  judgment  till  by  extended  and  repeated  inquiries  doubt 
is  removed.  In  judicial  inquiries  it  is  far  otherwise  ;  the  character 
of  a  witness  cannot  easily  be  subjected  to  minute  investigation ; 
^„-  *the  nature  of  the  proceeding  usually  excludes  the  benefit 
which  might  result  from  an  extended  and  protracted  inquiry, 
and  a  jury  are  under  the  necessity  of  forming  their  conclusions  on 
a  very  limited  and  imperfect  knowledge  of  the  real  characters  of 
the  witnesses  on  whose  testimony  they  are  called  on  to  decide. 

It  has  been  truly  observed,  that  there  is  a  general  tendency 
among  mankind  to  speak  the  truth,  for  it  is  easier  to  state  the  truth 
than  to  invent ;  the  former  requires  simply  an  exertion  of  the 
memory,  whilst  to  give  to  false  assertions  the  semblance  of  truth  is 
a  work  of  difficulty.  It  is  equally  apparent  that  the  suspicion  of 
mankind  would  usually  depend  on  their  ordinary  experience  of 
human  veracity  ;  if  truth  were  always  spoken  no  one  would  ever 
suspect  another  of  falsity,  but  if  he  were  frequently  deceived  he 
would  frequently  suspect.  Hence  it  is  that  jurors,  sitting  in  judg- 
ment, would  usually  be  inclined  to  repose  a  higher  degree  of 
confidence  in  ordinary  testimony  than  would  justly  be  due  to  it  in 
the  absence  of  peculiar  guards  against  deceit :  for  as  the  temptations 
to  deceive  by  false  evidence  in  judicial  inquiries  are  far  greater  than 
those  which  occur  in  the  course  of  the  ordinary  transactions  of  life, 
they  would  be  apt  to  place  the  same  reliance  on  the  testimony 
offered  to  them  as  jurors,  to  which  they  would  have  trusted  in 
ordinary  cases,  and  would  consequently,  in  many  instances,  over- 
value such  evidence. 


EXCLUDING    PRINCIPLES.  17 

The  law  therefore  wisely  requires  that  the  evidence  should  be  of 
the  purest  and  most  satisfactory  kind  which  the  circumstances 
admit  of,  and  that  it  should  be  warranted  by  the  most  weighty  and 
solemn  sanctions.  This  indeed  is  but  a  consequence  of  one  great 
and  important  rule  of  law,  viz.,  that  the  best  evidence  shall  be 
adduced;  the  effect  of  which  is,  as  will  afterwards  be  seen,  to 
exclude  inferior  evidence,  whenever  it  is  offered  in  place  of  that 
which  is  of  a  superior  degree  and  more  convincing  nature. 

Again,  for  the  purposes  of  saving  both  time  and  expense, 
*and  to  prevent  the  minds  of  juries  from  being  distracted 
from  that  which  is  material,  it  is  indispensably  necessary  to  '- 
place  bounds  to  collateral  evidence,  and  to  exclude  such  as  is  of 
too  weak  and  suspicious  a  nature  to  deserve  credit,  and  which, 
though  it  possessed  no  tendency  to  mislead,  would  still  be  mis- 
chievous in  occasioning  delay  and  expense,  and  attracting  fruitless 
attention. 

In  order  to  exhibit  clearly  the  nature  and  extent  of  the 
excluding  tests  recognised  by  the  law  of  England,  it  is  essential 
first  to  consider  the  different  classes  of  evidence  to  which  such 
tests  apply;  and  then  to  consider  what  tests  are  applicable  to 
each  of  such  classes. 

For  this  purpose  all  evidence  may  be  divided  into  two  classes : 
1st.  Direct,  which  consists  in  the  testimony,  whether  immediately 
or  mediately,  derived  from  those  who  had  actual  knowledge  of 
the  principal  or  disputed  fact ;  or  2ndly,  indirect  or  inferential 
evidence,  where  an  inference  is  made  as  to  the  truth  of  the 
disputed  fact,  not  by  means  of  the  actual  knowledge  which  any 
witness  had  of  the  fact,  but  from  collateral  facts  ascertained  by 
competent  means. 

Direct  or  testimonial  evidence,  again,  is  either  immediate,  that  is, 
where  a  witness  states  his  own  actual  knowledge  of  the  fact,  or 
mediate,  where  the  information  is  communicated,  not  immediately 
by  the  party  who  had  actual  knowledge  of  the  fact,  but  from  him 
through  the  intermediate  testimony  of  one  or  more  other  witnesses. 

First,  then,  what  are  the  principles  which  govern  the  reception 
of  immediate  testimony  ? 

To  render  the  communication  of  facts  perfect,  the  witness  must 

be  both  ahk  and  willing  to  speak  or  to  write  the  truth.     It  is 

necessary  that  he  should  have  had,  in  the  first  place,  the  means 

and  opportunity  of  acquiring  a  knowledge  of  the  facts ;  and,  in 

the  second,  that  he  should  possess  the  power  and  inclination  to 

2 


18  EXCLUDING    PEINCIPLES. 

transmit  them  faitlifully;  consequently,  the  first  great  object  of 
the  law  is  to  secure,  by  proper  means,  the  inclination  of  the 
^  witness  to  *declare  the  truth,  and  to  ascertain  his  ability  to 
-^  do  so  by  adequate  tests ;  and  it  is  for  the  jury  afterwards 
to  judge  of  the  credit  due  to  the  witnesses,  considering  their 
numbers,  their  opportunities  for  observing  the  facts,  the  attention 
which  they  paid,  their  faculties  for  recollecting  and  transmitting 
them,  their  motives,  their  situation  with  respect  to  the  parties, 
their  demeanor,  and  their  consistency. 

In  order  to  exclude  impure  or  suspicious  testimony,  and  to  add 
the  most  solemn  and  binding  sanction  to  that  which  is  admitted, 
the  law,  in  the  first  place,  excludes  all  testimony  which  is  not 
given  imder  the  sanction  of  an  oath  or  its  equivalent :  and  in  the 
next  place,  subjects  the  witness  to  cross-examination  by  the  party 
against  whom  the  evidence  is  offered. 

A  consequence  of  the  first  of  these  tests  until  recently  was, 
that  the  testimony  of  a  person  who  by  the  turpitude  of  his  conduct 
had  made  it  probable  that  he  would  not  regard  the  obligation  of 
an  oath  was  not  received,  and  therefore  no  individual  who  had 
been  convicted  of  any  infamous  crime  was  competent  to  "give 
evidence  in  a  court  of  justice.  The  legislature  has,  however, 
thought  it  wiser  to  admit  the  evidence  of  such  a  person,  and  to 
leave  it  to  the  discrimination  of  the  jury  to  attach  a  proper  weight 
to  it,  and  a  recent  statute"  has  enacted  that  no  person  offered  as 
a  witness  shall  be  excluded  from  giving  evidence  by  reason  of 
incapacity  from  crime.^ 

"  6  &  7  Vict.  c.  8.5. 


'  The  rule  which  excludes  a  witness  on  the  score  of  infamy  still  subsists  in 
most  if  not  all  the  United  States. 

The  conviction  of  an  infamous  crime  in  another  State,  or  in  a  foreign  country, 
does  not,  however,  render  one  incompetent  to  testify  as  a  witness,  though  it  has 
been  held  that  the  record  is  admissible  to  affect  his  credibility ;  Comm'th  v. 
Green,  17  Mass.  515  ;  Gomm'th  v.  Knapp,  9  Pick.  496  ;  Chase  v.  Blodgett,  10 
N.  Hamp.  22  ;  Uhl  v.  The  Comm'th,  6  Grattan,  706  ;  contra,  The  State  v. 
Candler,  3  Hawks,  393. 

It  is  the  nature  of  the  crime,  not  the  punishment,  which  determines  whether  a 
convict  is  an  admissible  witness.  Thus,  treason,  felony,  or  any  species  of  the 
crimen  falsi,  are  clearly  included ;  People  v.  Wliipple,  9  Cowen,  707.  Fine, 
imprisonment,  or  transportation  for  an  offence  not  infamous,  does  not  render  a 
witness  incompetent  on  the  ground  of  infamy ;  U.  States  v.  Bockius,  3  Wash. 
0.  0.  99  ;  Clarke  v.  Rail,  2  Har.  &  MoH.  375.  An  attempt  to  procure  the 
absence  of  a  witness  for  a  criminal  prosecution  is  not,  it  seems,  an  "  infamous" 


INTEREST.  19 

Another  consecLuence  of  these  tests  was  that  the  law  would  not 
receive  the  evidence  of  any  person,  even  under  the  sanction  of  an 
oath,  who  had  an  interest  in  giving  the  proposed  evidence,  and 
whose  interest  therefore  conflicted  with  his  duty. 

This  rule  of  exclusion,  considered  in  its  principle,  was  founded 
on  the  known  infirmities  of  human  nature,  which  was  deemed  too 
weak  to  he  generally  restrained  by  *religious  or  moral 
obligations,  when  tempted  and  solicited  in  a  contrary  direc-  '- 
tion  by  temporal  interests.  Though  there  were,  do  doubt,  many 
whom  no  interested  motive  could  seduce  from  a  sense  of  duty, 
and  by  their  exclusion  this  rule  operated,  in  particular  cases,  to 
shut  out  the  truth;  yet  as  the  law  must  prescribe  general  rules, 
and  it  was  thought  probable  that  more  mischief  would  result  from 
the  general  reception  of  interested  witnesses  than  was  occasioned 
by  their  general  exclusion,  the  evidence  of  interested  persons  was 
inadmissible. 

The  necessity  for  defining  and  limiting  the  extent  of  the  opera- 
tion of  this  principle  was  an  immediate  consequence  of  its  adoption, 
for  the  sake  of  certainty  in  its  application,  and  also  to  prevent 
its  operating  too  largely  to  the  exclusion  of  evidence,  which  would 
have  been  productive  of  great  inconvenience.  Hence  the  law 
defined  the  kind  of  interest  which  should  exclude,  and  limited  it 
to  a  legal  interest  in  the  event,  as  contradistinguished  from  affec- 
tion, prejudice  or  bias.'    Here  the  law  drew  the  line  of  distinction. 


offence ;  State  v.  Keyes,  8  Vennont,  57.  So  a  conviction  under  an  act  against 
cutting  timber ;  Roller  v.  Firth,  2  Penn.  723.  So  of  Iseeping  a  bawdy  house ; 
Deer  v.  The  State,  14  Missouri,  348.  A  person  convicted  of  the  offence  of 
receiving  stolen  goods,  knowing  them  to  have  been  stolen,  is  not  a  competent 
witness ;   Gomm'th  v.  Rogers,  7  Metcalfe,  500. 

A  conviction,  however,  of  an  infamous  crime  is  not  enough.  There  must  be 
judgment  on  the  verdict,  and  the  judgment  must  be  proved ;  People  v.  Whipple, 
9  Cowen,  707 ;  U.  States  v.  Dickinson,  2  McLean,  325 ;  Skinner  v.  Perot,  1 
Ashmead,  57  ;  State  v.  Valentine,  7  Iredell,  225. 

'  The  general  rule  is,  that  if  a  witness  cannot  gain  or  lose  by  the  event  of  a 
suit,  or  if  a  verdict  cannot  be  given  in  evidence  for  or  against  him  in  another 
action,  the  objection  goes  to  his  credit,  and  not  to  his  competency ;  Van  Nuys  v. 
Terhune,  3  Johns.  Cas.  82.  An  interest  in  the  question  only  does  not  disqualify 
a  witness,  but  the  objection  goes  to  his  credit  only ;  Id. ;  Evans  v.  Eaton,  7 
Wheat.  356  ;  Spurr  v.  Pearson,  1  Mason,  104 ;  Willing  v.  Consequa,  1  Peters 
0.  0.  Rep.  301 ;  Drake  v.  Maxwell,  5  Halsted,  297  ;  Wakely  v.  Hart,  6  Binn. 
319  ;  Gornegg  v.  Abraham,  1  Yeates,  34 ;  Hayes  v.  Grier,  4  Binn.  83.  Where 
A.  B.  and  others  entered  into  a  contract  with  X.,  and  A.  afterwards  brought  an 


20  EXCLUDING    PBINCIPLES. 

■wMcli  must  be  drawn  somewliere,  and  wliicli  would  liave  excluded 
too  much,  of  tlie  means  of  discorering  tlie  truth,  liad  it  incapacitated 
every  witness  wlio,  from  kindred,  friendship,  or  any  other  strong 
motive  by  wMcli  human  nature  is  usually  influenced,  might  have 
been  suspected  of  partiality.  Hence,  although  a  man  and  his  wife 
could  not  give  evidence  for  each  other,"  (for  their  interests  are  in 
law  identical,)  yet  no  other  degree  of  relationship  or  connection  in 
society,  whether  natural  or  artificial,  incapaciated  the  parties  from 
giving  evidence  for  each  other.  A  father  was  a  competent  witness 
for  his  son,''  and  a  son  for  his  father ;  the  guardian  and  his 
-^  *ward,  the  master  and  Ms  servant,  might  mutually  give  evi- 
dence for  each  other.° 

What  constituted  such  a  legal  interest  may  be  stated  generally 
to  have  been  either  a  direct  and  certain  interest  in  the  event  of  the 
cause,  or  an  interest  in  the  record  for  the  purposes  of  evidence, 
however  minute  that  interest  may  have  been.  It  is  obvious  that 
a  rule  so  wide  and  extensive  in  its  terms  must  have  given  rise  to 
constant  questions  and  doubt,  and  as  a  general  principle  in  the 
practical  application  of  it,  as  on  the  one  hand  the  rejection  was 
peremptory  and  absolute,  but  on  the  other  if  the  witness  was 
received,  it  was  still  for  the  jury  to  consider  what  credit  was  due 
to  his  testimony,  taking  into  consideration  all  the  circumstances 
of  the  case,  and  the  motives  by  which  he  may  have  been  influenced, 
it  was  thought  safer  to  admit  the  evidence  where  there  was  a  doubt 
than  to  exclude  it  altogether.  Hence  it  was  the  inclination  of  the 
courts  that  objections  of  this  nature  should  go  to  the  credit  of  the 
witness  rather  than  his  competency.  In  order  to  meet  the  objec- 
tion, various  expedients,  by  means  of  releases,  &c.,  were  generally 
resorted  to,  and  the  practical  inconveniences  of  so  extensive  an 
exclusion  being  found  intolerable,  the  legislature  interposed  and 

"  Nor  against  each  other,  as  vrill  be  seen,  on  grounds  of  policy. 

*  The  application  of  the  principle  by  the  civil  law  was  much  more  strict,  and 
mutually  excluded  father  and  son,  patron  and  client,  guardian  and  ward,  from 
giving  evidence  for  each  other  ;  a  servant  or  other  dependent  was  also  incompetent 
to  give  evidence  for  his  master,  and  the  testimony  of  a  friend  or  enemy  was  re- 
garded with  great  jealousy.    Pand.  lib.  22,  tit.  5,  s.  140. 

'^  For  the  application  of  this  rule,  see  tit.  Interest. 


action  against  X.  for  a  violation  of  his  rights  under  that  contract,  it  was  held  that 
B.  was  a  competent  witness  for  A.,  being  only  interested  in  the  question  ;  Wad- 
hams  V.  Tlie  Litchfield  and  Canaan  Turnpike  Co.,  10  Conn.  B.  416.   G. 


INTEEEST.  ,  21 

piit  an  end  to  the  latter  brancli  of  tlie  rule  by  providing^  tliat  if 
any  witness  slionld  be  objected  to  on  the  ground  that  the  verdict  or 
judgment  -would  be  admissible  in  evidence  for  or  against  him,  he 
should  nevertheless  be  examined,  but  a  verdict  or  judgment  in  the 
action  in  favoiir  of  the  party  in  whose  behalf  he  should  have  been 
examined  should  not  be  admissible  for  him,  nor  should  a  verdict  or 
judgment  against  such  party  be  admissible  in  evidence  against  him. 
The  effect  of  this  measure  having  *been  found  beneficial 
upon  the  suggestion  of  Lord  Dentnan,  the  legislature  again  '- 
interfered,'^  and  limited  the  operation  of  the  former  branch  of  the 
rule  by  enacting  that,  except  in  certain  instances  which  presently 
will  be  mentioned,  no  person  offered  as  a  witness  should  be 
excluded  by  reason  of  interest  from  giving  evidence,  but  that 
every  person  so  offered  should  be  admitted  to  give  evidence  on 
oath  or  affirmation,  notwithstanding  that  such  person  might  have 
an  interest  in  the  matter  in  question  or  in  the  event  of  the  trial, 
suit  or  proceeding  in  which  he  should  be  offered  as  a  witness. 

The  interest,  however,  of  a  person  who  was  either  actually  or 
substantially  a  party  to  the  suit  was  still  thought  to  present  a  suffi- 
cient objection  to  the  admission  of  his  evidence.  By  way  of  quali- 
fication or  proviso,  therefore,  upon  the  former  general  enactment, 
it  was  declared  that  the  act  should  not  render  competent  any  party 
to  the  suit,  action,  or  proceeding  individually  named  in  the  record, 
— or  any  lessor  of  the  plaintiff,  or  tenant  of  the  premises  sought  to 
be  recovered  in  ejectment, — or  the  landlord  or  other  person  in 
whose  right  any  defendant  in  replevin  made  cognizance, — or  any 
person  in  whose  immediate  and  individual  behalf  any  action  was 
brought  or  defended  either  wholly  or  in  part, — or  the  husband  or 
wife  of  such  persons  respectively. 

With  respect  to  the  rule  of  evidence  thus  established,  it  was 
objected  that  the  law  excluded  witnesses  falling  within  any  of 
these  predicaments,  though  their  interest  in  many  cases  was  of  the 
smallest  pecuniary  amount,  yet,  in  others,  admitted  the  testimony 
of  persons  who  lay  under  the  influence  of  the  strongest  ties  of 
affection  or  large  pecuniary  interests  in  the  result,  and  hence  had 
a  far  greater  temptation  to  deceive.     In  answer,  it  was  said  that 

8  6  &  7  Tict.  c.  85. 

f  3  &  4  Will.  IV.  c.  42,  s.  26.  The  statute  likewise  provided  (s.  27),  in  order  to 
facilitate  proof  of  the  facts  (see  Rees  v.  Walters,  2  M.  &  W.  529),  that  the  name 
of  the  witness  and  of  the  party  on  whose  behalf  he  was  examined  should  be 
indorsed  on  the  record. 


22  EXCLUDING    PRINCIPLES. 

this  observation,  tlaougli  true,  afforded  no  fair  ground  of  objection. 
The  simple  question  was,  whether  any  exclusive  rule  was  neces- 
sary. Assuming  that  the  law  properly  recognized  any  such  test, 
^         and  that  the  exclusion  of  a*witness  on  the  ground  of  interest 

-'  was  in  some  cases  requisite,  a  general  rule  must  be  laid  down, 
and  the  law  must  exclude  all  persons  falling  within  it.  To  exclude 
all  who  had  any  interest  whatever  had  been  found  by  experience 
to  be  impolitic  and  unwise ;  to  admit  all  who  had  an  interest  was 
considered  to  be  unsafe.  The  line  must  be  drawn  somewhere. 
To  adopt  a  standard  of  pecuniary  amount,  where  the  value  of  the 
subject-matter  in  dispute  was  often  the  very  point  to  be  ascertained 
by  the  verdict,  and  where  in  all  cases  the  resulting  incident  of 
costs  must  necessarily  be  extremely  uncertain,  would  be  impracti- 
cable. Such  a  standard,  too,  would  be  irrational,  unless  the 
pecuniary  circumstances  as  well  as  the  moral  principles  of  the 
persons  to  whom  it  was  applied  were  the  same.  The  sum,  for 
example,  which  might  offer  an  irresistible  temptation  to  a  poor  or 
immoral  man  to  commit  perjury,  would  in  nowise  influence  a 
wealthy  or  conscientious  person.  In  truth,  the  infinite  variety  of 
human  circumstances  rendered  any  test  which  should  be  wholly 
free  from  objection  on  the  score  of  inequality  utterly  impracticable. 
The  only  course  was,  if  interest  were  to  form  a  barrier,  to  select 
that  class  who  in  the  vast  majority  of  instances  had  so  strong  a 
motive  operating  upon  them  as  to  create  great  risk  that  they 
might  be  induced  to  commit  the  demoralizing  crime  of  perjury, 
and  who  would  most  probably  present  evidence  on  which  it  would 
be  unsafe  to  proceed. 

To  the  rule  of  exclusion  however,  as  it  existed  before  the  passing 
of  the  statutes  just  mentioned,  there  were  two  exceptions.  The 
first  was  where  the  witness  had  previoi^sly,  and  with  a  view  to 
deprive  a  party  of  the  benefit  of  his  testimony,  or  even  wilfully 
and  wantonly,  acquired  an  interest  in  the  event ;  for  this  was  to 
be  considered  as  a  species  of  fraud  upon  the  individual  or  the 
public,  who  had  an  interest  in  his  testimony.  2ndly.  The  law 
admitted  the  testimony  of  an  interested  witness,  on  the  ground  of 
the  necessity  of  the  case,  where,  in  the  common  course  of  human 
-x-oiT-i    ^ffS'ii'Si  if  ^^^  witness  were  to  be  considered  as  *incompetent, 

-'    a  failure  of  justice  would  result  from  defect  of  testimony.^ 


'  In  general,  the  interest,  to  exclude  a  witness,  must  not  have  arisen  after  the 
fact  to  which  he  is  called  to  testify  happened,  by  his  own  act  and  without  the 


INTEEEST.  23 

T]iese  exceptions,  however,  were  rare,  and  confined  principally  to 
the  cases  of  a  servant  who  transacted  his  master's  business,  and 
who,  in  the  usual  course  of  affairs,  was  the  only  person  who 
could  give  evidence  for  his  master :  of  a  wife  on  a  charge  against 
the  husband  of  having  committed  a  violence  to  her  person ;  and 
of  one  who  brought  an  action  against  the  hundred  under  the 
statute  to  recover  the  value  of  the  property  of  which  he  had  been 

interference  or  consent  of  the  party  calling  him ;  Jackson  v.  Bumsey,  3  Johns. 
E.  237 ;  Turney  v.  Knox,  7  Monr.  91.  An  interest  in  the  event  of  a  suit, 
acquired  after  the  commencement,  does  not  render  a  witness  incompetent,  unless 
that  interest  was  acquired  from  the  party  offering  him ;  Bhem  v  Jackson,  2  Dev. 
187.  Yet  if  a  witness  offered  by  the  plaintiff  has  become  interested  in  the  event 
of  the  suit,  by  a  bona  fide  contract  with  the  defendant,  made  in  the  regular  course 
of  business,  and  without  any  intention  of  the  defendant  or  the  witness  to  deprive 
the  plaintiff  of  his  testimony,  he  is  incompetent,  although  such  interest  was 
created  after  the  plaintiff  had  become  entitled  to  his  testimony ;  Eastman  v. 
Winship,  14  Pick.  44.  Or. 

Where  the  party  objecting  to  a  witness,  on  the  ground  of  interest,  which  was 
acquired  by  a  contract  entered  into  subsequently  to  his  knowledge  of  the  facts  he 
is  brought  to  prove,  is  himself  a  party  to  the  agreement  creating  the  interest,  or 
had  any  agency  in  causing  it  to  be  created,  the  witness  may  be  admitted  to 
testify,  notwithstanding  such  interest ;  Burgess  v.  Lane,  3  Greenleaf,  165 ; 
Manchester  Iron  Go.  v.  Sweeting,  10  Wendell,  162.  A  witness  cannot  deprive 
a  party  of  his  evidence,  by  creating  a  subsequent  interest  by  his  own  act,  without 
the  concurrence  of  the  party  calling  Mm  ;  much  less  can  he  do  so  by  agreement 
with  the  opposite  pajty ;  Rafner  v.  Irwin,  4  Iredell,  529  ;  Baylor  v.  Smithers, 

1  Litt.  105 ;  Long  v.  Bailie,  4  Serg.  &  Eawle,  222 ;  McDaniel's  Will,  2  J.  J. 
Marshall,  331 ;  Price  v.  Woods,  7  Monroe,  223 ;  Clark  v.  Brown,  1  Barb.  215. 
If,  however,  the  subscribing  witness  to  an  instrument  becomes  interested  and  a 
party  to  the  cause,  even  though  he  does  so  voluntarily,  he  cannot  be  examined 
as  a  witness ;  Blackwelder  v.  Fisher,  4  Dev.  &  Batt.  204. 

Servants  and  agents,  though  interested,  are,  in  general,  admissible  as  witnesses 
from  necessity;  Fisher  v.  Willard,'li  Mass.  379;  Phillips  v.  Bridge,  11  Ibid. 
242 ;  Bice  v.  Grove,  22  Pick.  158 ;  Fuller  v.  Wheelock,  10  Ibid.  135 ;  Ale3>- 
ander  v.  Emerson,  2  Litt.  25  ;  Phelps  v.  Sinclair,  2  N.  Hamp.  554 ;  Sewall  v. 
Fitch,  8  Cowen,  215 ;  Shepard  v.  Palmer,  6  Conn.  95 ;  Livingston  v.  Swannick, 

2  Dall.  300 ;  U.  S.  Bank  v.  Stearns,  15  Wend.  314 ;  Strafford  Bank  v.  Cornell, 
1  N.  Hamp.  193  ;  Bk.  of  Kentucky  v.  Mc  Williams,  2  J.  J.  Marsh.  256  ;  Wairt- 
wright  v.  Straw,  15  Verm.  215  ;  Stringfellow  v.  Marriott,  1  Ala.  573  ;  Stathard 
V.  Call,  7  Missouri,  318  ;  Doe  v.  Himelick,  4  Blackford,  494 ;  Gilpin  v.  Howell, 
5  Barr,  41 ;  Bean  v.  Pearsall,  12  Alabama,  592 ;  The  State  v.  Eolloway,  8 
Blackford,  45. 

The  exception  to  this  rule  is  where  an  action  is  brought  against  the  principal  or 
master  to  recover  for  the  negligence  or  misfeasance  of  the  servant  or  agent ; 
Bailroad  Co.  v.  Kidd,  7  Dana,  245 ;  Newlold  v.  Wilkins,  1  Harrington,  43 ; 
Middlekauf-Y.  Smith,  1  Maryland,  329 ;  McClure  v.  Whitesides,  2  Carter,  573. 


24  EXCLTTDINGPEIlSrOIFLES. 

robbed ;  for  here,  from  tlie  very  nature  of  tbe  case,  it  -was  Hgbly 
improbable  that  he  should  be  able  to  adduce  any  witness  to  prove 
the  robbery.'  It  was  not  sufficient  that  the  inability  to  procure 
evidence  should  result  from  the  circumstances  of  a  particular  case, 
for  that  would  have  amounted  to  little  short  of  the  destruction  of 
the  general  rule ;  the  necessity  must  have  arisen  from  a  general 
presumption  arising  from  the  nature  of  the  case,  that  in  the 
common  course  of  human  affairs  there  would  be  a  defect  of 
evidence  and  a  failure  of  justice,  unless  such  evidence  was 
admitted. 

Acting  upon  the  principle  of  these  exceptions  to  a  certain  extent, 
and  the  great  probability  that  in  trifling  transactions  the  parties 
themselves  would  be  the  only  persons  who  could  speak  to  them, 
and  regarding  also  the  limit  of  the  interest  which  the  restricted 
nature  of  their  jurisdiction  involved,  the  legislature,  in  establishing 
courts  for  the  recovery  of  small  debts,  formerly  provided  in  many 
instances  that  the  parties  themselves  should  be  competent  witnesses. 
"When  these  tribunals  came  to  be  swept  away  by  the  provision  for 
the  establishment  of  the  County  Courts,''  the  question  of  the  exclu- 
sion of  interested  witnesses  necessarily  came  under  discussion,  and 
it  was  thought  more  beneiicial,  upon  *the  whole,  to  enact 
-^  that  before  those  tribunals  the  parties,  their  wives,  and  all 
other  persons  might  be  examined. 

Hence  immediately  arose  a  great  inconsistency.  By  far  the 
greater  proportion  of  the  numerous  demands  recoverable  in  these 
were  also  recoverable  in  the  Superior  Courts ;  in  the  former,  the 
evidence  of  the  party  was  to  be  weighed,  in  the  latter  it  was  to  be 
deemed  wholly  unworthy  of  trust.  It  thus  appeared  as  if  the 
Superior  Courts  had  less  efficacious  means  of  testing  the  truth  of 
evidence  and  detecting  falsehood  than  these  inferior  tribunals. 
The  plaintiff,  too,  who  had  his  option  as  to  where  he  should  sue, 
if  his  own  testimony  would  be  adverse,  or  he  knew  the  evidence  of 
the  defendant  could  establish  his  defence,  sued  in  the  Superior 
Court  and  excluded  the  evidence,  and  no  equivalent  option  was 

■  Pinkney  y.  Inhabitants  DeRotel,  2  Wms.  Saund.  374 ;  2  Roll.  Abr.  685. 
So  in  cases  of  extortion  by  duress,  7  Mod.  119,  120 ;  and  in  suing  for  penalties 
under  5  Anne,  o.  1,  s.  5 ;  R.  v.  Lockup,  1  Ford,  MSS.  542  ;  Willes,  425,  n.(c) ;  the 
plaintiff,  or  party  interested  might  be  a  witness.  And  see  Lock  v.  Hayton,  Fort. 
246  ;  also  the  instance  of  the  deposition  of  the  defendant  in  an  action  for  a 
malicious  prosecution  made  on  the  occasion  of  the  charge  ;  Jackson  v.  Bull  2  M. 
&  Eob.  176. 

"  9  &  10  Vict.  c.  95,  s,  83. 


INTEEEST.  25 

given  to  a  defendant.  The  jurisdiction  of  these  courts  having 
been  considerably  enlarged  and  a  far  wider  option  being  thus 
afforded  to  plaintiffs,  and  the  matters  of  which  they  were  enabled 
to  take  cognizance  having  become  still  more  important,  it  was 
deemed  unreasonable  any  longer  to  preserve  a  distinction  between 
the  practice  of  the  different  tribunals  in  these  respects.  Hence  the 
legislature,  in  the  last  session  of  Parliament,'  abrogated  the  whole 
of  the  exceptions  contained  in  Lord  Denman^s  Act,  save. that  which 
related  to  the  admissibility  of  the  husbands  and  wives  of  the 
several  persons  mentioned  in  those  exceptions,  and  enacted"  that 
the  parties  to  any  proceeding  in  any  court,  and  the  persons  in 
whose  behalf  it  might  be  brought  or  defended,  should  be  competent 
and  compellable  to  give  evidence.  Suits  and  proceedings,  however, 
instituted  in  consequence  of  adultery,'  and  actions  for  breach  of 
promise  of  marriage,  were  thought  to  stand  upon  a  peculiar  footing, 
and  therefore  such  proceedings  were  excepted."^ 

In  criminal  cases  the  examination  of  the  person  charged  has 
ever  been  regarded  in  England  with  great  aversion,  more  especially 

1 14  &  15  Vict.  c.  99,  post,  p.  140.  "  Sect.  2.  "  Sect.  4. 

'  There  are  many  cases  in  which  interested  persons  are  admitted  at  common 
law,  even  though  they  may  be  parties  to  the  record.  A  large  class  of  such  cases 
is,  where  one  party  is  admitted  to  prove  by  his  own  oath  his  book  of  original 
entries,  to  substantiate  a  charge  against  the  other  party  for  goods  sold  and  deliv- 
ered, or  for  work  and  labour  done ;  but  it  does  not  subject  to  cross-examination 
generally  as  a  witness  in  the  cause ;  Eastmans.  MouUon,  3  N.  Hamp.  156  ;  Weed 
V.  Bishop,  7  Oonn.  128 ;  Fredd  v.  Eves,  4  Harrington,  385 ;  Wehh  v.  Pinder- 
grass.  Ibid.  439 ;  Rohhins  v.  Merritt,  31  Maine,  451. 

Another  class  is,  where  a  party  is  admitted  to  prove  notice,  or  the  loss  of  a 
paper,  or  death  or  absence  of  a  subscribing  witness,  as  preliminary  to  the  intro- 
duction of  secondary  evidence,  whenever  such  evidence  is  addressed  to  the  judge 
merely ;  Jordan  v.  Cooper,  3  Serg.  &  Eawle,  564 ;  Douglass  v.  Sanderson,  2 
Dall.  116  ;  Chamberlain  v.  Gorham,  20  Johns.  144 ;  Siltzell  v.  Michael,  3  "Watts. 
&  Serg.  329  ;  Juzan  v.  Toulmin,  9  Alabama,  662  ;  Fitch  v.  Bogue,  19  Conn.  285. 

But  when  demand  or  notice  is  a  substantive  fact,  necessary  to  make  out  the 
case,  it  must  be  proved,  as  other  facts,  by  competent  testimony ;  Grant  v.  Leavan, 
4  Barr,  393. 

So  a  party  suing  a  common  carrier  for  the  loss  of  a  trunk  containing  personal 
apparel,  has  been  admitted  to  testify  to  the  contents  on  the  principle  of  necessity ; 
Herman  v.  Drinkwater,  1  G-reenleaf,  27  ;  County  v.  Leidy,  10  Barr,  45  ;  Sparr 
v.  Willman,  11  Missouri,  230.  Contra :  Snow  v.  Eastern  R.  R.  Co.,  12  Metcalf. 
44. 

But  in  such  an  action  it  was  held  that  the  plaintiff  was  incompetent  to  prove 
that  there  was  money  in  the  trunk,  and  how  much ;  David  v.  Moore,  2  "Watts  & 
Serg.  230. 


26  EXCLUDING    FEINOIPLES. 


*29] 


as  the  examination  of  a  person  so  charged  *in  liis  own  behalf 
■would  involve  his  cross-examination  for  the  prosecution; 
therefore  adhering  to  the  ancient  practice,  and  retaining  inviolate 
the  principle  that  no  man  shall  be  bound  to  criminate  himself,  the 
statute  also  provided  that  it  should  not  in  criminal  proceedings 
render  any  person  charged  with  the  commission  of  any  indictable 
offence,  or  any  offence  punishable  on  summary  conviction,  com- 
petent or  compellable  to  give  evidence  for  or  against  himself,  or 
to  render  any  person  compellable  to  answer  any  question  tending 
to  criminate  himself,  or  in  any  criminal  proceeding  render  any 
husband  or  wife  competent  or  compellable  to  give  evidence  for,  or 
against  each  other. 

The  first  great  safeguard  which  the  law  provides  for  the  ascer- 
tainment of  the  truth  in  ordinary  cases,  consists  in  requiring  all 
evidence  to  be  given  under  the  sanction  of  an  oath.  This  imposes 
the  strongest  obligation  upon  the  conscience  of  the  witness  to 
declare  the  whole  truth  that  human  wisdom  can  devise ;  a  wilful 
violation  of  the  truth  exposes  him  at  once  to  temporal  and  to 
eternal  punishment. 

A  judicial  oath  may  be  defined  to  be  a  solemn  invocation  of  the 
vengeance  of  the  Deity  upon  the  witness,  if  he  do  not  declare  the 
whole  truth,  as  far  as  he  knows  it.° 

Hence  it  follows  that  all  persons  may  be  sworn  as  witnesses  who 
believe  in  the  existence  of  God,  in  a  future  state  of  rewards  and 
punishments,  and  in  the  obligation  of  an  bath,  that  is  who  believe 
that  Divine  punishment  will  be  the  consequence  of  perjury  -^  and 
therefore  Jews,'  Mahometans,"!  Gentoos,'  or  in  short,  persons  of  any 

°  Est  autem  Jusjurandum  religiosa  adseveratio  per  invocationem  Dei 
tanquam  vindicis  si  juratus  sciens  fefellerit.  Heinec.  pars  3,  s.  13.  See 
Whewell,  Elements  of  Morality,  vol.  i.  p,  367  ;  Tyler  on  Oaths. 

p  Cowp.  389;  1  Eaym.  282. 

1  Pachina  v.  Sabine,  Stra.  1104;  Morgan's  case,  Leach,  52;  2  Hawk.  c.  46,  s. 
152  ;  Omichund  y.  Barker,  1  Atk.  21 ;  1  Wils.  84 ;  Bex  v.  Taylor,  Peake,  11. 

'  Bamkissensent  v.  Barker,  1  Atk.  19  ;  Omichund  v.  Barker,  "Willes,  538 ;  1 
Smith,  L.  0.  195. 

•  There  are  some,  though  not,  perhaps,  very  important  differences,  in  the  language 
of  the  decisions  of  various  courts  in  the  United  States,  on  this  subject.  There  is 
entire  unanimity  in  holding  that  the  witness  must  believe  in  the  existence  of  God 
who  will  punish  falsehood ;  but  though  some  cases  require  that  he  should  believe 
that  there  is  a  future  state  of  retribution,  others  do  not  go  to  this  extent.  Of  the 
former  class  are,  Wakefield  v.  Boss,  5  Mason,  16  ;  Oustiss  v.  Strong,  4  Day,  51 . 
Atwood  V.  Kelton,  7  Conn.  6G.    Of  the  latter  class,  Butts  v.  Sivarttvood,  2  Cow. 


OATH.  27 

sect  possessed  of  such  belief/  are  so  far  competent  *-witnesses. 
Hence  also  it  follows  that  children  who  are  too   young  to    '- 
comprehend  the  nature  of  an  oath/  and  adults,  who  from  mental 
infirmity  or  for  want  of  instruction,  do  not  understand  this  solemn 
obligation,  or  who  do  not  belieye  in  the  existence  of  a  Deity,  or  in 
a  state  where  that  Deity  will  punish  perjury,"  cannot  be  admitted 

"  1  Wils.  84 ;  Beg  v.  Entrehman,  Car.  &  M.  248 ;  and  see  note(2/),  POst,  Bng. 
0.  L.  E.,  41. 

*  Vide  supra;  and  see  Bast,  P.  0.  441,  and  R.  v.  Powell,  Leach,  0.  0.  L.  128, 
237. 

"  An  atheist  is  not  competent;  B.  N.  P.  262  ;  Rex  v.  White,  Leach,  0.  0.  L. 
483;  Lee  v.  Lee,  1  Atk.  43,  45;  Co.  Litt.  6;  2  Inst.  479;  3  Inst.  165;  4  Inst. 
279  ;  Fleta,  b.  5,  c.  22  ;  Bract.  116.  See  Rex  v.  Taylor,  Peake,  Oa.  Ni.  Pri.  11, 
where  BuUer,  J.,  held  that  the  proper  question  to  be  asked  of  a  witness  is,  whether 
he  believes  in  God,  the  obligation  of  an  oath,  and  in  a  future  state  of  rewards  and 
punishments :  and,  in  Reg  v.  Serva,  2  Car.  &  K.  56,  Eng.  0.  L.  E.,  61,  on  a  wit- 
ness stating  that  he  was  a  Christian,  Piatt,  B.,  refused  to  allow  the  witness  to  be 
asked  any  further  questions  before  he  was  sworn. 

431 ;  Noble  v.  People,  Breese,  29 ;  Gubhison  v.  McCreary,  2  Watts.  &  Serg.  262  ; 
Blocker  v.  Bumess,  2  Alabama,  354 ;  Brock  v.  Milligan,  10  Ohio,  121 ;  U. 
States  V.  Kennedy,  3  McLean,  175  ;  Jones  v.  Harris,  1  Strobhart,  160  ;  Bennett 
V.  The  State,  1  Swan,  411. 

In  Virginia,  no  person  is  incapacitated  from  being  a  witness  on  account  of  Ma 
religious  belief;  Perry's  case,  3  Grattan,  632. 

It  has  been  held  that  an  adult  of  sound  mind,  when  called  as  a  witness,  is  not 
to  be  questioned  as  to  his  religious  belief;  Jackson  v.  Gridley,  18  Johns.  98. 

Evidence  of  his  declarations  on  the  subject  may  be  received  aliunde  ;  Norton 
V.  Ladd,  4  N.  Hamp.  444 ;  Beardsley  v.  Foot,  2  Boot,  399 ;  Scott  v.  Hooper,  14 
Verm.  535  ;  Arnold  v.  Arnold,  13  Verm.  363 ;  Thurston  v.  WJiitney,  2  Cushing, 
104. 

But  an  honest  change  of  opinion,  after  declarations  of  disbelief  proved,  may  be 
shown  by  competent  evidence;  Smith  v.  Coffin,  6  Shepley,  157;  Gomm'th  v. 
Batchelder,  Thacher's  Crim.  Cas.  191. 

But  the  witness  himself  cannot  be  heard  in  explanation  or  denial ;  Smith  v. 
Coffin,  6  Shepley,  157  ;  Tlie  State  v.  Townsend,  2  Harrington,  543 ;  Gomm'th  v. 
Wyman,  Thacher's  Crim.  Cas.  432. 

Contra,  that  the  witness  may  himself  be  examined ;  Scott  v.  Hooper,  14  Verm. 
535.  The  defendant  called  a  witness,  to  whom  the  plaintiff  objected,  on  the 
ground  of  an  alleged  want  of  religious  belief,  and  the  judge  admitted  the  testi- 
mony of  witnesses  in  support  of,  and  in  opposition  to,  the  objection ;  and  afterwards 
the  person  objected  to  was  examined  on  his  voir  dire,  and  having  testified  to  his 
belief,  was  admitted  to  give  evidence  in  chief:  held  that  there  was  no  error  in 
this ;  Quinn  v.  Crowell,  4  "Wharton,  334.  This  last  case,  however,  was  really 
decided  on  the  ground  that  there  is  no  bill  of  exceptions  in  the  case  of  introduc- 
tory evidence  to  the  court,  where  the  evidence  in  chief  was  properly  admitted  or 
excluded.    "  What  boots  it,  then,  that,  even  were  the  proper  course  otherwise. 


28  EXCLUDING    PBINCIPLKS. 

as  "witnesses ;  since,  in  all  these  cases,  either  from  want  of  under- 
standing or  want  of  belief,  tliat  obligation  to  speak  tlie  truth  is 
wanting  which  the  law  has  appointed  on  such  occasions  as  an 
indispensable  security.^ 

As  the  object  of  the  oath  is  to  bind  the  conscience  of  the  witness, 
it  follows  that  some  form  of  swearing  must  be  used  which  the 
witness  considers  to  be  binding.  On  the  principles  of  the  common 
law,  no  particular  form  is  essential  to  the  oath ;  and  therefore  every 
witness  is  now"  sworn  according  to  the  form  which  he  holds  to 
be  the  most  solemn,  and  which  is  sanctified  by  the  usage  of  the 

^  Oowp.  389 ;  Colt  V.  Button,  2  Sid.  6  ;  Ey.  &  M.  77  ;  Bng.  0.  L.  R.  21.  By 
the  Stat.  1  &  2  Vict.  c.  105,  every  person  shall  be  bound  by  an  oath,  which  shall 
have  been  administered  in  such  form  and  with  such  ceremonies  as  he  may  declare 
to  be  binding,  and  is  liable  to  be  indicted  thereon  for  perjury. 

parol  evidence  of  the  witness's  disqualification  was  heard  before  he  himself  was 
heard  ?  The  order  of  proof,  even  to  a  jury,  is  not  the  subject  of  error ;  and  to 
examine  him  to  his  own  competency  would  have  assumed  the  fact  in  controversy, 
which  it  was  determined,  in  Griffith  v.  Reford,  (1  Rawle,  197,)  cannot  be  done." 
Gibson,  0.  J. 

■  The  capacity  of  a  witness  under  fourteen  years  is  to  be  determined  by  the 
court ;  Gomm'th  v.  Hutchinson,  10  Mass.  225  ;  Anon.  2  Penn.  930 ;  Van  Pelt  v. 
Van  Pelt,  Ibid.  657. 

A  witness,  over  fourteen  years  of  age,  will  not  be  interrogated  respecting  his 
capacity,  unless  some  reason  creating  suspicion  be  shown ;  JDen  v.  Vancleve,  2 
Southard,  589. 

The  evidence  of  a  child  of  seven  years  of  age,  corroborated  by  circumstances, 
is  sufBcient  to  justify  a  conviction  of  a  capital  crime,  although  that  evidence  be 
contradicted  by  the  evidence  of  an  adult ;  the  credibility  of  the  witnesses  being 
left  to  the  jury ;  State  v.  Leblanc,  Const.  Eep.  354. 

Idiots,  lunatics,  and  madmen  are  not  competent  witnesses ;  Livingston  v. 
Hiersted,  10  John.  362 ;  Evans  v.  Hettick,  7  Wheat.  453 ;  Armstrong  v.  Tim- 
mons,  3  Harrington,  342. 

A  witness,  who  is  intoxicated,  ought  not  to  be  sworn,  or  permitted  to  testify ; 
Hartford  v.  Palmer,  16  Johns.  143 ;  Oould  v.  Crawford,  2  Barr,  89. 

It  is  no  objection  to  a  witness  that  he  has  been  found  an  habitual  drunkard, 
under  the  provisions  of  an  Act  of  Assembly  depriving  such  person  of  legal 
competency  to  act ;  Gehhart  v.  Shindle,  15  Serg.  &  R.  235. 

A  deaf  and  dumb  person,  capable  of  relating  facts  correctly  by  signs,  may  give 
evidence  by  signs  through  the  medium  of  an  interpreter,  though  it  appear  that 
such  person  can  read  and  write,  and  communicate  ideas  imperfectly  by  writing ; 
The  State  v.  De  Wolf,  8  Conn.  93  ;  Snyder  v.  Nations,  5  Blackford,  295. 

To  exclude  a  witness  from  testifying  as  being  non  compos,  or  an  idiot,  the  fact 
must  be  proved  by  other  testimony,  and  not  by  a  preliminary  examination  of  the 
witness,  and  even  if  the  court  have  any  discretion,  still  it  is  not  error  for  them  to 
refuse  to  allow  it ;  Boiinson  v.  Dana,  16  Vermont,  474. 


OATH.  29 

country  or  of  tlie  sect  to  -wliicli  lie  belongs/  A  Jew  is  sworn 
upon  the  Pentateuch,''  and  a  Turk  upon  the  ^'Koran;"  so  it 
has  been  held  that  a  Scotch  covenanter''  may  be  sworn  ^ 
according  to  the  form  of  his  sect,  by  holding  up  his  hand  without 
kissing  the  book.  A  Jew  who  has  never  formally  renounced 
the  religion  of  his  ancestors,  but  considers  himself  to  be  a  member 
of  the  established  church,  may  be  sworn  on  the  Gospels."^ 

The  testimony  must  be  sanctioned,  not  merely  by  an  oath,  but 
by  a  judicial  oath,  in  the  course  of  a  regular  proceeding,  adminis- 

"  It  was  formerly  doubted  whether  the  oath  must  not  be  taken  on  the  Old  or 
New  Testament ;  2  Hale,  279 ;  but  it  was  afterwards  settled  that  it  need  not ;  1 
Atk.  21 ;  2  Bq.  Ca.  Abr.  397  ;  1  Wils.  84 ;  Oowp.  390. 

^  It  was  held  that  Jews  might  be  sworn  on  the  Pentateuch  previous  to  their 
expulsion  from  England ;  «.  e.  before  the  18  Edw.  I.,  when  they  were  first  expelled 
from  the  kingdom ;  Wells  v.  Williams,  1  Ld.  Eaym.  282  ;  Vern.  263 ;  Oowp.  389. 
See  Seld.  tom.  2,  fol.  1467,  as  to  the  form  of  swearing  a  Jew,  temp.  Edw.  I. 

"  Fachina  v.  Sabine,  Stra.  1104;  Morgan's  case,  Leach,  0.  C.  L.  64. 

"  Per  Lord  Mansfield,  Oowp.  390 ;  Rex  v.  Mildrone,  Leach,  0.  0.  L.  459 ;  Mee 
V.  Read,  Peake,  Ca.  Ni.  Pri.,  23 ;  Rex  v.  Fit'Zfpatrick,  Leach,  459  ;  2  Sid.  6,  Golt 
V.  Button.  When  Lord  Hardwioke  was  desired  to  appoint  a  form  for  swearing 
the  Gentoos,  he  said  that  it  was  improper,  and  that  it  must  be  taken  according  to 
the  form  which  they  held  to  be  most  solemn ;  Ramkissensent  v.  Barker,  1  Atk. 
19. 

"  R.  V.  Oilham,  1  Esp.  0.  285.  A  member  of  a  religious  sect  which  objects  to 
the  ceremony  of  kissing  the  book,  may  be  sworn  without  it ;  Mee  v.  Bead,  Peake, 
C.  23;  Mildrone's  case.  Leach,  0.  0.  L.  459;  Colt  v.  Button,  2  Sid.  6.  A 
witness  being  of  the  Methodist  persuasion,  refusing  to  be  sworn  on  the  New  Testa- 
ment, was  permitted  to  be  sworn  on  the  Old,  stating  he  considered  it  binding  on 
his  conscience ;  Edmonds  v.  Rowe,  By.  &  M.  77 ;  Bng.  0.  L.  E.,  21 ;  and  see  1 
&  2  Vict.  c.  105,  supra,  note.(a;) 

'  Swearing  by  the  uplifted  hand  is  recognized  as  a  lawful  oath,  independent 
entirely  of  the  provision  of  any  statute  allowing  it ;  Oill  v.  Caldwell,  Breese,  28  ; 
Boss  V.  Birks,  11  Humph.  431. 

In  Massachusetts,  the  liberty  to  afBrm  is  confined  strictly  to  Quakers ;  U. 
States  V.  Coolidge,  2  Gallis,  364. 

A  witness,  who  has  no  objection  to  being  sworn,  cannot  be  affirmed ;  William- 
son V.  Carroll,  1  Harrison,  217. 

Oaths  are  to  be  administered  to  all  persons  according  to  their  opinions,  and  as 
it  most  affects  their  consciences ;  Gill  v.  Caldwell,  Breese,  28. 

The  manner  of  administering  an  oath  or  affirmation  in  a  court  of  record,  pro- 
ceeding according  to  the  course  of  the  common  law,  is  presumed  to  be  correct 
and  legal,  unless  it  appear  to  be  othervrise  on  the  face  of  the  record ;  Coxe  v. 
Field,  1  Green,  215. 

The  oath  of  a  Jew,  complainant  to  an  injunction  bill,  must  be  made  according 
to  the  forms  and  solemnities  of  the  Jewish  religion ;  Newman  v.  Newman,  3 
Halst.  Ch.  Eep.  26. 


30  EXCLUDING    PBIXCIPLES. 

tered  by  an  authorized  person ;  for  if  tlie  oatli  were  extrajudicial, 
tiie  witness  could  not  be  punished  for  committing  perjury  under 
that  oath,  and  therefore  one  of  the  securities  for  truth  which  the 
law  has  provided  would  be  wanting.     Hence,  although  every  other 
legal  requisite  may  concur  to   render  what   a  party  has  sworn 
admissible,  and  although  the  fullest  opportunity  has  been  afforded 
to  the  opposite  party  to  cross-examine  the  witness,  yet  if  the  oath 
was  extrajudicial,  the  testimony  given  under  it  is  not  admissible. 
A  further  objection  to  such  evidence  is,  that  the  party  against 
whom  it  was  offered  was  not  bound  to  notice  it,  and  he  ought  not 
to  be  placed  in  a  worse  situation  by  omitting  to  make  himself  a 
party   to   an   extrajudicial   *and   illegal   proceeding.       This 
-'    doctrine  and  the  minor  distinctions  arising  upon  it,  will  be 
more  fully  discussed  hereafter,  when  the  different  cases  relating 
to  the  reception  of  judicial  proceedings  in  evidence  are  considered ; 
for  the  present,  it  may  suf&ce  to  observe,  that  it  is  a  general  rule 
that  testimony  given  under  an  oath  merely  extrajudicial,  cannot 
afterwards  be  admitted  in  evidence,  for  the  reasons  already  stated. 
There  are  two  exceptions  to  the  general  rule ;  the  case  of  decla- 
rations made  by  a  person  under  the  apprehension  of  impending 
dissolution,  and  the  exception  introduced  by  the  express  provisions 
of  the  legislature  in  favour  of  the  religious  scruples  of  Quakers 
and  some  others.     The  principle  upon  which  the  first  of  these 
exceptions  stands  is  very  clear  and  obvious ;  it  is  presumed  that 
a  person  who  knows  that  his  dissolution  is  fast  approaching,  that 
he  stands  on  the  verge  of  eternity,  and  that  he  is  to  be  called  to 
an   immediate   account  for  all  that  he  has  done  amiss,  before  a 
Judge  from  whom  no  secrets  are  hid,  will  feel  as  strong  a  motive 
to  declare  the  truth,  and  to  abstain  from  deception,  as  any  person 
who  acts  under  the  obligation  of  an  oath."*    But  so  jealous  is  the 
law  of  any  deviation  from  the  general  rule,  that  it  confines  the 
exception  to  the  necessity  of  the   case,  and   only  renders   such 
declarations  admissible  when  they  relate  to  the  cause  of  death, 
and  are  tendered  on  a  criminal  charge  respecting  it.°     The  excep- 
tion in  favour  of  Quakers,  formerly  confined  to  civil,  has  lately 
been  extended  to   criminal  proceedings,    and   similar  provisions 

*  This  being  the  ground  of  the  exception,  it  has  been  held  that  if  the  declarant 
■was  an  infant  too  young  to  comprehend  such  a  sanction,  the  declaration  is  not 
admissible ;  Rex  v.  Pike,  3  0.  &  P.  598 ;  Eng.  C,  L.  R.,  14. 

=  R.  V.  Mead,  2  B.  &  C,  605 ;  Eng.  C.  L.  E.,  9. 


OATH.  31 

tave  been  made  in  favour  of  some  otiier  religious  sects.' 
*The  rank  or  age  of  tlie  party  in  no  case  forms  an  exception.    '- 
A  peer  of  tlie  realm  cannot  give  evidence  -without  being  sworn,™ 
and  will  incur  a  contempt  of  court  if  lie  refuses  to  be  sworn."    It 
is  now  settled  that  tlie  testimony  of  a  ctild  cannot  be  received 
except  upon  oatli,"  althougli  the  contrary  practice  once  prevailed." 

Formerly,  the  general  rule  did  not  extend  to  the  witnesses 
examined  on  behalf  of  prisoners  charged  upon  an  indictmenf  with 
felony  or  treason ; '  an  exception  which  certainly  was  not  founded 
in  principle,  and  which  was  reprobated  by  Lord  Coke."  The 
statute  4  Jac.  I.  c.  1,  directed,  that  upon  the  trial  of  offenders  in 
the  three  northern  counties,  for  offences  committed  in  Scotland, 
the  defendants'  witnesses  should  be  examined  upon  oath ;  and  a 
like  provision  was  made  by  the  stat.  7  Will.  III.  c.  3,  in  all  cases 
of  treason  which  worked  corruption  of  blood.  The  exception  was 
finally  and  generally  abolished  by  the  *stat.  1  Anne,  c.  9, 
s.  3,  which  directed  that  the  witnesses  for  the  prisoner  should  '- 
be  sworn  in  all  cases. 

The  recent   Bankruptcy  Acts'  have   also  introduced   another 

■  By  the  stat.  9  Geo.  IV.  o.  32,  Quakers  and  Moravians  are  admitted  to  give 
evidence  upon  their  solemn  affirmation  in  all  cases,  criminal  as  well  as  civil.  By 
the  stat.  3  &  4  Will.  IV.  c.  49,  their  affirmation  has  the  same  force  and  effect  as 
an  oath  in  the  usual  form.  By  the  stat.  3  &  4  Will.  IV.  c.  82,  similar  provisions 
are  extended  to  Separatists ;  and,  in  consequence  of  the  decision  in  JDoran's  case, 
2  Mood.  0.  0.  37,  by  the  stat.  1  &  2  Vict.  c.  77,  to  persons  who,  having  been 
Quakers  or  Moravians,  have  ceased  to  be  such. 

"  Rex  V.  Lord  Preston,  Salk.  278. 

"  Ibid.  And  it  has  been  said  that  the  same  rule  applies  to  the  Sovereign  him- 
self; 2  Eol.  Abr.  686  ;  Hob.  213  ;  but  in  the  time  of  Oar.  I.  the  question  was  not 
allowed  to  be  agitated ;  1  Pari.  Hist.  43.  See  3  Wooddeson,  276 ;  Com.  Dig. 
Testmoigne,  A. 

°  Rex  V.  Brasier,  Leach,  0.  0.  L.  3rd  ed.  237  ;  ib.  128 ;  and  see  the  cases,  Bast, 
P.  C.  441;  Pike's  case,  3  0.  &  P.  598;  Eng.  0.  L.  E.,  14;  R.  v.  Williams,  7  0. 
&  P.  320  ;  and  j)osi,  tit.  Infant. 

^  The  Court  should  hear  the  information  of  children  not  of  discretion  to  be 
sworn  without  oath;  1  Hale,  H.  P.  C,  634;  2  Hale,  H.  P.  0.  279,  284.  But 
Lord  Hale  adds,  that  such  testimony  is  not  sufficient  of  itself;  1  Hale,  H.  P.  C. 
634. 

"-  But  the  evidence  for  a  defendant  upon  an  appeal,  or  on  an  indictment  or 
information  for  a  misdemeanor,  was  always  on  oath ;  1  Sid.  211,  325. 

■■  2  Hale,  283 ;  2  Bulstr.  147 ;  Rex  v.  ThrogmoHon,  State  Tr.  1  M. ;  Hawk.  c. 
36  ;  Rex  v.  Oollege,  3  Inst.  79 ;  4  State  Tr.  178  ;  Cro.  Car.  292. 

■  3  Inst.  79.    The  practice  was  derived  from  the  civil  law ;  4  Bl.  Com.  352. 
'  8  &  9  Vict.  c.  48,  s.  1 ;  12  &  13  Vict.  c.  106,  ss.  117, 118. 


32  EXOLUDINS    PEINCIPLES. 

exception,  so  far  as  tlie  examination  of  tlie  bankrupts  and  their 
wives  before  tbe  Commissioners  is  concerned,  by  directing  tliat  on 
tliat  inquiry  they  shall  not  be  sworn,  but  make  and  sign  a  declara- 
tion that  they  will  speak  the  truth,  for  a  violation  of  which  they 
may  be  indicted. 

It  will  presently  be  seen  under  what  circumstances  evidence  is 
admissible,  though  it  want  the  sanction  of  an  oath. 

And  next,  the  power  given  to  the  party  against  whom  evidence 
is  offered,  of  cross-examining  the  witness  upon  whose  authority  the 
evidence  depends,  constitutes  a  strong  test  both  of  the  ability  and 
of  the  willingness  of  the  witness  to  declare  the  truth.  By  this 
means,  the  opportunity  which  the  witness  had  of  ascertaining  the 
fact  to  which  he  testifies,  his  ability  to  acquire  the  requisite  know- 
ledge, his  powers  of  memory,  his  situation  with  respect  to  the 
parties,  his  motives,  are  severally  examined  and  scrutinized. 

It  is  not  intended  in  this  place  to  enter  into  a  detail  of  the 
numerous  consequences  which  follow  from  the  adoption  of  this 
test.'^  It  may  be  observed,  generally,  that  it  operates  to  the  exclu- 
sion of  all  that  is  usually  described  as  res  inter  alios  acta  ;  that  is,  to 
all  declarations  and  acts  of  others  which  tend  to  conclude  or  affect 
the  rights  of  a  mere  stranger. 

Thus  the  depositions  of  witnesses  before  magistrates,  under  the 
statutes  of  Philip  &  Mary,  and  the  late  stat.  7  Geo.  IV.  c.  64,  are 
not  admissible  against  the  accused,  unless  he  has  had  an  oppor- 
tunity to  cross-examine  those  witnesses. 

*S51  ^^^  voluntary  affidavit  of  a  stranger  is  not  evidence 
*against  one  who  had  not  the  power  to  cross-examine  him.=' 
An  answer  in  Chancery  is  not  evidence  against  one  who  neither 
was  a  party  to  the  suit,  nor  claims  in  privity  with  a  party  who  had 
the  opportunity.''  And,  in  general,  the  mere  act,  declaration  or 
entry  of  a  stranger,  as  to  any  particular  fact,  is  not  evidence  against 
any  other  person,"  so  as  to  conclude  or  affect  him. 

To  satisfy  this  principle,  it  is  not  necessary  that  the  party  on 
whose  autljority  the  statement  rests  should  be  present  at  the  time 
when  his  evidence  is  used,  in  order  that  he  may  then  be  cross- 
examined  ;  it  is  sufficient  if  the  party  against  whom  it  is  offered 
has  cross-examined,  or  has  had  the  opportunity,  having  been  legally 

"■  See  tit.  JuDOMENTS — Depositions. 

==  Bac.  Abr.  Ev.  627  ;  Sty.  446 ;  Bac.  Abr.  Ev.  628  ;  and  see  Rex  v.  Erith,  8 
East,  539 ;  Sir  John  Fenwick's  case,  Obj.  4;  5  State  Tr.  69. 
5-  Hardres,  315.  '  See  Index,  tit.  Ees  inter  alios. 


CROSS-EXAMINATION — HEARSAY.  33 

called  upon  to  do  so  when  tlie  statement  was  made.  Hence  it  is 
that  examinations  or  depositions  taken  in  a  cause  or  proceeding 
between  the  same  parties  are  evidence,  the  witnesses  or  deponents 
being  dead ;  for  in  such  case,  the  party  has  had,  or  might  have  had, 
the  benefit  of  a  cross-examination.  With  respect  to  these  classes 
of  cases,  it  is  worthy  of  notice,  that  if  the  party  might  have  had  the 
benefit  of  a  cross-examination  in  the  course  of  a  judicial  proceeding, 
it  is  the  same  thing  as  if  he  had  actually  availed  himself  of  the 
opportunity.  It  is  also  to  be  observed,  that  if  the  examination  or 
deposition  was  taken  in  the  course  of  an  extrajudicial  proceeding, 
it  will  not  afterwards  be  admissible  in  evidence,  although  the 
witness  be  since  dead ;  because  the  party  against  whom  the  evi- 
dence is  offered  was  under  no  obligation  to  pay  any  attention  to  it."" 

This  test  of  truth  not  only  excludes  evidence  of  mere  hearsay,  for 
there  the  party  on  whose  authority  the  statement  rests  cannot  be 
cross-examined ;  but  also  decrees  *and  judgments  in  private 
matters,  in  causes  to  which  the  party  against  whom  they  are  '- 
offered  was  not  privy,  and  consequently  where  he  had  not  the 
opportunity  to  cross-examine  the  witnesses  on  whose  testimony 
the  judgment  or  decree  was  founded.  For,  as  it  would  be  dangerous 
to  admit  the  testimony  of  a  witness  given  upon  a  former  occasion, 
where  the  party  to  the  present  cause  had  no  opportunity  to  cross- 
examine  him,  it  would  be  equally  so  to  admit  the  judgment  or 
decree  which  is  founded  upon  that  testimony ;  it  would  be  indi- 
rectly giving  full  effect  to  evidence  which  is  in  itself  inadmissible.^ 

It  is,  however,  to  be  observed,  that  there  is  one  class  of  cases 
where  decrees  or  judgments  are  evidence  against  a  party,  although 
he  was  not  actually  privy  to  the  proceeding  or  suit  in  which  the 
judgment  or  decree  was  pronounced.     This  happens  where  the  suit 

'  See  tit.  Res  inter  alios — Judicial  Pkoceedings,  &c. 

'  It  seems  hardly  necessary  to  note  that  the  subject-matter  of  dispute  must  be 
the  same  in  both  cases  ;  Walker  v.  Walker,  16  S.  &  E.  379  ;  Taylor  v.  Bank  of 
Illinois,  1  Monroe,  576.  Where  the  subject-matter  is  the  same,  though  the 
parties  are  not  the  same,  it  is  enough  that  they  are  in  privity ;  Cooper  v.  Smith, 
8  Watts,  536 ;  Merrill  v.  Bill,  6  Smedes  &  Marshall,  730. 

The  question  of  boundary  is  a  peculiar  one.  There  a  deposition  may  be  read, 
though  not  regularly  taken  in  a  judicial  proceeding,  because  it  is  a  case  in  which 
even  hearsay  is  admissible  under  certain  restrictions ;  Montgomery  v.  Dickey,  2 
Yeates,  212  ;  Bakert  v.  Bay,  3  Wash.  0.  0.  243. 

Depositions  cannot  be  read,  unless  taken  in  reference  to  an  issue  made  up  at  the 
time  they  were  taken ;  Morrow  v.  Hatfield,  6  Humph.  108. 
3 


34  EXCLUDIITG    PRINCIPLES. 

or  proceeding  does  not  relate  to  a  mere  private  transaction  between 
individuals  or  particular  parties,  but  to  some  more  public  subject- 
matter  beyond  tbe  mere  rights  of  the  litigants,  in  wMcli  the  public 
possess  an  interest.  It  will  be  necessary  hereafter  to  consider  these 
cases  with  some  minuteness ;  for  the  present,  it  may  suilice  to 
advert  to  them  generally,  and  briefly  to  state  the  principle  on  which 
such  evidence  is  admissible  ;  and  how  far  it  is  inconsistent  with  the 
general  and  ordinary  rule,  that  a  party  is  not  to  be  affected  either 
by  any  testimony  or  judgment  founded  upon  that  testimony,  where 
he  has  not  had  an  opportunity  to  cross-examine  the  witness  and  to 
controvert  his  testimony.  In  many  instances  a  court  possesses  a 
jurisdiction  which  enables  it  to  pronounce  on  the  nature  and 
qualities  of  a  particular  subject-matter,  where  the  proceeding  is, 
as  it  is  technically  termed,  in  rem :  as  where  the  Ordinary  or  the 
Court  Christian  decides  iipon  questions  of  marriage  or  bastardy ; 
or  the  Court  of  Exchequer  upon  condemnations  ;  or  the  Court  of 
Admiralty  upon  questions  of  prize  ;  or  a  Court  of  Quarter  Sessions 
upon  settlement  cases.  *Decisions  of  this  nature,  as  will  be 
-'  seen,"  are  for  the  most  part  binding  and  conclusive  upon  all 
the  world.  At  present  it  is  to  be  observed,  in  the  first  place,  that 
this  class  of  cases  is  scarcely  to  be  considered  as  an  exception  to 
the  general  rule ;  because,  in  most  instances,  every  one  who  can 
possibly  be  affected  by  the  decision  may,  if  he  choose,  be  admitted 
to  assert  his  rights  to  cross-examine  and  to  controvert  by  evidence. 
But,  secondly,  if  this  class  of  cases  is  to  be  considered  as  forming 
an  exception  to  the  general  rule,  it  is  a  necessary  exception,  since 
in  such  cases  a  final  adjudication  is  absolutely  essential  to  the 
interests  of  society,  which  require  that  the  subject-matter  should 
be  settled  and  ascertained,  and  cannot  bear  that  such  questions 
should  be  left  in  a  precarious,  doubtful,  and  fluctuating  state.  For 
example :  the  Spiritual  Court  has  an  immediate  and  direct  juris- 
diction upon  the  validity  of  marriages ;  a  jurisdiction  which 
involves  questions  of  the  greatest  importance  to  society  in  general 
— rights  of  property — questions  of  bastardy — and  even  criminal 
liabilities.  It  is  therefore  obviously  essential  to  the  existence  of 
such  a  jurisdiction  for  useful  and  beneficial  purposes,  that  its 
adjudication  upon  the  subject-matter  should  be  binding  upon  all ; 
it  would  be  in  vain  that  a  sentence  of  nullity  of  marriage  should 
be  pronounced  in  a  Spiritual  Court,  if  the  marriage  could  still  be 
considered  in  courts  of  law  to  exist  as  to  all  the  legal  rights  and 
•"  See  Judgments,  &c.,  in  Rem. 


CEOSS-EXAMINATION — DYING  DECLARATIONS.     35 

consequences  of  a  valid  marriage ;  and  it  would  produce  infinite 
inconvenience  and  confusion,  if  the  same  marriage  could  be  con- 
sidered as  existing  for  some  purposes,  but  not  as  to  all;  not  to 
mention  the  great  evil  of  permitting  interminable  litigation  on  the 
same  question,  which  would  be  left  open  to  dispute  as  often  as  the 
fluctuation  of  times  and  of  circumstances  introduced  new  interests, 
and  brought  fresh  litigants  into  the  field. 

*There  is  another  exception  to  the  general  rule,  in  the 
case  where  a  declaration  made  by  a  person  in  extremis,  and  '- 
under  the  apprehension  of  approaching  dissolution,  is  received 
in  evidence;  for  such  declarations  are  admitted  to  be  proved, 
although  the  party  against  whom  they  are  offered  was  not  present, 
and  therefore  had  not  an  opportunity  to  cross-examine  and  elicit 
the  whole  of  the  truth.  But  as  this  is  an  exception  to  a  rule 
which  is  in  general  to  be  considered  as  absolutely  essential  to  the 
ascertainment  of  truth,  it  is  to  be  received  with  the  greatest 
caution,  and  is  never  admitted,  unless  the  court  be  first  satisfied 
that  the  party  who  made  the  declaration  was  under  the  impression 
of  approaching  death,  and  unless  it  relate  to  the  cause  of  his  death 
and  be  tendered  on  a  criminal  charge  respecting  it.  It  has  indeed 
been  said,  that  the  depositions  of  witnesses  taken  in  the  absence  of  the 
prisoner  before  justices  of  the  peace,  and  before  coroners,  by  virtue 
of  the  statutes  1  &  2  Philip  &  Mary,  c.  10 ;  2  &  3  Philip  &  Mary,  c. 
13  ;  and  7  Geo.  IV.,  c.  64 ;  were  admissible  in  evidence  against  the 
prisoner  after  the  death  of  the  deponent ;  but  it  is  now  settled  that 
such  depositions  before  justices  are  not  admissible,  unless  the 
prisoner  was  present,  and  had  the  benefit  of  cross-examination;" 
and  depositions  taken  by  coroners,  under  the  same  statutes,  seem 
to  stand  upon  the  same  foundation.  The  subject  will  afterwards 
be  more  fully  considered  in  its  proper  place ;  it  must  be  recollected 
that  at  present  the  object  is  to  consider  the  general  operation  of  this 
principal  test  of  truth  established  by  the  law.  How  far  reputation 
and  tradition  are  to  be  looked  upon  as  exceptions  to  this  general 
rule  will  presently  be  considered.'' 

*Thus  far  as  to  the  testimony  of  witnesses  to  facts,  within 
their  own  actual  knowledge,  under  the  obligation  of  an  oath, 
and  subject  to  cross-examination. 

°  See  tit.  Deposition-s. 

■^  There  are  also  some  exceptions  which  have  been  introduced  by,  and  v/hich 
wholly  depend  upon,  particular  statutes ;  but  as  these  are  mere  arbitrary  excep- 
tions, unconnected  with  general  principles,  they  need  not  be  noticed  here. 


36  ESCLUBINGPEINCIPLES. 

The  topic  of  the  admissibility  of  evidence  derived  through  the 
testimony  of  others  will  shortly  be  discussed,  but  before  dismissing 
the  present  portion  of  the  subject  of  excluding  principles,  another 
rule  which  operates  to  the  exclusion  of  evidence,  not  generally, 
but  on  comparison  with  other  and  more  satisfactory  evidence,  as 
well  as  some  other  minor  rules,  ought  to  be  noticed.  It  is  a 
general  rule  of  evidence  already  adverted  to,  that  evidence  of  an 
inferior  degree  shall  not  be  admitted  whilst  evidence  of  a  higher  and 
more  satisfactory  degree  is  attainable.'  This  rule,  it  will  be  seen, 
depends  on  a  well-founded  jealousy  that  the  best .  evidence  is 
withdrawn,  and  the  inferior  substituted,  from  a  desire  to  suppress 
the  truth.  As  this  is  a  principle  which  aflects  the  course  and 
order  of  proofs,  its  application  will  be  better  considered  hereafter, 
in  conjunction  with  other  rules  applicable. to, the  nature  and  modes 
of  proof. 

There  are,  also,  some  instances,  where  the  law  excludes  particular 
evidence,  not  because  in  its  own  nature  it  is  suspicious  or  doubtful, 
but  on  grounds  of  public  policy,  and  because  greater  mischief  and 
inconvenience  would  result  from  the  reception  than  from  the 
exclusion  of  such  evidence ;  on  this  account  it  is  a  general  rule 
that  the  husband  and  wife  cannot  give  evidence  to  affect  each 
other,  either  civilly  or  criminally.  For  to  admit  such  evidence 
would  occasion  domestic  dissension  and  discord ;  it  would  compel 
a  violatian  of  that  confidence  which  ought,  from  the  nature  of  the 
relation,  to  be  regarded  as  sacred ;  and  it  would  be  arming  each  of 
the  parties  with  the  means  of  offence,  which  might  be  used  for 
very  dangerous  purposes .° 

*Upon  the  same  principle,  the  law  prohibits  a  barrister, 

^    solicitor,  or  attorney,  from  divulging  that  which  has  been 

reposed  in  him  confidentially  by  his  client.^     This  prohibition 

°  Co.  Litt.  6,  b.  See  Vol.  II.,  Husband  and  Wife.  The  rule,  it  will  be  seen, 
does  not  extend  to  criminal  charges  founded  on  violence  oifered  to  the  wife,  and 
the  County  Courts  Act,  9  &  10  Vict.  c.  95,  s.  83,  also  creates  an  exception  to  it. 

'  Taylor  v.  Biggs,  1  Peters,  S.  C.  Eep.  596 ;  Cutbush  v.  Gilbert,  4  Serg.  & 
Kawle,  551 ;  Duckwall  v.  Weaver,  2  Ohio,  13. 

^  To  exclude  the  testimony  of  counsel  it  is  not  necessary  that  there  should  be  a 
cause  depending  in  court  at  the  time  that  his  information  on  the  subject  was 
acquired ;  Beltzhoover  v.  Blackstock,  3  Watts,  20. 

A  counsel  or  attorney  may  give  evidence  of  collateral  facts,  such  as  that  a  bond 
was  lodged  with  his  client,  by  way  of  indemnity,  or  that  his  client  expressed  himself 
satisiied  with  a  certain  security ;  Heister  v.  Davis,  3  Yeates,  4. 

So,  when  an  attorney  without  any  communication  from  his  client,  acquires  a 


CONFIDENTIAL    COMMUNICATION'S.  37 

rests  on  very  obvious  principles  of  convenience  and  policy.  It  is 
absolutely  essential  to  tbe  ends  of  justice  that  the  fullest  confidence 
should  prevail  between  a  litigant  and  those  who  conduct  his  cause: 
and  it  is  equally  clear  that  there  would  be  an  end  of  all  such 
confidence,  if  the  agent  could  be  compelled  to  divulge  all  he  knew. 
It  is  sufiicient  here,  according  to  the  plan  originally  proposed, 
to  state  this  principle  generally  :  its  practical  operation  and  efi'ect, 
as  to  the  relative  situation  of  the  parties  when  the  communication 
was  made,  the  nature,  time,  and  manner  of  the  communication, 
will  be  discussed,  hereafter.'  It  may  be  observed  here,  that  tHis 
is  the  privilege,  not  of  the  counsel  or  attorney,  but  of  the  client ; 
and,  therefore,  that  the  former  ought  not  to  be  allowed  to  divulge 
his  client's  secrets,  even  though  he  should  be  willing  to  do  so. 

The  same  principle  evidently  applies  to  the  case  of  an  attorney's 
or  barrister's  clerk,  and  of  an  interpreter  between  an  attorney  and 
his  client.^  ^ 

'  See  Vol.  II.,  tit.  Confidential  Communication. 
e  Du  Barre  v.  Ldvette,  Peake,  N.  P.  C.  77. 

knowledge  of  Ms  handwriting,  lie  may  be  questioned  as  to  its  identity ;  Johnson  v. 
Duverne,  19  Johns.  134. 

And  an  attorney  may  be  examined  whether  a  note  put  into  his  hands  to  collect 
was  endorsed  or  not ;  Baker  v.  Arnold,  1  Caines,  258 ;  see  also  Chirac  v.  Rhei- 
necJcer,  11  Wheat.  280 ;  Riggs  v.  Denniston,  3  Johns.  Cas.  198  ;  Brandt  v.  Klein, 
17  Johns.  R.  335 ;  Jackson  v.  McVey,  18  Johns.  B.  330  ;  Hoffman  v.  Smith,  1 
Caines  R.  157.  And  if,  after  the  relation  has  ceased,  a  former  client  repeat  to  his 
attorney  voluntarily,  and  without  any  artifice,  and  for  that  purpose,  communications 
previously  made,  the  attorney  is  a  competent  witness  as  to  such  communications  ; 
Jordan  v.  Hess,  13  Johns.  B.  492. 

An  attorney,  who  was  employed  by  two  several  defendants  to  defend  a  suit,  and 
who  entered  an  appearance  for  all  the  defendants,  without  the  knowledge  and 
consent  of  part  of  them,  is  a  competent  witness  in  a  subsequent  suit  for  contribu- 
tion between  the  defendants  who  employed  him,  and  those  who  did  not ;  Cox's 
Adr.  v.  Hill,  3  Ohio  Rep.  423. 

A  student  in  the  office  of  an  attemey,  acquiring  Ms  knowledge  of  facts  while  he 
was  in  the  office  ;  Andrews  v.  Solomon,  1  Peters,  356  ;  a  confidential  clerk ;  Corp 
V.  Robinson,  2  Wash.  0.  0.  Rep.  388  ;  or  a  confidential  agent  or  factor ;  Holmes 
V.  Comegys,  1  Dall.  439 ;  (dubitatum  in  Morris  v.  Vanderen,  1  Dall.  66  ;)  or  a 
physician ;  Hewitt  v.  Prime,  21  Wend.  79 ;  is  not  privileged  from  becoming  a 
witness.  G-. 

'  Rhoads  v.  Selin,  4  Wash.  0.  C.  Rep.  718 ;  Chirac  v.  Reinicker,  11  Wheat. 
280 ;  Yordan  v.  Hess,  13  Johns.  492  ;  Parker  v.  Garter,  4  Munford,  273 ;  Craw- 
ford V.  McKissack,  1  Porter,  433 ;  Jenkinson  v.  The  State,  5  Blackford,  465  ; 
Chew  V.  Farmers'  Bank,  2  Maryland  Ch.  Decis.  231. 

The  privilege  is  not  confined  to  facts  disclosed  in  relation  to  suits  pending,  but 


38  EXCLUDING    PRINCIPLES. 

Here,  however,  the  law  draws  the  line,  and  the  principle  of 
policy  which,  in  the  instances  of  husband  and  wife,  and  of  attorney 
and  client,  forbids  a  violation  of  confidence,  ceases  to  operate. 

extends  to  all  cases  in  which  a  counsel  or  attorney  is  applied  to,  in  the  line  of  his 
profession,  whether  such  facts  were  communicated  with  an  injunction  of  secrecy 
or  for  the  purpose  of  asking  advice  or  otherwise ;  Parher  v.  Garter,  4  Munford, 
273  ;  Bdtzhoover  v.  Blackstock,  3  Watts,  20  ;  Wheeler  v.  Hill,  4Shepley,  329  ; 
Marsh  V.  Ludlum,  3  Sanf.  Ch.  Eep.  35  ;  Crosby  v.  Berger,  11  Paige,  377  ;  A-iken 
V.  Kilhurne,  27  Maine,  252  ;  Bank  of  Utica  v.  Mersereau,  3  Barb.  Oh.  E.  528  ; 
McLellan  v.  Longfellow,  32  Maine,  494 ;  Weatherbee  v.  JEzekiel,  25  Vermont, 
47  ;  Riley  Y.  Johnston,  13  Georgia,  260  ;  Parkhurst  v.  McGraw,  24  Mississippi, 
134. 

Attorneys  are  bound  to  testify  as  to  any  matter  concerning  their  clients  which 
has  come  to  their  knowledge  in  any  other  way  than  by  confidential  communication  ; 
Rhoads  v.  Selin,  4  Wash.  0.  C.  Kep.  718  ;  Rogers  v.  Dare,  Wright,  136  ;  Hiester 
v.  Davis,Z  Yeates,  4 ;  Johnson  v.  Duverne,l'i  Johns.  134 ;  Coolney  v.  Tannahill, 
1  Hill,  33  ;  Bogert  v.  Bogert,  2  Edw.  Ch.  Bep.  399  ;  Granger  v.  Warrington,  3 
Grilman,  299  ;  Levors  v.  VanBuskirk,  4Barr,  309  ;  Pierson  v.  Strortz,  1  Morris, 
136. 

Counsel  may  be  asked  by  whom  he  was  retained;  Chirac  v.  Reinecker,  11 
Wheat.  280  ;  Brown  v.  Payson,  6  N.  Hamp.  443  ;  Cox  v.  Hill,  3  Hammond,  411 ; 
Caniff  V.  Myers,  15  Johns.  246 ;  Gower  v.  Emery,  6  Shepley,  79 ;  Wlieeler  v. 
Hill,  4  Shepley,  329. 

If,  after  the  relation  of  attorney  and  client  has  ceased,  the  client  voluntarily 
repeat  to  the  attorney  what  he  has  communicated  while  that  relation  existed,  he  is 
a  competent  witness  as  to  this  communication ;   Yordon  v.  Hess,  13  Johns.  492. 

An  attorney  is  not  privileged  as  a  witness  from  communicating  facts,  concern- 
ing his  client,  where  he  is  himself  a  party  to  the  transaction  or  agreement,  which 
he  is  called  upon  to  disclose ;  therefore  it  was  held  that  an  attorney  who  was 
summoned  as  garnishee  in  an  attachment  sur  judgment,  was  bound  to  answer  in- 
terrogatories as  to  whether  he  had  received  from  his  client  a  sum  of  money,  in 
trust  to  pay  a  certain  per  centage,  to  such  of  his  creditors  as  would  accept  the 
same  in  full  satisfaction  of  their  respective  debts  ;  Jeanes  v.  Fridenbery,  5  Penna. 
Law  Journal,  65. 

An  attorney  is  not  to  judge  what  is  or  is  not  privileged.  He  must  state  the 
occasion  and  circumstances  of  the  act  or  communication,  and  the  general  nature 
of  the  matter  alleged  to  be  privileged,  so  that  the  court  may  decide,  whether  he 
shall  be  compelled  to  testify  in  regard  to  it  or  not ;  Jeanes  v.  Fridenberg,  5  Penna. 
Law  Journal,  65. 

This  rule  does  not  however  apply  when  the  client  has  no  interest  in  the  suit  in 
which  the  attorney  is  called  to  testify.  Therefore  m  an  action  by  the  payee  against 
the  maker  of  a  promissory  note,  in  which  the  defence  was  that  the  amount  of  the 
note  had  been  paid  by  an  assignment  made  by  the  defendant  to  the  plaintiff,  of  a 
mortgage  given  to  the  defendant,  and  it  appeared  that  a  suit  had  been  brought  by 
the  assignee  upon  the  mortgage,  and  that  it  had  failed  on  the  ground  of  the  mort- 
gage having  been  paid  previously  to  the  assignment,  it  was  held,  that  the  attorney 
and  counsel  of  the  mortgagor  might  be  required  to  testify  on  the  part  of  the  plain- 


CONFIDENTIAL    COMMUNICATIONS.  89 

The  law  will  not  permit  any  one  to  withhold  from  the  information 
of  the  jury  any  commnnication  which  is  important  as  evidence, 

tiff  as  to  facts,  respecting  the  payment  of  the  mortgage,  which  he  had  acquired  as 
attorney ;  Hamilton  v.  Neel,  1  Watts,  517. 

A  debtor  requested  an  attorney  to  draw  up  a  mortgage  of  his  personal  property, 
and  disclosed  the  purpose  of  the  transaction,  but  neither  asked  nor  received  any 
legal  advice  as  to  its  effect — the  attorney's  testimony  as  to  such  disclosure  is 
admissible  ;  Hatton  v.  Robmson,  14  Pick.  416  f  Contra,  Bank  of  Utica  v.  Merse- 
reau,  3  Barb.  Oh.  Eep.  528 ;  Moore  v.  Bray,  10  Barr,  519 ;  Grisler  v.  Garland, 
11  Smedes  &  Marsh.  136. 

Communications  made  to  an  attorney  in  his  professional  capacity,  by  an  owner  of 
property,  respecting  a  transfer  of  it,  are  privileged  ;  Foster  v  Hall,  12  Pick.  89  ; 
Beltzhoover  v.  BlacTcstock,  3  "Watts,  20. 

A  communication  voluntarily  made  to  counsel,  after  he  has  refused  to  be  em- 
ployed by  the  party  making  it,  does  not  come  within  the  rule  of  confidential 
communications  ;  Sitzar  v.  Wilson,  4  Iredell,  501 ;  Beeson  v.  Beeson,  9  Barr,  279. 
But  not  such  as  are  made  before ;  Beed  v.  Smith,  2  Carter,  160. 

An  attorney  who  draws  up  a  will  is  competent  to  testify  of  its  contents,  in  order 
to  set  it  up  as  a  last  will ;  and  his  testimony  is  not  subject  to  the  objection  that  it 
discloses  confidential  commnnications  of  a  client ;  Graham  v.  0' Fallon,  4  Mis- 
souri, 338. 

Counsel  professionally  consulted  may  be  compelled  to  testify,  if  the  privilege  be 
waived  by  the  party  who  consulted  him,  although  the  subject  has  been  assigned  to 
a  third  person  who  objects  ;  Benjamin  v.  Coventry,  19  Wend.  353. 

The  seal  of  professional  confidence  has  never  been  held  to  cover  a  communica- 
tion made  to  an  attorney  to  obtain  professional  advice  or  assistance  as  to  the 
commission  of  a  felony  or  any  other  crime,  which  is  malum  in  se  ;  Bank  of  Utica 
v.  Mersereau,  3  Barb.  Oh.  Rep.  528. 

An  attorney  or  counsel,  who,  as  such,  has  been  intrusted  with  papers,  is  not 
bound  to  produce  them  in  evidence  on  the  call  of  the  opposite  party  or  of  a  third 
person  ;  Jackson  v.  Burtis,  14  Johns.  391 ;  Lynde  v.  Judd,  3  Day,  499 ;  Durkee 
V.  Leland,  4  Vermont,  612. 

Yet  he  may  be  called  on  to  prove  the  existence  of  such  papers,  and  that  they 
are  in  his  possession,  so  as  to  enable  the  opposite  party,  on  the  attorney's  refusal 
to  produce  them,  to  give  parol  evidence  of  their  contents ;  Bhoads  v.  Selin,  4 
Wash.  C.  0.  Eep.  718  ;  Brandt  v.  Klein,  17  Johns.  335  ;  Jackson  v.  Mc  Vey,  18 
Johns.  330  ;   Coolney  v.  Tannahill,  1  Hill,  33. 

A  party  wishing  to  avail  himself  in  evidence  of  a  paper  in  possession  of  his 
adversary's  attorney,  must  give  notice  to  produce  it :  he  cannot  compel  its  produc- 
tion by  a  subpoena  to  the  attorney;  McPherson  v.  Rathbone,  7  Wendell,  216. 

The  privilege  does  not  apply  to  a  student  in  the  office  of  an  attorney ;  Barnes 
V.  Harris,  7  Cushing,  576  ;  Andrews  v.  Solomon,  Peters  C.  0.  Bep.  356 ;  Holman 
V.  Kimball,  22  Vermont,  555.  Nor  to  a  stranger  casually  present ;  Jackson  v. 
French,  3  Wendell,  337. 

Facts  stated  to  an  attorney  to  show  that  the  cause  in  which  he  is  thought  to  be 
retained,  does  not  conflict  with  the  interests  of  a  client  for  whom  he  is  already 
employed  are  not  confidential  communications ;  Heaton  v.  Findlay,  12  Penna. 
State  Eep.  304. 


40  EXCLtTDING    PRINCIPLES. 

however  secret  and  confidential  tlie  nature  of  tliat  communication 
may  liave  been,  althougli  it  may  have  been  made  to  a  physician  or 
a  surgeon,  or  even  to  a  divine,  in  the  course  of  discharging  his 
professional  duties ;  for  it  has  even  been  held,  that  a  minister  is 
bound  to  disclose  that  which  has  been  revealed  to  him  as  a  matter 
of  religious  confession.''  ^ 

*Upon  a  principle  of  humanity,   as   well  as  of  policy, 

-'    every   witness   is   protected    from   answering   questions   by 

doing  which  he  would  criminate  himself.^     Of  policy,  because  it 

'  Butler  V.  Moore,  Macnally,  253;   Vaillant  v.  Bodemead,  2  Atk.  524;  B.  v. 
Gilham,  Mood.  0.  C.  186. 


'  That  a  confession  made  to  a  Boman  Catholic  priest  is  not  evidence,  see  Smith's 
Case,  1  Rogers'  Rec.  11 ;  Contra,  per  Gibson,  C.  J. ;  Simon's  Exrs.  v.  Oratz, 
2  Penna.  Rep.  417.  But  confessions  to  a  Protestant  divine  are  not  privileged ; 
Smith's  Case,  Supra ;  Commonwealth  v.  Drake,  15  Mass.  161.  See  Phillip's  Case, 
Sampson's  Boman  Catholic  Question  in  America,  Pamphlet. 

Witnesses  must  testify  what  a  party  told  to  them  in  confidence  and  under  an  en- 
gagement of  secrecy,  unless  they  are  attorneys  of  the  party  in  the  cause ;  Mills  v. 
"  Griswold,  1  Boot,  383. 

^  To  excuse  a  witness  from  answering  a  question  on  this  ground,  the  court  must 
see  that  the  answer  may  in  some  way  criminate  the  witness  or  render  him  infamous, 
involve  him  in  shame  or  reproach,  or  expose  him  to  penalties  or  punishment,  in 
any  of  which  cases  he  is  not  bound  to  answer  a  question  ;   The  People  v.  Mather, 
4  Wend.  229  ;    Territory  v.  Nugent,  1  Mart.  B.  114 ;   Vandervoort  v.  The  Col. 
Ins.  Co.,  3  Johns.  Case,  137  ;  Jackson  v.  Humphrey,  1  Johns.  B.  498  ;   Grannis 
V.  Brandon,  5  Day,  260 ;  Respublica  v.  Gibhs,  3  Yeates,  429,  437  ;   Galhraith  v. 
Eichelherger,  3  Yeates,  515  ;  Vaugh  v.  Perrine,  2  Penna.  728 ;  Marbury  v.  Mad- 
ison, 1  Cranch,  144.     The  rule  of  practice  upon  this  subject  was  thus  stated  by 
the  late  chief  justice  of  the  United  States,  "  It  is  the  province  of  the  court  to 
judge  whether  any  direct  answer  to  the  question,  which  may  be  proposed,  will 
furnish  evidence  against  the  witness.     If  such  answer  may  disclose  a  fact,  which 
forms  a  necessary  and  essential  link  in  the  chain  of  testimony  which  would  be 
suiBcient  to  convict  him  of  any  crime,  he  is  not  bound  to  answer  it,  so  as  to 
furnish  matter  for  that  conviction.     In  such  a  case  the  witness  must  himself  judge 
what  his  answer  will  be,  and  if  he  says  on  oath  he  cannot  answer,  without  accusing 
himself,  he  cannot  be  compelled  to  answer.''   United  States  v.  Burr,  1  Burr's  Trial, 
245  ;  see  also  State  v.  Edwards,  2  Nott  &  M'Cord,  13.     A  witness  may  be  asked 
a  question,  the  answer  to  which  will  criminate  him  ;  and  if  he  has  no  objection, 
may  answer  it ;  his  privilege  is  personal  only  ;  but  it  is  the  duty  of  the  court  to 
advertise  him  of  it ;  Southard  v.  Rexford,  6  Cowen,  254.     And  if  a  witness  vol- 
untarily state  a  fact,  he  is  bound  to  state  how  he  knows  it,  though  it  criminate 
him ;  State  v.  K.  4  N.  Hamp.  B.  562.     Thus  a  witness  cannot  be  compelled  to 
say  whether  or  not  he  had  ever  had  criminal  connection  with  the  plaintiif.     Ibid. 
Nor  whether  he  had  not  been  convicted  of  petit  larceny,  and  whether  he  was  not 
then  in  confinement  under  that  conviction  ;   The  People  v.  Herrick,  13  Johns.  82. 


SELF-CBIMINATION. —  STATE    SECRETS.  41 

•would  place  the  witness  under  the  strongest  temptation  to  commit 
the  crime  of  perjury;  and  of  humanity,  because  it  would  be  to 
extort  a  confession  of  the  truth  by  a  kind  of  duress,  every  species 
and  degree  of  which  the  law  abhors.*  It  is  pleasing  to  contrast 
the  humanity  and  delicacy  of  the  law  of  England  in  this  respect 
with  the  cruel  provisions  of  the  Eoman  law,  which  allowed  crimi- 
nals, and  even  witnesses  in  some  instances,  to  be  put  to  the  torture, 
for  the  purpose  of  extorting  a  confession  .■"  * 

There  are  some  instances  in  which  particular  evidence  is  ex- 
cluded on  the  ground  of  policy,  where  the  disclosure  might  be 
prejudicial  to  the  community.  Thus,  in  a  state  prosecution,  a 
witness  cannot  be  called  upon  to  disclose  the  names  of  those  to 

'  It  is  partly  upon  this  principle  that  an  examination  of  a  prisoner,  taken  before 
a  magistrate  on  oath,  cannot  be  afterwards  read  against  him  as  a  confession.  And 
evidence  extorted  in  violation  of  this  privilege  cannot  be  used  to  establish  an 
indictment  for  the  crime  against  the  witness ;  Reg  v.  Garbett,  2  Oar.  &  K.  474 ; 
Eng.  0.  L.  E.  61. 

'  See  Quintilian's  Inst. ;  0.  De  Tormentis,  Pan.  lib.  48,  s.  242.  See  the  cases  on 
this  subject  collected,  post,  tit.  Witness. 

But  a  witness  may  be  called  and  examined  in  a  matter  pertinent  to  the  issue  when 
his  answers  will  not  expose  him  to  criminal  prosecution,  or  tend  to  subject  Mm  to 
a  penalty  or  forfeiture,  though  they  may  otherwise  affect  his  pecuniary  interest ; 
Bull  V.  Loveland,  10  Pick.  9 ;  Taney  v.  Kemp,  4  Har.  &  Johns.  348  ;  Stoddart 
V.  Manning,  2  Har.  &  Gill,  147 ;  Baird  v.  Cochran,  4  Serg.  &  B.  397  ;  Nass  v. 
Van  Swearingen,  7  Serg.  &  R.  192  ;  Gorham  v.  Carol,  3  Lit.  221 ;  Canover  v. 
Bell,  6  Monroe,  157 ;  Copp  v.  Upham,  3  N.  Hamp.  E.  159 ;  Commonwealth  v. 
Thurston,  7  J.  J.  Marshall,  63 ;  Planters'  Bank  v.  George,  6  Martin,  670. 

Contra,  Benjamin  v.  Hathaway,  3  Conn.  R.  528 ;  Storrs  v.  Wetmore,  Kirby, 
203  ;  Starr  v.  Tracy,  2  Eoot,  528 ;  Cook  v.  Corn,  1  Overton,  340 ;  Appleton  v. 
Boyd,  7  Mass.  E.  131.  Per  Marshall,  0.  J.,  United  States  v.  Grundy,  3  Cranch, 
344;  Tatem's  Executors  v.  Lofton,  Cooke,  115.  So  in  the  case  of  liability  to  a 
forfeiture  of  money  won  at  play,  a  party  must  answer  on  a  bill  of  discovery ;  Sla- 
man  v.  Kelly,  4  Young  &  Collyer,  169 ;  see  also  Mauran  v.  Lamb,  7  Cow, 
174.  G. 

'  People  V.  Herrick,  13  Johns.  82  ;  Grannis  v.  Brandon,  5  Day,  260  ;  State  v. 
Bailey,  1  Penn.  415  ;  United  States  v.  Craig,  4  Wash.  0.  C.  Eep.  729 ;  Poin- 
dexter  v.  Davis,  6  Grattan,  481. 

It  is  not  confined  however  to  cases  where  the  answer  of  the  witness  would 
render  him  liable  to  a  criminal  proceeding  or  penalty.  It  is  enough  if  his  answer 
will  have  a  tendency  to  stigmatise  or  disgrace  him  ;  Vaughn  v.  Paine,  2  Penn. 
728  ;  Sodusky  v.  McGee,  5  J.  J.  Marshall,  621 ;  United  States  v.  Dickinson,  2 
McLean,  325 ;  The  People  v.  Rector,  19  Wendell,  569 ;  Lohman  v.  People,  1 
Oomst.  379  ;  Contra :  Clementine  v.  State,  14  Missouri,  112. 

It  is  however  the  privilege  of  the  witness,  and  he  may  waive  it  if  he  thinks 
proper ;   Fries  v.  Brugler,  7  Halsted,  79  ;   Southard  v.  Rexford,  6  Cowen,  254 ; 


42 


EXCLUDING    PEIKCIPLES. 


■wliom  lie  has  given  information  of  practices  against  tlie  State, 
wlietlier  such,  persons  be  magistrates,  or  concerned  in  the  adminis- 
tration of  government,  or  be  merely  the  channel  through  which 


Soduslcy  V.  McGee,  5  J.  J.  Marshall,  621 ;  Tlie  State  v.  Patterson,  2  Iredell,  346  ; 
Short  V.  The  State,  4  Harring.  568 ;  Howel  v.  The  Commonwealth,  5  Grattan, 
664 ;  Commonwealth  v.  Shatv,  4  CusMng,  594. 

If  the  witness  voluntarily  states  a  fact,  he  is  bound  to  state  how  he  knows  it, 
although  in  so  doing  he  may  expose  himself  to  a  criminal  charge.  If  he  state  any 
part  he  must  state  the  whole ;  State  v.  K.,  4  N.  Hamp.  562  ;  Chamherlin  v.  Will- 
son,  12  Vermont,  491 ;  Amherst  v.  Hollis,  9  N.  Hamp.  107  ;  People  y.  Lehman, 
2  Barb.  Sup.  Ot.  Eep.  216  ;  The  State  v.  Foster,  3  Foster,  348. 

The  matter  need  not  be  directly  criminal,  if  it  has  a  tendency  to  subject  him  or 
will  form  a  link  in  the  evidence,  the  witness  is  entitled  to  object  and  the  witness  and 
not  the  court  is  the  judge  of  that ;  State  v.  Edwards,  2  Nott  &  M'Cord,  13 ;  People 
V.  Mather,  4  Wend.  229  ;  Poole  v.  Perritt,  1  Speers,  128  ;  Cliamberlinv.  Wilson,  12 
Verm.  491 ;  Tlie  People  v.  Rector,  19  Wend.  569 ;  Bohinson  v.  Neal,  5  Monroe, 
212  ;  Lister  v.  BoJcer,  6  Black.  439  ;  Tlie  People  v.  Bodine,  1  Denio,  281 ;  Henrt/ 
V.  Salina  Bank,  1  Comstock,  83.  But  see  Richman  v.  The  State,  2  Greene,  532  ; 
Floyd  V.  The  State,  7  Texas,  215. 

Although  the  witness  is  his  own  judge  as  to  whether  his  answer  would  criminate 
himself,  he  is  nevertheless  liable  to  an  action  by  the  party  for  a  refusal  to  testify, 
if  his  refusal  be  wilful  and  his  excuse  false ;    Warner  v.  Lucas,  10  Ohio,  336. 

Though  the  ease  may  be  otherwise  when  a  question  is  put  on  cross-examination, 
in  order  generally  to  degrade  and  disgrace  the  witness,  yet  when  a  question  having 
such  tendency  is  part  of  an  examination  in  chief,  and  its  answer  is  essential  to  the 
case  of  the  party  bona  fide  putting  it,  the  court  will  compel  an  answer,  when  it 
will  not  expose  the  witness  to  a  criminal  prosecution ;  Keller's  case,  1  Wharton's 
Digest,  726. 

When  a  witness  called  to  establish  a  defence  of  usury,  declines  to  testify  on  the 
ground  that  his  evidence  may  expose  him  to  an  indictment  or  subject  him  to  a 
penalty,  and  it  appears  that  the  statute  of  limitation  has  barred  all  prosecutions, 
the  court  is  bound  to  pronounce  against  his  claim  to  exemption  ;  Close  v.  Olney, 
1  Denio,  319 ;  Bank  of  Salina  v.  Henry,  2  Denio,  155,  3  Denio,  593,  1  Comst.  83  ; 
Weldon  v.  Burd,  12  Illinois,  374 ;  Floyd  v.  The  State,  7  Texas,  215. 

There  is  no  legitimate  inference  of  guilt  from  the  refusal  of  a  witness  to  answer, 
upon  which  the  jury  can  act ;  Carno  v.  Litchfield,  2  Michigan,  340. 

A  liability  however  to  a  civil  action  or  pecuniary  loss  will  not  privilege  the 
witness  from  answering ;  Bull  v.  Loveland,  10  Pick.  9 ;  Hays  v.  Richardson,  1 
Gill.  &  Johns.  366  ;  Tancey  v.  Kemp,  4  Har.  &  Johns.  348 ;  Naylor  v.  Semmes, 
4  Gill.  &  Johns.  273 ;  Copp  v.  Upham,  3  N.  Hamp.  159 ;  Baird  v.  Cochran,  4 
Serg.  &  Eawle,  397  ;  Commonwealth  v.  Thurston,  7  J.  J.  Marshall,  62  ;  Alexan- 
der v.  Knox,  7  Alabama,  503 ;  Judge  of  Probate  v.  Green,  1  Howard,  (Miss.) 
146 ;  Zollicoffer  v.  Turney,  6  Yerger,  297  ;  Lovmey  v.  Perham,  2  Appleton, 
235  ;  Conover  v.  Bell,  6  Monroe,  157  ;  Stevens  v.  Wliitcomb,  16  Vermont,  121 
Matter  of  Kip,  1  Paige,  601 ;  Stewart  v.  Turner,  3  Edw.  Ch.  458  ;  Nass  v.  Van 
Swearingen,  7  Serg.  &  Eawle,  192  ;  Ralph  v.  Brown,  3  Watts  &  Serg.  400. 


SELF-CEIMINATION. —  STATE    SECRETS.  43 

information  is  communicated  to  government.''  So  a  witness  was 
not  allowed  to  answer  the  question,  whether  he  had  delivered  a 
short-hand  note  to  an  under  secretary  of  state ;'  and  so  it  was  held, 
that  an  officer  from  the  Tower  of  London  could  not  be  examined 
as  to  the  accuracy  of  a  plan  of  the  Tower  which  was  produced." 
Upon  the  same  ground,  *an  official  communication  between 
the  governor  of  a  colony  and  the  law  officers  there,  relating  '- 
to  the  state  of  the  colony  cannot  be  disclosed."  So  it  seems  that 
the  orders  given  by  the  governor  of  a  foreign  colony  to  a  military 
officer  acting  under  his  command,  ought  not  to  be  produced." 
The  same  objection  applies  to  letters  written  by  a  secretary  of 
state  to  a  person  acting  under  his  authority  f  and,  as  it  seems,  to 
minutes  taken  before  the  privy  council.* 

The  principle  does  not  exclude  a  communication  which,  although 
made  to  an  official  person,  is  not  made  in  the  discharge  of  any 
public  duty.'^ 

^  R.  V.  Watson,  2  Starkie's  0.  135 ;  Eng.  0.  L.  E.  3 ;  and  a  note  from  Hardy's 
Case,  by  Abbott,  J.,  ib.  136  ;  and  Lord  EUenborougli's  observations  as  to  Stone's 
Case,  ib.  137 ;  24  Howell's  State  Tr.  753. 

'  32  Howell's  State  Tr.  100  ;  see  also  De  Berenger's  Case,  Gurney's  Eep.  344. 

»  iJ.  Y.  Watson,  2  Starkie's  C.  148 ;  Eng.  0.  L.  E.  3. 

"  Wyatt  V.  Gore,  Holt's  0.  299 ;  Eng.  0.  L.  E.  3. 

°  GooTce  V.  Maxwell,  2  Starkie's  0.  185 ;  Eng.  C.  L.  E.  3.  The  document  was 
there  called  for,  in  order  to  prove  that  the  plaintiff's  factory  had  been  destroyed  in 
consequence  of  orders  from  the  defendant ;  and  it  was  held,  that  although  on 
principles  of  public  convenience  the  document  could  not  be  read,  the  effect  was 
the  same  as  if  the  document  had  not  existed,  and  that  the  witness  might  be  asked 
whether  what  had  been  done  had  not  been  done  by  order  of  the  defendant. 
'     p  2  Starkie's  C.  185  ;  Eng.  0.  L.  E.  3. 

■•  6  St.  Tr.  281,  Layer's  Case.  Where  the  commander-in-chief  directed  the 
defendant,  a  major-general,  with  six  other  officers,  to  inquire  into  the  conduct  of  a 
plaintiff,  and  to  report  the  opinion  of  the  officers,  and  the  plaintiff  brought  an 
action  for  an  alleged  libel  contained  in  that  report,  and  the  secretary  of  the  com- 
mander-in-chief attended  with  the  minutes  of  the  report,  the  Court  refused  to  allow 
it  to  be  read.  Home  v.  Bentinck,  2  B.  &  B.  130 ;  Eng.  C.  L.  R.  6.  So  official 
communications  between  an  agent  of  government  and  a  secretary  of  state,  Ander- 
son V.  Sir  W.  Hamilton,  2  B.  &  B.  156  ;  Eng.  0.  L.  E.  6  ;  and  between  the  East 
India  Company  and  the  Board  of  Control,  Smith  v.  East  India  Company,  1  Phill. 
50,  are  also  privileged.  For  further  observations  on  this  subject,  see  tit.  Witness 
— Confidential  Communication. 

'  Blake  v.  Pilfold,  1  M.  &  Eob.  198 ;  which  was  the  case  of  a  letter  written  by 
a  private  person  to  the  secretary  of  the  postmaster-general,  complaining  of  the 
conduct  of  the  guard  of  a  mail. 

'  An  officer,  by  whom  a  person  was  apprehended,  is  not  bound  to  disclose  the 


44  MEDIATE    EVIDENCE. 

*43]         ■  *CHAPTBR  III. 

MEDIATE   AND   SECONDARY   BTIDBNCE. 

ISTest,  as  to  tlie  admissibility  of  evidence  derived  not  imme- 
diately from  those  who  have,  or  are  supposed  to  have,  actual 
knowledge  of  the  fact,  but  through  the  testimony  of  one  or  more 
other  witnesses. 

Such  testimony  is  in  general  of  so  inferior  a  nature  as  to  be 
admissible  only  in  cases  of  urgency,  on  the  failure  of  better  evi- 
dence, and  under  the  sanction  of  particular  circumstances,  which 
warrant  its  admissibility,  but  in  some  instances  is  admissible  with- 
out any  proof  of  the  failure  of  better  evidence.  Thus  general 
reputation  is  in  many  instances  receivable,  although  it  may  rest  on 
no  other  foundation  than  what  the  witness  may  have  heard  from 
others.'' 

General  reputation  is  the  general  result  or  conclusion  formed  by 
society  as  to  any  public  fact  or  usage,  by  the  aid  of  the  united 
knowledge  and  experience  of  its  individual  members :  such  a  gene- 

"  See  tit.  Custom — Marriage — Pedigree — Pebsceiption. 

name  of  a  person  from  whom  lie  received  the  confidential  information  which  led 
to  the  prisoner's  detection ;  United  States  v.  Moses,  4  "Wash.  C.  C.  Bep.  726. 
But  he  is  bound  to  answer  whether  A.  B.  (the  person  in  whose  house  the  defendant 
was  apprehended  on  a  charge  of  forgery,  and  where  he  was  discovered  at  a  table 
with  bank  notes)  had  not  told  him,  that  if  he  would  come  to  his  house  on  a  certain 
day,  he  would  have  the  prisoner  there ;  for  the  defendant  might  repel  the  pre- 
sumption of  guilt  against  him  by  showing  that  he  was  at  the  house  in  consequence 
of  the  insidious  invitation  of  the  owner  of  it ;  Ibid  ;  S.  P. ;  United  States  v.  Craig, 
4  Wash.  C.  C.  Eep.  729. 

The  governor,  to  whom  a  deposition  has  been  addressed,  preferring  accusations 
against  a  person  in  ofBce,  must  exercise  his  own  judgment  with  respect  to  the 
propriety  of  producing  the  writing ;  a  subpoena  duas  ticum  will  not  be  issued 
against  him  for  it ;  Gray  v.  Pentland,  2  Serg.  &  R.  23.  G. 

It  is  intimated  by  the  court,  in  the  case  of  the  United  States  v.  Burr,  that  the 
President  of  the  United  States  is  not  obliged  to  disclose  communications  made  to 
him  in  his  official  capacity,  if  the  public  good  requires  that  they  should  be  sup- 
pressed ;  1  Robertson,  Rep.  of  Burr's  Trial,  186,  187.  So  in  Marhury  v.  3Iadison, 
1  Cranch,  144,  it  was  held  that  a  former  Secretary  of  State  was  not  obliged  to 
disclose  facts  which  had  been  commnnioated  to  him  in  confidence,  while  in  office. 
M. 

This  privilege  has  been  extended  to  a  private  prosecutor,  not  in  office ;  The  State 
V.  Soper,  4  Shepley,  293. 


REPUTATION.  45 

ral  concurrence  and  coincidence  of  opinion  on  facts  known  to  many, 
affords  a  reasonable  degree  of  presumption  tliat  their  conclusion  is 
correct ;'  and  therefore  in  particular  cases,  where  the  fact  is  of  a 
public  nature,  general  reputation  is  admissible  evidence  to  prove  it. 
But  as  it  would  not  be  necessary,  and  otherwise  would  not  be  prac- 
ticable, to  examine  the  whole  body  of  society  as  to  the  prevalence 
of  general  reputation  on  any  particular  fact,  it  is  sufB.cient  to  call 
individual  witnesses,  a  portion  of  society,  who  can,  under  the 
sanction  of  an  oath,  and  subject  to  cross-examination,  pledge  their 
personal  knowledge  that  such  reputation  exists. 

*It  is  observable  that,  in  one  respect,  such  evidence  can 
scarcely  be  considered  as  forming  an  exception  to  the  general  ■- 
rule  which  requires  the  sanction  of  an  oath  and  the  opportunity  to 
cross-examine ;  for  the  witnesses  are  called  to  prove  what  they 
actually  know,  viz.,  that  such  a  reputation  exists  :  they  are  sworn 
and  subject  to  cross-examination,  and  the  very  nature  of  such  evi- 
dence excludes  any  more  solemn  sanction. 

The  particular  subjects  to  which  such  evidence  is  applicable 
require  further  consideration. 

It  is  to  be  observed  that  many  facts,  from  their  very  nature, 
either  absolutely  or  usually  exclude  direct  evidence  to  prove  them, 
being  such  as  are  in  ordinary  cases  imperceptible  by  the  senses,  and 
therefore  incapable  of  the  usual  means  of  proof.  Among  these  are 
questions  of  pedigree  or  relationship,  character,  prescription,  cus- 
tom, boundary,  and  the  like.  Such  facts,  some  from  their  nature, 
and  others  from  their  antiquity,  do  not  admit  of  the  ordinary  and 
direct  means  of  proof  by  living  witnesses ;  and,  consequently, 
resort  must  be  had  to  the  best  njeans  of  proof  which  the  nature  of 
the  cases  affords.  Now  the  knowledge  of  facts  of  this  description 
consists  either  in  the  knowledge  and  recollection  of  that  part  of 
society  which  has  had  the  means  of  observing  them,  or  in  the 
traditionary  declarations  of  those  who  were  likely  to  have  possessed 
a  knowledge  on  the  subject,  derived  either  from  their  own  observa- 
tion, or  the  information  of  others ;  or,  lastly,  in  questions  of  skill 
and  judgment,  the  knowledge  of  the  relation  must  be  derived  from 
those  who  are  possessed  of  the  proper  qualifications  for  forming  a 
conclusion  on  the  subject.  The  character  of  a  particular  individual 
in  society  is  formed  by  society  from  their  experience  and  observa- 

"  See  Bu  Bost  v.  Beresford,  2  Camp.  512 ;  per  Gibbs,  0.  J.,  Gurr  v.  Eutton, 
Holt,  Ca.  327 ;  Eng.  C.  L.  R.  3 ;  Oliver  v.  Bartlett,  1  B.  &  B.  269 ;  Eng.  C.  L. 
R.  5. 


46 


MEDIATE    EVIDENCE. 


tion  of  the  conduct  of  the  individual ;  and  here  reputation  is  not 
so  much  a  circumstance  from  which  the  character  of  the  individual 
is  to  be  presumed,  as  the  very  fact  itself,  proved  by  the  direct  evi- 
dence of  witnesses  who  constitute  part  of  that  society.  The  know- 
^         ledge  of  the  existence  of  a  particular  *public  custom  does  not 

-'  reside  peculiarly  in  the  breast  of  any  one  individual  whatso- 
ever, but  in  the  opinion  and  conclusions  which  society,  or  some 
indefinite  part  of  it,  have  collected  from  actual  observation  and 
experience. 

In  the  case  of  pedigree,  the  nearest  relation,  even  that  of  parent 
and  child,  can  seldom  be  proved,  after  the  death  of  the  parents, 
by  direct  evidence;  and  no  knowledge  upon  the  subject  exists 
except  that  which  is  inferred  from  circumstances,  or  derived  from 
the  hearsay  testimony  of  those  who,  from  their  intimacy  with  the 
family,  possessed  peculiar  means  of  knowledge.  The  circumstance 
that  the  parents  cohabited  as  husband  and  wife,  acknowledged  and 
addressed  each  other  in  society  as  such ;  that  they  recognised  and 
educated  children  as  their  own,  and  introduced  them  to  the  world 
on  a  variety  of  occasions  as  their  legitimate  offspring;  that  a 
pedigree  was  hung  up  in  the  family  mansion,  stating  the  different 
degrees  of  relationship  of  the  members  of  the  family ;  that  similar 
entries  were  made  in  a  family  bible ;  that  a  monument  or  tomb- 
stone was  exhibited  to  the  public,  announcing  a  relation  between 
the  deceased  and  the  surviving,  or  deceased  and  late,  members  of 
a  family;  all  such  circumstances  are  either  strictly  facts,  or  are 
solemn  and  deliberate  declarations  accompanying  facts,  and  par- 
taking of  the  nature  of  facts,  which,  in  the  absence  of  all  suspicion 
of  fraud,  afford  the  strongest  presumptions  that  the  parties  really 
did  stand  in  the  relative  situation  of  husband  and  wife,  parents 
and  children,  or  other  degree  of  kindred;  for  it  is  improbable 
that  such  circumstances  should  have  been  acted  with  a  view  to 
deceive,  particularly  in  a  manner  so  open  and  public  as  to  render 
the  fraud  liable  to  immediate  detection.  From  such  circumstances 
the  belief  is  formed,  by  those  who  are  acquainted  with  the  family, 
and  a  reputation  obtains  in  society  that  they  are  so  related ;  for 
reputation  seems  to  be  no  more  than  hearsay,  derived  from  those 
who  had  the  means  of  knowing  the  fact.  Hence  it  is  that  the 
reputation  may  exist  when  those  who  were  best  acquainted  with 
*the  fact  are  dead ;  and  that  such  reputation  and  even  tradi- 

-'  tionary  declarations  become  the  best,  if  not  the  only,  means 
of  proof;  and  when  they  are  derived  from  those  who  are  most 


EEPUTATIOlSr.  47 

likely  to  know  tlie  truth,  and  who  lay  under  no  bias  or  influence 
to  misrepresent  the  fact,  they  afford  a  fair  and  reasonable  pre- 
sumption of  the  truth  of  the  fact.' 

Again :  upon  questions  of  fact,  to  which  antiquity  is  essential, 
as  of  prescription,  custom  and  boundary,  (and  also  of  pedigree, 
where  the  relationship  is  to  be  traced  through  a  remote  ancestor,) 
the  evidence  of  living  witnesses  is  of  litte  avail,  except  as  to 
the  observance  of  the  right,  privilege  or  obligation,  in  modern 
times;  for  any  knowledge  concerning  such  rights,  drawn  from 
times  more  remote,  recourse  must  be  had  to  reputation  and  tradi- 
tion ;  such  evidence  being  supported  by  proof  of  the  enjoyment  of 
such  rights  and  privileges,  and  of  acquiescence  in  them  in  more 
recent  times.^ 

'  Pedigree  and  relationship,  marriage  and  death,  may  be  proved  by  general 
reputation ;  Johnson  v.  Howard,  1  Har.  &  McHen.  281 ;  Pancoast  v.  Addison, 
1  Har.  &  Johns.  350 ;  Morgan  v.  Purnell,  4  Hawks,  95 ;  Ewing  v.  Savary,  3 
Bibb,  235  ;  Ewell  v.  The  State,  6  Yerger,  364 ;  Flowers  v.  Haralson,  Ibid.  494 ; 
Stegall  v.  Stegall,  2  Brock.  256 ;  Morton  v.  Barrett,  19  Maine,  109 ;  Copes  v. 
Pearce,  1  Gill,  247 ;  Prince  v.  Stewart,  7  Texas,  175 ;  Watson  v.  Brewster,  1 
Barr,  381. 

Hearsay  evidence  of  such  facts  are  therefore  admissible ;  Jackson  v.  Boneham, 
15  Johns.  226  ;  Strickland  v.  Poole,  1  Dall.  14 ;  Jackson  v.  Gooley,  8  Johns.  128  ; 
Elliott  V.  Piersoll,  1  Peters,  328 ;  Waldron  v.  Tuttle,  4  N.  Hamp.  371 ;  Scott 
V.  Ratcliffe,  5  Peters,  81 ;  Garter  v.  Buchanan,  9  Georgia,  539. 

But  hearsay  evidence  of  the  place  of  a  man's  birth  or  death,  is  inadmissible ; 
Independence  v.  Pompton,  4  Halstead,  209 ;  Wilmington  v.  Burlington,  4  Pick. 
174 ;  Brooks  v.  Clay,  3  A.  K.  Marshall,  545. 

The  hearsay  evidence,  admissible  in  cases  of  pedigree  is  limited  to  those 
connected  with  the  family,  who  are  supposed  to  have  known  the  relationships 
existing,  and  such  hearsay  declarations  must  have  been  made  before  suit  commenced ; 
Stein  V.  Bowman,  13  Peters,  209  ;  Jackson  v.  Browner,  18  Johns.  37  ;  Waldrow 
V.  Tuttle,  4  N.  Hamp.  371 ;  Chapman  v.  Chapman,  2  Ooze,  347 ;  Saunders  v. 
Fuller,  4  Humph.  516 ;  Greenwood  v.  Spillor,  2  Scam.  502 ;  Matter  of  Hall,  1 
Wallace,  Jr.,  85 ;  Copes  v.  Pearce,  7  Gill.  247  ;  Boudereau  v.  Montgomery,  4 
Wash.  0.  C.  Eep.  186  ;  Dussell  v.  Roe,  1  Wallace,  Jr.,  39. 

To  let  in  the  declarations  of  third  persons  in  case  of  pedigree,  it  must  be  shown 
that  they  are  dead  ;  White  v.  Strother,  11  Alabama,  720  ;  Covert  v.  Hertzog,  4 
Barr,  145  ;  Fuller  v.  JVwfe,  5  Serg.  &  Eawle,  251. 

'  Boundaries  may  be  proved  by  reputation,  and  it  is  not  confined  in  the  United 
States  to  boundaries  between  manors  and  parishes,  but  extends  to  private  estates, 
and  the  lines  of  old  surveys ;  Smith  v.  Howell,  2  Litt.  159  ■  BufoU  v.  Stocking, 
8  Conn.  236  ;  Boardman  v.  Peed,  6  Peters,  328  ;  Wooster  v.  Butler,  13  Conn. 
309  ;  Nieman  u.  Ward,  1  Watts  &  Serg.  68 ;  Ellicott  v.  Pearl,  1  McLean,  206  ; 
Caufman  v.  Cedar  Spring  Congregation,  6  Binn.  59  ;  Wolf  v.  Wyeth,  11  Serg.  & 
Bawle,  149 ;  Hamilton  v.  Minor,  2  Ibid.  70. 

But  the  declarations  of  those  who  could  themselves  be  had  as  witnesses  are  not 


48  MEDIATE    EVIDENCE. 

On  these  grounds  therefore,  general  reputation  is  admissible 
evidence,  as  affording  presumptions  upon  which  juries  are  to  exer- 
cise their  discretion  in  cases  of  this  nature.  Such  instances  have, 
it  seems,  been  regarded  as  anomalous,  and  as  forming  exceptions 
to  the  general  rule  which  has  already  been  noticed,  viz.,  that  mere 
naked  declarations  are  too  vague,  uncertain  and  fallacious,  to 
afford  sufficient  presumptions  for  the  consideration  of  a  jury." 
Such  evidence  is  at  all  events  warranted  by  the  necessity  of  the 
case.  The  particular  objection  which  excludes  mere  hearsay  in 
general  does  not  apply  to  those  cases  which  are  of  a  public 
nature,  which  may  be  presumed  to  be  matter  of  public  notoriety, 
as  in  the  instance  of  public  prescriptions,  customs  and  character, 
and  where  reliance  is  placed  not  on  the  credit  due  to  the  assertion 
of  a  single  individual,  but  is  sanctioned  by  the  concurrent  opinion 
and  assent  of  indefinite  numbers ;  in  such  cases  a  presumption  exists 
that  the  truth  of  the  fact  is  known  and  faithfully  communicated. 
Hence,  therefore,  common  reputation  is  evidence  to  *prove, 
-■  1st,  a  man's  character  in  society;''  2ndly,  reputation,  and 
(as  will  afterwards  be  seen)  traditionary  declarations  are  evi- 
dence to  prove  a  pedigree,  including  the  state  of  a  family  as 
far  as  regards  the  relationship  of  its  different  members,  their 
births,  marriages,  and  deaths ;  3rdly,  reputation  and  traditionary 
declarations  are  evidence  to  prove  certain  prescriptive  or  custo- 
mary rights  and  obligations,  and  matters  of  public  notoriety. 
But  inasmuch  as  the  reception  of  such  evidence  is  founded  upon 
the  supposition  that  the  persons  from  whom  it  is  derived  possessed 
the  means  of  knowledge ;  and  since  such  evidence  is  in  its  own 
nature  very  weak,  unless  it  be  supported  by  other  circumstances,^ 

"  Per  Lord  BUenborough,  C.  J.,  Weeks  v.  Starke,  1  M.  &  S.  686 ;  Eng.  0.  L. 
E.  28. 
■"  See  tit.  Chaeacteb. 
"  Per  Lord  BUenborough,  1  M.  &  S.  686  ;  Eng.  0.  L.  E.  28. 

admissible.  Lamar  v.  Minter,  13  Alabama,  31 ;  Buchanan  v.  Moore,  10  Serg. 
&  Eawle,  275. 

Possessions  of  ancient  date,  of  which  there  can  be  no  living  witnesses,  and  of 
which  no  written  evidence  can  be  presumed  to  exist  may  also  be  thus  established ; 
Casey  V.  Inloes,  1  Grill,  430. 

Eeputation  is  not  admitted  upon  questions  of  freedom ;  If  alls  v.  Relmsley,  4 
Har.  &  Johns.  243 ;  Gregory  v.  Baugh,  4  Band.  611. 

Contra,  Mahoney  v.  Ashton,  4  Har.  &  McHen.  63,  295 ;  Chancellor  v.  Milly, 
9  Dana,  23. 


EEPUTATION.  49 

the  following  sanctions  appear  to  be  necessary  to  warrant  a  pre- 
sumption from  such  evidence. 

First,  in  order  to  warrant  sucli  a  presumption,  tlie  fact  to  which 
the  reputation  or  tradition  applies,  must  in  general  be  of  a  public 
nature ;  for  otherwise  it  cannot  be  presumed  that  the  persons  from 
whom  the  knowledge  is  derived  possessed  the  means  of  knowledge, 
or  if  they  did  possess  the  means,  that  their  attention  and  obser- 
vation were  attracted  to  it :  and  therefore  such  evidence  is 
admissible  in  cases  of  character,  public  prescriptions,  and  customs 
relating  to  manors,'  and  parishes,  and  of  rights  of  common,  public 
boundaries  and  highways.^  Such  evidence  is  also  received  with 
respect  to  the  existence  of  a  modus, ''  or  a  right  to  free  warren," 
because,  although  they  are  in  strictness  private  rights,  yet  they 
affect  a  great  number  of  occupiers  within  a  district.'' 

So  where  the  defendant  in  trespass  pleaded  a  prescriptive  right 
of  common  over  the  hcus  in  quo,  at  all  times,  for  his  cattle  levant 
and  couchant,  and  the  plaintiff,  in  his  replication,  prescribed  in 
right  of  his  messuage  to  use  the  *Iocils  in  quo  for  tillage  with 
corn,  and  until  the  taking  in  of  the  corn  to  hold  and  enjoy  '- 
the  same  in  every  year,  and  traversed  the  defendant's  prescription, 
on  which  issue  was  joined,  it  was  held'  that  many  persons  besides 
the  defendant  having  a  right  of  common  over  the  locus  in  quo, 
evidence  of  reputation,  as  to  the  right  claimed  by  the  plaintiff,  was 
admissible,  a  foundation  having  been  first  laid,  by  evidence  of  the 
enjoyment  of  such  right.  But  it  seems  to  be  now  settled,  although 
the  question  was  long  sub  judice,  that  general  evidence  of  reputation 
is  not  admissible  in  the  case  of  a  private  prescription  or  other 
claim.  In  the  case  of  Moorewood  v.  Wood,^  the  question  was 
whether  general  evidence  of  reputation  as  to  a  prescriptive  right 
of  digging  stones  on  the  lord's  waste,  annexed  to  a  particular 
estate,  was  admissible  ;  and  the  Judges  were  divided  upon  it.  In 
Outram  v.  Morewood,"  Lord  Kenyon  -said,  "  that  although  a  general 

'  Barnes  v.  Mawson,  1  M.  &  S.  77 ;  Eng.  0.  L.  B.  28. 

'  1  M.  &  S.  686 ;  Eng.  0.  L.  E.  28;  6  M.  &  W.  234;  see  tit.  Custom— Pebs- 

CEIPTION,  &C. 

'  2  Ves.  512  ;  Gwill.  854. 
'  13  M.  &  W.  332. 

'  Per  Dampier,  J.,  1  M.  &  S.  691 ;  Eng.  C.  L.  E.  28 ;  see  tit.  Tithes. 
'  WeeJcs  V.  Sparke,  1  M.  &  S.  679 ;  Eng.  0.  L.  E.  28 ;  Pritchard  v.  Powell,  10 
Q.  B.  589 ;  Eng.  0.  L.  E.  59. 
■°  32  Geo.  III.,  B.  E.  14  Bast,  327,  in  note. 
»  5  T.  E.  123. 

4 


50  MEDIATE    EVIDENCE. 

right  miglit  be  proved  by  traditionary  evidence,  a  particular  fact 
could  not."  There  the  question  was,  whether  Cow  Close  had  been 
part  of  the  estate  of  Sir  J.  Zouch,  out  of  which  certain  rents  and 
coals  had  been  reserved ;  and  the  Court  held  that  the  fact  could 
not  be  proved  by  entries  made  by  a  third  person  deceased,  in  his 
books  of  receipts  of  rents  from  his  tenant,  such  entries  being 
considered  as  rfo  more  than  a  declaration  of  the  fact  by  such  third 
person ;  which  was  different  from  entries  by  a  steward,  who  thereby 
charged  himself  with  the  receipt  of  money.  In  Doe  v.  Thomas," 
where  in  an  action  of  ejectment  the  lessor  of  the  plaintiff  claimed 
as  tenant  in  tail  under  the  will  of  A.  who  gave  B.  his  son  an  estate 
for  life,  and  the  defendant  claimed  as  the  devisee  of  B.,  the 
question  was,  whether  the  land  in  dispute  was  part  of  the  entailed 
.estate,  or  had  been  purchased  by  B. ;  it  was  held  that  evidence  of 
^  reputation*  that  the  land  had  been  purchased  of  J.  S.hj  A. 
^  was  inadmissible."  And  although  traditionary  reputation  is 
evidence  of  boundary  between  two  parishes  and  manors,*  it  is  not 
evidence  of  boundary  between  two  private  estates.'^  Upon  the 
primciple  that  it  is  a  matter  of  general  and  public  notoriety,  a  par- 
ticular historical  fact  may,  as  it  seems,  be  proved  by  reputation  of 
the  fact,  and  (as  falling  within  the  scope  of  such  evidence)  by  a 
generally  received  historical  account  of  it.'^ 

"  14  East,  323. 

p  In  The  Bishop  of  Meath  v.  Lord  Belfield,  B.  N.  P.  295,  it  was  held  that 
evidence  of  reputation  was  admissible,  in  quare  impedit,  to  prove  that  one  Knight 
had  been  in  by  the  presentation  of  one  from  whom  the  defendant  claimed ;  but  in 
Re  Eriswell,  3  T.  E.  723,  Lord  Kenyon  denied  that  this  case  was  law. 

1  Nicholls  V.  Parker,  Ex.  Summer  Ass.  1805,  cor.  Le  Blanc,  J.,  Taunton,  1795  ; 
R.  V.  Parrish  of  Hammersmith,  Silt,  after  Hil.  1776  ;  Down  v.  Hale,  cor.  Law- 
rence, see  14  East.  331 ;  Peake,  Bv.  App.  33 ;  Ireland  v.  Poiuell,  Salop  Sum. 
Ass.  Peake,  Ev.  App.  33 ;  Brisco  v.  Lomax,  8  Ad.  &  E.  198. 

■■  Clothier  v.  Chapman,  14  East,  331,  in  the  note. 

«  B.  N.  P.  248 ;  1  Salk.  282  ;  1  Veut.  151 ;  Skin.  14,  623  ;  and  see  Tliomas  v. 
Jenkins,  6  Ad.  &  E.  525 ;  Eng.  C.  L.  E.  51. 

'  That  this  is  not  the  received  law  in  the  United  States,  see  the  cases  cited  in 
the  note  2,  p.  46.    Ante. 

'  Historical  facts  of  general  and  public  notoriety  may  be  proved  by  reputation, 
and  that  reputation  may  be  established  by  historical  works  of  known  character 
and  accuracy.  But  evidence  of  this  sort  is  coniined  in  a  great  measure  to  ancient 
facts  which  do  not  pre-suppose  better  evidence  in  existence ;  and  when  from  the 
nature  of  the  transaction  or  the  remoteness  of  the  period,  or  the  public  and  general 
reception  of  the  facts,  a  just  foundation  is  laid  for  general  confidence.  The  work 
of  a  living  author  who  is  within  the  reach  of  the  process  of  the  court  can  hardly 


EEPUTATION.  51 

2ndly.  Neither  reputation  nor  traditionary  declarations  are 
admissible  as  to  a  particular  fact."  Evidence  of  reputation  upon 
general  points  is  receivable,  because  all  mankind  being  interested 
in  them,  it  is  natural  to  suppose  that  they  may  be  conversant  with 
the  subjects,  and  that  they  should  discourse  together  about  them," 
all  having  the  same  means  of  information ;  but  this  does  not  apply 
to  particular  facts,  which  may  not  be  notorious,  which  may  be 
misrepresented  or  misunderstood,  and  which  may  have  been  con- 
nected with  other  facts  by  which  their  efi'ect  would  be  limited  and 
explained.  Such  evidence  would  obviously  be  open  to  all  the 
uncertainty,  and  liable  to  all  the  objections  incident  to  mere  hear- 
say evidence,  and  is  therefore  of  too  slight  a  nature  to  support  any 
presumption.  And,  therefore,  upon  a  question  of  modus,  evidence 
of  the  declaration  of  an  old  person,  since  deceased,  that  so 
*much  per  acre  had  always  been  paid  in  lieu  of  tithes,  would 
be  good  evidence  as  to  reputation ;  but  a  declaration  by  such  a  per- 
son that  he  paid  so  much  in  lieu  of  tithes  would  not  be  admissible, 
since  it  is  a  particular  fact.''  So  in  those  cases  where  evidence  of 
perambulations  is  admitted,  it  is  in  the  nature  of  hearsay  evidence, 
not  of  particular  acts  done,  as  that  such  a  turf  was  dug,  or  such 
a  post  put  down  in  a  particular  spot;  but  it  is  evidence  of  the 
ambit  of  any  particular  place  or  parish,  and  of  what  the  persons 
accompanying  the  survey  have  been  heard  to  say  and  do  on  such 
occasion.'' 

Srdly.  If  the  reputation  or  tradition  relate  to  the  exercise  of 
a  right  of  privilege,  it  should  be  supported  by  proof  of  acts  of 
enjoyment  of  such  right  or  privilege  within  the  period  of  living 
memory ; '  and  when  that  foundation  has  been  laid,  then,  inasmuch 

'  Per  Lord  Kenyon,  Outram  v.  Morewood,  5  T.  E.  123. 
°  Per  Lord  Kenyon,  see  Moreiuood  v.  Wood,  14  Bast,  329. 
"  Harwoodx.  Sims,  1  Wight,  112. 

y  Per  Lord  Ellenborough,  1  M.  &  S.  687-;  Eng.  0.  L.  R.  28. 
'■  See  the  observations  of  the  Judges  in  Weeks  v.  Sparke,  1  M.  &  S.  679 ;  Eng. 
0.  L.  B.  28 ;  and  of  Grose,  J.,  5  T.  K.  32. 


be  deemed  of  this  nature.  He  may  be  called  as  a  witness ;  he  may  be  examined 
as  tO'  the  sources  and  accuracy  of  his  information ;  and  especially  if  the  facts 
which  he  relates  are  of  a  recent  date,  and  may  be  fairly  presumed  to  be  within  the 
knowledge  of  many  living  persons,  from  whom  he  has  derived  his  materials  ;  there 
would  seem  to  be  cogent  reasons  to  say  that  his  book  was  not,  under  such  circum- 
stances, the  best  evidence  within  the  reach  of  the  parties ;  Morris  v.  Harmar's 
Heirs,  7  Peters,  554. 


52  MEDIATE    EVIDENCE. 

as  there  cannot  be  any  -witnesses  to  speak  to  acts  of  enjoyment 
beyond  tbe  time  of  liAdng  memory,  evidence  is  to  be  admftted  from 
old  persons  conversant  with  the  neighbourhood  where  the  right  is 
claimed,  of  what  they  have  heard  other  old  persons,  who  were  in  a 
situation  to  know  what  the  rights  were,  say  concerning  them." 

Another  class  of  evidence,  which  is  admissible,  though  the  usual 
tests  are  inapplicable,  consists  of  declarations  made  by  one  of  the 
parties  to  a  suit,  in  the  nature  of  a  confession  or  admission  con- 
trary to  his  own  interest.  Whatever  a  party  voluntarily  admits 
to  be  true,  though  the  admission  be  contrary  to  his  interest,  may 
reasonably  be  taken  for  the  truth.  The  same  rule  it  will  be  seen 
applies  to  admissions  by  those  who  are  so  identified  in  situation 
and  interest  with  a  party  that  their  declarations  may  be  considered 
to  have  been  made  by  himself.'  *As  to  such  evidence,  the 
-'  ordinary  tests  of  truth  are  properly  dispensed  with ;  they  are 
inapplicable:  an  oath  is  administered  to  a  witness  in  order  to 
impose  an  additional  obligation  on  his  conscience,  and  so  to  add 
weight  to  his  testimony ;  and  he  is  cross-examined  to  ascertain  his 
means  of  knowledge,,  as  well  as  his  intention  to  speak  the  truth. 
But  where  a  man  voluntarily  admits  a  debt  or  confesses  a  crime, 
there  is.  little  occasion  for  confirmation ;  the  ordinary  motives  of 
human  conduct  are  sufB.cient  warrants  for  belief. 

There  is  also  another  species  of  hearsay  evidence,  which  in 
some  instances  may  be  referred  to  this  class.  Where  a  declaration 
accompanies  an  act,  it  is  frequently  admissible  as  part  of  the  act 
itself.  Such  declarations,  it  will  be  seen,  are  more  frequently  used 
as  collateral  or  indirect  evidence  from  which  some  other  fact  is  to 
be  inferred,  than  as  direct  evidence  of  a  fact ;  and  as  such  will  be 
afterwards  considered.  Suffice  it  to  observe,  for  the  present,  that 
declarations  are  usually  admissible  where  the  fact  which  they 
accompany  is  material  and  admissible",  and  where  the  nature  and 
quality  of  the  act  are  also  material;  for  in  such  instances  a 
declaration  accompanying  the  act  may  either  be  regarded  as  part 
of  the  act  itself,  or  as  the  most  proximate  and  Satisfactory  evidence 
for  explaining  and  illustrating  the  fact.' 

■>  1  M.  &  S^  679 ;  Eng.  0.  L.  E.  28  ;  14  East.  330 ;  12  East,  65. 

''  See  Vol.  II.  tit.  Admissions. 

«  7  Ad.  &  E.  361 ;  Eng.  C.  L.  E.  53 ;  R.  v.  Bliss,  Ibid.  550. 

'  The  rules  regulating  the  admissibility  of  declarations  accompanying  acts  are 
difficult,  if  not  impossible,  to  be  defined ;  the  general  principles  on  -which  they  are 


DECLARATIONS.  53 

Experience  supplies  a  reasonable  presumption  tliat  a  declaration 
made  by  a  person  in  doing  an  act,  as  to  his  intention  and  object, 
and  wliere  tbat  person  laboured  under  no  temptation  to  deceive, 
was  spontaneous,  natural,  and  consistent  with  truth.  The  most 
usual  example*  adduced  in  illustration  of  this  doctrine,  is  that  of  a 
declaration  made  by  a  trader,  at  the  time  of  deserting  his  house  or 
place  of  business,  as  to  his  intention  and  object  in  so  doing,  in 
order  to  prove  an  act  of  bankruptcy.  Here  it  is  observable  that 
the  fact  of  departure  is  material :  the  question  *is  as  to  the 
nature  and  quality  of  the  act,  that  is,  as  to  the  object  and 
intention  of  the  trader  in  doing  that  act ;  and  to  prove  this,  the 
declarations  which  he  made  at  the  time  of  leaving  his  house  or 
counting-house,  are  constantly  admitted  in  proof  of  his  design,  as 
being  natural  and  spontaneous  indications  of  the  truth,  although 
his  subsequent  declarations,  even  upon  oath,  would  be  absolutely 
rejected. 

It  is  emphatically  to  be  observed,  that  the  rule  admitting  evidence 
of  a  declaration  accompanying  an  act,  is  not  founded  on  any 
general  presumption  that  in  every  such  case  credit  is  to  be  given 
to  the  veracity  of  the  declarant ;  for  if  that  were  so,  and  acted  on 
as  a  general  rule,  the  acts  of  strangers  would  be  admissible  for  the 
purpose  of  sanctioning  the  admission  of  such  declarations.  But,  as 
will  be  seen,  the  acts  of  strangers  are  excluded,  for  reasons  as 
strong,  if  not  stronger,  than  those  which  exclude  the  mere  decla- 
rations of  strangers ;  and  as  the  transactions  of  mere  strangers,  not 
in  themselves  material  to  the  subject  of  inquiry,  are  properly 
regarded  as  inadmissible,  so  likewise  must  declarations  be  excluded 
which  depend  for  their  credit  on  their  connection  with  the  acts  of 
strangers. 

■^  See  below,  tit.  Witness  ;  Vol.  II.,  tit.  Bankrupt. 

founded  are  well  stated  in  the  text.  These  declarations  are  not  received  as  proofs 
of  facts — ^but  as  facts  showing  the  motives  for  an  act  or  the  character  of  it ; 
Blight  V.  Ashley,  1  Pet.  C.  0.  Rep.  22  ;  Pool  v.  Bridges,  4  Pick.  378;  Boyden 
V.  Moore,  11  lb.  365 ;  Tompkins  v.  Saltnarsh,  14  Serg.  &  R.  275.  "  When  an 
act  is  done,  to  which  it  is  necessary  to  ascribe  a  motive,  it  is  always  considered 
that  what  is  said  at  the  time,  from  whence  the  motive  may  be  collected,  is  part 
of  the  res  gestae,"  Per  Rogers,  J.,  Gilchrist  v.  Ball,  8  Watts,  358.  Upon  a 
question  of  boundary,  the  declaration  of  a  deceased  person  who  pointed  out  a  line 
of  marked  trees,  saying  it  was  a  known  division  line,  was  held  to  be  admissible 
in  evidence,  as  part  of  the  res  gestce;  but  any  further  declaration  made  by  him  at 
the  time  of  a  fact  material  to  the  issue,  was  held  to  be  inadmissible ;  Van  Dusen 
V.  Turner,  12  Pick.  532.  (j. 


54  MEDIATE    EVIDENCE. 

"Whetlier,  therefore,  declarations  accompanying  acts  are  to  be 
deemed  of  value  from  credit  given  to  tlie  declarant,  or  as  being 
part  and  parcel  of  tbe  collateral  circumstances  from  wbicli  the  jury- 
are  to  draw  tbeir  conclusion  as  to  the  nature  and  quality  of  the  act 
itself,  it  is  essential  tbat  the  act  itself  should  be  material  and 
admissible.  If,  for  the  sake  of  illustration,  the  question  for  what 
purpose  a  sum  of  money  was  paid  by  J.,  to  B.,  were  material  to 
the  issue,  what  A.  said  to  B.  on  paying  the  money  would  be  most 
important,  it  may  be,  conclusive  evidence.  But  if  A.  and  B.  were 
strangers  to  the  cause,  and  the  fact  of  payment  were  not  material 
to  the  issue,  then,  although  A.  at  the  time  of  payment  made  a 
declaration  as  to  the  truth  of  a  fact  material  to  the  issue,  as  that  he 
had  lost  a  wager  betted  on  that  fact,  the  declaration  would  neither 
be  evidence  in  itself  nor  as  explanatory  of  the  act  of  A., 
-■  *which,  as  being  the  act  of  a  stranger,  was  also  inadmis- 
sible.'i 

These  classes  of  evidence  are  distinguishable  from  all  others  by 
this  characteristic  difference,  that  such  evidence  may  be  resorted 
to  in  the  first  instance  as  original  evidence,  whilst  all  other 
mediate  testimony  is  admissible  only  on  a  principle  of  necessity,  as 
SECONDARY  evidence,  after  the  failure  of  evidence  of  a  higher  and 
more  satisfactory  nature.' 

"  The  principle  of  admitting  declarations  as  accompanying  acts  was  muoh 
considered  in  tlie  case  of  Doe  d.  Tatham  v  Wright,  7  Ad.  &  E.  313 ;  Eng.  0.  L. 
R.  34;  5  Nev.  &  M.  132 ;  Eng.  0.  L.  E.  36 ;  4  Bing.  N.  C.  489 ;  Eng.  0.  L.  E. 
33 ;  2  Nev.  &  P.  305. 

'  Tiiere  is  this  essential  distinction  between  a  declaration  which  is  admissible  as 
accompanying  an  act,  and  one  admissible  merely  as  secondary  evidence ;  in  the 
former  case,  the  admissibility  results  immediately  from  its  connection  with  a  fact 

'  Declarations,  which  form  part  of  the  res  gestae,  which  explain  and  give  charac- 
ter to  what  was  done  at  the  time,  are  not  liable  to  the  objection  that  they  are 
hearsay ;  Kirby  v.  Tlie  State,  7  Yerger,  259  ;  Evans  v.  Jones,  8  Yerger,  461 ; 
Marr  v.  Hill,  10  Missouri,  320;  Kinzer  v.  Mitchell,  8  Barr,  64;  St.  Glair  v. 
Shale,  9  Barr,  252  ;  Gasky  v.  Haviland,  13  Alabama,  314 ,  Elkins  v.  Hamilton, 
20  Vermont,  627  ;  HolhrooTc  v.  Murray,  20  Vermont,  525  ;  Russell  v.  Frishie, 
19  Conn.  205  ;  Bedding  v.  Spruance,  4  Barring.  217  ;  Roulhac  v.  TWw'fe,  9  Iredell, 
63 ;  Biles  v.  Holmes,  11  Iredell,  16  ;   Tomkies  v.  Reynolds,  17  Alabama,  109. 

When  an  account  is  made  out  by  the  creditor,  and  receipted  by  him,  the  pre- 
sumption arises  that  it  was  paid  by  the  debtor.  If  the  creditor  in  the  receipt 
states  that  he  received  the  money  from  a  third  person,  it  is  evidence  of  that  fact 
against  the  debtor.  So,  also,  if,  at  the  time,  he  had  verbally  admitted  or  declared 
such  to  be  the  fact,  it  would  be  competent  testimony  against  the  debtor,  as  a  part 
of  the  res  gestae  ;  Harrison  v.  Harrison,  9  Alabama,  73. 


SECONDAKY    MEDIATE    EVIDENCE.  55 

Next,  as  to  such,  mediate  evidence  as  is  of  a  secondary  description. 

As  information  derived  through  another  person  is  in  its  own 
nature  inferior  in  point  of  certainty  to  that  which  is  derived  imme- 
diately from  an  eye  or  ear  witness/  so,  ^even  in  cases  where 
the  party  from  whom  such  testimony  is  derived  delivered  it    '- 

material  to  the  cause,  and  already  in  evidence ;  whilst  to  warrant  the  admission  of 
secondary  evidence,  a  foundation  must  first  be  laid  by  proof  of  extrinsic  circum- 
stances, usually  unconnected  with  the  cause. 

s  The  highest  degree  of  certainty  of  which  the  mind  is  capable,  with  respect  to 
the  existence  of  a  particular  fact,  consists  in  a  knowledge  of  it  derived  from  actual 
perception  of  the  fact  by  the  senses ;  and  even  this  degree  of  evidence  is  obviously 
capable  of  being  strengthened  or  weakened  by  particular  circumstances.  It  is 
seldom,  however,  that  a  jury  can  act  upon  knowledge  of  this  description ;  it  rarely 
happens  that  a  fact  which  can  be  decided  by  mere  inspection  is  submitted  to  their 
consideration.  In  some  instances,  however,  an  inspection  by  the  jury  conduces  to 
their  decision ;  where  the  question  turns  upon  local  situation,  a  view  may  be  had. 
So  the  Judges  iu  cases  of  mayhem,  used  to  act  sitper  visum  vidneris  ;  so  a  jury 
of  matrons,  upon  a  plea  of  pregnancy,  inspect  the  person  of  the  prisoner.  The 
degree  of  evidence  which  ranks  the  second  in  the  scale,  consists  of  information 
derived,  not  from  actual  perception  by  our  senses,  but  from  the  relation  and  infor- 
mation of  others  who  have  had  the  means  of  acquiiing  actual  knowledge  of  the 
facts,  and  in  whose  qualifications  for  acquiring  that  knowledge  and  retaining  it, 
and  faithfulness  in  afterwards  communicating  it,  we  can  place  confidence. 

Information  thus  derived  is  evidently  inferior,  in  point  of  certainty,  to  that  know- 
ledge which  is  acquired  by  means  of  the  senses,  since  it  is  one  step  removed  from 
the  highest  and  most  perfect  source.  The  truth  of  the  fact  in  question  depends 
upon  the  powers  of  perception  possessed  by  another ;  the  opportunity  afforded  him 
of  applying  them ;  his  diligence  in  making  that  application,  the  strength  of  his 
recollection,  and  his  inclination  to  speak  or  to  write  the  truth.  It  is,  however, 
upon  knowledge  thus  derived  that  juries  must  in  general  act ;  they  must  be 
informed  of  the  res  gestm  by  those  who  have  been  eye  and  ear  witnesses  of  them  ; 
their  means  of  knowledge  and  their  faithful  communication  of  it,  being  guarded  by 
the  securest  means  which  the  law  can  devise.  A  third,  and  still  inferior  ground  of 
belief,  consists  in  information  which  we  derive,  not  immediately  from  one  who  has 
had  actual  knowledge  of  the  fact  by  the  perception  of  his  senses,  but  from  one 
who  knows  nothing  more  of  the  fact  than  that  it  has  been  asserted  by  some  other 
person ;  this  species  of  evidence,  which  is  generally  termed  hearsay  evidence,  is 
evidently  inferior,  in  point  of  certainty,  to  the  former,  even  for  the  common  pur- 
poses of  daily  intercourse  in  society ;  for,  although  the  author  of  the  assertion  may 
be  known,  and  his  veracity  highly  appreciated,  there  is  a  greater  latitude  afforded 
for  deception,  mistake,  and  misapprehension,  and  for  defect  of  memory,  and  hence 
a  degree  of  doubt  must  result,  which  must  evidently  be  increased  in  proportion  to 
the  number  of  persons  through  whom  the  communication  has  been  transmitted ; 
and,  consequently,  where  the  author  is  unknown,  and  the  number  of  intermediate 
parties  who  have  acted  in  the  transmission  is  also  unknown,  the  knowledge  must 
be  vague  and  uncertain,  even  as  applied  to  the  common  affairs  of  life.  But  for  the 
purposes  of  proof  in  a  court  of  justice,  a  still  stronger  reason  operates  to  the 


56  MEDIATE    EVIDENCE. 

^^_  under  the  sanction  of  a  judicial  *oath,  and  although  the  party 
-^  to  be  afiected  by  it  had  the  opportunity  to  cross-examine,  yet 
the  testimony  so  given  would  still  be  inferior  in  degree  to  the 
direct  testimony  of  the  same  -witness,  and  consequently  such 
inferior  evidence  would  be  excluded  by  the  general  principle 
already  adverted  to,  so  long  as  the  original  witness  could  himself 
be  produced. 

But  in  ordinary  cases,  where  the  testimony  formerly  given  con- 
sists of  mere  declarations,  which  rest  principally,  if  not  entirely, 
on  the  credit  of  the  party  who  made  them,  such  evidence  is  of  a 
still  weaker  and  more  imperfect  description,  not  being  sanctioned 
by  either  of  the  great  tests  of  truth  already  mentioned.  Hence 
the  general  rule  of  *law  is,  that  such  evidence  cannot  be 
-^    received  except  in  particular  instances  where  the  necessity 

rejection  of  such  evidence,  namely,  that  it  cannot  be  subjected  to  the  ordinary 
tests  which  the  law  has  provided  for  the  ascertainment  of  truth,  the  obligation  of 
an  oath,  and  the  opportunity  afforded  for  cross-examination  ;  for  these,  or  equiva- 
lent ones,  are  the  guarantees  of  truth,  which  the  law  in  ordinary  oases  invariably 
requires.  In  the  common  course  of  life,  evidence  of  this  nature  is  frequently,  nay 
usually,  acted  upon  without  scruple ;  but  in  the  ordinary  affairs  of  life  there  is,  in 
general,  no  considerable  temptation  to  deceive  :  on  the  contrary,  a  legal  investiga- 
tion of  a  fact,  which  involves  the  highest  and  dearest  interests  of  the  parties 
concerned — property,  character,  na;y  liberty,  or  life  itself — presents  the  greatest 
possible  temptations  to  deceive ;  and  therefore  that  evidence  which  is  admitted 
before  a  jury  must  be  guarded  by  greater  restraints  and  stricter  rules  than  those 
which  are  sufficient  for  the  common  purposes  of  life. 

Even  if  it  were  to  be  assumed  that  one  who  had  been  long  enured  to  judicial 
habits  might  be  able  to  assign  to  such  evidence  just  so  much  and  no  greater  credit 
than  it  deserved,  yet,  upon  the  minds  of  a  jury  unskilled  in  the  nature  of  judicial 
proofs,  evidence  of  this  kind  would  frequently  make  an  erroneous  impression. 
Being  accustomed,  in  the  common  concerns  of  life,  to  act  upon  hearsay  and  report, 
they  would  naturally  be  inclined  to  give  such  credit  when  acting  judicially ;  they 
would  be  unable  to  reduce  such  evidence  to  its  proper  standard,  when  placed  in 
competition  with  more  certain  and  satisfactory  evidence ;  they  would,  in  conse- 
quence of  their  previous  habits,  be  apt  to  forget  how  little  reliance  ought  to  be 
placed  upon  evidence  which  may  so  easily  and  securely  be  fabricated ;  their  minds 
would  be  confused  and  embarrassed  by  a  mass  of  conflicting  testimony ;  and  they 
would  be  liable  to  be  prejudiced  and  biassed  by  the  character  of  the  person  from 
whom  the  evidence  was  derived.  In  addition  to  this,  since  every  thing  would 
depend  upon  the  character  of  the  party  who  made  the  assertion,  and  the  means  of 
knowledge  which  he  possessed,  the  evidence,  if  admitted,  would  require  support 
from  proof  of  the  character  and  respectability  of  the  asserting  party ;  and  every 
question  might  branch  out  into  an  indefinite  number  of  collateral  issues.  . 

Upon  these  grounds  it  is  that  the  mere  recital  of  a  fact,  that  is,  the  mere  oral 
assertion  or  written  entry  by  an  individual  that  a  particular  fact  is  true,  cannot  be 
received  in  evidence.    See  Gambler  on  the  Study  of  Moral  Evidence. 


SBCONDAEY,  WHY  GENERALLY  EXCLUDED.    57 

is  urgent,  and  peculiar  considerations  sanction  a  departure  from 
the  general  rule. 

"Where  a  witness  to  facts  might  be  produced  and  examined  on 
oath,  little  doubt  could  be  entertained  that  hearsay  evidence  of  his 
mere  declaration,  heard  and  detailed  by  another,  ought  to  be 
excluded,  so  infinitely  inferior  in  degree  must  such  hearsay  evi- 
dence be  when  compared  with  direct  testimony  delivered  in  open 
Court. 

Immediate  testimony  is  given  under  the  solemn  sanction  of  an 
oath,  in  the  presence  of  the  public ;  the  jury  have  the  advantage 
of  observing  the  deportment  of  the  witness,  the  manner  in  which 
he  gives  his  testimony :  in  particular,  whether  as  one  relying  on 
the  consistency  of  truth,  he  answers  promptly  and  readily  accord- 
ing to  the  suggestions  of  his  memory,  or  with  hesitation  and 
difficulty,  either  attempting  to  evade  direct  answers,  or  to  gain 
time  to  weigh  them,  in  order  to  avoid  contradictions  and  incon- 
sistency; whether  he  readily  answers  all  questions  indifferently, 
whether  they  make  in  favour  of  or  against  the  party  whose  witness 
he  is,  or  he  gives  favourable  answers  on  the  one  side  with  willing- 
ness and  readiness,  on  the  other  with  difficulty  and  reluctance. 
The  attention  of  such  a  witness  is  called  directly  and  immediately 
to  the  very  facts  of  which  the  disclosure  is  material ;  his  means  of 
knowledge,  memory,  situation,  connection  with  the  parties,  and 
his  motives,  are  subject  to  the  severe  and  trying  test  of  cross- 
examination,  by  means  of  which  fraudulent  witnesses  are  often 
surprised  and  detected. 

In  all  these  important  particulars  mediate  evidence  is  usually 
defective ;  for  although  no  doubt  be  entertained  that  the  witness 
examined  heard  from  another  the  statement  which  he  is  ready  to 
repeat,  yet  that  other  did  hot  make  the  communication  under  the 
sanction  of  an  oath;' there  are  no  sufficient  means  of  ascertaining 
whether  he  had  the  opportunity  or  the  capacity  for  minute  and 
accurate*  observation,  nor  of  judging  as  to  the  tenacity  of 
his  memory:  his  attention  in  making  the  communication  '- 
may  not  have  been  sufficiently  directed  to  many  of  the  particular 
facts,  which  afterwards  appear  to  be  material ;  he  may  have  omitted 
many  which  are  important,  or,  not  knowing  that  any  such  use 
would  afterwards  be  made  of  his  declarations,  may  have  expressed 
himself  without  that  caution  and  accuracy  which  he  would  have 
deemed  to  be  necessary  had  he  been  examined  under  the  sanction 
of  an  oath  before  a  public  tribunal,  having  his  attention  particu- 


58  MEDIATE    EVIDENCE. 

larly  directed  to  eacli  material  fact,  and  witTi  a  fall  knowledge  of 
the  important  consequences  whicli  migHt  result  from  Ms  testimony 
witli  respect  to  tlie  property,  liberty,  or  lives  of  others,  and  the 
necessity  for  attention  and  caution  in  his  answers.  In  addition 
to  this,  he  may  have  been  induced  to  misrepresent  facts  on  the 
particular  occasion,  under  the  influence  of  indirect  motives,  which, 
without  the  opportunity  of  cross-examination,  it  is  impossible  to 
trace  or  even  to  surmise. 

Where  the  communication  is  derived  through  several  interme- 
diate witnesses,  it  is  still  weaker  in  degree ;  there  is  greater  latitude 
afforded  for  misunderstanding  and  mistake,  or  even  designed  wilful 
misrepresentation  ;  and  it  is  more  difficult  to  appreciate  the  veracity 
of  the  original  witness,  the  means  which  he  possessed  of  acquiring 
information,  and  the  motives  by  which  he  was  actuated  in  making 
the  communication.  Ordinary  experience  shows  how  little  credit 
is  due  to  such  mediate  testimony,  and  how  frequently  it  happens 
that  even  most  absurd  and  improbable  reports  acquire  credit. 

But  where  such  immediate  testimony  is  unattainable,  and  declara- 
tions oral  or  written  can  be  proved  to  have  been  made,  why,  it  may 
be  asked,  should  not  these,  in  default  of  better  evidence,  be  admitted? 
as'  such  evidence  would,  in  numerous  instances,  be  sufficient  to  con- 
vince an  ordinary  individual,  why  should  truth  derivable  from  such 
evidence  be  exckided  ?  The  answer  is,  because  if  such  *evi- 
■J  dence  were  gen£Tally  receivable,  the  uncertainty  and  confusion 
which  would  result  from  its  general  reception  would  far  outweigh 
the  benefit  which  might  possibly  be  derived  from  its  admission  in 
particular  instances. 

The  law  for  regulating  the  reception  of  evidence  ought  to  proceed 
upon  certain  grounds,  and  prescribe  plain  and  determinate  limits : 
if  none  were  to  be  prescribed,  the  most  serious  inconvenience 
would  be  experienced  in  the  administration  of  justice ;  the  trials  of 
causes  would  be  unnecessarily  protracted  by  the  admission  of 
unnecessary  evidence,  and  the  attention  of  the  jurors  would  often 
be  distracted  from  the  consideration  of  that  which  was  material 
and  useful,  and  applied  to  that  which  was  unimportant,  or  even 
irrelevant :  on  the  other  hand,  indefinite  and  obscure  boundaries, 
which  occasioned  the  admission  of  evidence  to  be  encumbered  with 
doubts  and  difficulties,  would  be  worse  than  none. 

To  take  a  strong  case :  suppose  that  a  man,  asserting  that  he  is 
urged  by  the  reproaches  of  his  conscience  to  confess  a  crime  of 
great  enormity,  surrenders  himself  into  the  hands  of  justice,  and 


SECONDARY,  WHY  GENERALLY  EXCLUDED.    59 

that  liis  ample  confession  involves  others  as  having  been  his  guilty 
associates ;  it  may  easily  be  supposed  that  in  such  a  case  the  appa- 
rently sincere  penitence  of  the  self-accuser,  and  the  great  improba- 
bility that  such  a  statement  under  the  circumstances  could  possibly 
be  founded  on  any  but  sincere  motives,  would  strongly  tend  to 
induce  one  who  heard  the  confession,  and  knew  the  circumstances 
under  which  it  was  made,  to  give  it  credit.  This  may  readily  be 
admitted  :  the  question,  however,  is  not  what  might  happen  under 
special  circumstances,  but  whether  they  warrant  a  general  rule,  and 
whether  a  general  rule  which  would  include  such  evidence  would 
not  also  include  a  great  deal  more  of  a  suspicious  and  unsatisfactory 
nature.  In  order  to  form  a  conclusion  on  this  subject,  all  peculiar 
■and  adventitious  circumstances  as  to  the  particular  manner,  conduct 
and  demeanouj  of  the  penitent,  his  expressions  of  sorrow  and  con- 
.trition,  *must  be  left  out  of  the  account ;  these  are  merely 
adventitious,  and  are  circumstances  in  themselves  too  variable  '- 
and  indefinite  to  furnish  a  rule  of  admission  or  exclusion.  Stripped 
of  such  merely  casual  circumstances  as,  whatever  their  influence 
might  be  in  particular  instances,  could  supply  no  general  and 
certain  rule,  the  question  would  be,  whether  the  considera,tion  that 
the  party  accusing  another  avowed  his  own  guilt,  to  the  same  or  it 
may  be  to  a  less  extent,  supplied  a  general  sanction  for  the  recep- 
tion of  such  evidence.  On  this  question  it  is  difficult  to  raise  a 
doubt. 

To  ascertain  by  what  impulses  and  motives  a  person  so  situated 
might  be  actuated  in  making  such  a  statement,  is  far  beyond  the 
power  of  human  wisdom ;  that  he  was  really  the  guilty  person  he 
avowed  himself  to  be,  might  indeed  be  readily  inferred,  so  far  as 
he  alone  was  concerned ;  but  in  charging  others  as  his  associates,  it 
is  far  from  impossible  that  he  might  practice  deceit  or  misrepre- 
sentation from  sinister  motives :  it  might  be  in  the  hope  of  pro- 
curing in  his  own  favour  a  mitigation  of  punishment  or  even  a 
pardon ;  it  might  be  for  the  purpose  of  extenuating  his  own  con- 
duct ;  or  even  that  he  acted  from  motives  of  malice  and  revenge,  or 
for  the  sake  of  reward,  in  a  case  where  security  and  reward  were 
held  out  as  inducements  to  a  detection,  or  might  expect  such  a 
result  in  the  event  of  the  conviction  of  the  party  whom  he  thus 
charged  with  being  a  guilty  associate. 

To  establish,  therefore,  a  general  rule,  that  where  a  self-accuser 
at  the  time  of  his  confession  charged  another  with  the  commission 
of  the  same  crime,  the  confession  should  be  received  against  the 


60  MEDIATE    EVIDENCE. 

latter,  would  be  to  admit  evidence  in  many  cases  of  too  suspicious 
and  dangerous  a  description  to  be  relied  on  generally,  especially  by 
juries,  wbo  would  frequently  be  destitute  of  those  collateral  aids 
which,  would  enable  an  individual  acquainted  with  all  the  minute 
circumstances  of  the  case  to  form  his  own  judgment,  and  who  for 
^  want  of  such  means  might  frequently  *be  induced  to  give 
-'  credit  to  a  statement  where  an  individual  would  have  with- 
held his  confidence  altogether. 

Again,  in  respect  of  civil  liability,  it  is  very  possible  that  a 
declaration  by  A,  that  he  was  jointly  liable  with  B  to  the  payment 
of  a  debt  or  duty,  would,  under  particular  circumstances,  entitle 
him  to  credit ;  it  might  be  that  the  very  circumstance  of  his  at 
once  admitting  his  own  responsibility  would  be  a  sanction  for 
believing  that  B  was  also  liable :  but  it  might  also  happen  that 
such  an  admission  was  but  a  mere  artifice,  resorted  to  for  the  pur- 
pose either  of  causing  another  who  was  not  liable  to  contribute  to 
the  payment  of  J.'s  debt,  or  even  resiilted  from  collusion  with  one 
setting  up  a  false  claim  to  defraud  B. 

It  is  obvious,  therefore,  that  a  general  rule  which  admitted  the 
mere  statement  of  one  man  to  be  used  against  another,  merely  on 
the  ground  that  such  statement  was  apparently  contrary  to  the 
interest  of  him  who  made  it,  though  it  might  occasionally  tend  to 
the  ends  of  justice,  would  in  other  instances  be  productive  of  mis- 
chief and  injustice. 

But  if  the  consideration  that  the  statement'  was  apparently 
contrary  to  the  interest  of  the  party  who  made  it,  would  not  in 
general  warrant  its  reception,  it  is  plain  that  the  reasons  for  exclu- 
sion would  operate  still  more  forcibly  to  the  general  exclusion  of 
statements,  the  reception  of  which  was  not  sanctioned  by  some 
general  rule  of  law.  In  individual  instances,  casual  and  adven- 
titious circumstances,  and  in  particular  a  full  conviction  of  the 
veracity  and  accuracy,  as  well  of  the  party  who  made  as  of  the 
party  who  communicated  the  declaration,  would  be  a  sufficient 
ground  for  belief,  on  which  an  individual  might  safely  act ;  but 
such  special  grounds  can  seldom  form  the  basis  of  a  general  rule ; 
and  the  consideration  that  a  man  might  in  particular  instances  trust 
to  such  evidence,  would  supply  no  sufiicient  reason  for  the  general 
reception  of  such  evidence  before  a  jury,  who  would  usually  be 
destitute  of  those  peculiar  means  of  judging  of  the  credit  due  to 
^  the  evidence  by  the  *aid  of  which  an  ordinary  individual 
-'   would  be  enabled  to  decide,  and  consequently  be  peculiarly 


SECONDAEY,    WHEN    ADMISSIBLE.  61 

liable  to  imposition  were  such  evidence  to  be  generally  admis- 
sible. 

Hence  it  is  tbat,  except  in  tbe  instances  wbicli  will  presently  be 
noticed,  where  a  rule  of  exception  can  be  established  to  the 
contrary,  the  law  excludes  all  mediate  or  hearsay  evidence  of 
mere  declarations  made  by  others  to  those  who  are  sworn  and 
examined.  In  so  doing,  the  truth  may  sometimes  be  excluded, 
but  ample  compensation  is  made  by  the  further  exclusion  of  a 
mass  of  evidence  which  would  tend  to  deceive  and  mislead :  the 
result  is,  on  the  whole,  greatly  on  the  side  of  justice :  the  rule 
obstructs  one  source  of  truth,  but  it  also  excludes  a  flood  of  error. 

Next,  then,  in  what  instances,  and  under  what  sanction  does  the 
law  admit  secondary  mediate  evidence  ? 

In  the  first  place,  it  seems  to  be  a  general  rule,  that  where  a 
witness  already  examined  in  a  judicial  proceeding  between  the 
same  parties  is  since  dead,  his  former  examination  is  admissible  as 
secondary  evidence ;  for  in  such  case  the  testimony  was  given 
under  the  obligation  of  an  oath,  and  the  adversary  had,  or  might 
have  had  the  benefit  of  a  cross-examination.' 

"Where,  however,  the  party  against  whom  the  evidence  is  offered 
had  not  the  opportunity  to  cross-examine,  the  deposition  or 
examination  is  usually  inadmissible,  at  least  its  admissibility  is  not 
warranted  by  the  rule  just  adverted  to.  On  these  grounds  it  is 
that  the  depositions  of  witnesses  taken  by  magistrates  in  cases  of 
felony,  under  the  statues  1  &  2  Ph.  &  M.,  c.  13 ;  2  &  3  Ph.  &  M.,  c. 
10 ;  and  7  Geo.  TV.,  c.  64,  though  admissible  when  taken  in  the 
presence  of  the  prisoner,  who  has  thus  had  the  opportunity  to 
cross-examine,  have  been  held  to  be  inadmissible  when  taken  in 
the  absence  of  the  prisoner.''  It  is  again  to  be  observed,  that 
where  a  party  against  whom  such  evidence  is  offered  had  the 
opportunity  to  *cross-examine,  it  is  the  same  thing  in  effect 
as  if  he  had  availed  himself  of  the  opportunity,  provided  it  '- 
was  taken  in  the  course  of  a  proceeding  to  which  he  was  a  party, 
for  otherwise  he  was  not  bound  to  pay  any  attention  to  it. 

The  first  great  class  where  mediate  testimony  is  receivable  as 

*  Vide  infra,  tit.  Depositions  ;  and  See  Vol.  II.,  tit.  Depositions. 

'  The  rule  in  this  country  would  seem  to  be  different ;  Boudereau  et  al.  v. 
Montgomery  et  al.,  4  Wash.  C.  C.  Rep.  186.  But  see  Elliott  v.  Peirsol,  1  Pet. 
337.  G. 


62  MEDIATE    EVIDENCE. 

secondary  evidence  on  special  grounds,  althougli  the  statement  was 
not  on  oatli,  and  althougli  the  adversary  had  no  opportunity  to 
cross-examine,  consists  of  the  declarations  made  by  persons,  since 
deceased,  on  the  subject  of  pedigree,  custom,  boundary,  and  the 
like,  -where  from  the  nature  of  the  subject-matter  of  the  declarations 
and  situation  of  the  parties  it  is  reasonably  to  be  presumed  that 
they  knew  the  fact. 

In  the  first  place,  the  fact  to  be  proved  must  be  of  a  public 
nature ;  otherwise  it  is  not  to  be  presumed  that  the  individual 
from  whom  the  tradition  was  derived  had  the  means  of  knowledge. 

Secondly.  As  in  the  case  of  general  reputation,  such  evidence 
must,  in  all  cases  where  any  question  of  pxiblic  concern  is  in  issue, 
be  confined  to  general  declarations,  to  the  exclusion  of  mere  decla- 
rations as  to  particular  facts. 

Thirdly.  Traditionary  evidence  as  to  rights  must  be  derived 
from  those  persons  who  were  in  a  situation  to  know  what  the 
rights  were ;  and  in  the  case  of  pedigree,  declarations  are  not 
admissible,  unless  they  be  derived  from  such  as  were  connected 
with  the  family. 

Fourthly.  As  evidence  of  this  description  partakes  of  the  weak- 
ness and  infirmities  of  hearsay  report,'  its  credibility  depends 
-'  mainly  on  the  absence  of  all  temptation  to  misrepresent  the 
facts :  it  follows  that  it  cannot  be  trusted,  and  is  inadmissible, 
under  circumstances  which  were  likely  to  influence  and  bias  those 
from  whom  the  evidence  is  derived.  Upon  this  principle  it  has 
been  held  that  a  declaration  relating  to  a  pedigree  made  post 
litem  motam,  cannot  be  received.''    But  in  the  case  of  Nicholh  v. 

'  Grose,  J.,  in  the  case  of  Morewood  v.  Wood,  14  East,  330,  states  the  case  of  a 
pedigree  which  was  tried  at  Winchester,  where  there  was  a  strong  reputation 
throughout  all  the  country  one  way,  and  a  great  number  of  persons  were  examined 
to  it ;  but  after  all,  the  whole  was  overturned,  and  proved  to  have  no  foundation 
whatsoever,  by  the  production  of  a  single  paper  from  the  Heralds'  office  :  which 
shows  (observed  the  learned  Judge)  how  cautiously  this  sort  of  evidence  ought  to 
be  admitted.  See  also  Lord  Ellenborongh's  observations,  1  M.  &  S.  616-7  ;  Eng. 
0.  L.  R.  28 ;  where  he  observes  that  reputation  in  general  is  weak  evidence ;  and 
of  BuUer,  J.,  Morewood  v.  Wood,  14  East,  330. 

"  Case  of  the  Berkeley  Peerage,  4  Camp.  401 ;  Sussex  Peerage  case,  11  01.  & 
F.  85.  See  the  cases  below,  tit.  Pediokee  ;  and  see  Rex  v.  Cotton,  3  Camp.  444, 
cor.  Dampier ;  where,  upon  an  indictment  against  an  occupier  of  a  farm,  for  not 
repairing  a  road  ratione  tenurm,  an  award  made  many  years  before,  when  the 
same  subject  was  in  dispute  between  a  former  occupier  and  the  township,  was 
rejected  as  inadmissible,  on  the  ground  that  the  declarations  of  witnesses,  since 
deceased,  made  before  the  arbitrator  on  that  occasion,  could  not  have  been 


DEOLAEATIONS    AGAINST    INTEEEST.  63 

Parker}  traditionary  evidence  of  what  old  persons,  tlien  dead,  liad 
said  concerning  the  boundaries  of  the  parish  and  manor  (the  subject 
of  the  action)  was  admitted  in  evidence,  although  the  old  persons 
were  parishioners,  and  claimed  rights  of  common  on  the  wastes, 
which  would  be  enlarged  by  their  several  declarations,  there  not 
appearing  to  be  any  dispute  at  the  time  respecting  the  right  of  the 
old  persons  making  the  declarations,  at  least  no  litigation  pending : 
so  that  those  persons  could  not  be  considered  as  having  it  in  view 
to  make  declarati®ns  for  themselves  at  the  time;  although,  in 
fact,  the  baimdary  had  been  long  in  dispute  between  the  respective 
parishes  and  manors,  and  intersecting  perambulations  had  been 
made  both  before  and  after  such  declarations  by  the  respective 
parties. 

Lastly,  as  in  the  case  of  general  reputation,  such  evidence  is  of 
little  or  no  weight,   unless  it  be   supported   and   confirmed  by 
evidence  of  the  actual  exercise  and  enjoyment*  of  the  right 
to  which  such  traditionary  declaration  relates.  '- 

In  the  next  place,'  notwithstanding  the  general  rule,  that  the 
mere  declarations  of  a  person,  as  to  a  particular  fact,  are  not 
evidence  of  that  fact ;  and  notwithstanding  the  limitations  by 
which  the  reception  of  evidence  of  reputation  and  tradition  is 
guarded,  particularly  those  which  confine  the  admission  of  such 
evidence  to  matters  of  some  public  nature  and  interest,  and  exclude 
reputation  and  tradition,  which  relate  merely  to  particular  facts ; 
there  are  some  cases  which  form  exceptions  to  these  rules,  and 
where  the  privacy  of  the  fact,  so  far  from  excluding  the  hearsay 
declaration  concerning  it,  seems  to  induce  the  necessity  of  its 
admission.  As  far  as  these  are  referable  to  any  certain  principles 
(for  some  of  them  have  been  looked  upon  as  mere  anomalies  and 
arbitrary  exceptions),"  they  seem  to  be  confined,  for  the  most  part, 
to  instances  of  facts  known  only  to  a  few  individuals  who  possessed 
peculiar  means  of  knowledge,  and  consequently  where,  if  the 
declarations  of  such  individuals  were  not  admissible,  all  evidence 
on  the  subject  might  be  excluded.     They  are  divisible  into  two 

received,  having  been  made  posi  litem,  motam,  and  that  the  opinion  of  the 
arbitrator,  founded  upon  such  testimony,  could  not  be  entitled  to  greater  credit. 
It  is  vexata  qucestio  whether  such  declarations  made  post  litem  motam  would  not 
be  admissible,  if  it  could  be  shown  that  the  person  making  them  did  not  know  of 
the  existence  of  any  controversy.  See  Berkeley  Peerage  case,  Monkton  v. 
Attorney-General,  2  Buss.  &  M.  147. 

'  14  East,  331. 

"■  See  Lord  Kenyon's  observation,  5  T.  R.  123. 


64  MEDIATE    EVIDEKCE. 

distinct  classes,  the  one  consisting  of  declarations  or  entries  against 
the  interest"  of  the  persons  making  them;  the  other,  of  entries 
made  by  parties  in  the  usual  course"  of  their  business. 

With  respect  to  the  first  of  these  classes,  the  reception  of  such 
declaration  or  entry  seems  to  have  been  founded  upon  the  pre- 
sumption that  the  party  would  not  have  made  it  contrary  to  his 
^  own  interest,  unless  it  had  been  true.  *The  absence  not 
-■  merely  of  any  interest  is  to  falsify  it,  but  the  circumstance  of 
its  being  actually  adverse  to  his  interest  creates  the  strongest 
improbability  that  it  is  a  misrepresentation,  and  justly,  is  con- 
sidered to  afford  a  sufficient  guarantee  for  its  accuracy  to  render 
it  admissible  as  evidence  when  the  person  who  made  it  is  no  more. 
Thus,  where  a  deceased  steward  has  admitted  by  entries  in  his 
accounts,  the  receipt  of  rents",  or  churchwardens  have  made  similar 
entries  of  the  receipt  of  moneys  from  the  inhabitants  of  a  sub- 
division of  the  parish,  for  parochial  purposes,  such  admissions 
have  been  held  to  be  evidence  of  payments  for  those  purposes.' 
And  upon  similar  grounds,  the  declaration  of  a  deceased  tenant, 
that  he  held  the  land  under  a  particular  person,  was  held  to  be 
admissible  to  prove  the  seisin  of  that  person ;  such  a  declaration 
being  against  his  interest,  not  only  because  it  tended  to  negative 
the  presumption  of  his  being  the  freeholder,  which  his  possession 
would  create,  but  also,  since  it  would  have  been  evidence  against 
him,  by  the  landlord,  in  an  action  for  use  and  occupation.' 

The  second  class  of  exceptions  to  the  general  rule,  consists  of 
instances  where  such  evidence  derives  credit  from  circumstances, 
independently  of  the  consideration  of  an  interest  to  the  contrary 
on  the  part  of  the  person  who  made  it,  viz. :  that,  it  was  made  by  a 

"  See  the  first  of  these  classes  fully  discussed  and  explained  in  Higliam  v. 
Ridgway,  2  Smith's  Leading  Cases,  183,  and  the  notes  to  that  case. 

"  See  this  class  fully  discussed  in  Price  v.  Lord  Torrington,  1  Smith's  Leading 
Cases,  139,  and  the  notes  to  that  case.  It  seems  doubtful  whether  a  declaration 
made  in  the  usual  course  of  business,  though  taken  down  at  the  time  by  a  third 
person  in  such  course,  would  be  evidence ;  see  Brain  v.  Preece,  11  M.  &  "W.  773. 

f  Barry  v.  Bebbington,  4  T.  R.  514. 

■)  Stead  V.  Heaton,  4  T.  E.  669. 

'^  Uncle  V.  Watson,  4  Taunt.  16.  See  also  Perigal  v.  Nicholson,  1  "Wightw. 
63.  See  also  Higham  v.  Ridgway,  10  Bast,  109 ;  2  Smith's  Lead.  Cases,  183 ; 
where  it  was  held  that  an  entry  made  by  a  deceased  man-midwife  that  he  had 
delivered  a  woman  of  a  child  on  a  particular  day,  and  referring  to  his  ledger,  in 
which  the  charge  for  his  attendance  was  marked  paid,  was  evidence  on  the  trial 
of  an  issue  as  to  the  age  of  the  child. 


DEOLAEATIONS    AGAINST    I  N  T  E  E  E  S  T.  65 

party  in  the  usual  course  of  his  profession,  trade  or  business.  An 
entry  so  made  obviously  derives  its  claim  to  credit  from  a  con- 
sideration of  tlie  great  improbability  that  such  a  person  would, 
"without  any  assignable  motive,  wantonly  make  an  entry  of  a  false 
fact.  The  bare  possibility  of  the  casual  *fabrication  of  a  false 
entry,  made  for  the  purpose  of  future  evidence,  could  have  '- 
little  weight  when  compared  with  the  importance  of  the  object  to 
be  ultimately  attained.  la  such  cases,  therefore,  no  distinction  can 
be  made  on  the  supposition  or  probability  of  fraud,  in  the  one  case, 
rather  than  the  other :  it  must,  to  prevail,  depend  on  the  position, 
that  where  the  entry  contains  no  acknowledgment  against  the 
interest  of  the  vouchee,  there  exists  a  greater  probability  that  it 
was  wantonly,  carelessly,  or  mistakenly  made ;  this,  however,  must 
depend  on  the  circumstances  under  which  it  was  made ;  if  it  was  a 
written  entry  made  in  the  usual  course  of  a  man's  profession  or 
trade,  in  the  absence  of  fraud,  it  carries  with  it  a  reasonable  degree 
of  probability  that  it  was  made  according  to  the  truth. 

As  the  exact  rules  by  which  the  reception  of  these  two  classes 
of  evidence  is  governed  can  only  be  thoroughly  explained  by 
reference  to  the  decisions  on  the  subject  they  will  be  detailed  at 
a  future  opportunity ;  for  the  present  it  will  suffice  to  make  a  few 
observations  on  the  general  principle  which  ought  to  regulate  the 
admissibility  of  such  evidence. 

In  the  first  place,  as  such  evidence  is  in  general  excluded  on  the 
grounds  already  adverted  to,  it  is  essential  that  some  special  neces- 
sity should  exist  in  the  particular  class  of  cases  for  deviating  from 
the  general  rule,  and  that  it  should  never  be  resorted  to,  until  the 
higher  degree  of  evidence  which  the  party  himself  might  have 
given  be  shown  to  be  no  longer  attainable  in  consequence  of  his 
death. 

And  even  then,  in  order  to  warrant  the  reception  of  such 
secondary  evidence,  it  is  essential  that  circumstances  should  exist 
which  afford  a  reasonable  presimiption  that  the  person  who  spoke 
or  wrote  that  which  is  offered  in  evidence  had  means  of  knowing 
the  fact,  and  that  he  was  not  likely  to  have  misrepresented  it. 


bb  INDIEECT    EVIDENCE. 

*67]  *CHAPTER  IV. 

INDIRECT  EVIDENCE. 

Next,  as  to  to  tlie  admission  of  indirect  evidence. 

Having  now  briefly  noticed  the  general  principles  whicli  govern 
the  reception  of  direct  evidence  to  prove  a  disputed  fact  by  the  aid 
of  testimony,  -wlietlier  immediate  or  mediate,  we  are  next  to  con- 
sider tbose  wMcb  govern  tbe  admission  of  indirect  evidence :  that 
is,  of  facts  collateral  to  the  disputed  fact,  but  from  the  existence 
of  which  the  truth  of  the  fact  in  dispute  may  be  inferred. 

The  necessity  for  resorting  to  indirect  or  circumstantial  evidence 
is  manifest.  It  very  frequently  happens  that  no  direct  and  posi- 
tive testimony  can  be  procured ;  and  often,  where  it  can  be  had,  it 
is  necessary  to  try  its  accuracy  and  weight  by  comparing  it  with 
the  surrounding  circumstances. 

The  want  of  written  documents,  the  treachery  and  fallaciousness 
of  the  human  memory,  the  great  temptations  which  perpetually 
occur  to  exclude  the  truth,  by  the  suppression  of  evidence,  or  the 
fabrication  of  false  testimony,  render  it  necessary  to  call  in  aid 
every  means  of  ascertaining  the  truth  upon  which  the  law  can 
safely  rely. 

Where  direct  evidence  of  the  fact  in  dispute  is  wanting,  the 
more  the  jury  can  see  of  the  surrounding  facts  and  circumstances, 
the  more  correct  their  judgment  is  likely  to  be.  It  is  possible  that 
some  circumstances  may  be  misrepresented,  or  acted  with  a  view  to 
deceive ;  but  the  whole  context  of  circumstances  cannot  be  fabri- 
cated ;  the  false  invention  must  have  its  boundaries,  where  it  may 
be  compared  with  the  truth :  and,  therefore,  the  more  extensive  the 

„„„,  view  of  the  iury  is  of  all  the  minute  circumstances*  of  the 
*68 1  . 

-■  transaction,  the  more  likely  will  they  be  to  arrive  at  a  true 

conclusion.  Truth  is  necessarily  consistent  with  itself;  in  other 
words,  all  facts  which  really  did  happen,  did  actually  consist  and 
agree  with  each  other.  If  then  the  circumstances  of  the  case,  as 
detailed  in  evidence,  are  incongruous  and  inconsistent,  that  incon- 
sistency must  have  arisen  either  from  mistake,  from  wilful  mis- 
representation, or  from  the  correct  representation  of  facts  prepared 
and  acted  with  a  view  to  deceive.  From  whatever  source  the  in- 
consistency may  arise,  it  is  easy  to  see  that  the  greater  the  number 
of  circumstances  which  are  exhibited  to  the  jury,  the  more  likely 


INDIRECT    EVIDENCE.  67 

■will  it  be  that  tlie  truth  will  prevail :  since  the  stronger  and  more 
numerous  will  be  the  circumstances  on  the  side  of  truth.  It  will 
be  supported  by  facts,  the  effect  of  which  no  human  sagacity 
could  have  foreseen,  and  which  are  therefore  beyond  the  reach 
of  suspicion :  whilst,  on  the  other  hand,  fraudulent  evidence  must 
necessarily  be  either  confined  to  a  few  facts,  or  be  open  to  detec- 
tion, by  affording  many  opportunities  of  comparing  it  with  that 
which  is  known  to  be  true.  Fabricated  facts  must,  in  their  very 
nature,  be  such  as  are  likely  to  become  material.  Hence  it  has 
frequently  been  said,  that  a  well-supported  and  consistent  body  of 
circumstantial  evidence  is  sometimes  stronger  than  even  direct 
evidence  of  a  fact ;  that  is,  the  degreee  of  uncertainty  which  arises 
from  a  doubt  as  to  the  credibility  of  direct  witnesses,  may  exceed 
that  which  arises  upon  the  question  whether  a  proper  inference  has 
been  made  from  facts  well  ascertained.  A  witness  may  have  been 
suborned  to  give  a  false  account  of  a  transaction  to  which  he  alone 
was  privy,  and  the  whole  rests  upon  the  degree  of  credit  to  be 
attached  to  the  veracity  of  the  individual ;  but  where  a  great  num- 
ber of  independent  facts  conspire  to  the  same  conclusion,  and  are 
supported  by  many  unconnected  witnesses,  the  degree  of  credi- 
bility to  be  attached  to  the  evidence  increases  in  a  very  high 
proportion,  arising  from  the  im^^robability  that  all  those  witnesses 
should  be  mistaken  *or  perjured,  and  that  all  the  circum- 
stances should  have  happened  contrary  to  the  usual  and  '- 
ordinary  course  of  human  affairs.  The  consideration,  however, 
of  the  credit  due  to  circumstantial  evidence,  belongs  to  another 
place;"  at  present,  the  subject  is  mentioned  merely  with  a  view 
to  illustrate  the  necessity  of  opening  to  a  jury  the  most  ample 
view  of  all  the  facts  which  belong  to  the  disputed  transactions; 
leaving  the  consideration  of  the  importance  due  to  such  evidence 
to  be  examined  hereafter. 

Agreeably  to  this  notion  and  according  to  the  simplicity  of 
the  ancient  law,  it  was  provided  that  every  trial  should  be  had 
before  a  jury  who  lived  so  near  to  the  scene  of  the  disputed  trans- 
action that  they  might  reasonably  be  supposed  to  possess  actual 
and  personal  knowledge  of  the  circumstances,  to  have  heard  and 
seen  what  was  done.  Later  experience  has  shown  that  a  know- 
ledge of  the  facts  to  be  tried,  such  as  a  residence  in  the  neighbour- 
hood supplies,  affords  but  an  imperfect  and  dubious  light  for  the 

"  Vide  infra,  tit.  Ciecumstantial  Evidence. 


bo  INDIRECT    EVIDENCE. 

investigation  of  truth ;  and  that  justice  suffers  more  from  the  pre- 
judices and  false  notions  of  the  facts  which  a  residence  in  the 
neighbourhood  usually  aftbrds,  than  it  gains  in  point  of  certainty 
from  a  previous  knowledge,  on  the  part  of  the  jury,  of  the  parties 
or  of  the  circumstances  of  the  case.  At  this  day,  therefore,  it  is 
no  longer  necessary,  either  in  civil  or  in  criminal  cases,  that  the 
jury  should  be  returned  from  the  vicinage ;  they  are  taken  without 
distinction  from  the  body  of  the  county  at  large ;  and  being  in 
general  strangers  to  the  litigant  parties  and  to  the  facts  in  dispute, 
may  be  presumed  to  discharge  their  important  duties  without  par- 
tiality or  prejudice.  Still,  however,  the  end  to  be  attained  is  the 
same,  although  the  means  of  attaining  it  are  different ;  it  is  still  the 
great  object  of  the  law  that  the  jury  should  be  fully  possessed  of 

^.     all  the  facts  and  circumstances  of  the  case ;  and  as  they  have 
701  •         -1 

-^   *not  been  actually  witnesses  of  the  transaction,  either  in  fact 

or  in  contemplation  of  law,  the  scene  is  to  be  exhibited  to  them  by 
the  only  means  of  recalling  a  past  transaction,  that  is,  by  oral  evi- 
dence and  written  documents,  and  the  jury  are  to  collect  the  facts  by 
the  senses  and  perceptions  of  others,  to  whose  account  credit  is  due. 

In  consequence,  too,  of  the  frequent  failure  of  direct  and  positive 
evidence,  recourse  must  be  had  to  presumptions  and  inferences  from 
facts  and  circumstances  which  ^re  known,  and  which  serve  as 
indications,  more  or  less  certain,  of  those  which  are  disputed  and 
contested.  It  is  consequently  a  matter  of  the  highest  importance 
to  consider  the  grounds,  nature  and  force  of  such  indirect  evidence; 
and  to  enquire  what  facts,  either  singly  or  collectively,  are  capable 
of  supplying  such  inferences  as  can  safely  be  acted  upon.*" 

Presumptions,  and  strong  ones,  are  continually  founded  upon 
knowledge  of  the  human  character,  and  of  the  motives,  passions, 
and  feelings,  by  which  the  mind  is  usually  influenced.  Experience 
and  observation  show  that  the  conduct  of  mankind  is  governed  by 
general  laws,  which  operate,  under  similar  circumstances,  with 
almost  as  much  regularity  and  imiformity  as  the  mechanical  laws 
of  nature  themselves.  The  effect  of  particular  motives  upon 
human  conduct  is  the  subject  of  every  man's  observation  and 
experience,  to  a  greater  or  less  extent ;  and  in  proportion  to  his 
attention,  means  of  observation,  and  acuteness,  every  one  becomes 
a  judge  of  the  human  character,  and  can  conjecture  on  the  one 
hand,  what  would  be  the  effect  and  influence  of  motives  upon  any 

''  See  Vol.  II.,  tit.  Presumptions. 


PEESUMPTIONS.  69 

individual  under  particular  circumstances,  and  on  tlie  otlier  hand, 
is  able  to  presume  and  infer  tlie  motive  by  whicb  an  agent  was 
actuated,  from  tbe  particular  course  of  conduct  wbicb.  be  adopted. 
Upon  tbis  ground  it  is  that  evidence  is  daily  *adduced  in 
courts  of  justice  of  tbe  particular  motives  by  wbicb  a  party  '- 
was  influenced,  in  order  that  the  jury  may  infer  what  his  conduct 
was  under  those  circumstances ;  and  on  the  other  hand,  juries  are 
as  frequently  called  upon  to  infer  what  a  man's  motives  and 
intentions  have  been,  from  his  conduct  and  his  acts.  All  this  is 
done,  because  every  man  is  presumed  to  possess  a  knowledge  of 
the  connection  between  motives  and  conduct,  intention  and  acts, 
which  he  has  acquired  from  experience,  and  to  be  able  to  presume 
and  infer  the  one  from  the  other.  .'J  \ 

The  presumption  of  conduct,  or  of  any  particular  act,  from  the 
motives  by  which  the  supposed  agent  was  known  to  be  influenced, 
is  more  or  less  cogent  as  the  motive  itself  was  stronger  or  weaker, 
and  as  experience  has  proved  it  to  be  more  or  less  ef&cacious  in 
affecting  a  man's  conduct.  The  presumption  of  particular  inten- 
tion, from  a  man's  acts  and  conduct,  is  more  or  less  forcible, 
according  to  their  nature,  and  their  greater  or  less  tendency  to 
effect  the  supposed  intention,  and  the  improbability,  derived  from 
experience,  that  they  could  have  resulted  from  any  other  motive, 
or  have  been  done  with  any  other  intention.  Presumptions  of 
this  nature  are  of  most  essential  importance  in  criminal  cases» 
"Where  a  heinous  crime  has  been  committed,  as,  for  instance, 
murder  by  means  of  poison,  and  where  it  is  obvious  that  theft  was 
not  the  object  of  the  guilty  party,  it  is  essential  to  inquire  whether 
the  accused  was  influenced  by  any  motive  to  commit  such  an 
offence ;  the  absence  of  all  motive,  whether  of  avarice  or  revenge, 
affords  a  strong  presumption  of  innocence,  where  the  fact  is  in 
other  respects  doubtful,  because  experience  of  human  nature  shows 
that  men  do  not  commit  mischief  wantonly  and  gratuitously, 
without  any  prospect  of  advantage ;  still  less  do  they  perpetrate 
enormous  crimes,  and  subject  themselves  to  the  severest  penalties 
of  the  law,  without  the  strongest  motives :  when,  on  the  contrary, 
other  strong  presumptions  appear  against  the  accused,  the  know- 
ledge that  he  was  influenced  by  a  very  strong  motive  *to 
commit  such  a  crime,  must  of  necessity  greatly  add  to  the  '- 
probability  of  his  guilt. 

In  criminal  cases  a  question  usually  arises  as  to  the  intention  of 
the  accused,  since  it  is,  in  general,  the  guilty  intention  with  which 


70  INDIRECT    EVIDENCE. 

an  act  is  done  that  renders  it  criminal ;  and  in  numerous  instances 
a  particular  intention  is  made  an  essential  ingredient  in  tlie  statu- 
tory offence.  But  intention,  which,  is  the  mere  internal  and 
invisible  act  or  resolve  of  the  mind,  cannot  be  judged  of  except 
from  external  and  visible  acts ;  and  in  all  such  cases,  and  many- 
others,  a  man's  object  and  motives  must  be  inferred  from,  his  con- 
duct; and  what  particular  acts  and  conduct  are  sufficient  to  indicate 
the  guilty  intention  which  is  imp.uted  to  the  accused,  is  a  question 
of  fact  to  be  decided  by  those  who  are  conversant  in  human  affairs, 
and  whose  experience  enables  them  to  judge  of  the  connection 
between  conduct  and  intention. 

In  many  of  the  common  concerns  of  life  a  man  may  act  from  a 
complication  of  motives  which  human  sagacity  cannot  unravel ; 
the  secret  workings  of  which  Omniscience  alone  can  understand ; 
but  in  the  case  of  a  crime  defined  by  the  law,  and  where,  conse- 
quently, both  the  act  itself  and  the  intention  are  simple  and 
definite,  so  much  difficulty  does  not  prevail  in  the  ascertainment 
of  intention  ;  in  such  instances  it  is  reasonable  to  infer,  that  a  man 
intended  and  contemplated  that  end  and  result  which  is  the  natural 
and  immediate  consequence  of  the  means  used  by  him ;  and  this 
is  the  ordinary  presumption  of  law.  In  criminal  proceedings,  the 
consideration  of  the  conduct  of  the  accused  will,  in  other  respects, 
be  found  to  be  of  great  importance  in  determining  upon  his  guilt 
or  innocence,  where  there  is  either  no  direct  evidence  of  the  fact, 
or  such  as  cannot  standing  alone  be  safely  relied  upon. 

The  conduct  which  may  afford  an  inference  in  such  a  case,  may 
consist  either  in  the  seeking  opportunities  and  means  for  com- 
mitting such  an  act,  or  in  attempting  to  avoid  suspicion  or  injury 
^y  flight,  or  in  concealing  *evidence  of  guilt,  or  even  in 
-'  showing  an  anxiety  to  do  so ;  for  it  is  certain  that  the 
guilty  person  must  have  had  the  opportunity  and  means  of  com- 
mitting the  offence ;  and  it  is  probable  that  he  would  previously 
watch  for  such  an  opportunity,  and  he  must  have  procured  the 
means.  Again,  it  is  also  probable  that  the  guilty  person,  goaded 
by  the  stings  of  conscience,  or  at  least  actuated  by  fear  of  detection 
and  of  punishment,  would  use  every  effort  within  his  power  to 
avoid  suspicion,  or  at  least  inquiry;  and  experience  fully  proves 
that  means,  in  the  hour  of  terror  and  alarm,  are  often  resorted  to 
by  the  guilty,  in  the  hope  of  providing  security,  which,  so  far  from 
preventing  or  lulling  suspicion,  provoke  and  excite  it,  and  turn 
out  to  be  forcible  evidence  of  guilt.     Flight ;  the  fabrication  of 


PRESUMPTIONS.  71 

false  and  contradictory  accounts,  for  the  sake  of  diverting  inquiry ; 
tlie  concealment  of  the  instruments  of  violence ;  the  destruction  or 
removal  of  proofs  tending  either  to  show  that  an  offence  has  been 
committed,  or  to  ascertain  the  offender,  are  circumstances  indi- 
catory of  guilt,  since  they  are  acts  to  which  some  motive  is 
attributable,  and  are  such  as  are  not  likely  to  have  been  adopted 
by  an  innocent  man ;  but  such,  on  the  contrary,  as  according  to 
experience  are  usually  resorted  to  by  the  guilty.  A  full  confession" 
of  guilt,  although  it  be  but  presumptive  evidence,  is  one  of  the 
surest  proofs  of  guilt,  because  it  rests  upon  the  strong  presump- 
tion that  no  innocent  man  would  sacrifice  his  life,  liberty,  or  even 
his  reputation,  by  a  declaration  of  that  which  was  untrue.  The 
presumption  immediately  ceases  as  soon  as  it  appears  that  the  sup- 
posed confession  was  made  under  the  influence  of  threats  or  of 
promises,  which  render  it  uncertain  whether  the  admissions  of  the 
accused  resulted  from  a  consciousness  of  guilt,  or  were  wrung  from 
a  timid  and  apprehensive  mind,  deluded  by  promises  of  safety,  or 
subdued  by  threats  of  violence  or  punishment.  It  may  be  proper 
also  to  remark  in  this  place,  that  some  of  those  presumptions  which 
have  lately  been  touched  *upon  are  to  be  regarded  with  great 
caution ;  for  it  sometimes  happens  that  an  innocent,  but  weak  '- 
and  injudicious  person,  will  take  very  undue  means  for  his  security, 
when  suspected  of  a  crime.  A  strong  illustration  of  this  is  afforded 
by  the  ease  of  the  uncle,  mentioned  by  Lord  Hale.  His  niece  had 
been  heard  to  cry  out,  "  Good  uncle,  do  not  kill  me !"  and  soon  after- 
wards disappeared ;  and  he  being  suspected  of  having  destroyed  her, 
for  the  sake  of  her  property,  Avas  required  to  produce  her  before  the 
justice  of  assize :  he  being  unable  to  do  this,  (for  she  had  absconded,) 
but  hoping  to  avert  suspicion,  procured  another  girl  resembling  his 
niece,  and  attempted  to  pass  her  off  as  such.  The  fraud  was,  how- 
ever, detected ;  and,  together  with  other  circumstances,  appeared  so 
strongly  to  indicate  the  guilt  of  the  uncle,  that  he  was  convicted 
and  executed  for  the  supposed  murder  of  the  niece,  who,  as  it  after- 
wards turned  out,  was  still  living. 

In  civil  cases  also,  the  most  important  presumptions  (as  will  be 
afterwards  more  fully  seen)  are  continually  founded  upon  the 
conduct  of  the  parties  :  if,  for  instance,  a  man  suffer  a  great  length 
of  time  to  elapse  without  asserting  the  claim  which  he  at  last  makes, 
a  presumption  arises,  either  that  no  real  claim  ever  existed,  or 

'  See  tit.  Admission — Confession. 


72  INDIRECT    EVIDENCE. 

that,  if  it  ever  did  exist,  it  lias  since  been  satisfied;*  because,  in 
the  ordinary  course  of  human  aftairs,  it  is  not  usual  to  allow  real 
and  -well-founded  claims  to  lie  dormant.  So  the  uninterrupted 
enjoyment  of  property  or  privileges  for  a  long  space  of  time  raises 
a  presumption  of  a  legal  right ;  for  otherwise  it  is  probable  that 
the  enjoyment  would  not  have  been  acquiesced  in.=  Upon  the 
presumption  that  after .  a  lapse  of  six  years  a  debt  on  simple 
contract  has  been  satisfied,  the  Legislature  seems  to  have  founded 
^„p.,  the  *provision  in  the  Statute  of  Limitation ;  a  presumption 
-'  liable  to  be  rebutted  by  proof  of  a  promise  to  pay  the  debt, 
or  an  acknowledgment  that  it  still  remains  due,  made  within  the 
six  years.' 

The  conduct  of  a  party  in  omitting  to  produce  that  evidence,  in 
elucidation  of  the  subject-matter  in  dispute,  which  is  within  his 
power,  and  which  rests  peculiarly  within  his  own  knowledge, 
frequently  affords  occasion  for  presumptions  against  him  ;  since  it 
raises  a  strong  suspicion  that  such  evidence,  if  adduced,  would 
operate  to  his  prejudice.  So  forcible  is  the  nature  of  this  pre- 
sumption, that  the  law  founds  upon  it  a  most  important  elementary 
rule,  which  excludes  secondary  evidence  where  evidence  of  a 
higher  degree  might  have  been  adduced  ;  and  this  it  does,  because 
it  is  probable  that  a  party  who  withholds  the  best  and  most  satis- 
factory evidence  from  the  consideration  of  the  jury,  and  attempts 
to  substitute  other  and  inferior  evidence  for  it,  does  so  because  he 
knows  that  the  better  evidence  would  not  serve  his  purpose.^ 

Upon  the  same  principle,  juries  are  called  upon  to  raise  an 
inference  in  favour  of  a  defendant  in  a  criminal  case  from  the 
goodness  of  his  character  in  society;  a  presumption  too  remote 
to  weigh  against  evidence  which  is  in  itself  satisfactory,  and  which 
ought  never  to  have  any  weight  except  in  a  doubtful  case.""* 

^  See  Vol.  II.,  tit.  Presumptions — Limitations — Pkesceiption. 

"  Where  a  party  neglects  to  take  out  execution  witMn  a  year  after  his  judgment, 
he  must,  in  general,  revive  it  by  scire  facias  before  he  can  proceed  to  execution ; 
and  this  is  founded  upon  a  presumption  that  the  debt  or  damages  have  in  the 
mean  time  been  paid. 

'  See  tit.  Limitations.  Such  a  promise,  to  be  available,  must  now  be  in 
writing. 

*  Vide  infra,  tit.  Best  Evidence. 

*  See  tit.  Charactee.     It  seems  to  be  the  last  remnant  of  compurgation. 

'  Evidence  of  the  general  character  of  the  defendant  is  admissible  in  his  favour 
ia  a  criminal  prosecution  ;  but  it  is  entitled  to  little  weight,  unless  when  the  fact 


PfiESUMPTIONS.  73 

Upon  similar  grounds,  presumptions  may  be  derived  from  tlie 
artificial  course  and  order  of  human  affairs  and  dealings,  wliereTer 
any  such  course  and  order  exist ;  because,  in  the  absence  of  any 
reason  to  suppose  the  contrary,  a  probability  arises  that  the  usual 
course  of  dealing  has  been  adopted.  Hence  presumptions  are 
founded  upon  the  course  of  trade,  the  course  of  the  post,  the 
customs  of  a  particular  trade,  or  of  a  particular  class  of  people, 
and  *even  the  course  of  conducting  business  in  the  concerns 
of  a  private  individual,  to  prove  a  particular  act  done  in  the  '- 
usual  routine  of  business."' 

'  See  Lord  Torringion's  Case,  1  Salk.  285 ;  1  Smitli's  Leading  Cases,  139. 

is  doubtful  or  the  testimony  merely  presumptive ;   The  State  v.  Wells,  Coxe,  424  ; 

■United  States  v.  Rouderbush,  1  Baldw.  514;    Bennet  v.  The  State,  8  Humph. 

118  ;   Commonwealth  v.  Webster,  5  Ousting,  295  ;  AcMey  v.  The  People,  9  Barb. 

S.  0.  Eep.  609 ;  Schaller  v.  The  State,  14  Missouri,  502. 
But  evidence  of  bad  character  is  not  admissible  against  Mm,  unless  in  rebuttal 

of  testimony  adduced  by  him ;  People  v.  White,  14  Wendell,  111. 
And  when  such  rebutting  evidence  is  allowed,  the  witnesses  must  be  confined  to 

the  defendant's  character  before  he  was  accused  of  the  crime  in  question ;  Martin 

y.  Simpson,  4  MoOord,  262. 
In  civil  cases  evidence  of  the  general  character  of  a  party  is  admissible  only 

when  it  is  put  in  issue,  by  the  pleadings ;  Anderson  v.  Long,  10  Serg.  &  Eawle, 

55  ;    Atkinson  v.  Oraham,  5  Watts,  411 ;    Fowler  v.  JEtna  Ins.  Co.,  6  Cowen, 

673  ;   Potter  v.  Webb,  6  Greenl.  14 ;   Humphrey  v.  Humphrey,  7  Conn.  116  ; 

Gough  V.  St.  John,  16  Wend.  646  ;    Ward  v.  Herndon,  5  Porter,  352  ;  Senets  v. 

Plunket,  I  Strobhart,  372  ;  Thayer  v.  Boyle,  30  Maine,  475  ;  McKinney  v.  Rhoad, 

5  Watts,  343 ;  Nash  v.  Gilkeson,  5  Serg.  &  Rawle,  352. 
After  an  attempt  to  assail  the  character  of  a  plaintiff  in  an  action  of  slander  he 

may  prove  his  good  character,  that  being  an  action  in  which  character  is  put  in 
issue,  being  part  of  the  allegation  of  the  narr ;  Holley  v.  Burgess,  9  Alab.  728  ; 

Winebiddle  v.  Porterfield,  9  Barr,  137  ;  Petrie  v.  Rose,  1  Watts  &  Serg.  364. 

■  "I  am  myself,"  says  Story,  J.,  "no  friend  to  the  almost  indiscriminate  habit  of 
late  years  of  setting  up  particular  usages  or  customs  in  almost  all  kinds  of  busi- 
ness and  trade,  to  control,  vary  or  annul  the  general  liabilities  of  parties,  under 
the  common  law  as  well  as  under  the  commercial  law.  It  has  long  appeared  to 
me,  that  there  is  no  small  danger  in  admitting  such  loose  and  inconclusive  usages 
and  customs,  often  unknown  to  particular  parties  and  always  liable  to  great  mis- 
understandings and  misinterpretations  and  abuses,  to  outweigh  the  well-known  and 
well-settled  principles  of  law.  And  I  rejoice  to  find  that  of  late  years  the  courts 
of  law,  both  in  England  and  in  America,  have  been  disposed  to  narrow  the  limits  of 
the  operation  of  such  usages  and  customs,  and  to  discountenance  any  further 
extension  of  them.  The  true  and  appropriate  office  of  a  usage  or  custom  is  to 
interpret  the  otherwise  indeterminate  intentions  of  parties,  and  to  ascertain  the 
nature  and  extent  of  their  contracts,  arising  not  from  express  stipulations,  but 
from  new  implications  and  presumptions  and  acts  of  a  doubtful  or  equivocal  char- 


74  INDIRECT    EVIDENCE. 

In  all  such  cases  tlie  course  of  dealing  may  be  proved  before  tbe 
jury,  and  is  evidence  in  matters  connected  -witli  it.  The  usual  time 
of  credit  in  a  particular  trade  is  evidence  to  show  that  goods  were 
sold  at  that  credit ;  the  course  of  the  post  is  evidence  to  show  that 
a  particular  letter,  proved  to  have  been  put  into  the  post-of&ce,  was 
received  in  the  usual  time  by  the  party  to  whom  it  was  directed. 
The  ground  of  presumption  in  this  and  a  multitude  of  similar 
instances  is,  that  where  a  regular  course  of  dealing  has  once  been 
established,  that  which  has  usually  happened  did  happen  in  the 
particular  instance  ;  and  such  presumptions,  like  all  others,  ought 
to  prevail,  unless  the  contrary  be  proved,  or  at  least  be  encountered 
by  an  opposite  presumption. 

Where  a  fact  or  relation  is  in  its  nature  continuous,  after  its 
existence  has  once  been  proved,  a  presumption  arises  as  to  its  con- 
tinuance at  a  subsequent  time :  for,  from  the  nature  of  the  fact  or 
relation,  a  very  strong  presumption  arises  that  it  did  not  cease 
immediately  after  the  time  when  it  was  proved  to  exist,  and,  as 
there  is  no  particular  time  when  the  presumption  ceases,  that  it 
still  continues ;  therefore,  where  a  jpartnership  between  two  persons 
has  once  been  established,  its  continuance  at  a  later  period  is  to  be 

acter.  It  may  also  be  admitted  to  ascertain  the  true  meaning  of  a  particular  word 
or  of  particular  words  in  a  given  instrument,  when  the  word  or  words  have  various 
senses,  some  common,  some  qualified,  and  some  technical,  according  to  the  subjects 
matter  to  which  they  are  applied.  But  I  apprehend  that  it  can  never  be  proper  to 
resort  to  any  usage  or  custom  to  control  or  vary  the  positive  stipulations  in  a 
written  contract  and  a  fortiori,  not  in  order  to  contradict  them ;"  The  Schooner  v. 
Beeside,  2  Sumner,  569 ;  Macomher  v.  Parker,  13  Pick.  182  ;  Lawrence  v. 
McGregor,  5  Ham.  311 ;  Sampson  v.  Oazzam,  6  Porter,  123  ;  Cooper  v.  Kane, 
19  Wend.  386  ;  Hone  v.  Mutual  Safety/  Ins.  Co.,  1  Sanf.  Sup.  Ct.  137. 

A  person  who  makes  a  contract  is  not  bound  by  the  usage  of  a  particular 
business,  unless  it  is  so  general  as  to  furnish  a  presumption  of  knowledge  or  it  is 
proved  that  he  knew  it ;  Stevens  v.  Beeves,  9  Pick.  198  ;  Wood  v.  HickoTc,  2  Wend. 
501 ;  ■  Tlie  Paragon,  Ware,  322  ;  Winsor  v.  Dillaway,  4  Mete.  221 ;  Steamboat 
Albatross  v.  Wayne,  16  Ohio,  513 ;  Nichols  v.  De  Wolf,  1  Ehode  Island,  147. 
Witnesses  may  be  examined  to  prove  the  course  of  a  particular  trade  but  not  to 
show  what  the  law  of  that  trade  is  ;  Buan  v.  Garden,  1  Wash.  0.  0.  Eep.  145  ; 
Winthrop  v.  Union  Ins.  Co.,  2  Ibid.  7  ;  Austin  v.  Taylor,  2  Ham.  64. 

A  usage  of  an  individual,  which  is  known  to  the  person  who  deals  with  him, 
may  be  given  in  evidence  as  tending  to  prove  what  was  the  contract  between 
them ;  Loring  v.  Gurney,  5  Pick.  15  ;  Naylor  v.  Semmes,  4  Gill.  &  Johns.  274 ; 
Searson  v.  Heyward,  1  Speers,  249  ;  Berkshire  Woollen  Co.  v.  Porter,  7  Cash, 
417  ;  Adams  v.  Otterback,  15  Howard,  S.  0.  R.  539. 


PEESUMPTIONS.  75 

presumed,  unless  ttie  termination  be  proved."  So,  wliere  tlie  exis- 
tence of  a  particular  individual  lias  once  been  sbown,  it  ■will,  "witbin 
certain  limits,  be  presumed  tbat  he  still  lives.^  The  presumption  as 
to  a  man's  life  after  a  number  of  years  must  depend  upon  many 
circumstances ;  his  habits  of  life,  his  age,  and  constitution :  the 
probable  duration  of  the  life  of  a  person,  as  calculated  upon  an 
average,  may  of  course  be  easily  ascertained  in  every  particular 
case  :  but  for  the  sake  of  ^practical  convenience,  the  law  lays 
down  a  rule  in  some  instances,  which  appears  to  have  been  '- 
very  generally  adopted,  that  after  a  person  has  gone  abroad,  and 
has  not  been  heard  of  for  seven  years,  it  is  to  be  presumed  that  he 
is  dead.'^    The  various  instances  in  which  facts  not  in  issue  may 

"  See  tit.  Paktnbeship. 

'  Doe  dem.  Knight  v.  Nepean,  5  B.  &  Ad.  86 ;  E.  0.  L.  E.  27  ;  2  M.  &  W. 
894.     See  tit.  Polygamy — Ejectment  by  Heir-at-Law — Death. 

'  Innis  V.  Campbell,  1  Eawie,  373 ;  Smith  v.  Knowlton,  11  N.  Hamp.  91.  So 
that  possession  continues;  Bayard's  Lesseev.  Coif  ox,  4  Wash.  C.  O.Eep.  38,  that 
a  corporation  continues  to  exist ;  People  v.  Manhattan  Co.,  9  Wend.  351 ;  even 
that  a  wrong  continues  as  a  trespass  or  entry  and  ouster ;  Lewis  v.  Paine,  4 
Wend.  423  ;  Jackson,  ex  dem.  Miller  v.  Porter,  4  Wend.  672.  A  state  of  peace 
is  to  be  presumed  by  courts  until  the  national  power  of  the  country  sits  declares 
to  the  contrary ;  The  People  v.  McLeod,  1  Hill,  377.  If  a  vessel  is  seaworthy 
when  the  policy  attaches,  it  will  be  presumed  that  she  continues  so  during  the 
time  of  the  risk,  unless  it  otherwise  is  shown  in  proof;  Martin  v.  Fishing  Ins.  Co., 
20  Pick.  389.  So  the  law  presumes  the  residence  of  a  person  to  continue  in  a  place 
where  it  is  shown  to  have  been  at  any  time,  until  the  contrary  is  shown ;  Prather 
V.  Palmer,  4  Pike,  456  ;  Cawdill  v.  Thorp,  1  Iowa,  158.  A  person  proved  to 
have  been  insane  at  any  time  is  presumed  to  remain  so,  until  the  contrary  is  proved ; 
Sprague  v.  Duel,  1  Olark,  90  ;  Thornton  v.  Appleton,  29  Maine,  298. 

^  Wambaugh  v.  SchanJc,  1  Pennington,  229 ;  Newman  v.  Jenkins,  10  Pick. 
515 ;  Woods  v.  Wood's  Admr.  2  Bay,  476 ;  Spurr  v.  Fimble,  1  Marsh.  278 ; 
Hull  V.  Commonwealth,  HsxAm,  ^1^;  Innis  v.  Campbell,  1  Eawle,  373;  Burr 
V.  Sims,  4  Whart.  150 ;  Bradley  v.  Bradley,  Ibid.  173 ;  Loring  v.  Steinman,  1 
Mete.  204 ;  Forsaith  v.  Clark,  1  Poster,  409  ;  Primm  V.  Stewart,  7  Texas,  178. 

When  a  person  has  not  been  heard  from  in  seven  years,  and  when  last  heard 
from,  he  was  beyond  sea,  without  having  any  known  residence  abroad,  the  legal 
presumption  is,  that  he  is  dead ;  but  there  is  no  presumption  that  he  died  at  any 
particular  time,  or  even  on  the  last  day  of  the  seven  years ;  Mc  Carter  v.  Camel,  1 
Barb.  Oh.  Eep.  455.  The  death  is  generally  presumed  to  have  occurred  at  the 
expiration  of  the  time  ;  Smith  v.  Knowlton,  11  N.  Hamp.  191 ;  Burr  v.  Sims,  4 
Wharton,  150  ;  Bradley  v.  Bradley,  Ibid.  173  ;  but  not  in  all  cases ;  The  State 
V.  Moore,  11  Iredell,  160. 

Although  mere  absence  of  a  person  from  his  place  of  residence  does  not  raise  a 
presumption  of  his  death,  until  after  the  lapse  of  seven  years  without  his  being 
heard  from,  yet  his  absence  for  a  much  less  space  of  time  without  his  being  heard 


76 


INDIEEOT    EVIDENCE. 


properly  be  admitted  in  eyidence,  in  order  to  prove  some  other  fact 
by  inference  from  tbem,  are  far  too  numerous  to  be  detailed  on  tbis 
occasion.  Some  of  tbem  -will  be  more  properly  adverted  to  in 
considering  the  evidence  peculiar  to  the  proof  of  particular  issues ;™ 
suffice  it  to  observe  at  present,  that  the  admissibility  of  such  evi- 
dence always  depends  on  some  natural  or  artificial  connection 
between  that  which  is  offered  to  be  proved  and  that  which  is 
proposed  to  be  inferred. 

In  general,  all  the  affairs  and  transactions  of  mankind  are  as 
much  connected  together  in  one  uniform  and  consistent  whole, 
without  chasm  or  interruption,  and  with  as  much  mutual  depend- 
ence on  each  other,  as  the  phenomena  of  nature  are ;  they  are 
governed  by  general  laws ;  all  the  links  stand  in  the  mutual  rela- 
tions of  cause  and  effect ;  there  is  no  incident  or  result  which  exists 
independently  of  a  number  of  other  circumstances  concurring  and 
tending  to  its  existence,  and  these  in  their  turn  are  equally  depend- 
ent upon  and  connected  with  a  multitude  of  others.  For  the  truth 
of  this  position  the  common  experience  of  every  man  may  be 
appealed  to ;  he  may  be  asked,  whether  he  knows  of  any  circum- 
stance or  event  which  has  not  followed  as  the  natural  consequence 
of  a  number  of  others  *tending  to  produce  it,  and  which  has 
■^  not  in  its  turn  tended  to  the  existence  of  a  train  of  dependent 
circumstances.  Events  the  most  unexpected  and  unforeseen  are 
so  considered  merely  from  ignorance  of  the  causes  which  were 
secretly  at  work  to  produce  them ;  could  the  mechanical  and  moral 

"  Connections  frequently  consist  in  similarity  of  custom  or  tenure,  see  tit.  Copy- 
hold—Custom ;  or  in  unity  of  design  or  purpose,  see  Conspiracy.  Thus  in  order 
to  show  the  necessity  of  calling  in  the  aid  of  the  military  to  execute  process,  proof 
of  acts  of  yiolence  by  the  mob  collected  in  another  quarter,  but  collected  for  the 
same  purpose  as  those  about  the  plaintiffs  house,  is  admissible.  Burdett  v. 
Colman,  14  East,  183. 

from,  in  connection  with  other  circumstances,  will  raise  such  presumption ;  Wlvite 
V.  Mann,  26  Maine,  361. 

Where  a  demandant  claimed  under  one  of  six  children  of  the  former  owner  of 
the  land,  evidence  that  inquiries  had  been  made  in  regard  to  the  other  five  children 
and  that  nothing  had  been  heard  of  them  for  seventy  years,  was  held  sufficient  to 
justify  a  jury  in  finding  that  they  had  died  without  issue ;  King  v.  Fowler,  11 
Pick.  302  ;  so  after  forty-eight  years  ;  Allen  v.  Lyons,  2  Wash.  C.  C.  Eep.  475 ; 
so  after  twenty-two  years ;  Mc  Comb  v.  Wright,  5  John.  Oh.  Eep.  263.  It  is  not 
to  be  inferred  however  negatively  from  these  cases,  that  the  ordinary  period  for 
raising  the  presumption  of  death  is  not  also  sufficient  to  raise  the  presumption  of 
death  without  issue  :  if  the  party  was  without  issue  when  last  heard  from,  or  if  the 
issue  has  also  been  unheard  from  for  seven  years. 


PRESUMPTIONS.  77 

causes  wliicli  gave  rise  to  them  have  been  seen  and  understood,  the 
consequences  themselves  would  not  have  created  surprise. 

It  is  from  attentive  observation  and  experience  of  the  mutual 
connection  between  different  facts  and  circumstances,  that  the  force 
of  such  presumptions  is  derived :  for  where  it  is  known  from  expe- 
rience that  a  number  of  facts  and  circumstances  are  necessarily,  or 
are  uniformly  or  usually  connected  with  the  fact  in  question,  and 
such  facts  and  circumstances  are  known  to  exist,  a  presumption 
that  the  fact  is  true  arises,  which  is  stronger  or  weaker  as  experi- 
ence and  observation  show  that  its  connection  with  the  ascertained 
facts  is  constant,  or  is  more  or  less  frequent. 

The  presumptions  or  inferences  above  alluded  to  are  chiefly 
those  which  are  deducible  by  virtue  of  mere  antecedent  experi- 
ence of  the  ordinary  connection  between  the  known  and  the 
presumed  facts ; "  but  circumstantial  or  presumptive  evidence  in 
general  embraces  a  far  wider  scope,  and  includes  all  evidence 
which  is  of  an  indirect  nature,  whether  the  presumption  or  infer- 
ence be  drawn  by  virtue  of  previous  experience  of  the  connection 
between  the  known  and  the  inferred  facts,"  or  be  a  conclusion  of 
reason  from  the  circumstances  of  the  particular  case,  or  be  the 
result  of  reason  aided  by  experience. 

From  what  has  been  said,  it  seems  to  follow  that  all  the  sur- 
rounding facts  of  a  transaction,  or  as  they  are  usually  termed,  the 
res  gestae,  may  be  submitted  to  a  jury,  provided  they  can  be  estab- 
lished by  competent  means,  sanctioned  by  the  law,  and  afford  any 
fair  presumption  or  inference  *as  to  the  question  in  dispute ; 
for,  as  has  already  been  observed,  so  frequent  is  the  failure  ■- 
of  evidence,  from  accident  or  design,  and  so  great  is  the  temptation 
to  the  concealment  of  truth  and  misrepresentation  of  facts,  that 
no  competent  means  of  ascertaining  the  truth  can  or  ought  to  be 
neglected  by  which  an  individual  would  be  governed,  and  on  which 
he  would  act,  with  a  view  to  his  own  concerns  in  ordinary  life. 
Let  it  be  considered,  then,  Jirst,  what  is  the  kind  of  evidence  to 
which  he  would  naturally  resort ;  and  in  the  next  place,  how  far 
the  law  interferes  to  limit  and  restrain  the  reception  of  such 
evidence;  remembering,  at  the  same  time,  that  all  artificial  and 
purely  conventional  modes  of  evidence  form  a  subject  for  future 
consideration, 

"  See  tit.  CiBCUMSTANTiAL  Evidence. 

°  See  tit.  OiKCUMSTANTiAL  Evidence  ;  Vol.  II.,  tit.  Peesumptions,  3  Bla.  Oonim. 
371 ;  Gilb.  L.  Ev.  160. 


78  INDIEECT    EVIDENCE. 

Where  an  ordinary  inquirer  could  not  obtain  information  from 
any  witness  of  tlie  fact  wliicli  he  was  anxious  to  ascertain,  either 
immediately  from  such  witness,  or  mediately  through  others,  or 
where  the  information  which  he  had  obtained  was  not  satisfactory, 
his  attention  would  be  directed  to  the  circumstances  which  had  a 
connection  with  the  transaction,  as  ascertained  either  by  his  own 
observation,  or  by  means  of  the  information  of  others,  to  enable 
him  to  draw  his  own  conclusions ;  and  in  pursuing  such  an  inquiry, 
where  it  was  a  matter  of  importance  and  interest,  he  would  neglect 
no  circumstances  which  were  in  any  way  connected  with  the  trans- 
action, which  could,  either  singly  or  collectively,  enable  him  to 
draw  any  reasonable  inference  on  the  subject.  All  his  experience 
of  human  conduct,  of  the  motives  by  which  such  conduct  was 
likely  to  be  influenced  under  particular  circumstances,  of  the 
ordinary  usages,  habits  and  course  of  dealing  among  particular 
classes  of  society,  or  in  particular  transactions,  even  his  scientific 
skill  in  medicine,  surgery  or  chemistry,  abstract  probabilities  or 
natural  philosophy,  might  be  called  into  action,  to  enable  him,  by 
a  general  and  comprehensive  view  of  all  the  circumstances,  and 
their  mutual  relations  to  each  other,  to  draw  such  a  conclusion  as 
reason,  aided  by  experience,  would  warrant. 

*There  is,  in  truth,  no  connection  or  relation,  whether  it 
-"    be  natural  or  artificial,  which  may  not  afford  the  means  of 
inferring  a  fact  previously  unknown,  from  one  or  others  which  are 
known. 

Where  the  connection  between  facts  is  so  constant  and  uniform 
that  from  the  existence  of  the  one  that  of  the  other  may  be  imme- 
diately inferred,  either  with  certainty,  or  with  a  greater  or  less 
degree  of  probability,  the  inference  is  properly  termed  a  presump- 
tion," In  contradistinction  to  a  conclusion  derived  from  circumstances 
by  the  united  aid  of  experience  and  reason. 

Circumstantial  proof  is  supplied  by  evidence  of  circumstances, 

f  Such  inferences  are  -wholly  independent  of  any  actual  knowledge  of  the 
necessity  of  the  connection  between  the  known  and  unknown  facts.  Many  of  the 
presumptions  which  we  have  to  deal  with,  as  connected  with  the  present  subject, 
are  legal  presumptions,  where  the  law  itself  establishes  a  connection  or  relation 
between  particular  facts  or  predicaments ;  as  that  the  heir  to  a  real  estate  was 
seised,  or  that  a  bill  of  exchange  was  founded  on  a  good  consideration.  These, 
however,  will  be  a  subject  for  consideration  when  inquiry  is  made  with  respect  to 
the  artificial  effect  annexed  by  the  law  to  particular  evidence ;  for  such  presump- 
tions are  of  an  artificial  and  technical  nature,  whilst  those  at  present  considered 
are  merely  natural. 


CIECUMSTANTIAL    EVIDESTCE.  79 

tHe  effect  of  wMcli  is  to  exclude  any  other  supposition  tlian  tliat 
the  fact  to  be  proved  is  true. 

The  nature  and  force  of  such  proof  will  be  more  properly  con- 
sidered at  another  opportunity.  The  mere  question  at  present  is 
how  far  the  law  interferes  to  limit  and  restrain  the  admission  of 
evidence  of  collateral  circumstances  tending  to  the  proof  of  a  dis- 
puted fact. 

In  the  first  place,  as  the  very  foundation  of  indirect  proof  is  the 
establishment  of  one  or  more  or  other  facts  from  which  the  infer- 
ence is  sought  to  be  made,  the  law  requires  that  the  latter  should 
be  established  by  direct  evidence,  in  the  same  manner  as  if  they 
were  the  very  facts  in  issue. 

The  next  question  then  is,  what  limit  is  there  to  the  admission  of 
collateral  evidence  for  the  purpose  of  indirect  proof. 

*The  nature  of  the  evidence,  and  the  principles  by  which 
it  is  to  be  appreciated,  are,  as  has  already  been  observed,  to  a  ^ 
great  extent  common  to  judicial  and  extrajudicial  inquiries.  Its 
force  and  efficacy,  in  the  one  case  .as  well  as  in  the  other,  must 
necessarily  depend  either  on  the  known  and  ordinary  connection 
between  the  facts  proved  and  the  facts  disputed,  or  on  the  force  and 
tendency  of  the  facts  proved  to  establish  the  truth  of  the  disputed 
fact  or  issue  by  excluding  any  other  supposition. 

Great  latitude  is  justly  allowed  by  the  law  to  the  reception  of 
indirect  or  circumstantial  evidence,  the  aid  of  which  is  constantly 
required,  not  merely  for  the  purpose  of  remedying  the  want  of 
direct  evidence,  but  of  supplying  an  invaluable  protection  against 
imposition.  The  law  interferes  to  exclude  all  evidence  which  falls 
within  the  description  of  "res  inter  alios  acta;"  the  effect  of  which 
is,  as  will  presently  be  seen,  to  prevent  a  litigant  party  from  being 
concluded,  or  even  affected,  by  the  evidence,  acts,  conduct  or 
declarations  of  strangers.  And  this  rule  is  to  be  regarded,  to  a 
great  extent  at  least,  not  so  much  as  a  limitation  and  restraint  of 
the  natural  effect  of  such  collateral  evidence,  but  as  a  restraint 
limited  by,  and  co-extensive  with  the  very  principle  by  which  the 
reception  of  such  evidence  is  warranted ;  for  the  ground  of  receiving 
such  evidence  is  the  connection  between  the  facts  proved  and  the 
facts  disputed ;  and  there  is  no  such  general  connection  between  the 
acts,  conduct  and  declarations  of  strangers,  as  can  afford  a  fair  and 
reasonable  inference  to  be  acted  on  generally  even  in  the  ordinary 
concerns  of  life,  still  less  can  they  supply  such  as  ought  to  be  relied 
on  for  the  purpose  of  judicial  investigation.     And  therefore  this 


80  INDIRECT    EVIDENCE. 

extensive  brancli  of  the  rule  which  rejects  the  res  inter  alios  acta, 
may  be  considered  as  founded  on  principles  of  natural  reason  and 
justice,  the  same  with  those  which  warrant  the  reception  of  indirect 
evidence. 

In  the  first  place,  the  mere  declarations  of  strangers  are  inkdmis- 
sible,  except  in  the  instances  already  considered,  *where,  on 
-'  particular  grounds,  and  under  special  and  peculiar  sanctions, 
they  are  admissible  as  direct  evidence  of  a  fact.  Declarations  so 
circumstanced  may  be  used  either  for  the  purpose  of  directly  estab- 
lishing the  principal  fact  in  dispute,  or  for  the  purpose  of  proving 
the  existence  of  collateral  facts  from  which  the  principal  fact  may 
be  inferred;  but  other  declarations,  which  are  of  too  vague  and 
suspicious  an  origin  to  be  received  as  evidence  of  the  facts  declared, 
must  also,  on  the  same  principle,  be  rejected  as  indirect  evidence. 
If  such  declarations  as  to  the  principal  fact  be  inadmissible,  they 
must  also  be  at  least  equally  inadmissible  to  establish  any  col- 
lateral fact,  by  the  aid  of  which  the  principal  fact  may  be  indirectly 
inferred.  It  would  be  inconsistent  to  reject  them  when  offered  as 
direct  testimony,  but  to  receive  them  as  collateral  evidence,  the 
more  especially  as  even  immediate  testimony  is  in  one  sense  but 
presumptive  evidence  of  the  truth ;  for  it  is  on  the  presumption  of 
human  veracity,  confirmed  by  the  usual  legal  tests,  that  credit  is 
usually  given  to  human  testimony. 

If,  for  example,  the  question  were  whether  A  had  waylaid  and 
wounded  B,  if  the  declaration  of  a  third  person,  not  examined  on 
the  trial,  that  he  saw  the  very  fact,  could  not  be  received  in  evi- 
dence, neither,  on  any  consistent  principle,  could  his  declaration 
that  he  saw  A  near  the  place,  armed  with  a  weapon,  be  received 
in  order  to  establish  that  fact  as  one  of  several  constituting  a  body 
of  circumstantial  evidence.  For  circumstantial  proof  rests  wholly 
on  the  effect  of  established  facts,  and  cannot,  therefore,  be  properly 
founded  wholly  or  in  part  on  mere  declarations,  which  are  of  no 
intrinsic  weight  to  prove  any  facts. ■* 

Neither,  in  general,  ought  any  inference  or  presumption  to  the 

^..       prejudice  of  a  party  to  be  drawn  from  the  mere  *acts  or  con- 

-•    duct  of  a  stranger ;  for  such  acts  and  conduct  are  but  in  the 

nature  of  declarations  or  admissions,  frequently  not  so  strong ;  and 

such  declarations  are  inadmissible,  for  the  reasons  already  stated. 

'  This  observation  of  course  does  not  extend  to  any  case  where  the  mere  fact  of 
such  a  declaration  having  been  made  is  in  itself  material ;  any  such  declaration  is 
of  itself  a  fact. 


ACTSOFSTBANGEES.  81 

An  admission  by  a  stranger  cannot  be  received  as  evidence  against 
any  party ;  for  it  may  have  been  made,  not  because  the  fact  admitted 
■was  true,  but  from  motives  and  under  circumstances  entirely  col- 
lateral, or -even  collusively,  and  for  the  very  purpose  of  being 
offered  in  evidence.  On  a  principle  of  good  faith  and  mutual  con- 
venience, a  man's  own  acts  are  binding  upon  himself,'  and  his  acts 
conduct  and  declarations  are  evidence  against  him ;  but  it  would 
not  only  be  highly  inconvenient,  but  also  manifestly  unjust,  that  a 
man  should  be  bound  by  the  acts  of  mere  unauthorized  strangers. 
But  if  a  party  ought  not  to  be  bound  by  the  acts  of  strangers, 
neither  ought  their  acts  or  conduct  to  be  used  as  evidence  against 
him  for  the  purpose  of  concluding  him ;  for  this  would  be  equally 
objectionable  in  principle,  and  more  dangerous  in  effect,  than  the 
other.  It  is  true,  that  in  the  course  of  the  affairs  of  life  a  man 
may  frequently  place  reliance  on  inferences  from  the  conduct  of 
others.  If,  for  instance,  A  and  B  were  each  of  them  insurers 
against  the  same  risk,  J.  to  a  large,  and  5  to  a  small  amount,  it 
is  very  possible  that,  on  a  claim  made  against  each  for  a  loss, 
which  was  admitted  and  paid  by  A  to  the  extent  of  his  liability,  B, 
trusting  to  the  knowledge  and  prudence  of  A,  might  reasonably 
infer  that  the  loss  insured  against  had  occurred,  and  that  he  also 
was  bound  to  pay  his  proportion.  It  is  plain,  however,  that  such 
an  inference  would  rest  on  the  special  and  peculiar  circumstances 
of  the  case ;  and  that,  so  far  from  warranting  the  general  admission 
of  such  evidence  by  inference  on  a  legal  trial  to  ascertain  the  fact, 
it  would  supply  no  general  rule,  but  must  be  regarded  as  an  excep- 
tion, even  in  the  ordinary  course  of  business. 

*In  addition  to  this,  it  is  obvious  that  whilst  an  individual 
might  with  discretion  rely  on  the  conduct  of  others,  where,  '- 
under  the  peculiar  circumstances,  there  was  no  reason  for  suspicion 
(in  which  case  a  principle  of  self-interest  would  usually  secure  the 
exercise  of  a  sound  discretion,)  such  inferences  could  not  be  safely 
left  to  a  jury,  who  could  not  possibly  be  put  in  possession  of  all  the 
collateral  reasons  by  which  an  individual  might  properly  be  influ- 
enced in  trusting  to  such  evidence,  and,  which  is  more  material, 
could  not  act  on  those  collateral  circumstances  of  suspicion  which 
would  have  induced  an  individual  to  withhold  his  confidence. 

An  act  done  by  another,  from  which  any  inference  is  to  be  drawn 
as  to  his  knowledge  of  any  bygone  fact,  is  an  acted  declaration  of 

■■  See  Vol.  II.,  tit.  Admissions. 
6 


82  IKDIRECT    EVIDENCE. 

the  fact,  and  is  not  in  general  evidence  of  tlie  fact,  because  there  is 
no  STii&cient  test  for  preeinning  either  that  he  knew  the  fact,  or  that, 
knowing  the  fact,  his  conduct  was  so  governed  by  that  knowledge 
as  to  afford  evidence  of  the  fact  which  ought  to  be  relied  on.  A 
man  may  frequently  act  upon  very  uncertain  evidence  of  a  fact ; 
he  may  have  been  deceived  by  others ;  and  even  where  he  has  cer- 
tain knowledge,  his  conduct  may  frequently  be  governed  by  motives 
independent  of  the  truth,  or  even  in  opposition  to  it. 

"Where  a  party  professes  to  act  on  his  knowledge  of  the  truth 
of  a  particular  fact,  so  that  his  so  acting  is  accompanied  by,  or  is 
equivalent  to  a  direct  or  express  declaration  of  the  truth  of  that 
fact,  the  question  of  admissibility  falls  under  principles  already 
considered.  A  test  is  necessary  to  show,  first,  that  he  had  com- 
petent knowledge  of  the  fact ;  secondly,  that  he  faithfully  commu- 
nicated what  he  knew. 

The  rule,  therefore,  in  the  absence  of  special  tests  of  truth, 
operates  to  the  exclusion  of  all  the  acts  or  declarations  or  conduct 
of  others,  as  evidence  to  bind  a  party,  either  directly  or  by  infer- 
ence; and,  in  general,  no  declaration,  or  written  entry,  or  even 
af&davit  made  by  a  *stranger,  is  evidence  against  any  man.'^ 
-■  Neither  can  any  one  be  affected,  still  less  concluded,  by  any 
evidence,  decree,  or  judgment,  to  which  he  was  not  actually  or  in 
consideration  of  law  privy. 

As  this  is  a  rule  which  rests  on  the  clearest  principles  of  reason 
and  natural  justice,  it  has  ever  been  regarded  as  sacred  and 
inviolable. 

The  importance  of  the  principle,  and  the  extent  of  its  operation, 
make  it  desirable  to  ascertain  its  limits,  by  inquiring  negatively 
what  it  does  not  exclude. 

In  the  first  place,  then,  it  is  scarcely  necessary  to  observe,  that 
a  man's  own  acts,  conduct  and  declarations  where  voluntary,  are 
always  admissible  in  evidence  against  him.  As  against  himself, 
it  is  fair  to  presume  that  his  words  and  actions  correspond  with  the 

'  For  illustrations  of  this  general  principle,  vide  infra,  tit.  Depositions — Judg- 
ments  BXASIINATIONS. 

'  Wiiere  the  defendant,  being  sued  for  a  debt,  set  up  in  defence,  that  by  a  new 
contract  witli  Mm,  the  plaintiif  accepted  a  third  person  as  his  debtor  in  place  of 
the  defendant,  an  indorsement  of  the  amount  of  the  debt,  made  without  the  privity 
of  the  plaintiff,  on  a  note  held  by  the  defendant  against  such  third  person,  is  not 
admissible  to  prove  such  new  contract,  being  res  inter  alios  acta;  Jacobs  v. 
Putnam,  4  Pick.  Eep.  108.  M. 


ACTS    OF    STRANGERS.  83 

trutli :  it  is  his  o-wn  fault  if  they  do  not.  In  many  instances  he  is 
conclusively  bound,  more  especially  where  he  has  formally  engaged 
to  be  so  bound;  in  others,  his  declarations  or  acts  furnish  mere 
primd  facie  presumptions  against  him.  The  rule,  therefore,  above 
adverted  to,  never  excludes  evidence  of  any  acts  or  declarations 
made  either  by  the  party  himself,  or  which  he  has  authorized,  or  to 
which  he  has  assented.' 

It  is  plain  also  that  this  principle  does  not  exclude  the  operation 
of  any  general  rule  of  law  or  custom ;  of  these,  and  all  their  conse- 
quences, he  is  bound  to  take  notice  at  his  peril. 

It  follows,  therefore,  that  even  the  acts  and  declarations  of  others 
are  not  excluded  by  this  principle,  whenever  they  have  any  legal 
operation  which  is  material  to  the  subject  of  inquiry;  for  legal 
consequences  can  no  more  be  regarded  as  res  inter  alios  than  the 
law  itself.  For  instance,  where  the  contest  is  as  to  the  right  to  a 
personal  chattel,  evidence  is  admissible,  even  against  an  owner  who 
proves  that  he  never  sold  the  chattel,  of  a  subsequent  sale  of  the 
property  *in  market  overt ;  for  although  he  was  no  party  to 
the  transaction,  which  took  place  entirely  between  others,  yet  '- 
as  such  a  sale  has  a  legal  operation  on  the  question  at  issue,  the 
fact  is  no  more  res  inter  alios  acta  than  the  law  which  gives  effect 
to  such  a  sale.  So  in  actions  against  a  sheriff,  it  very  frequently 
happens  that  the  law  depends  wholly  on  transactions  to  which  the 
sheriff  is  personally  an  entire  stranger ;  where  the  question  is  as  to 
the  right  of  ownership  to  particular  property  seized  under  an  exe- 
cution, all  such  transactions  and  acts  between  others  are  admissible 
in  evidence  which  in  point  of  law  are  material  to  decide  the  right 
of  property.  So  in  all  cases  where  any  statute  or  law,  or  decree  or 
judgment,  is  of  a  public  nature,  or  operates  in  rem;  for  to  such 
proceedings  all  are  privy. 

Nor  does  the  objection  ever  apply  where  the  conduct  or  declara- 
tion of  another  operates  not  by  way  of  admission  or  mere  statement, 
but  as  evidence.  Thiis,  if  A  make  a  private  memorandum  of  a  fact 
in  which  B  has  an  interest,  that  memorandum,  generally  speaking, 
woxild  not  be  evidence  againt  B;  it  would  fall  within  the  descrip- 
tion of  res  inter  alios  acta;  but  if  it  were  a  memorandum  of  a  fact 
peculiarly  within  the  knowledge  of  A,  and  made  in  the  usual  course 
of  business,  or  if  A,  by  that  entry  charged  himself,  it  would  be 
admissible  in  evidence  after  the  death  of  J.;  not  that  it  operates 

«  Vol.  II.,  tit.  Admissions.     Spargo  v.  Broiun,  9  B.  &  C.  935  ;  E.  C.  L.  E.  17. 


84  INDIRECT    EVIDENCE. 

against  B  by  way  of  admission  of  tlie  fact,  for  if  so  it  ■would  be 
adpaissible  whetlier  A  were  living  or  dead,  but  because,  under  tbose 
circumstances,  tbe  law  considers  tbe  entry  to  be  a  proper  medium 
for  communicating  the  original  fact  to  tbe  jury,  tbe  testimony  of 
A  Hmself  being  unattainable. 

So  the  declarations  of  deceased  persons,  and  evidence  of  reputa- 
tion, in  matters  of  public  prescription,  pedigree,  and  cbaracter,  are 
admissible,  not  because  strangers  bave  any  power  to  conclude  a 
party  by  wbat  they  may  choose  wantonly  to  assert  upon  the  sub- 
ject, but  because  the  law  considers  the  evidence  to  be  sufficiently 
deserving  of  credit,  as  a  means  of  communicating  the  real  fact,  to 
^  ^  be  offered  to  *a  jury.  And  whenever  that  is  the  case,  it  is 
-'  obvious  that  such  declarations  or  reputation  are  no  more  res 
inter  alios  than  if  the  declarants  themselves  had  stated  what  they 
knew  upon  oath  to  the  jury. 

In  the  next  place,  although  the  general  principle  above 
announced  excludes  the  declarations,  writings,  acts  and  conduct 
of  strangers,  as  falling  within  the  general  description  of  res  inter 
alios  actae,  the  objection  does  not  extend  to  a  class  of  declarations 
already  described  as  declarations  accompanying  an  act ;  for  these, 
when  the  nature  and  quality  of  the  act  are  in  question,  are  either 
to  be  regarded  as  part  of  the  act  itself,  or  as  the  best  and  most 
proximate  evidence  of  the  nature  and  quality  of  the  act:  their 
connection  with  the  act  either  sanctions  them  as  direct  evidence, 
or  constitutes  them  indirect  evidence,  from  which  the  real  motive 
of  the  actor  may  be  duly  estimated. 

Hence  it  is  that  declarations,  made  by  a  trader  at  the  time  of 
his  departure  from  his  residence  or  place  of  business,  are  evidence 
of  the  intention  with  which  he  went.  His  real  intention,  in  such 
a  case,  cannot  be  inferred  otherwise  than  from  external  appear- 
ances, from  his  acts ;  and  his  declarations  are  collateral  indications 
of  the  nature  of  his  acts  and  his  intention  in  doing  them.''  Upon 
the  same  principle,  in  Lord  Oeorge  Oordon^s  Case,  the  cries  of  the 
mob,  at  the  time  they  were  committing  acts  of  violence,  were  held 
to  be  admissible  evidence  to  show  their  intention.''  Such  evidence 
is  also  admissible  in  actions  against  the  hundred,  in  case  of  an 
action  to  recover  the  value  of  property  feloniously  demolished  by 
persons  riotously  assembled.  Again,  in  order  to  prove  that  a 
ausband  had  obliged  his  wife  to  leave  his  house  by  ill  treatment, 

"■  See  tit.  Bankrupt.  ^  21  Howell's  St.  Tr.  542. 


DECLARATIONS    OF    STRANGERS.  85 

the  declaration  of  the  wife  at  the  time  of  leaving  the  house  -was 
held  to  be  admissible  evidence  against  the  husband  to  prove  the 
fact.  Here  the  fact  itself  of  leaving  the  house  was  material  and 
admissible,  and  the  declaration  accompanying  the  fact  was  collat- 
eral evidence  *of  the  nature  of  the  act.  The  same  principle 
applies,  as  will  be  seen,  in  actions  for  criminal  conversation.  '- 
There  the  terms  on  which  the  plaintiff  and  his  wife  lived  previous 
to  the  adultery,  being  material  to  the  inquiry,  declarations  by  the 
wife  in  the  absence  of  the  husband,  and  letters  written  by  her,  not 
only  to  him  but  even  to  third  persons,  are  admissible  evidence  to 
show  the  state  of  her  mind  and  her  affection  for  him.^  So,  declara- 
tions by  a  patient''  to  a  medical  attendant,  as  to  his  state  of  body 
and  sufferings  at  the  time,  are  evidence  of  the  fact,  for  in  many 
cases  they  furnish  the  only  means  of  ascertaining  that  state,  and 
they  are,  in  reality,  part  of  his  examination ;  but  declarations  so 
made  as  to  the  independent  fact  of  the  cause  or  the  origin  of 
that  state  are  not  admissible." 

It  is,  however,  to  be  particularly  observed,  that  in  these 
*cases,  when  declarations  or  entries'"  are  admitted  in  evi-    '- 

y  Per  Lord  Ellenborough,  6  Bast,  188  ;  and  see  Vol.  II.  Criminal  Oonveesa- 

TION. 

'  6  East,  188.  It  has  been  truly  observed,  that  representations  made  by  a  party, 
as  to  his  health  and  sensations,  when  made  to  a  medical  attendant,  who  has  the 
opportunity  of  observing  whether  they  correspond  with  the  symptoms  to  which 
they  refer,  are  entitled  to  greater  weight  than  such  as  are  made  to  an  inexperienced 
person.  Phillips  on  Evidence,  9th  ed.  vol.  i.  p.  190,  citing  the  observations  made 
by  the  Attorney-General  (Copley),  in  the  Gardiner  Peerage  Case.  In  Aveson  v. 
Lord  Kinnaird,  the  rule  is  laid  down  as  to  patients  without  qualification.  The 
admissibility  of  such  evidence  is  in  principle  confined  to  representations  made  as 
to  the  state  of  the  party  at  the  time  of  making  the  representation,  as  contradistin- 
guished from  any  statement  of  a  particular  fact  occurring  at  any  antecedent  time. 
In  the  Gardiner  Peerage  Case,  p.  79-136,  170,  where  it  became  material  to 
inquire  into  the  ordinary  period  of  gestation,  the  medical  witnesses  were  not 
permitted  to  state  what  had  been  said  by  women  whom  they  had  attended  in  their 
confinement,  as  to  the  date  of  their  conception. 

'  Aveson  v.  Lord  Kinnaird,  6  East,  188  ;  Reg.  v.  Johnson,  2  Car.  &  K.  354 ; 
E.  C.  L.  R.  61 ;  per  Parke,  B.,  Reg.  v.  Outtridge,  9  Car.  &  P.  472  ;  B.  C.  L.  E. 
38.  In  the  case  of  Rex  v.  Foster,  6  Car.  &  P.  325,  E.  0.  L.  R.  25,  it  was  held  by 
Gurney,  B.,  and  Park,  J.,  that  a  declaration  by  one  since  deceased,  instantly  on 
receiving  a  fatal  injury,  as  to  the  cause  of  the  injury,  was  admissible.  And  see 
further  on  this  subject,  Rex  v.  Megson,  9  C.  &  P.  420  ;  E.  0.  L.  R.  38  ;  Rex  v. 
Osborne,  Oar.  &  M.  622 ;  E.  0.  L.  R.  41 ;  Vol.  III.  Rape  ;  Bntbies  bt  Thied 
Peksons,  post. 

•>  In  future,  to  avoid  repetition,  the  term  declaration  alone  will  be  used ;  but  it 
must  be  remembered,  that  the  same  principle  applies  to  a  written  entry. 


86  INDIRECT    EVIDENCE. 

dence  as  part  of  the  res  gestse  or  transaction,  they  are  admitted, 
either  because  they  constitute  the  very  fact  which  is  the  subject  of 
inquiry,"  or  because  they  elucidate  the  facts  with  which  they  are 
connected,  having  been  made  without  premeditation  or  artifice, 
and  without  a  view  to  the  consequences ;  and  as  such  they  are 
the  best  evidence — it  may  be,  better  than  even  the  subsequent 
testimony  of  the  party  who  made  them — to  prove  the  object  for 
which  they  are  admitted  in  evidence ;  for  the  party  who  made  the 
declaration,  if  he  were  competent  as  a  witness,  would  frequently 
be  under  a  temptation  to  give  a  false  colouring  to  the  circumstance 
when  its  tendency  was  known ;  besides,  as  in  this  case  the  effect 
of  the  evidence  is  independent  of  the  credit  due  to  the  party  him- 
self, it  could  be  of  no  use  to  confirm  his  credit  by  examination 
upon  oath,  and  his  declaration  as  a  mere  fact  is  as  capable  of  being 
proved  by  another  witness  as  any  other  fact  is.' 

°  See  Kent  v.  Lowen,  1  Camp.  0.  177.  It  is  indeed  only  when  tlie  fact  by 
which  the  declaration  is  accompanied  is  material  and  relevant  that  the  declaration 
is  admissible ;  see  R.  v.  Bliss,  7  A.  &  E.  550 ;  E.  0.  L.  R.  34 ;  Doe  d.  Tatham 
V.  Wright,  7  A.  &  E.  313  ;  E.  0.  L.  R.  34;  6  Nev.  &  M.  132  ;  E.  0.  L.  R.  36  ; 
4  Bing.  N.  0.  489  ;  B.  C.  L.  R.  33  ;  and  2  Nev.  &  P.  305.  For  further  illustra- 
tions of  these  principles,  see  tit.  Bntkies  by  Third  Persons. 

'  To  be  a  part  of  the  res  gestw,  the  declarations  must  have  been  made  at  the 
time  of  the  act  done  which  they  are  supposed  to  characterize,  and  calculated  to 
unfold  the  nature  and  quality  of  the  facts  they  were  intended  to  explain,  and  so  to 
harmonize  with  them  as  obviously  to  constitute  one  transaction ;  per  Hosmer,  0. 
J.,  in  Enos  v.  Tuttle,  3  Conn.  250 ;  Carter  v.  Buchanan,  Kelly,  513.  It  is  diffi- 
cult however  to  lay  down  any  precise  general  rule  as  to  the  cases  in  which 
declarations  are  admissible  as  part  of  the  res  gestae  ;  Allen  v.  Duncan,  11  Pick. 
309 ;  Pool  V.  Bridges,  4  Pick.  378.  See  3  Cowen  &  Hill's  Phillips,  589,  note,  452 
for  a  very  elaborate  and  extended  examination  of  the  American  cases. 

Where  evidence  of  an  act  done  by  a  party  is  admissible,  his  declarations,  made 
at  the  time,  having  a  tendency  to  elucidate  or  give  a  character  to  the  act,  and 
which  may  derive  a  degree  of  credit  from  the  act  itself,  are  also  admissible,  as  part 
of  the  res  gestae ;  Sessions  v.  Little,  9  N.  Hamp.  271 ;  Russell  v.  Frishie,  19 
Conn.  205  ;  Ellcins  v.  Hamilton,  20  Verm.  627  ;  Woods  v.  Bank,  14  New  Hamp. 
201.  In  an  action  against  an  individual  for  enticing  away  the  servant  of  another, 
evidence  of  the  declarations  of  the  servant,  at  the  time  he  left  as  to  the  motive 
which  influenced  him,  are  admissible ;  Hadley  v.  Garter,  8  N.  Hamp.  40.  In  a 
suit  where  the  question  of  domicil  is  raised,  the  declarations  and  letters  of  the 
party  whose  domicil  is  in  dispute  are  admissible  in  evidence,  especially  if  made 
previous  to  the  happening  of  the  event  which  gave  rise  to  the  suit ;  TKorndihe  v. 
Barton,  1  Mete.  242 ;  Kilburn  v.  Bennett,  3  Ibid.  199  ;  Corinth  v.  Lincoln,  34 
Maine,  310. 

It  is  error  to  exclude  the  declarations  made  by  a  person  in  explanation  of  the 


DECLARATIONS    OF    STEAN-GEES.  87 

It  sometimes  happens  tliat  a  declaration  is'  evidence  for  a  par- 
ticular purpose,  altliougli  it  is  not  to  be  taken  as  evidence  to  prove 
th.e  truth,  of  tlie  fact  declared ;  for  tlie  rule  seems  to  be,  that  if  the 
declaration  be  evidence  as  a  circumstance  in  the  cause,  for  any 

delivery  of  chattels,  when  an  inference  unfavorable  is  sought  to  be  drawn  from  the 
fact  of  delivery.  The  declarations  made  at  the  time  are  a  part  of  the  transaction 
and  proper  to  be  given  in  evidence  as  part  of  the  res  gestce  ;  Yarborough  v.  Moss, 
9  Ala.  382.  Where  a  bank  discounted  a  note  on  condition  that  it  should  be  in- 
dorsed by  A.,  and  A.  afterwards  indorsed  the  note,  it  was  held  in  a  suit  against  A. 
on  the  note,  that  a  declaration  made  by  the  cashier  to  the  directors  of  a  bank  in. 
session  when  the  note  was  offered  for  discount,  that  A.  would  indorse  the  note, 
upon  which  declaration  the  note  was  discounted,  was  admissible  as  part  of  the  res 
gestce  ;  Mitchell  v.  Planters'  BanJc,  8  Hump.  216.  Declarations  of  a  donor  at  the 
time  of  the  delivery  of  slaves,  that  they  were  delivered  to  the  trustee,  pursuant 
to  the  provisions  of  a  deed  are  admissible  on  the  same  principle ;  Hale  v.  Stone, 
14  Ala.  803.  Where  the  acts  of  parties  to  a  transaction  are  evidence  against 
third  persons,  their  declarations  if  they  are  inseparably  connected  with  the  acts  so 
as  to  constitute  a  part  of  the  res  gestce,  are  also  admissible ;  Robertson  v.  Smith, 

18  Ala.  220.  So  declarations  by  parties  in  possession  of  real  or  personal  property 
in  order  to  show  the  character  of  such  possession  ;  Brazier  v.  Burt,  18  Ala.  201 ; 
Glealand  v.  Huey,  18  Ala.  343 ;  Perry  v.  Graham,  Ibid.  822  ;  Fontaine  v.  Burr, 

19  lb.  722  ;  Marcy  v.  Stone,  8  Oush.  4. 

To  make  declarations  a  part  of  the  res  gestce,  they  must  be  contemporaneous, 
with  the  main  fact ;  but  in  order  to  be  contemporaneous  they  are  not  required  to 
be  precisely  concurrent  in  point  of  time.  If  the  declarations  spring  out  of  the 
transaction — ^if  they  elucidate  it — if  they  are  voluntary  and  spontaneous,  and  if 
they  are  made  at  a  time  so  near  to  it,  as  reasonably  to  preclude  the  idea  of  delib- 
erate design,  they  are  then  to  be  regarded  as  contemporaneous  ;  Mitcheson  v.  The 
State,  11  Geo.  615.  The  declarations  of  a  party  paying  money,  for  the  purpose  of  i 
showing  the  application  or  appropriation  of  the  money  paid,  are  admissible  :  and 
when  made  at  the  time  of  payment,  they  become  part  of  the  res  gestae  ;  Bank  of 
WoodstocJc  V.  ClarJc,  25  Verm.  308. 

On  the  other  hand,  the  holder  of  a  check  went  into  a  bank  and  when  he  came 
out,  said  ^e  had  demanded  its  payment.  This  declaration  was  held  inadmissible, 
to  prove  a  demand ;  as  being  no  part  of  the  res  gestce.  The  demand  was  the  fact 
to  be  proved ;  Brown  v.  LusJc,  4  Yerger.  210.  If  the  declaration  of  a  person  is  in 
itself  a  fact  in  a  transaction  or  is  made  by  him  while  doing  an  act  and  seems  to 
explain  it,  it  is  to  be  received  in  evidence  as  part  of  the  res  gestce  ;  but  a  recital 
of  past  transactions  is  not  admissible,  although  it  may  have  some  relation  to  the 
act  which  the  person  may  be  doing  when  he  makes  such  declaration ;  Haynes  v. 
Butter,  24  Pick.  242  ;  Buswell  v.  Davis,  10  N.  Hamp.  413.  Where  the  plaintiff, 
for  the  purpose  of  showing  the  reason  for  a  change  of  his  residence,  offered  in 
evidence  his  declarations,  made  before  and  after  it  took  place,  not  in  the  presence 
of  the  defendant,  it  was  held  that  such  declarations,  not  accompanying  any  act,  were 
not  a  part  of  the  res  gestce,  and  were  inadmissible  ;  Ladd  v.  Abel,  18  Oonn.  513  ; 
Bradford  v.  Eaggerthy,  11  Ala.  698  ;  Smith  v.  Webb,  1  Barb.  230.  To  make 
the  declarations  of  a  party  evidence  in  his  favour,  as  part  of  the  res  gestce,  they 


88  INDIRECT    EVIDENCE. 

purpose,  it  is  to  be  received;  and  tlie  jury  are  to  be  directed 
not  to  consider  it  as  an  evidence  for  other  purposes,  for  wMcli, 
abstractedly,  it  could  not  have  been  received;*  as,  for  instance, 
^Q  where  it  is  *used  as  introductory  of  some  other  matter. 
-'  Suppose  the  question  to  be,  whether  A  had  wounded  B,  if  G 
had  asserted  in  the  presence  of  A  that  he  had  seen  him  wound  B, 
this  would  be  admissible  evidence,  but  only  as  introductory,  and 
for  the  purpose  of  introducing  and  explaining  Ah  conduct  and 
behaviour  when  the  charge  was  made,  and  his  answer  upon  that 
occasion,  and  not  as  having  any  intrinsic  tendency  to  prove  the 
fact  asserted. 

In  the  next  place,  it  is  observable  that  the  principle  is  confined 
to  those  cases  where  an  inference  is  attempted  to  be  made  from  the 
acts,  conduct  or  declarations  of  strangers,  on  the  presumption  that 
they  would  not  have  done  such  acts,  or  made  such  declarations, 
had  not  the  fact  so  to  be  inferred  been  true ;  and  that  it  is  the  want 
of  any  certain  or  known  connection  between  such  acts  or  declara- 
tions and  the  truth  of  the  fact  which  occasions  the  exclusion. 
Hence  it  is  that  the  principle  does  not  extend  to  the  exclusion 
of  any  of  what  may  be  termed  real  or  natural  facts  and  circum- 
stances in  any  way  connected  with  the  transaction,  and  from 
which  any  inference  as  to  the  truth  of  the  disputed  fact  can 
reasonably  be  made.  Thus,  upon  the  trial  of  a  prisoner  on  a 
charge  of  homicide  or  burglary,  all  circumstances  connected  with 
the  state  of  the  body  found,  or  house  pillaged,  the  tracing  by 
stains,  marks  or  impressions,  the  finding  of  instruments  of  vio- 
lence, or  property,  either  on  the  spot  or  elsewhere,  in  short,  all 

■J  In  the  case  of  Vacher  v.  Codis,  M.  &  M.  353,  E.  0.  L.  E.  22  ;  Lord  Tenterden 
allowed  that  part  only  of  the  letter  to  be  read  which  contained  the  refusal.  See 
further  tit.  Written  Evidence  ;  and  'Willis  v.  Bernard,  8  Bing.  376  ;  B.  0.  L. 
E.  21 ;  Wliitehead  v.  Scott,  1  M.  &  Eob.  2  ;  Wliitaker  v.  Bank  of  England,  6 
C.  &P.  700;  B.  0.  L.  E.  25. 

must  be  connected  with  the  material  fact  or  inquiry  involved  in  the  issue ;  Tomkies 
V.  Reynolds,  17  Ala.  109  ;  Plumer  v.  French,  2  Poster,  450.  Before  the  decla- 
ration of  a  party  can  be  received  in  evidence  in  his  own  favour,  as  explanatory  of 
his  possession  the  fact  of  possession  must  be  established  to  the  satisfaction  of  the 
Court ;  otherwise  the  declarations  would  be  made  evidence  of  the  possession  itself 
or  the  title  rather  than  as  explanatory  of  the  nature  of  the  possession ;  Thomas  v. 
Begraffenreid,  17  Ala.  602.  The  declaration  of  one  who  is  in  possession  of  per- 
sonal property,  explanatory  of  his  possession  are  admissible  evidence ;  but  his 
declarations  in  regard  to  the  contract  by  which  he  came  into  possession  are  not 
admissible  evidence  in  Ms  favour ;  Mims  v.  Sturdevant,  23  Ala.  664. 


COLLATERAL    C  I  E  C  U  M  S  T  AN  C  E  S.  89 

visible  vestigia,  as  part  of  the  transaction,  are  admitted  in  evidence, 
for  the  purpose  of  connecting  the  prisoner  with  the  act. 

Such  facts  and  circumstances  have  not  improperly  been  termed 
inanimate  witnesses.     It  may  be  asked,  whether  the  same  principle 
which  excludes  all  inferences  from  the  acts,  conduct  and  declara- 
tions of  others,  ought  not  also  to  exclude  such  real  circumstances ; 
for  an  artful  person  may  *not  only  deceive  by  speaking  and 
writing,  but  may  also  create  false  and  deceptive  appearances, 
calculated  to  induce  others  to  draw  false  conclusions  from  them ; 
he  may  act  as  well  as  speak  a  lie,  and  may  deceive  by  false  facts 
as  well  as  false  expressions."    Eeal  facts,  that  is,  such  as  are  the 
object  of  actual  observation,  in  contradistinction  to  mere  recitals  of 
facts,  are  in  themselves  always  true,  whilst  a  mere  recital  or  state- 
ment may  be  wholly  false ;  and  although  collateral  circumstances, 
when  considered  without  careful  comparison,  may,  either  in  con- 
sequence of  contrivance  and  design,  or  even  from  accident,  present 
appearances  which  tend  to  false  conclusions,  that  *tendency 
is  always  subject  to  be  corrected  by  a  multitude  of  other  facts    '- 
which  are  genuine. 

=  An  ancient  and  celebrated  argument  supplies  an  illustration.  A  young  man 
who  was  blind,  a  resident  in  his  father's  house,  was  charged  by  his  step-mother 
with  having  assassinated  his  father  by  stabbing  him  whilst  he  slept.  The  evidence 
was  circumstantial ;  and  one  of  the  prominent  facts  urged  against  the  son  was  the 
circumstance  that  the  walls  of  the  apartments  which  separated  the  chamber  of  the 
father  from  that  of  the  son  were  smeared  with  the  impressions  of  bloody  hands, 
proceeding  from  the  chamber  of  the  father  to  that  of  the  son.  With  respect  to 
such  evidence,  which  according  to  the  rules  of  our  law  would  clearly  be  admissible, 
it  may  be  objected,  that  such  appearances  may  have  resulted  from  the  art  and 
cunning  of  another,  for  the  very  purpose  of  implicating  the  accused ;  and  also  it 
may  be,  as  suggested  in  the  case  cited,  for  the  further  purpose  of  screening  the  real 
perpetrator  of  the  offence. 

Since,  then,  it  is  possible  that  such  appearances  may  be  the  result  of  fraud  and 
artifice,  ought  they  to  be  admitted  ?  or,  at  least,  are  they  not  subject  to  the  same 
objection  which  is  urged  against  receiving  evidence  of  the  declarations  or  writings 
of  others  ?  The  answer  seems  to  be,  that  although  a  possibility  exists  that  such 
appearances  may  have  resulted  from  contrivance  and  design,  yet  that  much  less 
danger  is  to  be  apprehended  from  the  reception  of  such  evidence  of  actual  facts 
than  would  result  from  receiving  evidence  of  mere  statements  of  facts. 

In  the  case  above  supposed,  two  circumstances  tended  to  show  that  the  traces 
on  the  walls  were  the  result  of  artifice  and  imposture.  The  accused  being  blind, 
night  to  him  was  the  same  as  the  day,  and  being  familiar  with  the  apartments,  he 
wanted  not  the  walls  for  his  guidance.  The  impressions  on  the  walls  were  all 
equally  clear  and  distinct ;  had  they  been  natural  and  genuine,  they  would  have 
gradually  become  faint  and  indistinct. 


90  INDIEECT    EVIDENCE. 

The  whole  context  of  facts  must  be  consistent  with  truth;  to 
speak  more  properly,  they  constitute  the  truth ;  if  all  were  known, 
nothing  would  be  left  for  inquiry;  the  greater  the  number  known, 
the  more  probable  will  it  be  that  an  artificial  or  spurious  fact, 
from  inconsistency  with  the  rest,  will  be  detected,  and  the  truth 
manifested.  This  is  the  more  evident,  when  it  is  considered  that 
the  practice  of  creating  false  appearances  must  always  be  dif- 
ficult, limited  in  its  extent,  and  constantly  subject  to  detection 
and  exposure  from  a  comparison  of  the  deceptive  fact  with  such 
as  are  undoubtedly  genuine. 

By  way  of  illustration,  the  following  instance  may  be  selected : 
A  person  having  been  robbed  and  murdered,  the  body  is  so  placed 
by  the  offender,  with  a  discharged  pistol  beside  it,  as  naturally  to 
induce  the  inference  that  the  deceased  had  fallen  by  his  own  hand ; 
but  on  close  examination,  it  is  discovered  that  the  ball  extracted 
from  the  body,  and  which  occasioned  death,  is  too  large  to  have 
been  discharged  from  that  pistol,  an  inconsistency  which  imme- 
diately detects  the  imposture,  and  refutes  the  false  inference  to 
which  some  of  the  circumstances  apparently  tend. 

The  general  admission,  therefore,  of  evidence  of  the  actual 
visible  state  of  things,  in  the  absence  of  any  special  reason  for 
suspecting  fraud,  is  quite  consistent  with  the  exclusion  of  state- 
ments or  declarations,  as  contradistinguished  from  real  facts; 
such  statements  may  be  altogether  fictitious ;  they  are  easily 
invented,  and  would  therefore  be  the  more  dangerous,  because  if 
they  were  to  be  admitted  to  any  credit,  they  would  usually  be 
conclusive.  At  all  events,  there  is  a  strong  practical  necessity 
for  resorting,  especially  in  criminal  proceedings,  to  the  aid  of 
circumstantial  evidence ;  the  consequences  would  be  infinitely 
mischievous  if  such  evidence  were  to  be  excluded ;  and  the  real 
practical  result  from  any  suggestions  as  to  the  *probability 
-'  of  fraud  and  deception  being  practised  through  the  medium 
of  such  evidence,  is,  that  it  ought  in  all  cases  to  be  received  and 
acted  on  in  the  highest  degree  of  caution  and  circumspection. 

As  the  possession  and  enjoyment  of  disputed  property  are 
always  indirect  evidence  of  right,  by  reason  of  the  obvious  and 
natural  presumption,  when  the  right  is  in  other  respects  doubtful, 
that  such  possession  and  enjoyment  so  acquiesced  in  had  a  lawful 
origin ;  so,  acts  of  open  delivery  of  possession,  or  written  instru- 
ments by  which  a  dominion  over  such  property  was  exercised,  and 
with  which  the  possession  and  enjoyment  correspond,  are  also  pre- 


ANCIENT    INSTRUMENTS.  91 

sumptive  evidence  of  riglit ;  for  tliese  are,  in  fact,  not  mere  recitals 
of  a  fact,  but  are  of  ttemselves  acts  of  dominion  and  ownership. 
Hence,  when  snch  instruments  are  so  ancient  that  their  connection 
with  acts  of  enjoyment  and  dominion  cannot  be  proved  by  the 
testimony  of  living  witnesses,  they  are  nevertheless  admissible  as 
the  best  and  most  proximate  evidence  to  explain  the  origin  and 
nature  of  such  possession  and  enjoyment,  where  they  can  by  other 
evidence  be  sufficiently  connected  with  those  facts. 

Hence  it  seems  that  to  support  any  presumption  or  inference 
from  such  an  instrument,  first,  its  antiquity  is  essential ;  secondly, 
that  it  should  have  been  found  in  the  place  or  repository  in  which 
a  true  or  genuine  deed  or  writing  of  that  kind  would  have  been 
deposited  ; '  thirdly,  that  it  should  be  free  from  all  suspicion  which 
may  rebut  the  presumption  raised  in  its  favour  ;^  and,  fourthly,  in 
order  to  give  it  any  weight,  it  should  be  supported  by  proof  of 
possession  or  enjoyment,  corresponding  and  consistent  with  it.'' 
Upon  such  a  connection  the  force,  if  not  the  admissibility,  of 
such  evidence  essentially  depends.  Declarations  arg,  as  has  been 
seen,  evidence  as  explanatory  of  the  act  which  they  accompany; 
and  where  long-continued  enjoyment,  and  user  of  a  right,  have 
been  *proved,  extending  as  far  back  as  the  duration  of  human 
life  will  permit,  a  deed  or  writing  which  is  consistent  with'- 
such  usage  and  enjoyment,  and  explanatory  of  it,  may,  under 
the  same  principle,  be  fairly  admitted,  as  affording  a  presumption 
that  it  was  a  genuine  instrument  which  has  been  used  and  acted 
on.  And  where  proof  of  the  actual  execution  and  use  of  such 
instruments  would  have  been  evidence,  then  when  such  proof  is 
absolutely  excluded  by  lapse  of  time,  the  production  of  the  deed, 
coupled  with  such  circumstances  as  give  it  credit,  appears  to 
be  the  next  best  evidence  which  the  case  admits  of,  and  when 
accompanied  with  proof  of  actual  enjoyment,  affords  a  strong  pre- 
sumption as  to  the  existence  of  the  right  according  to  that  deed. 
Hence,  ancient  licenses  on  the  court-rolls,  granted  by  the  lords  of 
a  manor  in  consideration  of  certain  rents,  to  fish  in  a  particular 
river,  are  evidence  to  prove  a  prescriptive  right  of  fishery  in  that 
river,  without  any  proof  of  the  rents  being  formerly  paid,  where 
it  ap3)ears  that  such  rents  have  been  paid  in  modern  times,  or  that ' 
the  lords  of  the  manor  have  exercised  other  rights  of  ownership 

'  Vide  infra,  Peitate  Writings— Ancient  Deeds. 
*  Ibid.  "  Ibid. 


92  INDIEECT    EVIDENCE. 

over  the  fishery.'  But  it  was  held  that  to  give  any  weight  to  such 
evidence,  it  was  necessary  to  support  it  by  evidence  of  payments, 
or  of  acts  of  ownership.''  And  where  the  question  was,  whether 
in  a  particular  manor  a  custom  existed  that,  after  the  turbary  had 
been  cleared  away  from  a  certain  moss,  the  lord  had  a  prescriptive 
right  to  hold  the  land  cleared,  free  from  all  right  of  common,  it 
was  held  (in  an  action  between  a  grantee  of  the  land  and  one  who 
claimed  common  in  the  hcus  in  quo,  in  respect  of  an  ancient  mes- 
suage) that  counterparts  of  old  leases  found  among  the  muniments 
of  the  lord  of  the  manor,  by  which  such  cleared  portions  of  the 
moss  had  from  time  to  time  been  granted  by  the  lord,  were  admis- 
sible in  evidence,  although  they  were  so  old  that  no  one  could 
*Qf;"i  speak  to  possession  under  them.  It  was  ^objected,  both  at 
the  trial  and  on  a  motion  for  a  new  trial,  that  such  evidence 
ought  not  to  be  admitted  without  proof  of  enjoyment  under  those 
leases.  But  the  Court  held  that  it  was  clear  that  such  leases  might 
be  given  in  evidence ;  they  only  showed  the  existence  of  a  fact, 
viz.,  that  at  the  time  of  the  dates  of  the  leases  the  lord  granted 
the  land  after  the  moss  had  been  taken  away.'^ 

'  Rogers  and  others  v.  Allen,  cor.  Heath,  J.,  1  Camp.  309. 

"  Per  Heath,  J.,  1  Camp.  311. 

'  Clarkson  v.  Woodliouse,  5  T.  R.  412. 

'  For  a  very  full  collection  of  the  American  authorities  see  note  903,  4  Cowen  & 
Hill's  Phillips,  1310. 

The  EngMsh  law  upon  this  subject  seems  very  generally  adopted  in  the  United 
States,  and  ancient  deeds  accompanying  possession  are  admitted  in  evidence  with- 
out further  proof;  Carroll  v.  Norwood,  1  Har.  &  John.  167  ;  Simsv.  Degraffen- 
reid,  4  McOord,  253  ;  Waldron  v.  Tuttle,  4  N.  Hamp.  371 ;  Thompson  v.  Bid- 
locJc,  1  Bay,  364 ;  Thruston  v.  Masterson,  9  Dana,  228 ;  Brown  v.  Witter,  10 
Ohio,  142  ;  McOlusky  v.  Leadbefter,  1  Kelly,  551 ;  Doe  v.  Eslava,  11  Ala.  1028  ; 
Winston  v.  Owathmey,  8  B.  Mon.  19  ;  Homer  v.  Cilley,  14  N.  Hamp.  85  ;  Troup 
v.  Hurlhut,  10  Barb.  Sup.  Ot.  527  ;  Carter  v.  Chaudron,  21  Ala.  72. 

There  must  be  no  erasures  or  alterations  ;  Roberts  v.  Stanton,  2  Munf.  129.  The 
antiquity  alone  of  a  deed  apparently  defective  is  not  sufficient  to  justify  the  pre- 
sumption of  its  due  execution ;   Williams  v.  Bass,  22  Verm.  352. 

As  to  the  nature  and  extent  of  the  possession  required,  it  has  been  decided  that 
where  there  was  continued  possession  for  six  years,  under  a  deed  thirty  years  old, 
which  was  recorded  about  the  time  it  was  executed,  there  having  been  no  posses- 
sion inconsistent  with  the  deed,  it  should  be  received  as  an  ancient  deed ;  Robinson 
v  Craig,  1  Hill  S.  0.  389.  So  where  possession  for  five'years  was  proved ;  Wagner 
V.  Acton,  1  Eice,  100.  In  New  York  and  some  other  of  our  sister  States,  and 
perhaps  in  England,  it  seems  to  be  settled  that  a  deed  appearing  to  be  of  the  age 
of  thirty  years,  may  be  given  in  evidence  without  proof  of  its  execution,  either  by 
showing  an  aocompanyiag  possession,  or  when  there  has  been  none  such,  rendering 


EXPLANATORY    DE  C  L  A  E  A  T  I  ON  S.  93 

It  is  to  be  observed  that  oral  or  -written  declarations,  altbough 
excluded  as  direct  evidence  of  a  fact,  by  the  rules  wMcli  govern 
the  reception  of  such  evidence,  may  still  in  many  instances  be  used 
indirectly  as  explanatory  of  other  evidence.  Thus,  though  a  let- 
ter, stating  particular  facts,  could  not  be  read  in  evidence  merely 
because  it  was  sent,  yet  if  the  party  to  whom  it  was  addressed 
wrote  an  answer,  such  answer  might  be  read  as  evidence  against 
the  party  who  wrote  it,  and  the  letter  to  which  it  was  an  answer 
would  be  admissible  for  the  purpose  of  explaining  such  answer .' 

So  letter  and  declarations,  in  themselves  inadmissible,  are  admis- 
sible if  they  communicate  any  fact  to  the  party  against  whom  they 
are  read  which  either  aifects  the  rights  in  question  or  explains  his 
subsequent  conduct."    Thus  the  proof  of  notice  of  the  dishonour 

■"  See  further,  as  illustrative  of  tMs  principle,  Cotton  v.  James,  M.  &  M.  273  ; 
B.  C.  L.  B.  22  ;   Taylor  v.  Willans,  2  B.  &  Ad.  845,  E.  C.  L.  B.  22. 

such  an  account  of  it  as  will  afford  a  reasonable  presumption  of  its  being  genuine. 
It  has  been  said  by  authority  highly  respectable,  that  almost  any  evidence,  intrin- 
sically unobjectionable,  and  tending  to  raise  a  presumption  of  the  fairness  of  the 
instrument  may  be  received,  leaving  its  sufficiency  to  depend  on  the  nature  of  each 
particular  case ;  Jackson,  ex  dem.  Lewis  v.  Zarowey,  3  Johns.  Oas.  283 ;  Hewlett 
V.  Gock,  1  Wend.  371.  Though  it  must  be  confessed  that  in  Pennsylvania  the 
leading  of  the  determinations  is  in  favour  of  the  more  rigid  rule  which  refuses  to 
accept  of  any  thing  short  of  actual  possession,  as  corroborative  of  the  supposed 
deed.  But  where  the  issue  litigated  involves  the  title  of  wild  and  uncultivated 
land,  which  has  never  been  the  subject  of  an  actual  pedis  possessio,  the  question 
assumes  a  very  different  aspect,  even  in  Pennsylvania.  In  such  case  the  payment 
of  taxes  assessed  upon  the  unseated  land  for  a  number  of  years,  is  for  many  pur- 
poses, esteemed  equivalent  to  actual  possession  :  Per  Bell,  J.,  in  Williams  v.  Hille- 
gas,  5  Barr,  494.  Proof  that  a  deed  of  land  is  more  than  thirty  years  old,  without 
other  circumstances,  is  no  evidence  of  its  authenticity,  especially  when  no  posses- 
sion has  been  taken  under  it,  and  the  land  has  been  held  adversely,  although  the 
deed  is  shown  to  have  been  in  the  custody  in  which  it  would  have  been  likely  to 
be  if  genuine ;  Willson  v.  Betts,  4  Denio,  201 ;  Bidgeley  v.  Johnson,  11  Barb. 
Sup.  Ot.  527. 

'.  The  defendant,  having  read  a  letter  from  the  plaintiff's  agent  in  answer  to  a 
letter  from  himself,  cannot  give  in  evidence  a  copy  of  his  own  letter,  without 
proving  it  to  be  a  true  copy,  by  a  witness  ;  Smith  v.  Oarrington,  4  Oranch,  61. 
A  letter  written  by  the  plaintiffs  to  the  defendants  and  received  by  them  being  in 
answer  to  one  by  the  defendants  to  the  plaintiffs,  which  had  been  read  as  evidence 
in  the  cause,  having  been  filed  by  the  defendants  and  read  by  them  on  a  former 
trial,  was  held,  under  the  circumstances,  to  be  competent  evidence  for  the  plaintiffs ; 
Downes  v.  Morrison,  2  Gratt.  250.  A  letter  written  by  the  plaintiff  to  the 
defendant,  relative  to  the  subject-matter  of  the  suit,  although  written  after  the 
commencement  of  the  suit  and  a  reply  thereto  by  the  defendant,  are  together  ad- 
missible in  evidence  on  the  part  of  the  plaintiff;  Holler  v.  Weiner,  3  Harris,  242. 


94  INDIEECT    EVIDENCE. 

of  a  bill  of  exclianQ:e  to  a  drawer  or  indorser  is  evidence,  not  of 
tlie  fact  of  dishonour  stated  in  the  notice,  but  because  such  notice 
casts  a  legal  liability  on  the  party  to  whom  it  was  given.  So 
again,  in  an  action  on  a  policy  of  insurance,  for  a  libel,  keeping 
a  mischievous  animal,  malicious  prosecution,  and  indeed  in  any 
other  case  where  the  knowledge,  motives,  or  intentions  of  the  par- 
ties were  material,  communications,  whether  oral  or  written,  may 
be  very  important  evidence,  though  not  of  the  truth  of  the  facts 
communicated,  yet  for  judging  as  to  the  motives,  intention  and 
honesty  of  the  party  to  whom  the  communication  was  made. 

*0f  the  class  of  facts  which  require  proof  by  means  of 
-'  indirect  evidence,  there  are  some  of  so  peculiar  a  nature  that 
juries  cannot  without  other  aid  come  to  a  correct  conclusion  on  the 
subject.  In  such  instances,  where  the  inference  requires  the  judg- 
ment of  persons  of  peculiar  skill  and  knowledge  on  the  particular 
subject,  the  testimony  of  such  as  to  their  opinion  and  judgment 
upon  the  facts,  is  admissible  evidence  to  enable  the  jury  to  come 
to  a  correct  conclusion.  Thus  the  relation  between  a  particular 
injury  inflicted  on  a  man's  body  and  the  death  of  that  man,  is  an 
inference  to  be  made  by  medical  skill  and  experience,  and  may  be 
proved  by  one  who  possesses  those  qualifications.  So  again,  where 
the  question  is  as  to  a  general  result  from  books  or  accounts  of  a 
voluminous  nature,  the  general  result  from  them  may  be  proved 
by  the  testimony  of  one  who  has  examined  them."- 

'  A  practical  surveyor,  in  testifying  respecting  marks  on  trees  or  piles  of  stones, 
may  express  his  opinion  whether  they  were  intended  as  monuments  of  boundaries  ; 
Davis  V.  Mason,  4:  Pick.  156.  See  also  United  States  v.  Gibert,  2  Sumner,  93.  G-. 

A  land  surveyor  testified  that  he  had  run  out  the  lines  of  lots  surveyed  by  a 
former  surveyor,  and  was  familiar  with  his  mode  of  marking  corners,  and  then 
testified  to  certain  marks  upon  certain  alleged  corners,  as  having  been  made  by  the 
former  surveyor :  Held,  that  his  belief  that  the  marks  were  those  made  by  the 
former  surveyor  was  not  evidence  to  be  received  by  the  jury  as  the  opinion  of  an 
expert,  but  was  merely  the  testimony  of  a  witness  to  a  fact  within  his  knowledge, 
and  was  to  be  credited  by  the  jury  only  so  far  as  they  believed  him  able  from  his 
personal  knowledge  to  identify  the  marks  in  question  ;  Barrow  v.  Gohleigh,  11 
N.  Hamp.  557. 

When  the  opinion  of  an  expert  is  offered  in  evidence,  the  court  may  hear  evi- 
dence to  ascertain  whether  he  is  an  expert,  and  then  allow  the  opinion  to  be  given 
in  evidence  to  the  jury ;  Mendiim  v.  Commonwealth,  6  Rand.  704.  This  may  be 
done  either  by  examining  the  witness  himself  or  from  the  testimony  of  others ; 
Tullis  V.  Kidd,  12  Ala.  648.  As  a  general  rule  the  opinion  of  witnesses  is  not 
to  be  received  in  evidence,  merely  because  they  may  have  had  some  experience 
or  greater  opportunities  of  observation  than  others,  unless  they  relate  to  matters 


ARTIFICIAL    EVIDElSrOE.  95 

CHAPTER   V. 

ARTIFICIAL  EVIDENCE. 

Thus  far  tlie  law  controls  tlie  admission  of  ordinary  evidence, 
by  tlie  application  of  excluding  tests ;  it  is  next  to  be  considered 
how  far  tbe  law  interferes  to  create  evidence,  or  to  add  to  its 
efficacy  by  artificial  means. 

It  is  essential,  in  the  first  place,  that  tlie  law  should  provide  the 
means  of  preserving  public  statutes  and  ordinances,  the  decrees 
and  judgments  of  its  Courts,  and  many  other  transactions  of  pub- 
lic interest,  and  for  authenticating  them  as  such  when  it  should 
become  necessary;  and  it  is  also  essential  to  the  convenience  of 
individuals  that  the  evidence  of  their  mutual  dealings  and  engage- 
ments should  not  be  left  to  depend  on  the  defective  memories  of 
living  witnesses,  but  should  be  preserved  by  the  aid  of  written 
*memorials,  mutually  agreeed  upon,  for  the  purpose  of 
perpetuating  those  transactions.  The  law  itself,  therefore,  '- 
provides  authentic  memorials  of  judicial  proceedings,  and  of  many 
other  matters  of  a  public  nature,  by  means  of  its  own  officers 
specially  delegated  to  the  trust.* 

Of  this  description  are  the  rolls  of  Parliament,  public  registers, 
and  all  records  of  Courts  of  justice;  and  as  these  are  made  by 
ministers  or  officers  specially  authorized  by  the  law,  for  the  very 
purpose  of  perpetuating  the  facts  which  they  contain,  it  is  to  be 

1  See  tit.  Judgment — Eboobd. 

of  skill  or  science  ;  Robertson  v.  Stark,  15  N.  Hamp.  109  ;  Lush  v.  McDaniel, 
13  Iredell,  485 ;  McLean  v.  Tlie  State,  16  Ala.  672  ;  Luning  v.  Tlie  State,  1 
Chand.  178. 

The  opinion  of  a  witness  is  not  admissible,  escept  of  a  professional  man  in  a 
matter  depending  on  science  or  skill  in  Ms  particular  art,  or  when  it  is  necessary 
from  the  nature  of  the  inquiry,  as  for  example  as  to  the  sanity  of  a  person,  but 
this  must  be  from  personal  observation  of  the  particular  case,  unless  the  witness 
be  a  professional  man ;  Lester  v.  Pittsford,  7  Verm.  161 ;  Doe  v.  Reagan,  5 
Blackf.  217 ;  Milton  v.  Rowland,  11  Ala.  732.  The  opinions  of  medical  men  may 
be  asked  upon  supposed  cases  similar  to  the  one  before  the  court ;  State  v.  Powell, 
2  Halst.  244;  Luning  v.  The  State,  1  Chand.  178  ;  United  States  v.  McGlue,  1 
Curtis  C.  C.  1.  And  it  is  not  confined  to  medical  men  but  extends  to  all  other 
professions  and  trades ;  Price  v.  Powell,  3  Oomst.  322 ;  Smith  v.  Gugerty,  4 
Barb.  Sup.  Ct.  614 ;  Steamboat  Clipper  v.  Logan,  18  Ohio,  375 ;  Tlie  State  v. 
Cheek,  13  Iredell,  114. 


»b  AETIFIOIAL    EVIDENCE. 

presumed  that  they  are  true  memorials,  and  they  are  admissible 
evidence  of  those  facts,  though  they  are  not  sanctioned  by  the 
Ordinary  tests  of  truth.  And  it  may  further  be  observed,  that  as 
these  memorials  relate  for  the  most  part  to  matters  of  public  con- 
cern and  notoriety,  the  application  of  the  ordinary  tests  is  not  so 
requisite  as  in  ordinary  cases.  On  this  principle,  even  books  of 
history  are  admissible  to  prove  public  and  notorious  historical 
facts.^ 

But  though  the  law  in  such  cases  does  not  require  the  aid  of 
the  ordinary  tests  of  truth,  yet  in  these,  as  "well  as  in  all  other 
instances,  the  res  inter  alios  acta  is  always  excluded.  Many  of  the 
matters  which  the  law  records  by  instruments  of  its  own  creatioij. 
are  of  a  public  nature,  to  which  all  may  be  considered  privy ;  as  in 
the  case  of  public  proclamations,  acts  of  state,  public  registers  of 
births  and  marriages.  In  the  cases  of  judicial  records,  although  in 
one  sense  they  are  of  public  notoriety,  and,  therefore,  although 
such  a  record  is  always  evidence  of  the  mere  fact  that  such  a  cause 
was  litigated  and  such  a  judgment  given,  whenever  the  mere  fact 
is  material,  yet  they  are  not  admissible  evidence  of  the  facts  and 
rights  decided  by  the  decree  or  judgment,  where  they  are  of  a 
private  nature,  unless  as  against  one  who  was  party  or  privy  to 
the  proceeding,  nor  usually,  as  will  be  seen,  even  then,  unless 
he  who  offers  the  evidence  was  also  a  party  or  privy;  in  all 
*other  cases  the  objection  that  the  affair  was  res  inter  alios 
^  acta  must  prevail.''* 

"■  See  tit.  Judgment. 

'  All  evidence  of  this  sort  must  be  considered  as  mere  hearsay ;  and  certainly, 
as  hearsay,  it  is  of  no  very  satisfactory  character.  Historical  facts,  of  general  and 
public  notoriety,  may  indeed  be  proved  by  reputation ;  and  that  reputation  may  be 
established  by  historical  works  of  known  character  and  accuracy.  But  evidence 
of  this  sort  is  confined  in  a  great  measure  to  ancient  facts,  which  do  not  presup- 
pose better  evidence  in  existence ;  and  where,  from  the  nature  of  the  transaction, 
or  the  remoteness  of  the  period,  or  the  public  and  general  reception  of  the  facts,  a, 
just  foundation  is  laid  for  general  confidence.  But  the  work  of  a  living  author, 
who  is  within  the  reach  of  process  of  the  court,  can  hardly  be  deemed  of  this 
nature.  He  may  be  called  as  a  witness.  He  may  be  examined  as  to  the  sources 
and  accuracy  of  his  information ;  and  especially  if  the  facts  which  he  relates  are 
of  a  recent  date,  and  may  be  fairly  presumed  to  be  within  the  knowledge  of  many 
living  persons,  from  whom  he  has  derived  his  materials ;  there  would  seem  to  be 
cogent  reasons  to  say,  that  his  book  was  not,  under  such  circumstances,  the  best 
evidence  within  the  reach  of  the  parties ;  Morris  v.  Lessee  of  Harmer's  Heirs,  1 
Peters,  558 — per  Story  J. 

■  A  record,  which  cannot  be  used  against  parties  to  a  suit  on  trial,  because  some 


EECOEDS.  97 

As  tlae  law  creates  instruments  for  the  purpose  of  evidence,  so 
it  frequently  annexes  to  them  an  artificial  weight  and  consequence 
on  grounds  of  legal  policy.  Thus  a  record  in  a  judicial  proceed- 
ing is  in  many  instances  not  simply  admissible  evidence,  but 
conclusive  as  to  the  facts  adjudged."' 

'  See  tit.  Judgment — Eecokd. 

of  them  were  not  parties  to  the  record,  cannot  be  used  for  them ;  Chiles  v.  Gotdey, 
2  Dana,  21 ;  Eurd  v.  McNeil,  1  Wash.  0.  C.  Eep.  70 ;  Davis  v.  Wood,  1  Wheat. 
6.  A  judgment,  not  conclusive  against  a  party,  is  not  conclusive  in  his  favour ; 
South-gate  v.  Montgomery,  1  Paige  Ohanc.  Eep.  41 ;  Morris  v.  Lucas,  8  Black- 
ford, 9. 

When  the  judgment  of  a  court  of  law,  or  decree  of  a  court  of  chancery,  forms  a 
link  in  a  chain  of  title,  the  fact  of  the  existence  of  such  judgment  or  decree  may 
be  shown  by  the  record,  in  controversies  with  third  persons  as  well  as  between  the 
parties ;  Den  v.  Hamilton,  7  Halsted,  109  ;  Turpin  v.  Brannon,  3  McOord,  261. 
Where  the  maker  of  a  note  has  been  prosecuted  to  insolvency,  the  record  of  the 
suit  may  be  given  in  evidence  against  indorsers  where,  by  the  local  law,  it  is 
necessary  to  prove  due  diligence  in  order  to  charge  them ;  Lane  v.  Clark,  1  Mis- 
souri, 657.  A  judgment  between  others  is  evidence  of  the  fact  of  its  having  been 
rendered,  and  competent  when  that  fact  is  material ;  Head  v.  McDonald,  7  Monroe, 
203 ;  Ansley  v.  Carlos,  9  Alabama,  973 ;  King  v.  Chase,  15  New  Hamp.  9 ; 
Fletcher  v.  Jackson,  23  Vermont,  581. 

'  To  make  a  record,  in  a  former  suit,  conclusive  evidence  on  any  point,  it  should 
appear,  from  the  record,  that  such  point  was  in  issue.  And  evidence  aliunde  is 
not  admissible  to  show  that  a  matter  not  in  issue  on  the  record  was  taken  into 
consideration  by  the  jury ;  Manny  v.  Harris,  2  Johns.  24.  A  decree  in  chancery 
is  conclusive  evidence,  in  a  suit  at  law  between  the  same  parties,  of  such  facts  as 
were  directly  in  issue  in  the  bill,  and  which  were  necessary  to  uphold  it ;  Goit  v. 
Tracy,  8  Conn.  268 ;  Pleasants  v.  Clements,  2  Leigh,  474 ;  Pierson  v.  Catlin,  18 
Vermont,  77.  A  judgment  on  the  merits,  in  a  personal  action,  is  a  bar  to  another 
action  on  the  same  claim  and  between  the  same  parties,  though  the  forms  of  the 
two  actions  be  not  the  same ;  Lawrence  v.  Vernon,  3  Sumner,  20.  A  verdict,  in 
an  action  of  detinue,  against  the  plaintiff,  on  the  plea  of  non  detinet,  is  not  suf- 
ficient evidence  in  another  suit  to  show  that  the  plaintiff  had  not  title  to  the  thing 
demanded.  If,  in  such  case,  parol  evidence  can  be  introduced  to  show  the  grounds 
on  which  the  verdict  was  given,  this  evidence  must  prove  conclusively  that  the 
jury  could  have  found  their  verdict  upon  no  other  ground  than  want  of  title  in  the 
plaintiff;  Long  v.  Bangas,  2  Iredell,  290.  In  an  action  of  trespass  quare  clausam 
/regit,  the  defendant  pleaded  the  general  issue,  and  filed  a  notice  that  he  claimed 
and  should  give  evidence  of  title  to  the  locus  in  quo.  The  jury  found  the  defend- 
ant guilty,  assessed  damages,  and  also  found  that  the  defendant  had  no  title  to  the 
land  described  in  the  plaintiff's  declaration ;  and  judgment  was  rendered  for  the 
plaintiff.  It  was  held  that  this  judgment  was  not  conclusive  proof  of  the  plaintiff's 
right  of  property  in  said  land,  nor  of  his  title  to  maintain  a  writ  of  entry  to  recover 
the  land  from  the  defendant  in  that  action ;  Wade  v.  Lindsay,  6  Mete.  407.  See 
Darlington  v.  Gray,  5  Wharton,  487  |  Piper  v.  Richardson,  9  Mete.  155 ;  Dukes 

7 


98  ARTIFICIAL    EVIDENCE. 

It  is  however  very  clear,  that  the  previous  verdict  of  a  jury  is 
not  only  inconclusive,  but  that  in  its  own  nature  it  cannot  possibly 
be  conclusive  as  to  the  truth  of  a  fact  which  it  professes  to  ascer- 
tain, where  that  fact  is  again  disputed.  It  is  possible  that  the 
former  jury  may  not  have  been  supplied  with  sufficient  evidence 
to  enable  them  to  come  to  a  correct  conclusion,  or  that  they  may 
have  fallen  into  error,  or  even  that  they  may  have  been  swayed  by 
indirect  motives.  But  the  law,  on  a  strong  principle  of  policy 
and  convenience,  and  in  order  to  exclude  continual  litigation,  fre- 
quently annexes  an  artificial  conclusive  effect  to  a  former  verdict. 

Again,  where  formal  instruments  are  prescribed  or  adopted  by 
convention,  for  the  purpose  of  manifesting  and  perpetuating  the 
acts  and  transactions  of  private  individuals,  the  law  interferes  not 
only  in  prescribing  the  manner  and  form,  but  also  in  giving  an 
artificial  effect  to  such  instruments. 

The  ordinary  instances  in  which  the  law  prescribes  the  form 
and  manner  in  which  private  persons  shall  express  their  acts  and 
intentions,  and  record  their  engagements,  are,  in  cases  of  wills  of 
real  property,  grants  of  incorporeal  rights,  which  must  be  evi- 
denced by  a  specialty,  and  agreements,  which  in  many  instances 
prescribed  by  the  Statute  of  Frauds'  must  be  evidenced  by  some 
written  memorandum  of  the  transaction.  In  these  and  other 
instances  where  the  law  prescribes  the  form,  the  evidences  of  the 
fact  *must  of  course  consist  in  proof  that  the  legal  requisites 
-'    have  been  complied  with  in  the  particular  instance. 

The  admissibility  of  such  conventional  means  of  perpetuating  the 
transactions  between  individuals,  falls  for  the  most  part  within  the 

'  See  Fkadds,  Statute  of. 

T.  Broughton,  2  Speers,  620.  In  covenant  for  instalments  of  money,  a  former 
recovery  between  the  same  parties,  on  the  same  instrument,  is  not  a  bar  where 
breaches  for  the  instalments  demanded  in  the  latter  action  were  not  specifically 
assigned  in  the  former  suit ;  and  evidence  is  admissible  to  show  that  the  instal- 
ments now  demanded  had  not  fallen  due,  and  were  not  included  in  the  forme 
recovery.  It  would  be  otherwise  where  the  former  claim  was  entire  and  for  a  sum 
of  money  m  solido  ;  Sterner  v.  Gower,  3  "Watta  &  Serg.  136.  Upon  the  general 
subject  of  the  conclusiveness  of  judgments,  see  Gates  v.  Goreham,  5  Vermont, 
317  ;  Shafer  v.  Stonebreaker,  4  Gill.  &  Johns.  345  ;  Gardner  v.  Buckbee,  3  Cowen, 
120  ;  Hibshawm  v.  BuUebwn,  4  Watts,  183 ;  Robinson  v.  Crowninshield,  1  New 
Hamp.  76  ;  Ldvermore  v.  Herscliell,  3  Pick.  33 ;  White  v.  Philbrick,  5  Greenleaf, 
147  ;  Boynton  v.  Willard,  10  Pick.  166  f  Marsh  v.  Pier,  4  Rawle,  273 ;  Burnham 
V.  Webster,  1  "Woodbury  &  Minot,  172  ;  Pinney  v.  Barnes,  17  Conn.  420. 


ESTOPPELS.  99 

ordinary  and  natural  rules  of  evidence.  They  are,  in  effect,  formal 
admissions  by  tlie  parties  wlio  make  them,  and  as  against  them- 
selves are  therefore  admissible.  The  admission  of  such  evidence 
is  quite  consistent  with  the  general  rule  which  excludes  all  that  is 
res  inter  alios  acta;  such  evidence  would  therefore  be  admissible 
independently  of  any  artificial  rule  of  law,  but  when  admitted,  the 
law  frequently  annexes  an  artificial  efiicacy  which  such  evidence 
would  not  otherwise  possess." 

The  law  not  only  in  many  instances  prescribes  the  manner  and 
form  of  the  instrument  by  which  such  acts  and  intentions  shall  be 
signified,  but  frequently  annexes  an  artificial  and  arbitrary  effect 
to  the  evidence.  Thus  the  law  provides  that  a  specialty,  such  as 
a  bond,  shall  carry  with  it  intrinsic  and  conclusive  evidence  that 
it  was  founded  on  a  good  and  sufficient  consideration,  without  any 
other  proof;  that  a  bill  of  exchange  shall  afford,  not  conclusive, 
but  primd  facie  evidence  of  consideration ;  whilst  in  other  cases  of 
mere  parol  engagements  a  consideration  will  not  be  presumed,  but 
to  give  them  effect  must  usually  be  alleged  and  proved. 

The  doctrine  of  estoppels  by  deed  affords  another  prominent 
instance  of  the  law's  interference  to  annex  an  artificial  effect  to 
particular  evidence.  It  is  a  general  rule  of  law  that  a  man  shall 
be  estopped  or  excluded  from  the  averment  or  proof  of  that  which 
is  contrary  to  his  admission  by  deed;^^  but  he  is  not  estopped  in 

"  See  tit.  Bond — Deed — ^Bill  of  Bxchanoe. 

=  See  tit.  Deed.    Bonner  v.  Wilkinson,  5  B.  &  Aid.  682 ;  E.  C.  L.  E.  7. 

The  rule  that  a  party  is  estopped  by  his  deed,  does  not  preclude  a  party  from 
asserting  that  the  transaction  was  contrary  to  law,  or  void  on  the  ground  of  fraud,, 
and  for  this  purpose  giving  evidence  to  contradict  the  statements  contained  in  the 
deed.  Fairtitle,  ex  dem.  Mytton  v.  Gilbert,  2  T.  E.  169  ;  Collins  v.  Blantern,  2 
Wils.  341 ;  1  Smith,  Lead.  Ca.  154,  et  notce;  Doe  dem.  Chandler  v.  Ford,  3  Ad.. 
&  B.  649 ;  E.  C.  L.  E.  30 ;  Doe  dem.  Williams  v.  Lloyd,  5  Bing.  N.  0.  741;  B. 
C.  L.  E.  35  ;  Hayne  v.  Maltby,  3  T.  R.  438 ;  Chanter  v.  Leese,  4  M.  &  W.  295. 

'  Stow  V.  Wyse,  7  Conn.  214 ;  Willcinson  v.  Scott,  17  Mass.  249 ;  McDonald  v. 
King,  Coxa,  432,  One  who  conveys  land  without  having  a  title,  is  estopped  from 
claiming  it,  if  he  afterwards  acquires  a  title ;  Mc  Williams  v.  Nisly,  2  Serg.  & 
Eawle,  507 ;  Brown  v.  McCormick,  6  "Watts,  60 ;  Somes  v.  Skinner,  3  Pick.  52. 
One  holding  a  vested  interest  and  a  contingent  interest  in  land,  and  conveying  by 
deed  with  warranty  "  his  right,  title  and  interest"  therein,  passes  his  vested  interest 
only  by  the  deed,  and  is  not  estopped  thereby  to  claim  his  contingent  interest  whea 
it  becomes  vested ;  Blanchard  v.  Brooks,  12  Pick.  47.  The  guardian  of  a  person 
non  compos,  sold  certain  real  estate  belonging  to  his  ward  under  a  license  of 
court,  and  conveyed  the  same  with  a  covenant  that  he  was  duly  authorised  to  sell 


100  AETIFICIAL    EVIDENCE. 

^j„„,  the  strict  legal  *sense  of  the  term  by  a  mere  oral  admission, 
or  even  a  written  one  not  under  seal.  Independently  of  an 
artificial  rule,  there  is  no  reason  why  a  man  should  be  estop;^d  or 
excluded  from  asserting  the  truth  in  one  case  and  not  in  the  other. 
So  also  there  are  numerous  instances  where,  on  a  just  and  equit- 
able principle,  the  courts  hold  a  man  to  be  concluded  by  his  own 
conduct  and  representation  of  a  fact,  although  contrary  to  the 
truth.  Thus  where  a  person  assents  to  an  act  and  derives  and 
enjoys  a  title  under  it  he  cannot  impeach  it,''  and  so  if  a  man 
induces  a  tradesman  to  supply  a  woman  with  goods  by  a  repre- 
sentation that  she  is  his  wife,  he  will  be  concluded  by  that 
representation,  and  will  not  afterwards  be  admitted  to  show  that 
she  was  not  his  wife."* 

y  Rex  V.  Stacey,  1  T.  R.  4.  Where  a  copyholder  has  been  admitted  to  a  tene- 
ment, and  done  fealty  to  a  lord  of  a  manor,  he  is  estopped,  in  an  action  by  the  lord 
for  a  forfeiture,  from  showing  that  the  legal  estate  was  not  in  the  lord  at  the  time 
of  admittance.    Doe  dem.  Nepean  v.  Budden,  5  B.  &  Aid.  626  ;  B.  0.  L.  B.  7. 

'  See  Vol.  II.,  tit.  Admissions,  and  with  respect  to  this  principle  see  further 
Pickard  v.  Sears,  6  Ad.  &  E.  469 ;  E.  0.  L.  E.  33 ;  Freeman  v.  Cooke,  2  Exch. 
654. 


the  granted  premises ;  it  was  held  that  the  guardian  was  estopped  by  such  cove- 
nant, from  setting  up  a  claim  in  his  own  right  to  any  portion  of  such  real  estate, 
under  a  previous  conveyance  to  him  in  his  own  right.;  Heard  v.  Hall,  16  Pick. 
457 ;  but  see  Comstock  v.  Smith,  13  Pick.  116 ;  Allen  v.  Sayward,  5  Greenl. 
227. 

This  estoppel  in  general  extends  to  all  the  facts  recited  in  the  deed, — ^bnt  an 
exception  has  been  allowed  as  to  the  recital  of  the  amount  of  the  consideration 
and  the  fact  of  its  payment ;  Wilkinson  v.  Scott,  17  Mass.  249 ;  Davenport  v. 
Mason,  15  Mass.  85 ;  Schillinger  v.  McCann,  6  Greenl.  364 ;  Buffum  v.  Green,  5 
New  Hamp.  71 ;  Taggart  v.  Stanberry,  2  M'Lean,  543 ;  Norris  v.  Norris,  9 
Dana,  317  ;  Dyer  v.  Rich,  1  Mete.  180. 

'  Cliapman  v.  Searle,  3  Pick.  35 ;  Rice  v.  Bixler,  1  Watts  &  Serg.  445 ; 
Crockett  v.  Lashbrook,  5  Monroe,  530.  Declaring  a  note  to  be  "  good"  to  one 
about  to  purchase  it,  or  standing  by  in  silence  when  it  is  transferred  for  considera- 
tion, is  an  estoppel  in  pais  against  a  debtor ;  Watson  v.  McLaren,  19  Wend.  557  ; 
Petrie  v.  Peeter,  21  Wend.  172 ;  Davis  v.  Thomas,  5  Leigh.  1.  A  person  is 
always  estopped  from  denying  the  truth  of  a  fact,  upon  the  faith  of  which  he  has 
suffered  another  person  to  act,  knowing  at  the  time  that  the  other's  conduct  was 
materially  influenced  by  a  reliance  upon  the  truth  of  such  fact ;  Hicks  v.  Cram,  17, 
Verm.  449  ;  Bank  v.  Wollaston,  3  Harring.  90  ;  Rangeley  v.  Spring,  5  Shep.  130. 
If  a  party  having  knowledge  that  he  has  a  title  to  property  stands  by  and  sees 
another  mortgage  it  to  a  third  person,  to  secure  a  debt  or  liability  incurred  at  the 
time,  without  giving  notice  of  his  title,  he  is  estopped  from  setting  it  up  afterwards 


PEESTJMPTIONS.  101 

In  the  next  place,  the  law  interferes  by  annexing  to  particular 
classes  of  evidence  artificial  presumptions,  as  contradistinguished 
from  the  natural  inferences  and  presumptions  which  a  jury  would 
have  made  by  virtue  of  their  own  knowledge  and  experience. 
Such  presumptions  are  not  rules  for  arriving  at  the  simple  truth ; 
on  the  contrary,  they  are  frequently  used  for  the  very  purpose  of 
excluding  the  truth  on  grounds  of  special  legal  policy.  Their 
object  is  to  annex  particular  consequences  to  certain  defined  pre- 
dicaments ;  in  fact,  therefore,  they  are  in  their  operation  mere  rules 
of  law.' 

Such  artificial  presumptions  are  of  two  kinds;  first,  those 
*which  are  made  by  the  law,  that  is,  by  the  courts  which 
administer  the  law,  without  the  aid  of  a  jury;  secondly, 
such  as  cannot  be  made  but  by  the  aid  of  a  jury.  The  former 
again  consist  of  conclusive  presumptions,  which,  like  the  pre- 
sumptions, juris  et  de  jure  of  the  civil  law,  admit  of  no  proof  to 
the  contrary,  or  are  simply  prxsumptiones  juris,  which  may  be 
rebutted  in  fact,  or  by  some  other  presumption  raised  by  the 
facts.  Thus  a  deed  under  seal,  where  the  execution  of  the 
instrument  stands  unimpeached,  afibrds  conclusive  evidence  of 
consideration." 

But  although  the  law  will  presume  or  intend,  on  proof  of  a  fine, 
•that  it  was  levied  with  proclamations,  or  that  the  heir-at-law  of 
one  who  died  seised  of  an  estate  was  in  possession  of  that  estate, 
yet  these  are  but  primd  facie  presumptions  which  may  be  repelled 
by  actual  proof  to  the  contrary. 

Other  presumptions,  again,  which  may  be  termed  presumptions 
in  law  and  fact,  are  those  which  are  recognised  and  warranted  by 

"  Vol.  II.,  tit.  Peesumptions. 


in  a  suit  at  law  against  tlie  mortgagee ;  Thompson  v.  Sanborn,  11  N.  Hamp.  201. 
If  A.  having  title  to  land  stands  by  and  encourages  a  sale  to  B.,  he  is  estopped 
however,  only  when  he  conceals  an  outstanding  title  not  equally  known  to  both 
parties;  Parker  v.  Barker,  2  Mete.  423;  see  McKelvy  v.  Truby,  4  Watts  & 
Serg.  323. 

"  Not  only  convenience,  but  necessity  calls  for  a  definite  rule  to  produce  cer- 
tainty of  result  in  the  determination  of  facts  which  must  be  passed  upon  without 
proof;  and  such  can  only  be  obtained  from  the  doctrine  of  presumption,  which, 
however  arbitrary,  is  indispensable,  and  when  founded  in  the  ordinary  course  of 
events,  productive  of  results  which  usually  accord  with  the  truth  ;  Per  Gibson,  C. 
J.,  Burr  V.  Sims,  4  Whart.  170.  G. 


102  ARTIFICIAL    EVIDENCE. 

law  as  the  proper  inferences  to  be  made  by  juries  under  particular 
circumstances ;  these,  it  will  be  seen,  are  founded  on  principles  of 
policy  and  convenience,  and  not  unfrequently  on  an  analogy  to 
express  rules  of  law.  Thus,  a  jury  would  have  been  warranted  in 
presuming,  and  even  directed  to  presume  a  right,  from  evidence  of 
an  adverse  and  uninterrupted  enjoyment  of  lands  for  twenty  years, 
in  analogy  to  the  provisions  of  stat.  21  Jac.  I.,  c.  16 ;  although,  if 
the  jury  did  not  infer  the  right  from  such  evidence,  the  court 
could  not  have  done  it. 


PART  II. 

OF  THE  INSTRUMENTS  OF  EVIDENCE. 


Having  tHus  considered  generally  tlie  principles  wliicli  regulate 
the  admission  of  evidence,  we  are  next  to  consider  what  are  the 
means  and  instruments  of  evidence ;  how  they  are  to  be  procured 
and  used;  their  admissibility  and  effect.  These  are,  first,  oral 
witnesses,  examined  vivd  voce  in  court  ■  as  to  facts  within  their 
own  knowledge,  and  in  some  particular  instances,  as  to  what 
they  have  heard ;  and,  secondly,  written  evidence. 


CHAPTEE  I. 
OEAL    EVIDENCE. 


And  first,  as  to  oral  witnesses.  Oral  testimony,  it  is  to  be 
remarked,  in  natural  order  precedes  written  evidence.  It  is  in 
general  more  proximate  to  the  fact  than  written  evidence,  being 
a  direct  communication  by  one  who  possesses  actual  knowledge  of 
the  fact  by  his  senses ;  whilst  written  evidence  in  itself  requires 
proof,  and  must  ultimately  be  derived  from  the  same  source  with 
oral  evidence,  that  is,  from  those  who  possessed  actual  knowledge 
of  the  facts. 

Under  this  head  may  be  considered, 

1st.  The  mode  of  enforcing  the  attendance  of  a  witness  in 

civil  and  criminal  cases,  and  his  production  of  writing 

in  his  possession.     The  incidents  to  his  attendance  and 

default. 

*2dly.  Objections  in  exclusion  of  his  testimony.  r*inQ 

Srdly.  The  mode  of  examination  in  chief ;  cross-exam-    '■ 

ination,  and  re-examination. 
4thly.  The  mode  of  rebutting  his  testimiony. 
5thly.  The  mode  of  confirming  his  testimony. 


104  OEAL    EVIDENCE. 

I.  The  mode  of  enforcing  the  attendance  of  a  witness  in  civil  and  criminal 
cases,  and  also  of  enforcing  his  production  of  writings  in  his  possession, 
and  the  incidents  to  his  attendance  or  default. 

His  attendance  upon  the  trial  is  enforced  by  subpoena  or  habeas 
corpus,  in  civil  as  -well  as  in  criminal  cases,  and  also  in  the  latter 
by  means  of  his  recognizance. 

The  attendance  of  a  witness  in  civil  cases  is  compelled  (where 
the  witness  is  not  in  custody)  by  means  of  a  subpoena,  which  is  a 
judicial  writ,  commanding  the  witness  to  appear  at  the  trial  to 
testify  for  the  plaintiff'  or  defendant,  under  pain  of  forfeiting  £100 
in  case  of  disobedience.''  It  is  however  requisite,  in  civil  cases,  to 
tender  to  the  witness  his  reasonable  expenses,  not  only  of  going  to 
attend  the  trial,  but  also  of  his  return ;  for  though  he  may  refuse 
to  be  sworn  till  such  expenses  be  paid,  the  party  may  not  choose 
to  call  him,  and  he  may  find  it  dif&cult  to  get  home  again.'' 

If  a  witness  wilfully  neglect  to  attend  upon  the  subpoena,  he  is 
guilty  of  a  contempt  of  court,  for  which  he  is  liable  to  an  attach- 
ment." He  is  also  liable  to  damages  at  common  law,  in  an  action 
on  the  case  by  the  party  injured ;  ^  *  and  lastly,  by  the  stat. 
5  Eliz.  c.  9,  s.  12,  he  shall  forfeit  for  such  offence  £10,  and 
yield  such  further  recompense  to  the  party  grieved  as,  by  the  dis- 
cretion of  the  court  out  of  which  the  process  shall  issue,  shall  be 
awarded."  The  most  usual  mode  of  proceeding  is  by  attachment, 
in  which  case  an  af&davit  of  personal  service  is  necessary,  and  of 
the  payment  or  tender  of  reasonable  expenses.' 

Where  the  witness  is  in  custody,  his  testimony  is  obtained  by 
means  of  a  habeas  corpus  ad  testificandum,  which  was  grantable  at 
the  discretion  of  the   courts   at   common  law:^  and  by  the  stat. 

°  See  the  form,  Tidd's  Forms,  283.  For  practice  as  to  the  form,  service,  and 
remedies  for  disobedience  of  a  subpoena,  and  also  the  tender  of  expenses  to  wit- 
nesses, see  Vol.  III.,  tit.  Witness. 

''  Chapman  v.  Pointon,  2  Str.  1150 ;  Fuller  y,  Prentice,  1  H.  B.  49  ;  Hallett  v. 
Mears,  13  East,  15  ;  Ex  parte  Roscoe,  1  Meriv.  189.  The  obligation  depends  on 
the  stat.  5  Eliz.  c.  9. 

"  1  Str.  510  ;  2  Str.  810,  1054,  1150  ;  Oowp.  386  ;  Doug.  561. 

"  Doug.  561 ;  Needham  v.  Fraser,  1  0.  B.  815  ;  E.  0.  L.  E.  50. 

«  Cro.  Oar.  522,  540  ;  Goodwin  v.  West,  Jon.  430  ;  5  Mod.  355. 

'  Chapman  v.  Pointon,  2  Str.  1150  ;  Garden  v.  Cresswell,  2  M.  &  "W.  319  ; 
Fuller  V.  Prentice,  1  H.  B..  49  ;  Home  v.  Smith,  6  Taunt.  9 ;  E.  0.  L.  R.  1. 

s  See  Tidd's  Prac.  9th  ed.  809  ;  Ex  part  Tillotson,  1  Stark.  0.  470 ;  E.  0.  L. 
R.  2  ;  and  see  the  form  and  course  of  proceeding,  Vol.  III.  tit.  Witness. 


WITNESS  —  PROCESS.  105 

44  Geo.  III.,  c.  102,  any  judge  of  the  superior  courts,  in  England 
or  Ireland,  may  award  a  writ  or  writs  of  habeas  corpus  for  bringing 
up  anj  prisoner  or  prisoners  detained  in  any  gaol  or  prison,  before 
any  of  the  said  courts,  or  any  sitting  of  Nisi  Prius,  or  before  any 
other  court  of  record  in  those  parts  of  the  United  Kingdom,  to 
be  examined  as  a  witness  in  any  cause  or  matter,  civil  or  criminal, 
depending  or  to  be  inquired  into  or  determined  in  any  of  those 
courts.'' 1  And  every  justice  of  the  county  palatine  of  Chester 
.  has,  by  the  same  statute,  similar  authority  within  the  limits  of  his 
jurisdiction. 

A  lunatic  fit  for  examination,  and  not  dangerous,  may   p^^^r 
*also  be  brought  up  from  a  lunatic  asylum  by  virtue  of  this 
writ.'    So  where  the  witness  is  under  the  duress  of  some  third 
person,  as  a  sailor  on  board  a  man-of-war,  his  attendance  is  pro- 
cured by  the  same  means.^ 

The  attendance  of  a  witness  in  criminal  cases  may  be  compelled 
by  means  of  a  subpoena  issued  in  the  queen's  name  by  the  justices 
of  the  court  in  which  the  offence  is  to  be  tried;''  but  the  more 
usual  course  in  all  cases  of  treason,  felony,  indictable  misde- 
meanor, or  any  indictable  offence  is  for  the  justices  who  take  the 
informations,  examinations  and  depositions,  to  bind  the  witnesses 
under  the  statute  11  &  12  Yict.  c.  42,  ss.  16  and  20,  by  recog- 
nizance, to  appear  at  the  next  Court  of  Oyer  and  Terminer  or 
Gaol  Delivery,  or  Quarter  Sessions,  or  other  court  at  which  the 
accused  is  to  be  tried,  to  give  evidence.^  In  cases  of  murder  and 
manslaughter,  the  coroner,  upon  any  inquisition  taken  before  him, 

''  Previous  to  this  statute  it  was  the  usual  practice  for  the  courts  to  award  this 
writ  upon  motion,  accompanied  with  a  proper  affidavit.  By  the  stat.  43  Geo.  III. 
c.  140,  a  Judge  of  any  of  the  courts  at  Westminster  may  at  his  discretion  award 
a  writ  of  habeas  corpus  for  bringing  a  prisoner  detained  in  any  gaol  in  England 
before  a  court  martial,  or  before  commissioners  of  bankrupts,  commissioners  for 
auditing  public  accounts,  or  other  commissioners  acting  by  virtue  of  any  royal 
commission  or  warrant. 

'  Fennell  v.  Tait,  1  0.  M.  &  E.  584. 

'  Rex  V.  Roddam,  Cowp.  672. 

"  R.  V.  Ring,  8  T.  B.  585. 

'  See  2  Euss.  on  Crimes,  3rd  ed.  945  ;  20  How.  St.  Tri.  355  ;  and  see  Howard 
V.  Gossett,  10  Q.  B.  436  ;  B.  0.  L.  E.  59  ;  2  Haw.  c.  46,  s.  165. 

'  A  sheriff  is  bound  to  bring  up  a  person  in  execution  on  a  civil  suit,  on  a  habeas 
corpus  ad  testvficandiwn  on  being  tendered  the  expenses  of  bringing  hiin  up  and 
taking  him  .back ;  Noble  v.  Smith,  5  Johns.  Eep.  357.  G. 


106  ORAL    EVIDENCE. 

is  empowered  by  7  Greo.  IV.  c.  64,  s.  4,  to  bind  the  witnesses  by 
recognizance  to  appear  and  give  evidence  on  tbe  trial. 

Wbere  an  offender  wbo  has  escaped  from  one  part  of  the  United 
Kingdom  is  tried  in  another,  by  virtue  of  the  stat.  45  Geo.  III.  c. 
92,  s.  3,"  service  of  a  subpoena  on  a  witness  in  one  part  of  the  United 
Kingdom  to  give  evidence  in  a  criminal  prosecution  in  another 
part,  is  as  effectual  as  if  the  witness  had  been  served  with  the  sub- 
pmna  in  that  part  of  the  United  Kingdom  where  he  is  required  to 
appear,  and  upon  default  notified  by  a  certificate  under  the  seal  of 
the  court  whence  the  subpoena  issued,  to  the  Court  of  King's  Bench 
^^  ^„  in  England  or  Ireland  respectively,  or  the  High  Court  *of 
Justiciary  in  Scotland,  he  is  liable  to  be  punished  as  for  a 
contempt  of  the  process  of  those  courts  respectively.  By  the 
express  provision  of  this  statute  (sect.  4,)  the  witness  cannot  be 
punished  for  default,  unless  the  reasonable  expenses  of  coming  and 
attending  to  give  evidence,  and  of  returning,  have  been  tendered 
to  him."""  In  other  cases  the  witness  is  bound  to  obey  the  writ,  or 
to  perform  the  condition  of  his  recognizance,  although  no  expenses 
have  been  tendered  to  him : "  for  the  calls  of  justice  are  paramount 
to  all  private  considerations  and  claims."  In  case  of''  felony  and 
some  cases  of''  misdemeanor,  the  legislature  has  made  provision  for 
the  expenses  of  the  prosecution  and  witnesses. 

At  common  law,  a  defendant  in  capital  cases  had  no  means  of 
compelling  the  attendance  of  witnesses  on  his  behalf  without  a 
special  order  from  the  court ;  and  if  they  attended  voluntarily, 

"  And  see  13  Geo.  III.  c.  39,  and  44  Geo.  III.  c.  92.  The  latter  statute  is  re- 
pealed so  far  as  relates  to  the  apprehension  of  offenders  escaping  from  Ireland 
into  England,  or  from  England  into  Ireland,  and  to  the  backing  of  warrants 
against  them,  by  11  &  12  Vict.  c.  42,  s.  21. 

■"^  The  provision  is  confined  to  cases  where  the  witness  making  default  is  out  of 
the  jurisdiction  of  the  Court  from  which  the  certificate  is  transmitted.  R.  v. 
BrowneU,  1  Ad.  &  Ell.  602  ;  E.  C.  L.  E.  28 ;  and  it  does  not  apply  to  a  subpoena 
from  the  quarter  sessions.     lb. 

»  2  Euss.  on  Crimes,  3rd  ed.  947. 

°  2  Haw.  c.  46,  s.  168  ;  2  Hale,  292  ;  B.  v.  Cooke,  1  Car.  &  P.  321 ;  E.  C.  L. 
E.  12. 

r  7  Geo.  IV.  c.  64,  s.  22 ;  Rex  v.  Exeter  Co.  Treas.  5  M.  &  Ey.  167  ;  and 
provision  is  made  by  6  &  7  Will.  IV.  c.  89,  and  7  Will.  IV.  &  1  Vict.  o.  68,  for 
the  expenses  of  medical  and  other  witnesses  attending  on  coroner's  inquests ;  see 
the  statutes  on  this  subject  more  fully  noticed,  Vol.  III.  tit.  Witness. 

"i  7  Geo.  IV.  c.  64,  s.  23 ;  and  by  1  Vict.  c.  44,  this  power  is  extended  to  cases 
of  misdemeanour  in  concealing  the  birth  of  a  child. 


WITNESS  —  PROCESS.  107 

they  could  not  be  sworn .''^  But  in  case  of  misdemeanor  a. defend- 
ant might  always  take  out  subpoenas  as  of  course.'  By  the  stat.  7 
"Will.  III.  c.  3,  s.  7,  it  was  provided,  that  defendants,  in  cases  of 
treason,  should  have  the  same  process  to  compel  the  attendance  of 
witnesses  for  them  as  was  granted  to  compel  witnesses  to  appear 
against  them ;  and  ever  since  the  statute  1  Anne,  st.  2,  c.  9,  s.  3, 
which  provides  that  witnesses  for  the  prisoner,  *in  cases  of  r4(.-|^w 
treason  or  felony,  shall  be  sworn  in  the  same  manner  as  the 
witnesses  for  the  Crown,  and  be  subject  to  the  same  punishment 
for  perjury,  the  process  by  subpoena  is  allowed  to  defendants  in 
cases  of  felony,  as  well  as  in  other  instances ;  °  and  consequently, 
as  the  law  now  stands,  a  witness  who  should  refuse,  after  being 
subpoenaed  to  attend  to  give  evidence  for  a  defendant  in  a  criminal 
case,  would  be  liable  to  an  attachment  for  a  contempt  of  court. 

In  proceedings  before  justices  of  the  peace  at  their  quarter 
sessions,  whose  jurisdiction  does  not  extend  beyond  the  county 
for  which  they  act,  in  order  to  procure  the  attendance  of  a  wit- 
ness who  resides  in  another  county  the  process  is  issued  from  the 
Crown  oiEce.' 

Where  magistrates  are  authorized  by  a  statute  to  hear  and  deter- 
mine, or  to  examine  witnesses,  they  have,  incidentally,  authority 
to  summon  witnesses,  and  take  the  examination  on  oath."'  And 
by  the  express  provisions  of  stat.  11  &  12  Vict.  c.  42,  when  any 
indictable  offence  has  been  committed  within  the  limits  of  the 

'  2  Haw.  c.  46,  s.  165  ;  Rex  v.  Turner,  6  How.  St.  Tr.  565  ;  4  Bl.  Com.  359. 
"  2  Haw.  c.  46,  s.  165. 
'  2  Haw.  c.  46,  s.  165. 

*  See  B.  V.  Bing,  8  T  E.  585 ;  Bex  v.  Brownell,  1  Ad.  &  E.  602  ;  B.  C.  L.  E. 
28  ;  see  also  11  &  12  Vict.  c.  42,  s.  16. 
"  Lamb,  517 ;  Dalton's  J.,  c.  6. 

'  In  Massachusetts,  prisoners  indicted  for  a  capital  offence  are  entitled  to  the 
Commonwealth's  process  to  bring  their  witnesses  into  court  at  the  Commonwealth's 
expense ;  Commonwealth  v.  WilHams,  13  Mass.  501.  M. 

And  it  has  always  been  the  practice  in  the  State  Courts  of  Pennsylvania  for  a 
person  accused  to  have  compulsory  process  from  a  magistrate  or  the  court  for  his 
witnesses,  before  indictment  and  he  is  entitled  to  it  in  the  United  States  Courts 
under  the  Eighth  Article  of  the  amendments  to  the  Constitution  of  the  United 
States  ;  United  States  v.  Moore,  Wallace,  23.  See  also,  Burr's  Trial,  178.  Even 
after  a  conviction  the  defendant  is  entitled  to  a  subpoena  to  compel  the  attendance 
of  witnesses  to  prove  extenuating  circumstances ;  Tlie  State  v.  Smith  et  al.,  2  Bay, 
62.  But  witnesses  for  a  misdemeanor  are  not  bound  to  attend  the  trial  unless 
their  fees  are  paid  as  in  civil  cases,  but  it  is  otherwise  in  prosecutions  for  felony ; 
Ex  parte  Cliamberlain,  4  Cow.  49.  I. 


108  ORAL    ETIDENCE. 

jurisdiction  of  any  justice  of  the  peace,  or  when  any  person  sus- 
pected to  be  within  his  jurisdiction,  he  may  issue  his  warrant  to 
apprehend  such  person,  and  may  summon  any  person  within  his 
jurisdiction  as  a  witness  for  the  prosecution,  or  may,  if  requisite, 
by  warrant,  cause  such  person  to  be  brought  before  him  to  give 
evidence  concerning  the  charge ;  and  if  such  person  refuse  to  give 
evidence,  he  may  commit  him  to  prison.'  By  another  statute" 
likewise,  in  all  cases  where  justices  of  the  peace  are  empowered  to 
imprison,  fine,  or  otherwise  punish  upon  summary  conviction  ;  and 
in  all  cases  where  they  are  empowered  upon  complaint  to  make 


* 


108] 


any  order  for  payment  of  *money  or  otherwise ;  if  it  shall 


appear  upon  oath  or  affirmation  that  any  one  within  the 
justices'  jurisdiction  is  likely  to  give  material  evidence  for  the 
prosecutor,  complainant,  or  defendants,  and  will  not  voluntarily 
appear  as  a  witness,  any  such  justice  may  issue  a  summons  and 
afterwards  a  warrant,  or  in  certain  instances  a  warrant  only,  in 
the  same  manner  to  appear  at  the  time  and  place  therein  men- 
tioned, and  give  evidence  for  the  witness  as  is  provided  by  11  & 
12  Vict.  c.  42,  where  persons  have  committed  indictable  offences. 

Commissioners  of  bankrupts  may  summon  before  them  any  per- 
sons whom  they  believe  to  be  Capable  of  affording  information 
concerning  the  trade,  dealings,  or  estate  of  the  bankrupt,  and  in 
default  they  may  order  the  party  summoned  to  be  apprehended. 
Every  such  witness  is  entitled  to  have  his  expenses  tendered  him." 

The  Court  for  Relief  of  Insolvent  Debtors  in  England^  has  the 
same  power  for  compelling  the  attendance  of  witnesses  and  pro- 
duction of  documents  as  the  superior  Courts  at  Westminster.  That 
court  has  also  the  same  powers  as  Commissioners  of  Bankrupts  in 
reference  to  the  attendance  of  witnesses  and  the  production  of 
documents  in  cases  of  insolvency  arising  under  the  statutes  5  &  6 
Vict.  0. 116,  and  7  &  8  Vict.  c.  96,  s.  5,  the  jurisdiction  over  which 
was  transferred  by  the  statute  10  &  11  Vict.  c.  102,  ss.  4,  6,  and  8, 
to  the  court  and  the  judges  of  the  County  Courts  in  the  country. 

Either  of  the  parties  to  any  proceeding  under  the  recent  Act" 
establishing  County  Courts,  may  obtain,  at  the  clerk's  office, 
summonses  to  witnesses,  with  or  without  a  clause  requiring  the 
production  of  writings,  which  are  to  be  served  by  one  of  the 
bailiffs  of  the  court ;  and  any  person  so  served,  and  to  whom  his 

"  11  &  12  Vict.  c.  42,  s.  16.  ^  11  &  12  Vict.  c.  43,  s.  1. 

"  12  &  13  Vict.  c.  106,  s.  120.  ^  1  &  2  Vict.  c.  110,  s.  27. 

'  9  &  10  Vict.  c.  95,  s.  85,  86. 


WITNESS  —  PRODUCTION    OF  DOCUMENTS.         109 

expenses  are  tendered,  and  any  person  present  in  court,  who  shall 
be  required  to  give  evidence,  shall  pay,  on  default  or  refusal,  a  fine 
not  exceeding  ^10. 

*'Witnesses    also    being    duly   summoned  to    attend    on   p^.-,„Q 
Courts  Martial,  are,  by  the  statute  13  Yict.  c.  5,  s.  15,  lia- 
ble, on  neglect  to  attend,  or  produce  documents  if  required,  to 
attachment  in  the  Court  of  Queen's  Bench,  as  in  case  of  neglect  to 
attend  a  trial  on  a  criminal  proceeding  in  that  court. 

In  the  case  of  a  reference  to  arbitration  by  rule  of  court,  or  by 
a  judge's  order  or  agreement  to  make  the  submission  a  rule  of 
court,  the  court  making  such  rule  or  order,  or  any  judge,  may 
direct  the  attendance  of  a  witness  to  be  examined  before  the  arbi- 
trator, or  the  production  of  any  document,  by  the  statute  3  &  4 
"Will.  IV.  c.  42,  s.  40. 

Commissioners  of  inclosure,  and  assistant  commissioners  under 
the  statute,  have  power  to  summon  by  writing  any  person  within 
a  certain  distance  to  appear  before  them  to  be  examined,  or  by 
summons  under  the  seal  of  the  commissioners  to  appear  before 
any  valuer ;  and  in  each  case  to  produce  documents ;  and  if  the 
party  summoned  refuse  to  appear,  or  to  produce  documents,  having 
had  his  reasonable  expenses  tendered,  he  will  be  guilty  of  a  misde- 
meanor.'' And  similar  powers  to  require  attendance  of  persons  and 
production  of  documents  are  given  to  the  Tithe  Commissioners  by 
summons,  under  hand  only,  by  6  &  7  "Will.  IV.  c.  71,  s.  G.*"  And 
to  the  Poor-Law  Commissioners  by  summons  under  hand  and  seal 
by  4  &  5  "Will.  IV.  c.  76. 

"Where  either  party  cannot  safely  proceed  to  trial  on  account  of 
the  absence  of  a  material  witness,  the  proper  course  is  to  move  the 
court  in  term  time,  or  to  apply  to  a  Judge  in  vacation,  or  the  judge 
at  the  sittings,  on  a  proper  affidavit,  to  put  off  the  trial,  which  he 
allows  or  not  at  his  discretion." 

*"Where  a  witness  is  resident  abroad,  or  is  going  abroad, 
the  proper  course  is  to  apply  to  the  court  to  have  him 

•  8  &  9  Vict.  c.  118,  ss.  9,  164. 

"  See  10  &  11  Vict.  c.  104. 

"  Turner  v.  Merryweather,  1  G.  B.  251 ;  E.  0.  L.  E.  62.  But  this  application 
will  not  be  granted  at  the  instance  of  the  plaintiff,  unless  in  the  case  perhaps  of  a 
trial  by  proviso,  because  he  may  withdraw  his  record ;  but  when,  in  consequence 
of  some  sudden  indisposition  or  accident,  a  witness  is  unable  to  attend,  but  is 
likely  to  be  able  to  do  so  before  the  sittings  are  over,  the  judge  will  usually 
make  an  order  that  the  cause  shall  stand  over.  Ansley  v.  Birch,  3  Camp.  C. 
333. 


110  ORAL    EVIDElfCE. 

examined  out  of  court,  viva  voce,  or  on  interrogatories.  So,  wHere 
it  is  apprehended  that,  from  illness,  a  witness  may  not  be  able  to 
attend  the  trial." 

"Where  an  instrument  is  in  the  hands  of  a  third  person,  the  pro- 
duction is  compelled  by  means  of  a  writ  of  suhpcena  duces  tecum." 
By  this  writ  the  witness  is  compellable,  to  produce  all  documents  in 
his  possession,  unless  he  have  a  lawful  or  reasonable  excuse  to  the 
contrary.*  Of  the  validity  of  the  excuse  the  court,  and  not  the 
witness,  is  to  judge."'  As  every  man,  in  furtherance  of  justice,  is 
bound  to  disclose  all  the  facts  within  his  knowledge  which  do  not 
:/,-,..-.-.  tend  to  his  crimination,  upon  the  very  same  principle  he  is 
-'  *also  bound  to  produce  such  documents  as  are  essential  to 
the  discovery  of  truth  and  the  great  ends  of  justice.     But  as  he  is 

'■  Infra,  Weitten  EyiDBNCB. — Index,  tit.  Examination  on  Intberogatoeies. 

"  From  the  entries  cited  in  the  case  of  Amey  t.  Long,  9  Bast,  473,  it  appears 

that  this  writ  has  in  fact  been  used  from  the  time  of  Charles  the  Second ;  but 

so  necessary  is  the   power  of  compelling  the  production  of  documents  in  the 

possession  of  third  persons,  that  the  means  of  doing  it  must  have  been  coeval 

■  with  the  courts  of  law. 

The  statutes  11  &  12  Vict,  o.  42.  and  11  &  12  Vict.  c.  43,  do  not  make  any 
provision  for  enforcing  the  production  of  documents,  and  it  has  been  decided 
that  a  summons  of  a  justice  requiring  a  party  possessed  of  documents  to  attend 
as  a  witness  and  produce  them  is  not  equivalent  to  a  suhpcena  duces  tecum: 
R.  V.  Inhabitants  of  Orton,  1  Q.  B.  120 ;  B.  0.  L.  E.  53.  But  on  an  applica- 
tion before  magistrates  at  petty  sessions,  a  subpoena  ad  testificandum,  and  a 
subpoena  duces  tecum,  may  issue  from  the  Crown  ofBce,  and  disobedience  will  be 
punished  by  Q.  B.  with  attachment ;  R.  v.  Greemoay,  1  Q.  B.  126  ;  E.  C.  L.  E. 
53 ;  R.  V.  Carey,  ibid.  131.  The  Court  of  Bankruptcy  may  require  any  person 
summoned  before  them  to  give  information  concerning  the  bankrupt  and  his 
dealings,  to  produce  any  documents  in  his  custody  or  power  which  the  Court 
may  think  necessary ;  12  &  13  Vict.  c.  106,  s.  120.  The  powers  of  the  Insolvent 
Court,  of  the  County  Courts,  and  of  Arbitrators,  Commissioners  of  Inclosure, 
Tithe  and  Poor-Law  Commissioners  to  procure  the  production  of  documents 
have  already  been  mentioned,  ante,  pp.  108,  109. 

^  Amey  v.  Long,  9  Bast,  473. 

'  Amey  v.  Long,  9  Bast,  473 ;  Field  v.  Beaumont,  1  Swans.  209. 

'  A  witness  may  be  compelled,  fmAet  s.  subpoena  duces  tecum,  to  produce  a  docu- 
ment in  his  possession,  unless  he  has  a  lawful  or  reasonable  excuse  for  withholding 
it,  although  the  production  of  it  will  adversely  affect  his  pecuniary  interest ;  Bull 
V.  Loveland,  10  Pick.  9.  The  court  and  not  the  witness  is  to  judge  of  the  reason- 
ableness of  his  excuse  ;  Ibid.  Cliaplain  v.  Briscoe,  5  Smedes  &  Marshall,  198.  A 
subpoena  duces  tecum  was  served  on  a  witness,  who  attended  but  did  not  produce 
on  the  trial  the  papers  specified,  nor  show  a  good  reason  why  he  did  not.  Hdd, 
that  he  was  liable  to  the  aggrieved  party  for  all  the  damages  sustained  in  conse- 
quence of  his  disobedience ;    Lane  v.  Cole,  12  Barb.  680. 


WITNESS  —  PRODUCTION    OF    DOCUMENTS.         Ill 

protected  from  answering  questions,  the  answers  to  wliich  may 
subject  him  to  penal  responsibility,  so  he  is  not  compellable  to  pro- 
duce any  document  in  his  possession,  where  the  production  would 
be  attended  with  similar  consequences/ 

There  is,  however,  in  one  respect,  a  distinction  between  com- 
pelling a  witness  to  answer  a  question  orally,  and  obliging  him  to 
produce  a  written  document.  He  must  answer  questions,  although 
the  answer  may  render  him  civilly  responsible ;  but  he  is  not  com- 
pellable to  produce  title-deeds,  or  any  other  documents  which 
belong  to  him,  where  the  production  might  prejudice  his  civil 
rights.'  And  this  is,  as  it  seems,  a  rule  of  legal  policy  founded  upon 
a  consideration  of  thq  great  inconvenience  and  mischief  to  indi- 
viduals which  might  and  would  result  to  them  from  compelling 
them  to  disclose  their  titles,  by  the  production  of  their  title-deeds 
or  other  private  documents.  -But  this  rule  does  not  extend  beyond 
the  evidences  of  title.^ 

'  See   Wh-itaJcer  v.  Izod,  2  Tant.  115  ;  and  The  King  v.  Dixon,  3  Burr.  1687. 

e  Doe  dem.  Earl  of  Egremont  v.  Date,  3  Q.  B.  609 ;  B.  C.  L.  E.  43.  This 
case  arose  on  the  trial  of  an  ejectment  by  a  party  claiming  the  reversion  against  a 
lessee.  The  plaintiff  to  prove  seisin  in  Cf.,  a  late  tenant  for  life,  called  his  execu- 
tor, and  required  him  to  produce  a  book  containing  an  entry  forty  years  old  of  a 
receipt  of  rent  for  the  land  in  question  by  G.'s  steward.  It  was  admitted  that 
the  executor,  as  legatee  of  large  personal  property  under  the  will  of  the  tenant  for 
life,  would  be  liable  over  to  the  defendant  if  the  plaintiff  obtained  a  verdict  under 
G.'s  covenant  for  title,  and  that  the  action  was  substantially  defended  by  the 
executor.  But  it  was  held  that  the  executor  was  bound  to  produce  the  book. 
Though  the  person  declining  to  produce  the  document  cannot  be  compelled  to 
state  the  contents,  yet  he  must  disclose  the  date,  and  the  names  of  the  parties,  in 
order  to  identify  it.  Doe  dem.  Loscombe  v.  Clifford,  2  C.  &  K.  448 ;  B.  0.  L. 
E.  61. 

■  The  subpoena  duces  tecumis  not  a  process  of  course ;  thus  it  will  not  be  issued 
to  a  public  officer  to  bring  original  papers  into  court,  when  certified  copies  would 
be  evidence ;  Delany  v.  The  Regulators,  1  Yeates,  403.  Nor  to  the  printer  of  a 
newspaper  to  produce  certain  of  his  newspapers  in  court;  Shippen  v.  Wdls,  2 
Yeates,  260.  And  it  seems  that  the  Governor  of  the  State  cannot  be  compelled 
to  produce  a  communication  sent  to  him  respecting  the  character  of  a  public 
officer  ;  Gray  v.  Pentland,  2  Serg.  &  E.  23.  So  a  cashier  of  a  bank  is  not  bound 
to  produce  the  books  of  the  bank  on  this  writ,  in  a  case  where  the  bank  is  a  party ; 
Utica  Bank  v.  Hilliard,  5  Cow.  153,  419. 

Semble,  a  witness  cannot  thus  be  compelled  to  produce  a  paper  which  would 
criminate  himself;  United  States  v.  Reylurn,  6  Pet.  367.  A  witness  may  however 
be  compelled,  under  a  subpoena  duces  tecum  to  produce  a  document  in  his  posses- 
sion, unless  he  has  a  lawful  or  reasonable  excuse  for  withholding  it,  although  the 


112  ORAL    EVIDENCE. 

The  same  principle  applies  -where  the  document  is  in  the  hands 
^^^n,  of  an  attorney:  he  will  not  be  compelled  to  *produce  it  to 
be  read  where  the  disclosure  would  be  prejudicial  to  his 
client,'^  and  when  he  is  protected  from  producing  it,  he  cannot  be 
forced  to  divulge  its  contents.'  But  the  latter  privilege  is  confined 
to  an  attorney  or  his  representative,  and,  therefore,  although  an 
agent,  not  being  an  attorney,  or  his  clerk,  may  not  be  compellable 
to  produce  the  deeds  of  his  principal,  (a  party  in  the  cause,)  yet  he 
is  liable,  on  declining  to  produce  them,  to  be  examined  as  to  their 
contents.''^ 

Where  these  objections  do  not  apply,  it  seems  that  the  writings 
in  a  man's  possession  are  as  much  liable  to  the  calls  of  justice  as  the 
faculties  of  speech  and  memory  are.  There  can  be  no  difference  in 
principle  between  obliging  a  man  to  state  his  knowledge  of  a  fact, 
and  compelling  him  to  produce  a  written  entry  in  his  possession 
which  proves  the  same  fact.  Not  only  a  man's  estate,  but  even  his 
liberty  or  life,  may  depend  upon  written  evidence,  which  is  the 
exclusive  property  of  a  stranger.  If  the  Court  think  that,  upon 
principles  of  justice  and  equity,  the  production  ought  not  to  be 
enforced,  secondary  evidence  may  be  given. 

It  is  in  all  cases  the  duty  of  the  witness  to  bring  the  document 

"  Copeland  v.  Watts,  1  Stark.  0.  95  ;  B.  0.  L.  E.  2.  See  further  on  this  sub- 
ject, Vol.  II.  tit.  Confidential  Oommunioation  ;  B.  v.  Woodley,  1  M.  &  Rob. 
390 ;  R.  V.  Upper  Boddmgton,  8  D.  &  R.  726  ;  B.  0.  L.  R.  16. 

'  Bavies  v.  Waters,  9  M.  &  W.  608  ;  Hibberd  v.  Knight,  2  Bxch.  11 ;  Newton 
T.  Chaplin,  19  L.  J.,  N.  S.,  0.  P.,  SU. 

"  Earl  of  Falmouth  v.  Moss,  11  Pri.  455. 

production  of  it  will  adversely  affect  his  pecuniary  interest ;  of  the  lawfulness  or 
reasonableness  of  such  excuse,  the  court  and  not  the  witness  is  to  judge  ;  Bull  v. 
Loveland,  10  Pick.  9. 

A  security  in  a  sheriff's  bond  was  compelled  to  produce  the  books  of  his  princi- 
pal (who  had  died  insolvent)  on  a  subpoena  duces  tecum,  notwithstanding  he  was 
apprehensive  of  danger  to  himself  from  the  production  in  the  way  of  suits  upon 
the  bond ;  Hawkins  v.  Sumpter,  4=  Dess.  446.  But  this  subpoena  cannot  be  issued 
to  the  attorney  of  the  party  whose  cause  is  on  trial  and  received  the  papers  con- 
fidentially in  that  character  ;  DurTcee  v.  Leland,  4  Verm.  R.  612.  G. 

'  Jackson  v.  Bustis,  14  Johns.  391 ;  Lynde  v.  Judd,  3  Day,  499  ;  Durkee  v. 
Leland,  4  Verm.  612. 

He  may  prove  the  existence  of  such  papers  and  that  they  are  in  his  possession, 
so  as  to  enable  the  party  to  give  secondary  evidence  of  their  contents  ;  Ehoads 
V.  Selin,  4  Wash.  C.  C.  718 ;  Brandt  v.  Klein,  17  Johns.  335 ;  Jackson  v.  Mc  Vey 
18  Johns.  330.    See  McFherson  v.  Rathbone,  7  Wend.  216. 


WITNESS  —  PEODUCTION    OF    DOCUMENTS.  113 

witli  Mm,  according  1;o  tlae  exigency  of  tlie  writ ;'  and  it  is  a  ques- 
tion of  law  for  tlie  court,  whether,  upon  principles  of  justice  and 
equity,  the  production  of  the  instrument  ought  to  be  enforced.™ 
Disobedience  of  the  writ  by  the  witness  will  not  warrant  the  recep- 
tion of  parol  evidence ;  but  where  the  witness  in  fraud  of  the  ^ 
subpoena,  had  transferred  the  document  to  the  adverse  party 
in  the  cause,  it  was  held  that  parol  evidence  was  admissible."  Of 
course  it  is  not  admissible  when  the  subpoena  was  served  too  late." 

Where  the  instrument  is  in  the  hands  of  the  adverse  party 
timely  notice  should  be  given  to  produce  it.' 

As  a  witness  is  bound  to  attend  in  court  in  obedience  to  the 
writ,  so  is  he  under  an  obligation  to  be  sworn  and  give  evidence 
on  his  appearance.  And  if  a  witness  for  the  Crown  refuse  to  be 
sworn,  he  is  guilty  of  a  contempt  of  court,  and  may  be  fined,  and 
committed  till  he  has  paid  the  fine.''  A  person  who  happens  to  be 
in  court,  may,  in  a  criminal  case,  be  compelled  to  give  evidence, 
although  he  has  not  been  bound  by  recognizance,  or  served  with  a 
subpoena  as  a  witness.' 

The  law  protects  a  witness,  as  well  as  a  party  to  the  suit,  from 
arrest,  eundo,  morando  et  redeundo.'^  And  it  is  not  essential  to  his 
protection  that  the  witness  should  have  been  subpoenaed,  if  he  has 
consented  to   attend.'    The  courts  usually  allow  ample   time   for 

1  Amey  v.  Long,  9  East,  473  ;  Corsen  v.  Dubois,  1  Holt's  0.  239  ;  E.  0.  L. 
B.  3 ;  Field  v.  Beaumont,  1  Swanst.  209  ;  Reed  v.  James,  1  Stark.  C.  132  ;  E. 
0.  L.  R.  2. 

"  Copeland  v.  Watts,  1  Stark.  C.  95  ;  B.  0.  L.  R.  2  ;  Corsen  v.  Dubois,  1 
Holt,  0.  239  ;  E.  C.  L.  R.  3  ;  Reed  v.  James,  1  Stark.  0.  132  ;  E.  0.  L.  E.  2. 

"  Leeds  v.  Cook  etux.,  4  Esp.  0.  256. 

"  Eibberd  v.  Knight,  2  Ex.  11. 

P  Doe  d.  Wartney,  v.  Grey,  1  Stark.  0.  283;  E.  0.  L.  E.  2. 

'  Lord  Preston's  case,  Salk.  278.  Lord  Preston  was  committed  by  the  Court 
of  Quarter  Sessions  for  refusing  to  be  sworn  before  the  grand  jury  on  an  indictment 
for  high  treason.  But  a  witness  may  refuse  to  be  sworn  in  a  civil  case  if  his 
expenses  have  not  been  paid. 

■■  R.  V.  Sadler,  4  0.  &  P.  118 ;  E.  C.'L.  B.  19. 

"  Meelcins  v.  Smith,  1  H.  B.  636  ;  Lightfoot  v.  Cameron,  2  Bl.  1113 ;  Randall 
V.  Gurney,  3  B.  &  A.  252 ;  E.  0.  L.  R.  23. 

'  Spence  v.  Stuart,  3  Bast,  89  ;  Kinder  v.  Williams,  4  T.  R.  377  ;  Arding  v. 
Flower,  8  T.  R.  534 ;  Ex  parte  Byne,  1  Ves.  &  B.  316  ;  Meelcins  v.  Smith,  1  H. 
B.  636. 

'  If  a  witness  privileged  from  arrest  be  nevertheless  arrested,  and  do  not  insist 
on  his  privilege,  but  give  a  bond  for  the  prison-bounds,  such  bond  is  neither  void  - 
nor  voidable — the  privilege  is  waived ;  Tipton  v.  Harris,  Peck's  Eep.  414.     G. 

8 


114 


OEAL    EVIDENCE. 


tMs  purpose."  The  same  indulgence  has  .been  extended  to  a 
"witness  attending  an  arbitrator  under  an  order  of  Nisi  Prius;^ 
^^  ^  ,,  and  *to  a  petitioning  creditor," "  a  bankrupt,  or .  witness 
attending  a  meeting  of  commissioners  ;''  a  witness  attending 
the  execution  of  a  writ  of  inquiry,''  the  Insolvent  Debtors'  Court,^ 
and  a  Court  Martial  under  the  Mutiny  Act.^ 

»  13  East,  16,  n.  (a) ;  Willingham  v.  Matthews,  6  Taunt.  356  ;  B.  0.  L.  'R.  1 
Lightfoot  v.  Cameron,  cited  in  2  Bl.  1113 ;  Hatch  v.  Blisset,  Gilb.  Gas.  308 
cited  in  HolUday  v.  Pitt,  2  Str.  986 ;  Strong  v.  Dickenson,  1  M.  &  W.  488 
Randall  v.  Gurney,  3  B.  &  Aid.  252  ;  E.  C.  L.  E.  5. 

■^  Spence  v.  Stuart,  3  East,  89 ;  Moore  v.  Booth,  3  "Ves.  350 ;  Randall  v. 
Gurney,  3  B.  &  Aid.  252  ;  E.  0.  L.  E.  5 ;  Rishton  v.  Nisbett,  1  M.  &  Eob. 
347  ;   Wehh  V.  Taylor,  1  Dow.  &  L.  676. 

°"  Selhy  V.  Hills,  1  Dowl.  P.  C.  257. 

'  Spence  v.  Stuart,  3  East,  89 ;  Arding  v.  Flower,  8  T.  E.  534 ;  Kinder  v. 
Williams,  4  T.  E.  377  ;  Ex  parte  Byne,  1  Ves.  &  B.  316. 

»  Walters  v.  Rees,  4  Moore,  34;  B.  0.  L.  E.  16. 

^  Willingham  v.  Matthews,  6  Taunt.  356  ;  E.  0.  L.  E.  1. 

'  And  to  a  witness  attending  before  a  magistrate  to  give  his  deposition  under  a 
rule  of  court ;  The  United  States  v.  Edm4,  9  Serg.  &  E.  147.  I. 

The  privilege  of  a  witness  does  not  extend  throughout  the  term  at  which  the 
case  is  marked  for  trial ;  nor  is  he  protected  while  engaged  in  transacting  his 
private  business,  after  he  is  discharged  from  the  obligation  of  his  subpoena ; 
Smythe  v.  Banks,  4  Dallas,  329.  But  he  is  protected  while  at  his  lodgings,  as 
well  as  while  going  to  or  returning  from  court ;  Hurst's  case,  4  Dallas,  487.  And 
a  witness  from  another  State  is  entitled  to  the  same  privilege  as  a  citizen  of  the 
State  where  the  court  sits ;  Norris  v.  Beach,  2  Johns.  294 ;  Sandford  v.  Chase,  3 
Cow.  381. 

It  was  held  by  Washington,  J.,  in  the  Circuit  Court  of  the  United  States  for  the 
third  circuit  in  New  Jersey,  that  the  privilege  of  a  witness  extends  only  to  an 
exemption  from  arrest,  and  does  not  render  illegal  the  service  of  a  summons  upon 
him,  unless  he  be  in  the  immediate  presence  of  the  court ;  Blight's  Ex.  v.  Fisher 
et  al,  1  Peters'  Eep.  41.  The  contrary  however  has  been  held  by  the  Supreme 
Court  of  New  Jersey ;  Halsey  v.  Sterrard,  1  Soijthard's  Eep.  366. 

The  protection  which  the  law  gives  to  a  witness,  is  a  personal  privilege,  of  which 
he  may  avaU  himself  to  prevent  or  defeat  an  arrest ;  but  if  he  waive  the  privilege 
and  willingly  submit  to  custody,  he  cannot  afterwards  object  to  the  imprisonment 
as  unlawful;  Brown  \.  Gitchell,  11  Mass.  11. 

A  writ  of  protection  is  often  sued  out  for  a  witness ;  but  it  is  of  no  use  except  to 
give  notice  to  the  officer, — being  no  protection  to  one  who  is  not  legally  entitled  to 
it;  Ex  parte  McNeil,  6  Mass.  264.  The  common  remedy  when  a  witness  or  party 
is  arrested,  while  bona  fide  attending  to  a  cause  which  requires  his  attendance,  is 
by  motion  to  the  court  to  be  discharged  from  custody.  But  in  New  York,  he  will 
not  be  discharged  without  notice  to  the  plaintiff.  A  rule  to  show  cause,  however, 
will  be  granted  and  proceedings  stayed  in  the  mean  time ;  Orover  v.  Green,  1 
Caine's  Eep.  115.  M. 


TIME    OF    OBJECTING,    ETC.  115 

But  a  witness  is  not  protected  from  being  taken  by  bis  bail/ 
for  tbis  is  not  an  arrest/  but  a  retaking;  and  be  may  also  be 
arrested  on  criminal  process. 

II.  Objections  in  exclv^ion  of  the  testimony  of  witnesses. 

It-  bas  already  been  seen  tbat  a  witness  may  be  incompetent, 
because  be  is  incapable  of  religious  obligation  from  youtb,  mental 
infirmity,"  ignorance,  or  unbelief. 

Tbe  objection  arising  from  tbe  ignorance  or  unbelief  of  tbe 
witness,  ougbt,  in  its  natural  course,  to  be  taken  before  tbe  witness 
is  sworn,  because  it  assumes  tbat  be  is  incapable  of  being  bound,  by 
an  oatb.  Indeed  any  objection  to  competency  ougbt  to  be  taken 
in  tbe  first  instance,  and  before  tbe  witness  bas  been  examined  in 
cbief ;  for  otberwise  it  would  afford  an  unfair  advantage  to  tbe 
otber  party,  wbo  would  avail  bimself  of  tbe  testimony  of  tbe 
witness,  if  it  were  favourable,  but  would  *get  rid  of  it  by  ^^  ^  ^ 
raising  the  objection,  if  it  turned  out  to  be  adverse.  And 
therefore,  wbere,  upon  a  trial  for  bigb  treason,  it  appeared,  after 
a  witness  bad  been  examined  without  objection  on  tbe  part  of  the 
prisoner,  that  be  had  been  misdescribed  in  tbe  list  of  witnesses, 
which  is  required  by  the  statute  to  be  given  to  tbe  prisoner  pre- 
vious to  his  trial,  the  court  would  not  permit  the  evidence  of  that 
witness  to  be  struck  out.''  And  so  when  tbe  incompetency  of  a 
witness  appeared  on  the  face  of  his  answers  to  interrogatories,  it 
Avas  held  that  tbe  objection  was  waived  by  putting  cross  interro- 
gatories, and  could  not  be  insisted  on  at  the  trial."  It  has,  however, 
been  held,  that  if  it  be  discovered  at  any  stage  of  the  trial  tbat  a 
witness  is  so  interested  as  to  be  incompetent,  his  evidence  may  be 
struck  out  f  but  this,  it  seems,  is  to  be  understood  of  those  cases 

y  Ex  parte  Lyne,  3  Stark.  0.  132 ;  E.  0.  L.  E.  3. 

■  Per  Eichards,  0.  B.,  Horn  v.  Swinford,  1  D.  &  E.  20 ;  E.  0.  L.  E.  16. 

'  One  who  is  born  deaf  and  dumb  may,  if  he  have  sufficient  understanding,  give 
evidence  by  means  of  an  interpreter ;  R.  v.  Buston,  1  Leach,  0.  0.  408 :  or  by 
writing  if  able  ;  Morrison,  v.  Lennard,  3  0.  &  P.  127  ;  E.  0.  L.  E.  14.  Luna- 
tics are  competent  during  lucid  intervals.  Com.  Dig.  tit.  Testmoigne,  A,  1.  And 
a  person  suspected  to  be  insane  may  be  examined  on  the  voir  dire  to  show  his. 
state  of  mind  ;  see  Att.-Gen  v.  Hitchcock,  1  Ex.  95. 

"  R.  v.  Watson,  2  Stark.  C.  158 ;  E.  0.  L.  E.  3. 

■=  Ogle  v.Paleski,  Holt,  0.  485  ;  E.  C.  L.  E.  3. 

*  Turner  v.  Pearte,  1  T.  E.  720 ;  Howell  v.  Lock,  2  Camp.  14 ;  Perigal  r. 
Nicholson,  1  Weightw.  64 ;  Beeching  v.  Oower,  Holt's  0.  313 ;  E.  C.  L.  E.  3  ; 
Stone  V.  Blackburn,  1  Esp.  0.  37  ;  Morish  v.  Foote,  2  Moore,  508  ;    E.  C.  L.  E. 

;  8  Taunt.  454 ;  E.  C.  L.  E.  4 ;  Jacobs  v.  Laybourn,  11  M.  &  W.  685. 


116      OBJECTIONS    Ilf    EXCLUSION    OF    WITNESSES. 

only  -wHere  the  objection  could  not  liave  been  taken  in  the  first 
instance.'^  The  practice  formerly  was  when  an  objection  was 
made  to  the  competency  of  a  witness,  to  make  it  before  he  was 
sworn  in  chief,  and  to  swear  and  examine  him,  where  his  incompe- 
tency was  supposed  to  arise  from  interest,  on  the  voir  dire;  and 
after  a  witness  had  been  examined  in  chief,  the  objection  could 
no  longer  be  taken.'  But  the  same  strictness  is  not  observed 
in  modern  practice  :  at  least  with  respect  to  objections  to  wit- 
nesses on  the  ground  of  interest.^ 

Before  a  witness  takes  the  oath,  he  may  be  asked  whether 
^-l  ^  „-.  *he  believes  in  the  existence  of  a  God,  in  the  obligation  of 
an  oath,  and  in  a  future  state  of  rewards  and  punishments ; 
and  if  he  does,  he  may  be  admitted  to  give  evidence.'  And  it 
seems  that  he  ought  to  be  admitted  if  he  believes  in  the  existence 
of  a  God  who  will  reward  or  punish  him  in  this  world,  although 
he  does  not  believe   in  a  future  state.''^    But  it  is  not  suf&cient 

'  Morish  v.  Foote,  2  Moore,  508  ;  B.  0.  L.  E.  4 ;  8  Taunt.  454  ;  E.  C.  L.  E.  4  ; 
FeUngham  v.  Sparrow,  9  Dowl.  P.  C.  141 ;  but  see  Jacobs  v.  Layhourn,  contra. 

'  Lord  Lovat's  case,  10  How.  St.  Tr.  506. 

e  Turner  v.  Fearte,  1  T.  E.  720 ;  Jacobs  v.  Laybourn,  11  M.  &  W.  685  ; 
Yardley  v.  Arnold,  10  M.  &  W.  141 ;  and  see  further  on  this  topic  ;  post. 

'  R.  V.  Taylor,  Peake's  N.  P.  E.  11.  A  negro  called  as  a  witness  stated,  before 
he  was  sworn,  that  he  was  a  Christian,  and  had  been  baptized ;  and  it  was  held 
that  he  ought  to  be  sworn,  and  asked  no  further  questions  before  he  took  the  oath  ; 
R.  v.  Serva,  2  0.  &  K.  53  ;  E.  0.  L.  E.  61. 

■^  See  the  judgment  of  Willes,  C.  J.,  in  Omichund  v.  Barker,  "Willes,  550 ;  1 
Atk.  21 ;  1  Wils.  84. 

'  A  witness  incompetent  by  reason  of  interest  must  be  objected  to  before  he  is 
sworn,  if  such  interest  is  known  then  to  the  objector ;  Donelson  v.  Taylor,  8  Pick. 
390  ;  Stuart  v.  Lake,  33  Maine,  87. 

If  in  the  course  of  a  witness'  examination  however  he  appears  from  his  own 
answers  to  be  incompetent,  the  party  against  whom  the  evidence  is  given  should 
move  to  strike  out  the  testimony ;  Sims  v.  Givan,  2  Blackford,  461 ;  Heely  v. 
Barnes,  4  Denio,  73 ;  Scott  v.  Jester,  8  English,  437  ;  Morton  v.  Beall,  2  Har.  & 
Gill,  136  ;  Lester  v.  McDowell,  6  Harris,  91.  In  chancery  when  a  party  has 
cross-examined  the  witness,  and  no  exception  to  his  testimony  is  made  until  the 
hearing  of  the  cause,  the  objection  will  be  considered  as  waived ;  Barrow  v. 
Rhinelander,  1  Johns.  Ch.  Eep.  550 ;   Town  v.  Needham,  3  Paige  Ch.  Eep.  546. 

^  The  weight  of  authority  in  the  United  States  is  very  decidedly  with  the  text 
on  this  point.  If  however  any  sanction  be  required  beyond  the  temporal  penal- 
ties affixed  to  the  crime  of  perjury — very  inadequate  if  we  consider  that  the  oath 
of  the  witness  can  only  be  met  in  a  criminal  proceeding  by  the  oaths  of  two  wit- 
nesses, or  what  is  equivalent  theretO' — those  which  may  be  observed  to  follow  such 
crimes  in  this  world  will  hardly  be  sufficient  to  overbear  any  strong  temptation  to 


WANT    OF    RELIGIOUS    BELIEF  —  INFANCY.         117 

tTiat  he  believes  himself  bound  to  speak  the  truth,  merely  from  a 
regard  to  character,  or  the  interests  of  society,  or  fear  of  punish- 
ment by  the  temporal  law.' 

The  most  correct  and  proper  time  for  asking  a  "witness  whether 
the  form  in  which  the  oath  is  about  to  be  administered  to  him  is 
one  that  will  be  binding  on  his  conscience,  is  before  that  oath  is 
administered.  But  although  a  witness  shall  have  taken  the  oath 
in  the  usual  form  without  making  any  objection,  he  may,  never- 
theless, be  afterwards  asked  whether  he  considers  the  oath  he  has 
taken  to  be  binding  on  his  conscience.  But  if  the  witness  answer 
in  the  affirmative,  that  he  does  consider  the  oath  which  he  has 
taken  to  be  binding  upon  his  conscience,  he  cannot  then  be  further 
asked  whether  there  be  any  other  mode  of  swearing  that  would  be 
more  binding  upon  his  conscience  than  that  which  has  been  used.™ 

*In  criminal  cases,  where  a  person  of  tender  years  is  a 
material  witness,  it  is  usual  for  the  court  to  examine  the  ^ 
witness  as  to  his  competency  to  take  an  oath  before  he  goes  before 
the  grand  jury.  And  if  such  a  witness  be  found  incompetent  for 
want  of  proper  instruction,  the  court  will,  in  its  discretion,  put  off 
the  trial,  in  order  that  the  party  may  in  the  mean  time  receive  such 
instruction  as  will  qualify  him  to  take  an  oath.  Neither  the  testi- 
mony of  the  child  without  oath,  nor  evidence  of  any  statement 
which  he  has  made  to  any  other  person,  is  admissible." ' 

'  R.  V.  Ruston,  Leach,  C.  0.  L.  455. 

"  The  Queen's  case,  2  B.  &  B.  284;  E.  0.  L.  E.  6.  According  to  the 
opinion  of  the  judges,  as  delivered  by  Abbott,  C.  J.,  in  answer  to  questions 
proposed  by  the  Lords  :  Abbott,  C.  J.,  after  delivering  this  opinion,  added, 
"  Speaking  for  myself  (not  meaning  thereby  to  pledge  the  other  judges,  though  I 
believe  their  sentiments  concur  with  my  own),  I  conceive,  that  if  a  witness  says  he 
considers  the  oath  as  binding  upon  his  conscience,  he  does  in  effect  afBrm,  that 
in  taking  that  oath  he  has  called  God  to  witness  that  what  he  shall  say  will  be 
the  truth,  and  that  he  has  imprecated  the  Divine  vengeance  upon  his  head  if 
what  he  shall  afterwards  say  is  false ;  and  having  done  that,  it  is  perfectly  un- 
necessary and  irrelevant  to  ask  any  further  questions."  And  see  Sells  v.  Hoare, 
7  Moore,  36  ;  E.  C.L.  R.  17  ;  3  B.  &  B.  232  ;  E.  0.  L.  B.  7. 

"  Brazier's  case,  Leach,  C.  C.  L.  237 ;  R.  v.  Tucker,  1  Phill.  on  Ev.  9th  ed. 
6  ;  R.M.  Nicholas,  2  C.  &  K.  46  ;  E.  0.  L.  E.  61 ;  per  Pollock,  0.  B. :  "Where 

commit  them.  That  the  belief  must  be  in  &  future  state  are  the  cases  of  Atwood 
v..  Welton,  1  Oonn.  66  ;   Commonwealth  v.  Bachelor,  4  Am.  Jurist,  81. 

Contra,  Hunscom  v.  Himscom,  15  Mass.  184 ;  Farnandis  v.  Henderson,  S 
Oar.  Law  Journal,  202 ;  Noble  v.  People,  Breose,  29 ;  Blocker  v.  Burness,  2 
Alabama,  354;  Brock  v.  Milligan,  10  Ohio,  121;  U.  States  v.  Kennedy,  3 
McLean,  175 ;  Blair  v.  Seaver,  2  Casey,  274;  Bennetts.  The  State,  1  Swan,  411. 

'  A  deaf  and  dumb  person  capable  of  relating  facts  correctly  by  signs,  may  give 


118      OBJECTION'S    IN    EXCLUSION    OF    WITNESSES. 

It  has  already  been  observed  tbat,  until  recently,  if  a  person  had 
been  convicted  of  an  oifence  which  is  inconsistent  with  the  common 
principles  of  honesty  and  humanity,  the  law  considered ,  his  oath 
to  be  of  no  weight,  and  excluded  his  testimony  as  of  too  doubtful 
and  suspicious  a  nature  to  be  admitted  in  a  court  of  justice,  to 
affect  the  property  or  liberty  of  others.  It  has,  however,  been 
thought  by  the  legislature  that  the  inquiry  after  truth  in  courts  of 
justice  was  often  obstructed  by  these  incapacities,  and  that  it  is 
^  *desirable  that  full  information  as  to  the  facts  in  issue  should 

•^  be  laid  before  the  persons  who  are  appointed  to  decide  upon 
them ;  and  that  they  should  exercise  their  judgment  on  the  credit 
of  the  witnesses  adduced  and  on  the  truth  of  their  testimony."  It 
has  therefore  been  enacted'  that  "  no  person  offered  as  a  witness 
shall  hereafter  be  excluded,  by  reason  of  incapacity  from  crime, 
from  giving  evidence  either  in  person  or  by  deposition,  but  that 
every  person  so  ofiered  may  and  shall  be  admitted  to  give  evidence 
on  oath,  or  solemn  afS.rmation  in  those  cases  wherein  af&rmation  is 
by  law  receivable,  notwithstanding  that  such  person  offered  as  a 
witness   may  have  been  previously  convicted  of  any  crime  or 

the  infirmity  arises  from  no  neglect,  but  from  the  child  being  too  young  to  have 
been  taught,  I  doubt  whether  the  loss  in  point  of  memory  would  not  more  than 
countervail  the  gain  in  point  of  religious  education.  Still  I  can  easily  conceive 
that  there  may  be  cases  where  the  intellect  of  the  child  is  much  more  ripened, 
as  in  cases  of  children  of  nine,  ten,  or  twelve  years  old,  when  their  education 
has  been  so  utterly  neglected  that  they  are  wholly  ignorant  on  religious  subjects. 
In  these  cases  a  postponement  may  be  very  proper."  In  this  case  the  child  was 
six  years  old,  and  postponement  was  refused.  And  where  before  the  happening 
of  the  facts  to  be  proved  by  the  child,  there  had  been  an  absence  of  all  religious 
education,  and  the  child  had  only  been  instructed  with  a  view  to  being  examined, 
but  at  the  trial  showed  no  real  understanding  on  the  subject  of  religion  or  a 
future  state,  the  judge  refused  to  allow  him  to  be  examined ;  R.  v.  Williams,  7 
Car.  &  P.  320 ;  E.  C.  L.  E.  32  ;  R.  v.  Pitre,  3  Oar.  &  P.  598 ;  E.  C.  L.  E.  14. 

»  See  recital  6  &  7  Vict.  c.  85. 

p  6  &  7  Vict.  c.  85. 

evidence  by  signs  through  the  medium  of  an  interpreter,  though  it  appear  that 
such  person  can  read  and  write,  and  communicate  ideas  imperfectly  by  writing ; 
Tlie  State  v.  Be  Wolf,  8  Conn.  93.     G.    See  Snyder  v.  Native,  5  Blackf.  295. 

Whether  a  witness  is  intoxicated  at  the  time  of  giving  testimony  and  therefore 
incompetent  is  a  matter  within  the  sound  discretion  of  the  court ;  Gould  v. 
Crawford,  2  Barr,  89. 

As  to  the  competency  of  witnesses  see  Anon.  2  Pennington,  930  ;  Van  Felt  v. 
Van  Pelt,  Ibid.  657  ;  Den  v.  Vancleve,  2  Southard,  589  ;  State  v.  Leblanc,  Const. 
Eep.  (S.  0.)  354;   Commonwealth  v.  Hutchinson,  10  Mass.  225. 


INFAMY  —  INTEEEST.  ,  11,9 

offence."  The  law  upon  the  subject  of  the  ohjection  to  compe- 
tency on  the  ground  of  infamy  has  thus  been  rendered  obsolete, 
and, .  save  as  a  matter  of  historical  information,  useless.'. 

The  general  principle  which  operated  to  the  exclusion  of  an 
interested  witness  has  already  been  noticed.  In  order  to  obtain  a 
correct  understanding  of  the  present  law  upon  this  subject,  it  is 
necessary  to  advert  to  the  old  rule,  and  to  trace  its  gradual  restrio- 

'  It  is  the  crime  and  not  the  punishment  which  creates  the  infamy  and  destroys 
the  competency  of  the  witness ;  Tlie  People  v.  Whipple,  9  Cow.  707.  A  con- 
viction without  an  attainder  does  not  destroy  the  competency  of  a  witness ;  Skinner 
Perot,  1  Ashmead,  57.  See  also  Cushman  v.  Loher,  2  Mass.  R.  108.  But  con- 
viction of  an  infamous  crime  in  a  foreign  country,  or  in  any  other  of  the  United 
States  does  not  render  the  subject  of  such  conviction  an  incompetent  witness  in 
the  courts  of  Massachusetts ;  Commonwealth  v.  Green,  17  Mass.  R.  515.  Nor 
in  Maryland ;  Cole  v.  Cole,  1  Har.  &  Johns.  572 ;  Clark  v.  Hall,  2  Har.  & 
McHen.  378;  State  v.  Ridgely,  lb.  120.  Nor  in  North  Carolina;  State  v. 
Candler,  3  Hawks,  393.  But  the  record  is  admissible  in  Massachusetts  to  affect 
his  credit ;  Commonwealth  v.  Knapp,  9  Pick.  497.  Parol  evidence  of  the  con- 
viction is  inadmissible  in  New  York  to  establish  the  incompetency,  although  it  be 
proved  that  the  clerk's  office  of  the  county  had  been  burnt  down  and  the  record 
probably  destroyed  ;  for  there  is  higher  evidence  of  the  fact  capable  of  being  pro- 
duced, that  is,  the  transcript  delivered  into  the  Court  of  Exchequer  by  the  District 
Attorney,  which  must  be  presumed  to  have  been  delivered  according  to  his  duty ; 
Hilts  V.  Colvin,  14  Johns.  R.  182.  So  it  is  in  general  inadmissible  in  Massachu- 
setts ;  Commonwealth  v.  Green,  17  Mass.  R.  515. 

Even  the  admission  of  the  witness  will  not  sufSoe  to  prove  the  alleged  infamy, 
without  the  record  of  the  judgment  as  well  as  the  conviction ;  The  People  v. 
Wliipple,'9  Cow.  707.  But  parol  evidence  to  this  point  is  held  to  be  admissible 
in  Louisiana ;  Castellano  v.  Peillon,  2  Martin,  N.  S.  466.  And  Maryland ;  Cole 
v.  Cole  ;  Clark  v.  Hall ;  State  v.  Ridgely,  supra.  G. 

In  New  Hampshire  a  conviction  of  a  crime  in  another  State  is  not  admissible 
in  evidence  for  the  purpose  of  impeaching  the  credit  of  a  witness.  But  a  convic- 
tion in  another  State  of  a  crime  which,  by  the  laws  of  such  State,  disqualifies  the 
party  from  being  heard  as  a  witness,  and  which,  if  committed  in  New  Hampshire, 
would  have  operated  as  a  disqualification  is  sufficient  to  exclude  him  from  testifying 
there,  in  the  same  manner  as  if  it  had  been  committed  and  the  conviction  had 
taken  place  in  their  jurisdiction ;  Chase  v.  Blodgett,  10  N.  Hamp.  22.  See  Uhl 
v.  Commonwealth,  6  Grattan,  706  ;   Campbell  v.  The  State,  23  Alabama,  44. 

As  to  what  crimes  are  infamous  see  State  v.  Keyes,  8  Vermont,  57  ;  Koller  v. 
Firth,  2  Pennington,  723 ;  The  Commonwealth  v.  Rogers,  7  Metcalf,  500  ;  Com- 
monwealth V.  Keith,  8  Mete.  531 ;  Carpenter  v.  Nixon,  5  Hill,  260  ;  Free  v. 
Tlie  State,  1  McMuUan,  494;  Deer  v.  The  State,  14,  Missouri,  348;  Common- 
wealth V.  Dane,  8  Gushing,  384 ;  Houghtalihg  v.  Kelderhouse,  1  Parker  C.  R. 
241;  Poage  v.  The  State,  3. Ohio,  (N.  S.)  229;  Lyford  v.  Farran,  11  Poster, 
314 ;  State  v.  Randolph,  24  Conn.  363. 


120      OBJECTIONS    IN    EXCLUSION     OF    WITNESSES. 

tion,  until  it  has  been  reduced  to  the  few  exceptions  contained  in 
the  recent  statute. 

The  old  rule  upon  this  subject  was,  that  the  interest  must  be 
^  some''    legal,    certain,    and    immediate    interest,    *howeTer 

-'  minute,  in  the  result  of  the  cause,  or  in  the  record  as  an 
instrument  of  evidence,  acquired  without  fraud.^ 

Where  actual  gain  or  loss  would  result,  simply  and  immediately 
from  the  verdict  and  judgment,  the  witness  was  deemed  incompe- 
tent by  reason  of  his  interest ;  as,  where  he  was  a  party,  though 
but  a  nominal  party,  to  the  suit ;""  or  was  a  party  in  beneficial 
interest ;'  or  quasi  a  party,  from  having  entered  into  a  rule  of  court 


1  See  Bmt  v.  Balces,  3  T.  E.  27  ;  2  Smith,  L.  C.  39  ;  R.  v.  Whiting,  1  1 
283  ;  R.  V.  Boston,  4  East,  572  ;  E.  T.  Hardw.  572  ;  Humphreys  v.  Miller,  4 
Oar.  &  P.  7;  B.  C.  L.  E.  19;  R.  r.  Walker,  1  Ford.  MSS.  145;  Parher  v. 
Whitby,  1  Turn.  &  E.  362  ;  Giles  v.  Smith,  1  Moo.  &  E.  443 ;  Wishaw  v. 
Barnes,  1  Oamp.  341 ;  Smith  v.  Harris,  2  Stark.  0.  47  ;  B.  0.  L.  R.  3  ;  Be  Rone 
V.  Fairlie,  1  Moo.  &  E.  457 ;  Doe  v.  Clarke,  3  Bing.  N.  S.  429 ;  B.  0.  L.  E. 
32  ;  R.  V.  Cole,  1  Bsp.  0.  169  ;  Powel  v.  Gordon,  2  Bsp.  0.  735 ;  Forrester  v. 
Pigou,  1  M.  &  S.  9  ;  B.  0.  L.  E.  28  ;  Fbtheringham  v.  Greenwood,  1  Str.  129  ! 
Salk.  283  ;  Lord  Eaym.  724 ;  Champion  v.  Afkinson,  3  Keb.  90 ;  Company  of 
Gold  and  Silver  Wiredrawers  v.  Hammond,  Ford's  MSS. ;  R.  v.  Bray,  E.  T. 
Hardw.  360  ;  IT.  E.  300  ;  3  T.  B.  32  ;  Co.  Litt.  6 ;  1  Keb.  836  ;  Bent  v.  Baker, 
2  T.  R.  27  ;  Smith  v.  Prager,  7  T.  E.  60  ;  Abrahams  v.  Bunn,  4  Burr.  2251  ; 
and  see  Masters  v.  Drayton,  2  T.  E.  496  ;  Carter  v.  Pearce,  1  T.  E.  163  ;  R. 
V.  Boston,  4  Bast,  572  ;  Needham  v.  Law,  12  M.  &  W.  560. 

'  As  in  the  case  of  guardian  of  a  minor,  or  governor  of  the  poor,  who  is  in  the 
first  instance  liable  to  costs  ;  R.  v.  St.  Mary  Magdalen,  3  Bast,  5.  Trustees 
empowered  as  a  public  body  to  sue  and  to  be  sued  in  the  name  of  their  treasurer, 
but  to  be  deemed  the  plaintiffs,  were  not,  it  seems,  competent  witnesses  for  the 
plaintiff  in  an  action  so  brought;  Whitmore  v.  Wilks,  M.  &  M.  214;  B.  C.  L. 
E.  22  ;  and  3  C.  &  P.  364  ;  B.  C.  L.  R.  14. 

'  It  will  be  presumed  that  the  action  is  brought  by  the  direction  of  the  party 
beneficially  interested.  In  an  action  on  a  policy  of  insurance,  brought  in  the 
names  of  the  brokers,  it  appeared  that  A.,  one  of  the  parties  for  whose  benefit 
the  policy  was  effected,  had  before  the  action  released  to  the  plaintiffs  all  actions 
which  he  might  have  under  the  policy,  and  also  that  since  the  action  two  persons 
to  whom  the  whole  interest  on  the  policy  had  been  assigned,  had,  under  an 
order  of  the  Court  of  0.  P.,  indemnified  the  plaintiff  against  all  costs,  and  A.  was 
tendered  and  examined  as  a  witness  for  the  plaintiffs  on  the  trial :  held,  on  error, 
that  as  the  action  had  been  brought  in  the  names  of  the  brokers  for  A.'s  benefit,  it 

'  But  a  person  interested  in  the  event  is  competent,  when  called  on  to  give  tes- 
timony contrary  to  his  interest ;  Jackson  v.  Vredenburgh,  1  Johns.  R.  159.  A 
witness  interested  to  diminish  certain  admitted  items,  in  the  plaintiff's  account,  is 
still  a  competent  witness  to  disprove  other  items  ;  Smith  v.  Carrington,  4  Oranch 
62.  G. 


INTEREST.  121 

or  contract  that  another  cause,  to  -which  he  was  party,  should  ahide 
the  same  result  with  that  in  which  he  proposed  to  give  evidence ;' 
and,  indeed,  wherever  the  direct  effect  of  the  executed  judgment, ' 
as  contradistinguished  from  its  efficacy  in  establishing  or  evi- 
dencing any  other  right  or  claim,  or  for  any  other  collateral 
purpose,  would  be  to  produce  *some  benefit,  or  work  some 
prejudice  to  the  proposed  witness." 

The  next  class  of  cases  was  where  the  witness  was  so  situated 
that  a  legal  right  or  liability,  or  discharge  from  liability,^  would 
immediately  result.  As  where  the  witness  had  indemnified  a  party 
against  the  result  generally  f  or  was  bail  for  the  defendant ;'  or 
was  a  copartner  with  him  in  the  subject-matter  of  the  suit,  and 
would  be  liable  to  contribution  in  case  the  defendant  failed  in  his 
defence.* 

It  seems  that,  in  general,  where  a  witness  was  primd  facie  liable 
to  the  plaintiff  in  respect  to  the  cause  of  action  for  which  he  sued, 

must,  until  the  contrary  be  shown,  be  presumed  it  was  brought  by  him  and  by  his 
authority,  and  if  so,  he  became  and  remained  still  liable  to  the  attorney  employed 
to  bring  it,  nothing  having  been  done  to  deprive  the  attorney  of  his  rights  to 
recover  costs  from  him  ;  he  was  therefore  improperly  admitted  to  give  evidence, 
and  a  venire  de  novo  was  awarded  :    Bell  v.  Smith,  5  B.  &  C.  188  ;  E.  0.  L.  E.  11. 

'  Forrester  v.  Pigou,  1  M.  &  S.  9. 

»  Marleys  v.  Drayton,  2  T.  E.  496  ;  Yardley  v.  Arnold,  10  M.  &  "W.  141 ; 
Righy  v.  Walthew,  5  Dowl.  527. 

'  Bland  v.  Ansley,  2  N.  E.  331.  In  replevin  by  an  under-tenant  against  a 
landlord,  who,  towards  discharging  the  rent  due  from  his  tenant,  distrained  as 
bailiff  of  his  tenant  for  the  amount  of  rent  due  from  the  under-tenant  to  the 
tenant :  it  was  held,  that  the  tenant  was  not  a  competent  witness  to  prove  the 
amount  of  rent  due  from  the  under-tenant ;  Upton  v.  Curtis,  1  Bing.  210  ;  E.  0. 
L.  E.  8  ;  Hartshorne  v.  Watson,  4  Bing.  N.  0.  477  ;  E.  C.  L.  E.  33 ;  Wedgworth 
V.  Hartley,  10  A.  &  B.  619 ;  E.  C.  L.  E.  37. 

y  See  infra,  p.  121,  note  (e). 

^  1  T.  E.  164;  Bayley  v.  Hole,  3  Car.  &  P.  560 ;  E.  C.  L.  E.  14;  Piesly  v. 
Von  Esch,  2  Bsp.  0.  605  ;  Pearcy  v.  Fleming,  5  Car.  &  P.  503 ;  B.  C.  L.  E.  24. 

"  Hall  V.  Cecil  and  Bex,  6  Bing.  181 ;  E.  C.  L.  E.  19 ;  Simons  v.  Smith,  1  Ey. 
&  M.  29  ;  B.  0.  L.  R.  21 ;  Gheyne  v.  Koops,  4  Bsp.  C.  112  ;  Evans  v.  Teatherd 
2  Bing.  133 ;  B.  0.  L.  E.  9.  So  where  a  co-defendant  in  assumpsit  let  judgment 
go  by  default,  he  was  an  incompetent  witness  for  his  co-defendant;  Brown  v. 
Brown,  cited  by  Dallas,  J.,  8  Taunt.  141 ;  B.  0.  L.  E.  4;  and  see  the  observa- 
tions in  Mant  v.  Mainwaring,  8  Taunt.  139 ;  B.  C.  L.  E.  4. 

Where  two  partners  being  sued  on  a  bill  as  indorsees,  one  pleaded  his  discharge 
by  bankruptcy  and  certificate,  and  a  non-pros,  was  entered  as  to  him ;  it  was  held, 
that  he  was  an  admissible  witness  for  his  co-defendant ;  Aflalo  v.  Fourdrinier,  6 
Bing.  306  ;  E.  C.  L.  E.19  ;  and  see  Moody  v.  King  and  Porter,2  B.  &  0.  558  ; 
B.  0.  L.  E.  9. 


122      OBJECTIONS    IN    EXCLUSION    OF    WITNESSES. 

lie  "was  not  a  competent  witness  for  the  plaintiff  to  prove  the 
defendant's  liability.  For  his  evidence  tended  to  produce  payment 
or  satisfaction  to  the  plaintiff  at  another's  expense ;  and  the  pro- 
ceeding and  recovering  against  another  would  afford  strong,  if  not 
*conclusive  evidence  against  the  plaintiff  in  an  action  against 
-'  the  witness.  Thus  it  was  held,  that  where  the  witness  was 
prima  facie  liable  to  the  vendor  of  goods  which  he  had  purchased 
in  his  own  name,  he  was  not  a  competent  witness  for  the  yendor 
against  a  third  person  to  prove  that  the  defendant  was  either 
solely'  or  jointly"  liable  for  the  goods ;  for  in  such  case  the  witness 
had  a  direct  interest  in  causing  another,  either  to  pay  or  contribute 
to  the  payment  of  the  debt."  ^  So  where  a  witness  called  by  the 
defendant  had  undertaken  to  indemnify  him  against  the  whole  or 
part  of  the  damages  or  costs."  And  a  principal  was  not  a  compe- 
tent witness  for  his  surety.' 

So  where  the  issue  involved  any  breach  of  duty,  or  default,  in 
respect  of  which  the  witness  would  be  liable  over  to  the  party 
calling  him.  Such  a  witness,  for  whichever  party  called,  was 
obviously  interested  in  protecting  himself  against  the  consequences 
of  failure,  by  procuring  a  verdict  to  pass  for  the  party  who  called 
him.  Although  guilty  of  misconduct,  the  record  would  conclu- 
sively show  that  the  party  calling  him  had  received  no  prejudice, 
so  far  as  that  cause  was  concerned.  If  called  for  the  defendant,  he 
would  also  be  interested  in  obtaining  a  verdict  for  him,  and  to 
exclude  a  record,  which  would  be  evidence  against  himself  as  to 
the  amount  of  consequential  damage  in  an  action  afterwards  brought 
against  him  by  his  party. 

'  Macbrain  v.  Fortune,  3  Camp.  317. 

"  Ripley  v.  Thompson,  12  Moore,  55 ;  E.  C.  L.  R.  22. 

'  Hodson  V.  Marshall,  7  C.  &  P.  16 ;  E.  C.  L.  E.  32. 

°  Where  several  parishioners  at  a  Testry  signed  a  resolution,  approving  of  law 
proceedings  against  surveyors  of  the  highways,  and  guaranteeing  to  the  plaintiff 
the  legal  expenses  ;  held  that  it  was  a  personal  liability,  and  rendered  them  incom- 
petent; Heudebourck  v.  Langley,  3  0.  &  P.  556  ;  E.  C.  L.  B.  14;  Edmonds  v. 
Lowe,  8  B.  &  0.  407  ;  E.  C.  L.  B.  15. 

'  Secus  where  the  principal  had  been  discharged  by  his  bankruptcy  and  certifi- 
cate ;  Moody  V.  King,  2  B.  &  0.  559  ;  E.  0.  L.  E.  9  ;  see  Townend  v.  Downing, 
14  East,  565. 

'  Where  A.,  an  agent,  whose  principal  B.  is  unknown  at  the  time  of  the  transac- 
tion, deals  with  and  makes  a  contract  of  sale  in  his  own  name  with  C. ;  in  an 
action  by  0.  against  B.  on  such  contract,  A.  is  not  a  competent  witness  for  the 
plaintiff  to  prove  the  agency  and  the  contract  without  a  release  from  0. ;  Hickling 
v.  Fitch,  1  MUes,  208  ;  Christy  v.  Smith,  23  Vermont,  663. 


INTEEEST,    LIABILITY    OYEE.  123 

Where  the  party  employed  was  the  actual  agent  who 
*transacted  the  business  of  the  principal,  he  was  competent  ■- 
on  the  score  of  necessity  f  but  although  an  agent  who  actually 
executed  the  business  of  the  principal  was,  in  all  cases,  competent 
to  prove  that  he  acted  according  to  the  directions  of  his  principal, 
on  the  ground  of  necessity,  and  because  the  principal  could  never 
maintain  an  action  against  his  agent  for  acting  according  to  his  own 
directions,  whatever  might  be  the  result  of  the  cause, ''  yet  if  the 
cause  depended  upon  the  question  whether  the  agent  had  been 
guilty  of  some  tortious  act,  or  some  negligence  in  the  course  of 
executing  the  orders  of  the  principal,  and  in  respect  of  which  he 
would  be  liable  over  to  the  principal  if  he  failed  in  the  action,  the 
agent  was  not  competent  without  a  release."  ^ 

A  witness  was  also  incompetent  where  the  record  would,  if  his 
party  succeeded,  be  evidence  of  some  matter  of  fact  to  entitle  him 
to  a  legal  advantage,  or  repel  a  legal  liability.'' 

s  Adams  v.  Davis,  3  Esp.  C.  48  ;  Matthews  v.  Haydon,  2  Esp.  C.  509  ;  and, 
per  Lord  Kenyon  {ibid.),  it  is  the  constant  course  at  Nisi  Prius,  ex  necessitate  rei, 
to  admit  the  evidence  of  clerks  and  porters  who  were  alone  privy  to  the  receipt  of 
money  or  the  delivery  of  goods  ;  Spencer  v.  Goulding,  Peake's  0. 129  ;  Barker  v. 
Macrae,  3  Camp.  144 ;  B.  N.  P.  289 ;  and  see  Ilderton  v  Atkinson,  1  T.  E. 
480 ;  Evans  v.  Williams,  7  T.  E.  481,  n. ;  Theobald  v.  Treggott,  11  Mod.  261, 
cor.  Holt,  C.  J. 

''  Morish  v.  Foote,  8  Taunt.  454 ;  B.  0.  L.  E.  4.  See  the  observations  of 
Mansfield,  0.  J.,  in  De  Symonds  v.  De  la  Cour,  2  N.  E.  374. 

'  Rothero  v.  Elton,  Peake's  C.  84 ;  Miller  v.  Falconer,  1  Camp.  251. 

*  Bent  V.  Baker,  3  T.  E.  27 ;  Smith  v.  Prager,  7  T.  E.  60  ;  Abrahams  v. 
Bunn,  4  Burr.  2251.  A  copyholder  was  incompetent  to  prove  a  customary  right 
in  the  manor  for  copyholders  to  take  timber  for  repairs  without  assignment  of  the 
lord ;  Lady  de  Fleming  v.  Simpson,  2  M.  &  E.  164;  E.  0.  L.  E.  17. 

■  Nothing  is  better  settled,  than  that  the  cases  of  agents,  carriers,  factors  and 
other  servants  of  this  description  constitute  a  class  of  special  exceptions  to  the 
general  rule  that  a  witness  interested  in  the  subject  of  the  suit  is  not  competent 
to  testify  on  the  side  of  his  interest.  And  this  principle  is  extended  to  every 
species  of  agency  or  intervention  by  which  business  is  transacted,  unless  the  case 
is  overborne  by  some  other  rule ;  Collins  v.  Lester,  16  Geo.  410  ;  Perkins  v. 
Jordan,  35  Maine,  23 ;  Gayle  v.  Bishop,  14  Alabama,  552  ;  The  Governor  v. 
Gee,  19  Alabama,  199.     See  also  Scott  v.  Jester,  8  English,  437. 

In  an  action  against  employees  founded  on  the  imputed  negligence  of  their 
agent,  the  testimony  of  the  latter  for  defendant  was  excluded,  on  the  ground  of 
interest  in  defeating  the  action  ;  for  although  in  an  action  against  him  by  the  em- 
ployers, the  record  would  not  be  evidence  to  establish  his  misconduct,  it  would  be 
admissible  to  establish  the  quantum  of  damages  ;  Gas  Light  Co.  v.  City  Council, 
9  Eich.  Law  (S.  0.)  342 ;  Middlekauf  v.  Smith,  1  Maryland,  329 ;  McClure  v. 


124     OBJECTIONS    IK    EXCLUSION    OF    WITNESSES. 

Of  the  -witnesses  tlius  inadmissible  by  tlie  common  law,  one 
whole  class,  namely,  those  who  were  excluded  by  having  an 
interest  in  the  record  as  an  instrument  of  evidence,  were  rendered 
competent  by  the  stat.  3  &  4  Will.  IV.,  c.  42. 

^^  *That  statute^,  in  order  to  render  the  rejection  of  witnesses 

-'  on  the  ground  of  interest  less  frequent,  enacted  that  "  if  any 
witness  should  be  objected  to  as  incompetent  on  the  ground  that 
the  verdict  or  judgment  in  the  action  on  which  it  should  be  proposed 
to  examine  him  would  be  admissible  in  evidence  for  or  against  him, 
such  witness  should  nevertheless  be  examined ;  but  in  that  case  a 
verdict  or  judgment  in  that  action  in  favour  of  the  party  on  whose 
behalf  he  should  have  been  examined  should  not  be  admissible  in 
evidence  for  him,  or  any  one  claiming  under  him,  nor  should  a 
verdict  or  judgment  against  the  party  on  whose  behalf  he  should 
have  been  examined  be  admissible  in  evidence  against  him,  or  any 
one  claiming  under  him." 

This  enactment  appears  to  have  been  founded'upon  the  principle 
of  rendering  a  witness  competent,  by  removing  the  interest  which 
would  otherwise  have  disqualified  him.  The  legislature  seems  not 
to  have  contemplated  the  admitting  of  the  testimony  of  a  witness  in 
violation  of  the  original  principle  of  exclusion  from  interest,  but, 
preserving  that  principle  inviolate,  to  have  intended  to  enlarge  the 
limits  of  available  evidence  by  the  actual  removal  of  interest,  which 
previously  impeded  its  reception.  This  was  proposed  to  be  done 
by  silencing  the  record  in  certain  cases,  and  so  removing  any  inte- 
rest under  which  the  witness  might  otherwise  labour  either  to  pro- 
cure a  verdict  and  judgment,  which  would  be  evidence  for  him,  or 
to  preclude  a  verdict  and  judgment,  which  would  be  evidence 
against  him.  Consistently  with  this  principle,  the  competency  of 
a  witness  would  not  appear  to  have  been  meant  to  be  restored  in 
any  case  where,  although  the  record  were  silenced,  he  would  still 
have  an  interest,  independently  of  the  use  of  the  record  as  evidence, 
in  some  other  proceeding  resulting  as  a  consequence  from  the 
verdict  and  judgment. 

,       '^'With  reference  to  the  decisions  on  this  statute.     It  seems 

*124l 

to   have  been  considered  from  the   first  that   the  statute 

always  rendered  a  witness  competent  in  the  last  class  of  cases  men- 

1  Sect.  2C. 


Whiteside,  2  Carter,  573  ;  Pendall  v.  Bench,  4  McLean,  259  ;  Howe  v.  Wade,  4 
Ibid.  319 ;   The  Siate  v.  Halloway,  8  Blackford,  45. 


INTEEEST  —  3   &  4  WILL.   IV.   C.  42.  125 

tioned  above,  in  wMcli  tlie  sole  objection  was  tbat  tbe  record  would 
be  evidence  as  to  a  matter  of  fact,  e.  g.  a  custom",  in  wbicb  the 
witness  had  an  interest.  And,  according  to  the  latter  construction 
given  to  it,  the  operation  of  the  statute  seems  to  have  embraced  all 
cases  where  the  verdict  and  judgment  could  be  used  by  or  against 
him,  either  as  evidence,  or  to  establish  any  right,  or  to  discharge 
him  from  any  liability,  and  where  it  would  be  necessary  to  use  the 
record  for  that  purpose."  These  decisions  proceeded  upon  the 
ground  that  the  effect  of  calling  the  witness  being  effectually  to 
silence  the  record,  since  neither  the  existence  of  the  action  nor  the 
result  could  be  proved  but  by  the  record,  the  witness's  interest  • 
would  be  as  much  extinguished  as  if  no  such  proceeding  had  taken 
place. 

Still  this  Act  only  removed  the  objection  where  the  witness  was 
incompetent  on  the  ground,  that  "  the  verdict  or  judgment  in  the 
action  on  which  it  was  proposed  to  examine  him,  would  have  been 
admissible  in  evidence  for  or  against  him."  It  did  not  extend 
beyond  this,  and  the  witness  was  still  incompetent  if  he  laboured 
under  any  interest  independently  of  the  record,  or  he  could  avail 
himself  of  the  verdict  indirectly,  without  the  production  of  the 
record.  Thus  it  was  held  that  the  statute  did  not  apply  where  the 
issue  was  directed  by  a  court  of  equity,  for  in  such  a  case  the  wit- 
ness, notwithstanding  the  statute,  *would  be  able  to  take  y«-.nf 
advantage  of  a  decree  founded  on  the  verdict."  ^ 

The  next  important  step  upon  the  subject  of  evidence  was  taken 
at  the  instance  of  Lord  Denman.  The  stat.  6  &  7  Yict.  c.  85,  after 
reciting  "that  the  inquiry  after  truth  in  courts  of  justice  is  often 
obstructed  by  incapacities  created  by  the  present  law;  and  it  is 
desirable  that  full  information  of  the  facts  in  issue,  both  in  criminal 
and  civil  cases,  should  be  laid  before  the  persons  who  are  appointed 
to  decide  upon  them,  and  that  such  persons  should  exercise  their 
judgment  on  the  credit  of  the  witnesses  adduced,  and  on  the  truth  of 

"  A  copyholder  was  held  competent  to  prove  a  custom  of  the  manor  on  behalf 
of  another  copyholder ;  Hoj/le  v.  Coicpe,  9  M.  &  W.  450  ;  Stuart  v.  Barnes,  1  M. 
&  Bob.  472. 

-  Teomans  v.  Legh,  2  M.  &  W.  419  ;  Faith  v.  M'Intyre,  7  0.  &  P.  44;  E.  C. 
L.  E.  32  ;  Knight  v.  Woore,  7  Oar.  &  P.  259  ;  E.  C.  L.  E.  32.  But  in  an  action 
by  a  corporation  to  establish  a  right  of  common  for  the  benefit  of  the  corporation, 
a  corporator  was  not  rendered  competent  by  3  &  4  Will.  IV.  c.  42  ;  Godman- 
chester  {Bailiffs  of)  v.  Phillips,  4  Ad.  &  E.  550 ;  B.  C.  L.  E.  31. 

"  Stuart  V.  Barnes,  1  M.  &  Eob.  472  ;  and  see  Oliver  v.  Latham,  1  Turn.  & 
Ph.  163 ;  Barber  v.  Birch,  6  M.  &  G.  307  ;  E.  C.  L.  E.  46. 


126      OBJECTIONS    IN    EXCLUSION    OF    WITNESSES. 

tlaeir  testimony  ;"  proceeded  to  enact,  "  that  no  person  offered  as  a 
"witness  shall  hereafter  be  excluded  by  reason  of  incapacity  from 
crime  or  interest  from  giving  evidence ;  but  that  every  person  so 
offered  may  and  shall  be  admitted  to  give  evidence  on  oath  or 
solemn  affirmation,  notwithstanding  that  such  person  may  or  shall 
have  an  interest  in  the  matter  in  question,  or  in  the  event  of  the 
trial  of  any  issue,  matter,  question,  or  inquiry,  or  of  the  suit,  action, 
or  proceeding  in  which  he  is  offered  as  a  witness,  and  notwith- 
standing that  such  person  offered  as  a  witness  may  have  been 
previously  convicted  of  any  crime  or  offence :  Provided  that  this 
Act  shall  not  render  competent  any  party  to  any  suit,  action,  or 
proceeding  individually  named  in  the  record  ;  or  any  lessor  of  the 
plaintiff,  or  tenant  of  premises  sought  to  be  recovered  in  ejectment ; 
or  the  landlord  or  other  person  in  whose  right  any  defendant  in 
replevin  may  make  cognizance  ;  or  any  person  in  whose  immediate 
and  individual  behalf  any  action  may  be  brought  or  defended,  either 
wholly  or  in  part ;  or  the  husband  or  wife  of  such  persons  respec- 
tively." It  also  enacted,  "  that  in  courts  of  equity  any  defendant 
to  any  cause  pending  in  any  such  court  may  be  examined  as  a 
witness  on  behalf  of  the  plaintiff,  or  of  any  co-defendant  in  any  such 
cause,  saving  just  exceptions  ;  *andthat  any  interest  which 
-■  such  defendant  so  to  be  exaniined  may  have  in  the  matter 
or  any  of  the  matters  in  question  in  the  cause  shall  not  be  deemed 
a  just  exception  to  the  testimony  of  such  defendant,  but  shall  only 
be  considered  as  effecting,  or  tending  to  affect  the  credit  of  such 
defendant  as  a  witness." 

This  statute  likewise  contains  a  provision,  which  is  repeated  in 
the  subsequent  Act  we  shall  have  presently  to  consider,  viz.,  that 
it  should  not  repeal  the  Act  7  Will.  IV.,  and  1  Yict.  c.  26,  for  the 
amendment  of  the  Law  relating  to  "Wills. 

Up  to  the  period  of  this  enactment  it  has  been  remarked  that  the 
principle  of  the  exclusion  of  interested  witnesses  in  the  superior 
courts  had  been  rigidly  adhered  to.  The  immediately  preceding 
statute,  in  rendering  the  witness  competent  by  reason  of  the  extinc- 
tion of  his  interest  involved  the  introduction  of  no  new  princi- 
ple, inasmuch  as  it  merely  adopted  an  expedient  frequently  resorted 
to  by  the  parties  through  the  medium  of  a  release  given  to,  or  by 
the  witness.  But  this  enactment  had  a  far  wider  scope,  for  it  posi- 
tively abrogated  the  general  rule  that  an  interested  person  should 
not  be  a  witness.  Yet  it  must  be  observed  that  even  then  the 
legislature  by  no  means  wholly  disregarded  the  principle  oi  the 


INTEREST  —  6  &    7  VICT.   0.   85  —  EXCEPTION  1.      127 

exclusion  of  a  "witness  on  the  ground  of  interest.  The  various 
exceptions  to  the  general  provision  still  recognized  its  expediency ; 
but  their  effect  was  to  confine  its  operation  to  the  five  categories 
mentioned  in  the  proviso.  "With  respect  to  these  it  is  important  to 
notice  that  the  statute  did  not  render  the  persons  included  within 
them  incompetent,  but  merely  excepted  them  out  of  its  operation ; 
consequently  they  remained  unaffected  by  the  statute,  and  in  the 
same  condition  as  to  admissibility  as  they  were  before  it  passed. 
Hence  it  becomes  important,  with  a  view  more  especially  to  the 
first  and  last  exception,  to  ascertain  under  what  circumstances 
those  persons  were  previously  incompetent  as  witesses,  and  we 
*will  proceed  to  consider  what  persons  fell  within  the  words 
of  these  exceptions,  and  in  what  cases  they  were  previously  '- 
incompetent,  in  the  following  order. 

1st.  "  A  party  to  any  suit,  action,  or  proceeding  individually 
named  in  the  record,"  was  always,  except  in  the  peculiar  case  of 
necessity/  an  incompetent  witness  in  his  own  behalf,  on  the 
ground  of  interest.''    But  parties  named  upon  the  record  were 

r  See  ante,  p.  27. 

■•  Though  he  were  only  a  trustee,  he  was  incompetent,  because  he  would  be 
responsible  for  the  costs ;  Bauerman  v.  Radendus,  1  T.  R.  663.  So  in  equity- 
one  plaintiff  could  not  be  examined  for  another  plaintiff  without  the  defendant's 
consent;  Fyler  v.  Newcomh,  19  L.  J.,  C.  0.  278.  And  one  defendant  could  not 
be  examined  for  another  defendant  in  the  same  interest ;  Wood  v.  Rowcliffe,  6 
Hare,  183 ;  but  see  Monday  v.  Guyer,  1  De  Gex  and  Smale,  182. 

It  should  perhaps  be  stated  here  that  there  were  some  statutory  provisions 
enabling  parties  to  give  evidence  in  their  own  behalf,  besides  the  recent  County 
Courts  Act,  9  &  10  Vict.  c.  95,  s.  83,  which  directs  that  the  parties  or  their  wives 
may  be  examined  in  those  Courts.  Thus  under  the  Companies  Clauses  Consolida- 
tion Acts,  and  the  Lands  and  Railways  Clauses  Consolidation  Acts,  8  &  9  Vict.  c. 
16,  s.  132 ;  8  &  9  Vict.  c.  18,  s.  32  ;  8  &  9  Vict,  c  20.  s.  133,  parties  might  be  ex- 
amined by  the  arbitrators,  or  by  arbitrators  appointed  to  settle  disputes  between 
masters  and  workmen,  5  Geo.  IV.  c.  96,  ss.  5,  6.  Trustees  and  other  members  of 
loan  societies,  under  3  ife  4  Vict.  c.  110.  OfiBcers  of  the  army,  navy,  and  marines, 
and  of  the  customs  and  excise,  under  3  &  4  Will.  IV.  c.  53,  in  suits  which  entitle 
them  to  the  penalties  sued  for  or  goods  seized.  As  to  inhabitants,  or  persons  rated 
or  rateable,  or  holding  ofBce  in  any  parish,  &c.,  in  matters  relating  to  rates,  bound- 
aries, removals,  &c.,  see  53  Geo  III.  c.  70,  s.  9  ;  and  3  &  4  Vict.  c.  26  ;  and  infra, 
note  (e). 

'  There  are  some  cases  in  which  a  plaintiff  is  ex  necessitate  a  good  witness  as 
1.  To  Ji!rove. notices  in  the  course  of  the  cause  ;  Fred  v.  Eves,  4  Harrington,  385  ; 
Siltzell  V.  Michael,  3  Watts  &  Serg.  329  ;  Jordan  v.  Cooper,  3  Serg.  &  Rawle, 
564.  2.  To  prove  his  own  book  of  original  entries  ;  Prince  v.  Smith',  4  Mass. 
455 ;  Poultney,  et  al.  v.  Ross,  1  Dall.  239.     3.  To  prove  the  loss  of  documents  to 


128      OBJECTIONS    IN    EXCLUSION    OF    WITNESSES. 

not  as  sucli,  and  on  that  account,  incompetent ;  their  incompetency 
arose  exclusively  from  their  interest,  and  if  they  were  'willing  to 
give  evidence  they  might  be  called  by  the  opposite  parties.  Thus, 
in  an  action  on  a  joint  bond  against  the  principal  and  two  sureties, 
where  one  surety  and  the  principal  had  suffered  judgment  by 
default,  and  the  other  surety  defended,  the  principal  was  held  to 
-S10QT  be  a  competent  witness  *for  the  plaintiff ;''  and  so  was  a  co- 
defendant  in  an  action  for  a  malicious  prosecution,  who  had 
suffered  judgment  by  default.'^  There  had  been  a  similar  decision 
in  the  case  of  a  co-contractor  who,  having  suffered  judgment  by 
default,  was  held  to  be  an  admissible  witness  for  the  plaintiff,  if 
he  were  not  interested  in  procuring  a  verdict  for  him.'  And  a 
defendant  in  an  indictment,  who  had  pleaded  guilty,  has  been 
held  by  the  judges  to  be  an  admissible  witness  for  the  Crown  on 
the  trial  of  other  parties  included  in  it."" 

r  Worrall  v.  Jones  and  another,  7  Bing.  325;  E.  C.  L.  R.  20;  overruling 
Chapman  v.  Graves,  2  Oamp.  333,  u. ;  and  see  per  Maule,  J.,  5  C.  B.  685  ;  E. 
C.  L.  R.  57. 

'  Raddrich  v.  Heslop,  12  Q.  B.  267  ;  E.  C.  L.  E.  64  ;  B.  N.  7..  285  ;  1  Sid. 
441. 

'  Pipe  V.  Steele  and  another,  2  Q.  B.  733 ;  B.  0.  L.  E.  42  ;  Dresser  v.  Clarice, 
1  0.  &  K.  569  ;  E.  C.  L.  E.  47  ;  overruling  Brown  v.  Broiun,  4  Taunt.  752 ; 
Greene.  Sutton,  2  M.&  Bob.  269  ;  Mant  v.  Mainwaring,  8  Taunt.  139  ;  E.  C. 
L.  R.  4. 

"  Reg  V.  Hinks,  2  Car.  &  K.  462  ;  E.  C.  L.  E.  61;  Reg  v.  George,  Car.  &  M. 
Ill ;  E.  C.  L.  R.  41,  Where  an  accomplice  is  to  be  called  as  a  v?itness,  the  usual 
course  is  to  leave  him  out  of  the  indictment ;  see  tit.  Accomplice  ;  or  if  he  has 
been  inadvertently  included  in  the  indictment,  should  be  deemed  necessary,  an 
acquittal  might  be  taken  as  to  him,  or  the  Attorney-General  might  enter  a  nolle 
prosequi;  Ward  v.  Man,  2  Atk.  229,  by  Lord  Hardwicke,  who  said,  that  in 
Crown  prosecutions,  no  defendant  can  be  examined  on  behalf  even  of  the  King, 
but  the  Attorney-General  enters  a  nolle  prosequi  against  that  particular  defendant 
before  he  can  be  admitted  as  a  witness ;  and  that  this  was  done  in  a  case  by 
Trevor,  when  Attorney-General.     See  also  the  case  of  T/ie  King  v.  Ellis,  Blake 

let  in  secondary  evidence  ;  Fitch  v.  Bogue,  19  Conn.  285  ;  Chamberlain  v.  Gor- 
ham,  20  Johns.  144.    4.  In  an  action  against  a  carrier  or  innkeeper  for  the  loss  of 
his  baggage,  to  prove  the  contents  of  his  trunk ;   Taylor  v.  Monnat,  4  Duer,  116  ; 
Wright  v.   Caldwell,  3  Michigan,  51 ;   Lampley  v.  Scott,  24  Mississippi,  528 
Sparr  v.  Wellman,  11  Missouri,  230';   County  v.  Leidy,  10  Barr,  45. 

'  Manchester  Bank  v.  Moore,  19  N.  Hamjk  564;  Parsons  v.  Phipps,  4  Texas, 
341.  One  of  two  defendants,  consenting  to  be  sworn,  though  objected  to  by  the 
other  defendant  is  a  competent  witness  for  the  plaintiff;  Carrie  v.  Colder,  6  Rich. 
198  ;  Kincaid  v.  Purrell,  1  Carter,  324 ;  Thompson  v.  Blanchard,  4  Comstock, 
303  ;  Miner  v.  Downer,  20  Vermont,  461. 


INTEEEST  —  6  &  7  VICT.   C.   85  —  EXCEPTIOUT  1.      129 

*A  party  likewise  who  had  ceased  to  be  interested  in  tlie 
result  miglit  be  called  by  Ms  co-plaintiff,  or  co- defendant  .^ 
Tkus,  in  an  action  against  two  partners  as  acceptors  of  a  bill  of 
exchange,  one  of  the  defendants  who  had  pleaded  his  bankruptcy 
and  certificate,  whereupon  the  plaintiff  had  entered  a  nolle  prosequi 
against  him,  was  held,''  after  releasing  his  surplus,  to  be  an  ad- 
missible witness  for  his  co-defendant.     So  where   several  were 
indicted  together,  one  defendant,  as  to  whom  a  nolle  prosequi  had 
been  entered,  might  be  called  as  a  witness  for  the  other  defendants ; 
and  so  might  one  who  had  pleaded  guilty,  or  one  who  was  not 
arraigned ;''  unless  indeed  in  cases,  such  as  *conspiracy  or    r*-.  oq 
riot,  where  disproving  joint  guilt  might  defeat  the  prose- 
cution even  against  the  witness  himself. 

and  others,  Sitt.  after  Trin.  1802,  Maonally,  55  ;  where  on  an  information  by  the 
Attorney-General  (Law)  against  several  for  a  conspiracy,  he  entered  a  nolle  pro- 
sequi against  two,  who  were  examined  as  witnesses  against  the  others.  And  in  B. 
N.  P.  285,  it  is  said,  that  the  court  would  not  allow  the  Attorney-General,  on  the 
trial  of  an  information  for  a  misdemeanor,  to  examine  a  defendant  for  the  King, 
without  entering  a  nolle  prosequi  as  to  him.  But  qucere,  whether  in  that  case  the 
witness  had  not  been  put  upon  his  trial  at  the  same  time?  and  see  note  (Z),  post. 
But  yet  although  he  be  jointly  indicted  for  an  offence  which  is  several  in  its  nature, 
it  may  be  doubted  whether  he  be  not  still  competent,  provided  he  be  not  put  upon 
his  trial  at  the  same  time;  for  though  several  be  indicted  jointly  for  the  same 
offence,  yet  the  indictment,  where  the  nature  of  the  offence  is  several,  is  also  several 
as  to  each,  and  the  case  seems  to  be  just  the  same  as  if  each  had  been  severally 
indicted,  when  they  would  have  been  witnesses  for  each  other  (2  Hale,  280,  2  Roll. 
Abr.  685,  pi.  3) ;  they  must  therefore,  as  it  seems,  be  also  equally  competent  as 
witnesses  against  each  other. 

=■  Aflalo  V.  Fourdrinier,  6  Bing.  306  ;  E.  C.  L.  R.  19 ;  Moody  v.  King,  2  B.  & 
0.  558 ;  B.  0.  L.  R.  9. 

''  See  tit.  Accomplice.  In  R.  v.  Lafone,  5  Esp.  0.  154,  on  an  indictment  for 
obstructing  excise  officers,  Lord  BUenborough  would  not  permit  co-defendants,  who 
had  suffered  judgment  by  default,  to  be  examined  as  witnesses  for  the  defendant 

'  There  are  conflicting  decisions  in  the  United  States  as  to  whether  a  party, 
plaintiff  by  assigning  his  claim  and  making  an  absolute  payment  into  court  of  a 
sum  of  money  sufficient  to  meet  all  the  costs  of  the  suit,  can  be  a  competent  wit- 
ness to  establish  the  claim,  having  thus  divested  himself  of  all  interest ;  Central 
B.  B.  Go.  V.  nines,  19  Geo.  203  ;  Foley  v.  Mason,  6  Maryland,  37  ;  Owings  v. 
Emery,  7  Gill.  405 ;  Patterson  v.  Gohh,  4  Florida,  481 ;  Bridges  v.  Armour,  5 
Howard,  S.  0.  91 ;  Evans  v.  Oihls,  6  Humph.  405  ;  Benjamin  v.  Coventry,  19 
Wend.  353  ;  Willing  v.  Consequa,  Peters  0.  C.  Rep.  248  ;  Steele  v.  Phoenix  Ins. 
Co.,  3  Binn.  306  ;  Hart  v.  Heilner,  3  Rawle,  407  ;  Post  v.  Avery,.  5  Watts  &  Serg 
510 ;  Wolf^.  Fink,  1  Barr,  173 ;  Park  v.  Bird,  3  Barr,  361 ;  Norris  v.  Johnston 
5  Barr,  290. 

9 


130       OBJECTIONS    IN    EXCLUSION    OF    WITNESSES. 

But  where  a  party  on  the  record  was  interested  on  the  side  of 
the  person  who  called  him,  he  was  not  admissible.  Thus  in  an 
action  of  assumpsit  one  defendant,  who  had  snfifered  judgment  by 
default,  was  not  an  admissible  witness  for  another  defendant  in 
the  action  who  had  pleaded  the  general  issue,  for  if  he  disproved 
the  joint  contract  he  would  relieve  himself  f  and  so  a  defendant  in 
trover  or  trespass,  who  had  suffered  judgment  by  default,  was  not 
an  admissible  witness  for  a  co-defendant  who  had  pleaded,  where 
the  jury  were  summoned  to  assess  the  damages  as  well  as  to  try 

who  was  tried,  saying,  that  he  had  never  Ijnown  such  evidence  admitted  on  an 
indictment  for  a  joint  oifence.  The  cases  on  the  subject  were  not,  it  seems, 
adverted  to  on  that  occasion.  In  R.  v.  Fletcher,  Str.  633,  one  who  had  suffered 
judgment  by  default  on  a  joint  indictment  for  an  assault,  and  having  been  fined  a 
shilling  and  had  paid  it,  was  admitted  as  a  witness  for  the  other  defendant.  There 
indeed  the  witness  had  been  fined ;  but  it  is  difficult  to  say  how  the  circumstance, 
that  the  judgment  has  been  pronounced  and  executed  on  the  witness,  can  make 
any  difference  as  to  his  competency,  or  how  his  giving  evidence  can  at  all  alter  or 
affect  his  legal  situation.  It  has  been  held,  that  upon  several  indictments  against 
three  for  perjury  in  proving  a  bond,  each  was  a  witness  for  the  others ;  R.  v.  Bil- 
more,  Oray  and  Harbin,  2  Hale,  280 ;  and  see  also  Gunston  v.  Downs,  Ibid, 
and  2  Eol.  Abr.  685,  pi.  3.  According  to  the  same  principle,  if  each  had  been 
separately  indicted  for  a  battery  or  larceny,  the  others  would  have  been  competent 
witnesses ;  for  the  same  reason  applies  which  is  given  by  Lord  Hale,  viz.,  that  they 
are  not  immediately  concerned  in  the  trial  against  the  third,  and  therefore  they 
wotild,  it  should  seem,  be  also  competent,  although  they  were  all  to  be  included  in 
one  indictment,  which  in  legal  effect  operates  as  a  several  indictment  as  to  each ; 
see  R.  V.  Frederick  and  Tracy,  Str.  1095,  where  upon  an  indictment  against 
several  for  an  assault,  the  reason  for  refusing  to  admit  the  wife  of  one  as  a  witness 
for  another  defendant,  was,  that  it  was  impossible  to  separate  the  case  of  the  two 
defendants ;  R.  v.  Sherman,  0.  T.  H.  303.  It  has  indeed  been  suggested,  that  if 
one  who  suffered  judgment  by  default  were  a  competent  witness,  one  defendant,  by 
so  doing,  might  protect  the  rest  (5  Bsp.  0.  155 );  assuming  it  to  be  probable  that 
one  of  several  delinquents  would  sacrifice  himself  for  the  salvation  of  the  rest,  it 
would  by  no  means  be  a  necessary  consequence  that  he  would  be  able  to  screen 
them  ;  his  credit  would  be  open  to  the  observation  of  the  jury,  and  be  subject  to 
much  suspicion.  Where,  however,  the  offence  is  of  such  a  nature,  that  an  acquittal 
of  his  associates  would  enure  to  his  own  discharge  a  co-defendant  would  be  incom- 
petent. Thus  an  accessory  before  or  after  the  fact  would  be  incompetent  as  a 
witness  for  the  principal ;  and  see  tit.  Conspiracy.  Where  several  are  indicted 
and  tried  together,  if  at  the  close  of  the  prosecutor's  case  there  appears  to  be  no 
evidence  against  one  defendant,  the  Judge  will  direct  his  acquittal,  in  order  that  he 
may  be  called  as  a  witness  by  another  defendant ;  jK.  v.  Fraser,  Macnally,  56  ;  B. 
V.  Owen,  9  Oar.  &  P.  83 ;  B.  0.  L.  E.  38. 

^  Brown  v.  Fox,  1  Phil,  on  Evid.  9th  ed.  49  ;  Bell  v.  Banks,  3  M.  &  G.  261 ; 
E.  0.  L.  E.  42. 


INTESEST — 6   &   7   VIOT.    C.   85  —  EXCEPTION   1.      131 

the  issue  joined  by  the  one  ■who  defended,  for  he  had  an  interest 
reducing  the  damages." ' 

*Under  this  statute,  therefore,  a  party  to  the  record  might 
still  be  examined  as  a  witness  wherever  he  was  indifferent  ^ 
or  was  called  upon  to  be  such  adversely  to  his  own  interest.  It  is 
true  that  there  might  be  no  compulsion*  upon  him  to  attend,  there 
being  no  instance  in  which  the  court  ever  punished  a  party  to  the 
suit  for  non-attendance  or  a  refusal  to  give  evidence  as  a  witness, 
or  an  action  had  been  brought  against  him  on  that  account,  and 
hence  resort  was  generally  had  in  such  cases  to  a  bill  of  discovery ; 
but  if  he  did  attend,  and  was  willing  to  give  evidence,  there  was 
no  rule  which  enabled  the  court  to  reject  his  testimony. 

Previously  to  the  passing  of  this  statute  in  an  action  by  or 
against  a  corporation  or  other  body,  the  members  of  which  were 
not  mentioned  by  name  on  the  record,  a  member  having  any 
private"  interest  in  the  result  was  not  competent  as  a  witness  on 
behalf  of  the  body  on  account  of  that  interest.^  The  interest, 
however,  of  such  a  person  was  obviously  very  different'  from  that 

-  Mash  V.  Smith,  1  Car.  &  P.  577 ;  B.  0.  L.  B.  12  ;  per  Burroughs,  J.,  Webber 
V.  Budd,  Rose,  on  Evid.  121,  7th  ed. ;  and  so  even  after  the  statute  6  &  7  Vict.  c. 
85  ;  Thorpe  v.  Barber  and  another,  5  0.  B.  675  ;  B.  0.  L.  R.  57. 

"  Rex  V.  Woburn,  10  Bast,  395 ;  Fenn  v.  Granger,  3  Camp.  77  ;  Rex  v.  Ad- 
derbmy,  5  Q.  B.  187 ;  B.  0.  L.  R.  48. 

"  If  he  had  no  private  interest,  but  simply  an  interest  as  one  of  the  public,  he 
was  competent ;  Fletcher  v.  Oreenwell,  1  C.  M.  &  R.  754 ;  M'Gahey  v.  Alston,  2 
M.  &  W.  206 ;  and  see  Weller  v.  I%e  Governors  of  the  Foundling  Hospital, 
Peake,  153. 

«  B.  N.  P.  290 ;  Davis  v.  Morgan,  1  Tyr.  457  ;  Burton  v.  Hinde,  5  T.  R.  174; 
Bailiffs  of  Godmanchester  v.  Phillips,  4  Ad.  &  B.  550  ;  B.  0.  L.  R.  31. 

"  There  were  various  statutes  which  enabled  inhabitants  and  other  persons  to  be 
witnesses  where  the  proceedings  were  by  or  against  them  in  their  quasi  corporate 
capacity;  1  Anne,  c.  18,  s.  13 ;  8  Geo.  II.  c.  16,  s.  15  ;  27  Geo.  III.  c.  29  ;  7  &  8 
Geo.  IV.  0.  29 ;  and  3  &  4  Will.  &  M.  c.  11 ;  54  Geo.  III.  c.  170,  s.  9 ;  3  &  4 
Vict.  c.  26,  ss.  1  and  2. 

'  Thornton  v.  Blaisdell,  37  Maine,  190  ;  King  v.  Lowry,  20  Barber,  532  ;  Rice 
V.  Morton,  19  Missouri,  263  ;  Chase  v.  Lovering,  7  Poster,  295.  See  Barker  v. 
Ayers,  5  Maryland,  202. 

In  an  action  not  on  contract  commenced  against  two  and  process  served  on  one 
only,  the  one  not  served  ceases  to  be  a  party,  and  is  a  competent  witness  for  either 
party;  Robinson  v.  Frost,  14  Barbour,  536.  Ordinarily  a  joint-tort-feasor  is  a 
competent  witness  for  either  party,  if  he  be  not  sued  or  be  sued  in  a  separate 
action,  or  being  joined  have  suffered  judgment  to  be  rendered  against  himself; 
Paine  v.  Tilden,  20  Vermont,  554.  When  judgment  is  recovered  against  two 
jointly,  and  it  is  opened  as  to  one  only,  who  is  let  into  a  defence,  the  other  is  a 


132      OBJECTIOIfS    IN    ESCLUSIOlSr    OF    WITNESSES. 

of  an  ordinary  party,  and''  it  -would  seem  that  the  legislature 
introduced  the  words,  "  any  party  individually  named,"  in  contra- 
^^  „  distinction^  to  persons  described  by  *some  Twmen  collectivum 
upon  the  record,  so  that  a  person  who  is  not  named  "as 
an  individual"  might  not  fall  within  the  exception  ;  consequently 
it  would  appear  that  a  member  of  a  corporation  aggregate,  or 
other  like  body,  so  far  as  this  exception  was  concerned,  was 
rendered  a  competent  witness  by  the  general  provision. 

The  prochein  ami,  or  guardian  of  an  infant,  was  formerly  incom- 
petent on  the  ground  of  his  interest  in  the  cause  to  save  himself 
from  the  payment  of  costs,  for  which,  in  case  of  failure,  he  was 
personally  responsible  ;  but  in  construing  the  words  of  this  ex- 
ception the  Court  held,  that  the  person  to  fall  within  its  terms 
must  be  a  person  who  is  named  as  a  party  to  the  proceeding,  and 
therefore  that  a  prochein  ami,  who  is  in  reality  only  an  attorney  for 
the  conduct  of  the  suit,  might  be  called  as  a  witness  for  the  infant  .""i 

2ndly.  "  Any  lessor  of  the  plaintiff,  or  tenant  of  premises 
sought  to  be  recovered  in  ejectment,"  might  always  have  been 
examined ;  the  former,  if  he  were  willing  to  give  evidence,'  by 
the  defendant ;  the  latter,  by  the  plaintiff:*  but,  inasmuch  as  the 
former  of  these  persons  had  an  immediate  and  direct  interest  in 
preventing  a  verdict  for  the  defendant,  both  on  account  of  the 
result  which  would  confer  on  him  the  right  of  possession  of  the 
property,  and  of  the  liability  to  costs  which  would  ensue  from 
such  a  verdict,  he  was  not  an  admissible  witness  for  the  plaintiff, 
although  there  might  be  demises  by  other  persons  in  the  decla- 
ration.^ So  the  tenant  of  the  premises  was  interested  in  defeating  a 
verdict  for  the  plaintiff,  which  would  turn  him  out  of  possession ;" 

'  See  R.  V  Mayor,  Sfc,  of  London,  2  Lev.  231 ;  1  Vent.  351. 

e  Per  Parke,  B.,  Sinclair  v.  Sinclair,  13  M.  &  W.  645. 

"  Sinclair  v.  Sinclair,  13  M.  &  "W.  640  ;  Melhuisli  v.  Collyer,  19  L.  J.,  N.  S., 
Q.  B.  493. 

'  Feme  dem.  Pewtress  v.  Granger,  3  Oamp.  177. 

^  Doe  V.  Green,  4  Esp.  198. 

'  But  if  he  consented  that  a  verdict  should  be  entered  against  him,  on  his  demise, 
he  might  be  examined  for  the  other  lessors,  per  cur.  2  Ad.  &  B.  339  ;  E.  0.  L.  E.  29. 

""  Doe  dem.  Foster  v.  Williams,  Oowp.  621 ;  Doe  v.  Wilde,  5  Taunt.  183  ;  E. 
0.  L.  E.  1 ;  Doe  v.  Bingliam,  4  B.  &  Aid.  672  ;  E.  0.  L.  E.  6  ;  Doe  dem.  Willis 
V.  Eirchmore,  9  Ad.  &  B.  662  ;  E.  0.  L.  E.  36. 

competent  witness  for  him,  his  own  liability  being  determined  ;   Talmage  v.  Bur- 
lingame,  9  Barr,  21. 

'  Pryor  v.  Ryhwrn,  16  Arkansas,  671 ;  Murphy  v.  Murphy,  24  Missouri,  526. 


INTEREST — 6  &  7  VIOT.  0.  85— E  X  C  E  P  TI  0  NS  3,  4.      133 

but,  as  he  was  not  a  party  to  the  suit,  he  might  have  been  sub- 
poenaed on  the  *part  of  the  plaintiff,  and  forced  by  him  to  p^,  o„ 
give  his  testimony.  The  effect  of  the  statute  was  not  to 
exclude  these  persons  from  being  witnesses  at  all,  but  simply  to 
leave  them  incompetent  on  that  side  which  they  were  interested 
in  supporting. 

Srdly.  "The  landlord,  or  other  person  in  whose  right  any 
defendant  in  replevin  made  cognizance,"  was  always  an  admis- 
sible witness  for  the  plaintiff;  but  he  was  not  an  admissible  witness 
for  the  defendant,"  and  yet  where  distinct  cognizances  were  made 
under  different  parties,  not  appearing  to  be  connected  in  interest, 
and  the  issue  on  one  cognizance  was  abandoned  by  the  defendant 
at  the  trial,  the  person  under  whom  that  cognizance  was  made,  if 
ne  did  not  employ  the  attorney,  was  a  competent  witness  for  the 
defence."  But,  since  the  passing  of  this  statute,  in  a  case  where 
the  defendants  made  cognizance,  first  as»  bailiffs  to  J.  and  F. 
M'Growan,  and  secondly,  as  bailiffs  to  J.  M'Gowan  alone,  and  no 
evidence  was  offered  in  support  of  the  first  cognizance,  and  it  was 
proposed  to  abandon  it  and  call  F.  M'Growan  in  support  of  the 
second  to  prove  a  fact  alleged  therein,  and  not  in  issue  upon  the 
first,  it  was  held  under  this  clause  by  Alderson,  B.,  (after  consult- 
ing Lord  Denman,  C.  J.,)  that  the  evidence  of  F.  M'Growan  was  not 
admissible.''  And  where  the  taking  was  justified  in  several  cog- 
nizances under  different  persons,  and  one  of  them  was  admitted  by 
Wilde,  0.  J.,'*  to  prove  matters  distinct  from  and  independent  of 
the  subject-matter  of  the  cognizance  made  under  him ;  the  Court 
of  Common  Pleas  afterwards  expressed  a  clear  opinion  that  his 
evidence  was  inadmissible,  while  the  cognizance  made  under  him 
remained  *upon  the  record  as  part  of  the  effective  title  p^.-,q^ 
claimed  on  the  part  of  the  defendants.'  '- 

4thly.  "  Any  person,  in  whose  immediate  and  individual  behalf 
any  action  may  be  brought  or  defended  either  wholly  or  in  part." 
This  was  the  great  exception  in  this  enactment,  and  from  the 
generality  of  its  terms  and  the  consequent  wideness  of  its  opera- 
tion it  led  to  much   discussion.     The    only   ground   on   which 

"  Oolding  v.  Nias,  5  Esp.  272 ;   Upton  v.  Curtis,  1  Bing.  210  ;  E.  0.  L.  R.  8. 
"  King  V.  Baker,  2  Ad.  &  B.  333 ;  E.  C.  L.  E.  29. 

p  Girdlestone  v.  M'Gowran,  1  Car.  &  K.  702 ;  B.  0.  L.  B.  47.     But  in  ihis 
case  King  v.  Baker,  2  Ad.  &  B.  333,  B.  C.  L.  B.  29,  was  not  referred  to. 
«  Walker  v.  Giles,  2  Oar.  &  K.  671 ;  E.  0.  L.  E.  61. 
'  Walker  v.  Giles  et  al.,  6  0.  B.  662  ;  B.  C.  L.  B.  60. 


134      OBJECTIONS    IN    EXCLUSION    OF    WITNESSES. 

persons  in  tlie  predicament  pointed  ont  in  this  exception  "were 
inadmissible  as  witnesses  before  Lord  Denman's  Act  was,  tbat 
tbey  were  interested  on  the  side  on  wbicb  tbeir  testimony  was 
proposed  to  be  given/  and  nnder  the  operation  of  this  statute, 
that  circumstance  was  still  the  only  ground  of  exclusion.  If, 
therefore,  they  were  called  adversely  to  their  own  interest,  or 
their  interest  when  they  were  called  to  support  it  was  removed 
by  means  of  a  release,  or  the  objection  could  be  met  by  the 
provisions  of  the  statute  3  &  4  Will.  IV.  c.  42,  they  became 
admissible. 

In  treating  upon  this  branch  of  the  enactment  it  will  perhaps 
be  better  to  consider  the  effect  of  the  word  "immediate,"  as  dis- 
tinct from  "individual"  in  the  first  place,  remembering  at  the 
same  time  that  both  of  these  terms  must  have  been  satisfied  in 
order  to  exclude  the  witness,  and  if  the  proceeding  were  not 
brought  or  defended  on  his  immediate,  as  well  as  his  individual 
behalf  the  witness  was  competent.  Now  although  there  was  no 
presumption  in  favour  of  incapacity,  yet  an  action  will  be  pre- 
sumed to  be  brought  on  behalf  of  the  party  who  appears  to  be 
principally  interested.'  Thus  an  action  by  a  broker,  upon  a  con- 
tract made  by  him  for  his  principal,  to  recover  the  sum  due  under 
that  contract,  though  it  include  the  broker's  commission,  is  evi- 
^.^  op.-,  dently  an  action  brought  on  the  immediate*  behalf  of  the 
principal ;  and  since  the  passing  of  the  statute,  where  the 
party  in  whose  name  the  action  was  brought,  and  the  witness  bore 
the  relation  of  trustee  and  cestui  que  trust  to  each  other  in  respect 
of  the  matter  sought  to  be  recovered  in  the  action,  the  latter  was 
deemed  to  be  a  person  in  whose  immediate  behalf  the  action  was 
brought,  and  inadmissible  as  a  witness.""  So,  a  creditor  of  a  bank- 
rupt was  held  (by  "Wild,  C.  J.)  inadmissible  as  a  witness  for  the 
assignees,  in  an  action  by  them  to  recover  money  paid  as  a  fraudu- 
lent preference,"  though  a  contrary  opinion  was  expressed  upon 
this  question  by  Pollock,  C.  B.''  And  where  the  action  was 
brought  upon  a  promissory  note  made  to  the  plaintiff,  a  member 
of  a  joint-stock  company,  for  the  benefit  of  the  company,  another 

'  As  to  persons  who  were  inadmissible  on  this  ground  before,  see  ante,  p.  118. 
'  Bell  V.  Smith,  5  B.  &  0.  188 ;  B.  0.  L.  R.  11. 
"  'Wade  V.  Simeon,  2  C.  B.  342  ;  E.  C.  L.  R.  52. 
^  Belcher  v.  BraTce,  2  Oar.  &  K.  658 ;  B.  C.  L.  R.  61. 

'f  Johnson  v.  Graham,  2  Oar.  &  K.  808;  B.  0.  L.  R.  61;  and  see  Hart  v. 
Stephens,  6  Q.  B.  937 ;  E.  0.  L.  R.  51. 


INTEREST  —  6  &   7  VICT.   0.   85  —  EXCEPTION  4.      135 

member  of  the  company  was  considered  by  Parke  and  Alderson, 
BB.,  to  be  incompetent  for  tbe  plaintiff.'' 

In  Hill  Y.  KitcUng,'-  -wbicb.  was  an  action  by  a  sMp-broker 
against  a  sMp-owner,  for  bis  commission  in  procuring  a  charter 
for  the  latter,  Cramond,  a  witness,  stated  that  the  defendant 
applied  to  bim  to  procure  freight  for  his  vessel,  whereupon  he 
introduced  him  to  the  plaintiff;  that  the  negotiation  took  place  at 
his  ofSce,  but  he  had  nothing  to  with  it,  and  had  no  claim  against 
the  defendant ;  but  pursuant  to  agreement  with  the  plaintiff  and 
to  the  custom,  he  should  receive  half  the  commission  from  the 
plaintiff,  if  he  recovered.  He  was  held  to  be  a  competent  witness, 
not  being  within  the  excepted  class.  "If  it  had  appeared,"  said 
Tindal,  0.  J.,  "that  the  plaintiff  had  made  over  to  Cramond 
a  moiety  of  the  commission,  then  I  should  have  said  that  Cra- 
mond was  a  person  in  whose  immediate  and  individual  behalf  the 
action  was  in  *part  brought.  But  that  is  not  so.  Cramond, 
though  he  claims  a  moiety  of  the  commission  under  a  separ- 
ate and  distinct  agreement  with  the  plaintiff,  has  no  right  to  lay 
his  hand  upon  any  portion  of  the  money  to  be  recovered  in  this 
action,  and  there  was  no  evidence  to  show  that  he  was  any  party 
to  the  bringing  of  the  action." 

The  rule  deducible  from  these  cases  and  observations  would 
appear  to  have  been,  that  a  witness  who  was  so  interested  in  the 
thing  sued  for,  whether  goods  or  money,  that,  when  recovered  by 
the  party  for  whom  he  appeared,  it  would  be  his  property,  or  if 
recovered  from  the  party  for  whom  he  appeared,  he  (the  witness) 
would  be  the  loser  of  it  either  wholly  or  in  part ;  or  a  witness  who 
had  set  the  suit  in  motion,  or  actually  defended  it  by  employing 
the  attorney,  being  liable  to  him  for  the  costs,'  was  a  person  in 
whose  immediate  and  individual  behalf  the  action  was  brought  or 
defended  within  this  exception. 

On  the  construction  of  this  exception  it  was  also  decided,  that 
creditors  of  a  bankrupt  were  admissible  witnesses  for  the  defendant 
in  an  action  brought  by  the  bankrupt  against  his  assignee,  to  try 
the  validity  of  the  fiat ;  and  it  was  considered  immaterial  whether 
they  had,  or  had  not  proved  their  debts."     And  in  an  action  by 

'  aark  V.  Bell,  12  Jur.  421. 
=•  3  0.  B.  299 ;  E.  0.  L.  E.  54. 

*>  Walter  v.  Thompson,  cor.  Patterson,  J.,  Oxford  Sum.  Assizes,  1845  ;  see  note 
to  Bent  V.  Baker,  2  Smith  L.  0.  3rd  ed.  54. 
"  Columbine  v.  Penliall,  19  L.  J.,  N.  S.,  Q.  B.  302.     And  so  a  petitioning 


136      OBJECTIONS    IN    EXCLUSION    OF    WITNESSES. 

the  assignees,  the  bankrupt  himself  was  competent  to  prove  the 
petitioning  creditor's  debt/  or  the  act  of  bankruptcy,  or  any  other 
matter  to  support  the  iiat.°  For  the  same  reason,  a  legatee  of 
money  charged  on  land  was  admissible  as  a  witness,  to  support 
the  will  giving  that  land  to  the  defendant,  in  an  ejectment  brought 
for  the  same  land  under  another  will  devising  it  otherwise/  So 
^^  „^,  the  possibility  *of  benefit  did  not  exclude  a  husband  from 
giving  evidence  for  the  administrator  of  his  wife,  in  an 
action  brought  by  him  on  a  promissory  note  given  to  the  wife 
while  sole,  the  husband  having  no  interest  in  the  amount  recovered 
till  his  wife's  debts,  contracted  while  unmarried,  were  paid.''  In 
an  action  likewise  of  trover  "■  for  two  promissory  notes,  in  which 
the  question  was,  whether  they  were  the  property  of  the  plaintiff 
or  of  one  Mytton,  and  the  defendant  asserted  that  they  were  the 
property  of  Mytton,  and  were  improperly  in  the  possession  of  the 
plaintiff,  whereupon  the  defendant  as  Mytton's  agent  took  them 
from  him ;  Mytton  being  called  as  a  witness  for  the  defendant 
stated  on  the  voir  dire  that  he  had  not  indemnified  the  defendant, 
and  had  nothing  to  do  with  the  action.  It  was  thereupon  objected 
that  he  was  incompetent,  but  his  evidence  was  held  by  the  court 
to  have  been  rightly  admitted. 

A  mere  liability  also  to  answer  over  against  the  consequences  of 
an  action,  as  for  instance  that  of  a  sheriii''s  officer,  for  whose  mis- 
conduct in  not  arresting  when  he  had  an' opportunity  an  action  was 
brought  against  the  sheriff,  did  not  render  such  a  witness  a  person 
in  whose  immediate  or  individual  behalf  the  action  was  defended ;' 
nor  did  an  engagement  to  pay  half  the  costs  of  defending  the 
action,  the  witness  not  being  the  defendant's  partner,  nor  having 
retained  the  attorney.'' 

But,  in  order  to  exclude  the  witness,  the  action  must  have  been 

creditor  was  lield  a  good  witness  to  support  the  fiat ;  Johnson  v.  Graham,  2  0.  & 
K.  808;  E.  0.  L.  R.  61. 

*  Groom  V.  Watson,  19  L.  J.,  N.  S.,  0.  P.  364. 

«  Udall  V.  Walton,  14  M.  &  W.  254. 

'  J)oe  dem  Bengo  v.  Nicholls,  18  L.  J.,  N.  S.,  Q.  B,  81. 

8  Hart  V.  Stephens,  6  Q.  B.  937  ;  B.  0.  L.  E.  51. 

"  Hearne  v.  Turner,  2  0.  B.  535 ;  E.  C.  L.  R.  52. 

'  Wilson  V.  Magnay,  1  Car.  &  K.  291 ;  E.  C.  L.  R.  47  ;  Wlieeler  v.  Senior,  1 
Oar.  &  K.  293  ;  E.  C.  L.  B.  4:1,  per  Wightman,  J.  Before  the  recent  statute  he 
would  certainly  have  been  inadmissible  ;  Groom  v.  Bradley,  8  0.  &  P.  500  ;  E. 
0-  L.  E.  34,  per  Parke,  B. 

'  Sage  v.  RoUnson,  3  Ex.  142. 


INTEREST  —  6   &   7   VICT.   C.   85  —  EXCEPTIOJST   5.      137 

brought  or  defended  not  only  in  Ms  immediate,  but  also  ia  his 
individual,  behalf,  either  wholly  or  in  part.  Looking  to  the  con- 
struction put  upon  this  word  in  the  former  clause,'  it  would  appear 
to  have  a  similar  operation*  in  this ;  and  that  where  an 
action  was  brought  for  or  against  a  corporation  in  its  aggre-  '- 
gate  name,  though  the  members  might  be  entitled  to. the  benefit  of 
the  thing  sought  to  be  recovered  in  their  corporate  or  collective 
capacity,  or  might  be  so  subjected  to  the  loss  which  an  adverse 
verdict  might  entail,  yet  the  members  were  competent  as  witnesses. 
The  reason  for  this  is  obvious  when  we  reflect  on  the  slight  interest 
which  individuals  so  situated  had  in  the  result. 

5thly.  "The  husband  or  wife  of  such  persons  respectively." 
This  is  the  last  exception,  and  refers  to  the  whole  of  the  other 
exceptions. 

The  law  has  ever  regarded  the  interest  of  husband  and  wife  as 
so  identical,  that  where  the  one  was  incapacitated"  on  the  score  of 
interest,  the  other  could  not  give  evidence.  Thus,  in  an  'action 
against  the  sheriff  to  recover  the  value  of  goods  which  had  been 
sold  by  him  under  an  execution  against  the  husband,  brought  by 
the  trustee  of  a  marriage  settlement  for  the  sole  and  separate  use 
of  the  wife,  the  husband  was  held  to  be  incompetent  as  a  witness 
for  the  plaintiff  to  show  that  the  goods  had  been  conveyed  to  the 
plaintiff  upon  that  trust."  So,  where  a  woman  against  whom  an 
action  of  debt  was  brought  pleaded  coverture,  her  husband  was 
held  to  be  an  incompetent  witness  to  support  the  plea."  And,  in 
an  action  of  trespass  against  two  persons  for  seizing  the  plaintiff's 
goods,  the  wife  of  one  of  the  defendants  was  held  to  be  incompe- 
tent as  a  witness  for  the  other  to  prove  that  he  never  authorized 
the  seizure,  and  this,  too,  although  the  case  as  against  her  husband 
was  clearly  proved.  Being  sworn  to  speak  the  whole  truth,  she 
*could  not  be  prevented  from  stating  facts  which  might  tend 
to  acquit  her  husband,  or  to  relieve  him.i"  In  a  criminal  ■- 
case,  also,  a  wife  could  not  be  examined  for  another  defendant  upon 
a  charge  against  him  and  her  husband,  for  example,  of  conspiracy, 

'  See  per  Parke,  B.,  Sinclair  v.  Sinclair,  13  M.  &  W.  640 ;  and  see  ante,  p. 
131,  and  the  oases  there  cited. 

"  B.  N.  P.  286.  The  rule  that  the  husband  and  wife  shall  not  bear  evidence 
against  each  other,  which  depends  upon  different  considerations,  together  with  the 
exception  to  it,  has  been  already  adverted  to. 

■'  Davis  V.  Dinwoody,  4  T.  B.  678. 

°  Woodgate  v.  Potts,  2  0.  &  K.  457  ;  E.  0.  L.  B.  61. 

*  HawTcesworth  v.  Showier,  12  M.  &  W.  45. 


138      OBJECTIONS    IN    EXCLUSION    OF    WITNESSES. 

"wliere  tlie  acquittal  of  tlie  one  miglit  enure  to  the  discliarge  of  tlie 
other  defendant .''  And  it  has  even  been  held,  before  the  more 
recent  act,  that  the  wife  of  one  prisoner  could  not  be  called  as  a 
witness  to  prove  an  alibi  for  another  prisoner  on  an  indictment 
against  both  for  burglary,  inasmuch  as  her  evidence,  by  impugning 
the  evidence  of  a  witness  who  identified  both  prisoners,  would 
materially  impair  the  weight  of  his  evidence  generally  with  the 
jury ;  but  there  seems  to  be  a  stronger  reason  than  this,  viz.,  that 
she  would  be  sworn  to  speak  the  whole  truth,  and  could  not  there- 
fore be  prevented  from  testifying  in  her  husband's  behalf.'  The 
effect  of  this  enactment  was  to  render  a  husband  or  wife  competent, 
though  interested  in  the  result,  in  all  cases  where  the  interest  of 
the  husband  or  wife  was  not  of  the  class  mentioned  in  the  prior 
exceptions.' 

1  B.  V.  Locker,  5  Esp.  107. 

■•  Rex  V.  Smith,  1  Mood.  0.  0.  289  ;  but  see  R.  v.  Sills,  1  C.  &  K.  494,  contra  ; 
B.  0.  L.  E.  47. 

'  The  rule  before  the  statute  was  not  confined  to  the  cases  when  the  husband  or 
wife  is  a  party,  but  wherever  either  would  be  incompetent  as  an  interested  witness 
the  other  is  so  likewise;  Oriffin  v.  Brown,  2  Pick.  304;  Leggetl  v.  Boyd,  3 
Wend.  376  ;  Hall  v.  JDargan,  4  Alabama,  696  ;  Seigling  v.  Main,  1  McMuUan, 
252 ;  Ahiott  v.  Clarice,  19  Vermont,  444 ;  Edwards  v.  Pitts,  3  Strobh.  140  ; 
Bisbing  v.  Graham,  14  Penna.  State  Eep.  14 ;  Pipher  v.  Lodge,  16  Serg.  & 
Rawle,  214. 

But  see  Dyer  v.  Homer,  22  Pick.  253,  where  it  was  decided  that  although  the 
effect  of  a  husband's  testimony  may  be  to  increase  a  fund  given  to  trustees  for 
the  benefit  of  his  wife  and  the  income  of  which  is  to  be  paid  over  to  her  for  her 
sole  use,  and  upon  her  own  receipts  under  her  hand,  he  is  not  therefore  an  in- 
competent witness,  his  interest  being  contingent.  Contra,  that  the  husband  cannot 
be  a  witness  either  for  or  against  his  wife,  in  a  suit  concerning  her  separate  estate ; 
Warne  v.  Dyotf,  2  Edw.  Oh.  Rep.  497  ;  Hosack  v.  Rogers,  8  Paige  Oh.  Eep. 
229;  Burrell  v.  Bull,  3  Sandford  Oh.  Eep.  15;  Hodges  v.  The  Bank,  13  Ala- 
bama, 455  ;  Footman  v.  Pendergrass,  2  Strobh.  Eq.  317  ;  Mayrant  v.  Guig- 
nard,  3  Strobh.  Eq.  112  ;  Williamson  v.  Morton,  2  Maryland  Oh.  Deois.  94 ; 
Snyder  v.  Snyder,  6  Binn.  483. 

Although  the  husband  might  be  a  competent  witness  as  called  to  testify  against 
his  own  interest,  and  be  compellable  to  do  so,  yet  his  wife  will  not  be  a  competent 
witness,  and  this  is  peculiarly  on  the  ground  of  policy  to  prevent  that  discord  and 
dissension  which  would  otherwise  be  likely  to  arise  between  the  parties.  There- 
fore if  one  of  two  or  more  defendants  in  equity  suffers  the  bill  to  be  taken  pro 
confesso,  and  other  defendants  answer,  the  wife  of  the  defaulted  defendant  is  not 
a  good  witness  for  the  complainant ;  Sparhawk  v.  Buell,  9  Vermont,  41 ;  see 
Hadley  v.  Ghapin,  11  Paige,  245. 

A  wife  may  be  admitted  as  a  witness  against  her  husband  in  an  indictment  for  a 


INTEBBST  —  6  &  7  VICT.   0.   85  —  EXCEPTION  5.      139 

Tliis  exception  becomes  most  important  for  consideration  witli  a 
view  to  fhe  last  enactment  upon  this  subject,  wliioli  "we  shall  now 
proceed  to  discuss ;  and  as  it  defines  tlie  persons  falling  within  it 
by  refereiice  to  the  preceding  exceptions,  it  has  rendered  it  neces- 
sary to  afford  an  explanation  of  the  whole  of  them,  which  might 
otherwise  have  been  partially  dispensed  with. 

Shortly  after  the  passing  of  Lord  Denmari's  Act,  the  statute  for 
the  establishment  of  County  Courts,  which  superseded  a  large 
number  of  minor  tribunals  where  the  objection  to  the  admissibility 
of  witnesses  on  the  score  of  interest  was  not  allowed  to  prevail, 
was  promulgated ;  and  by  this  it  was  provided,  that  in  those  new 
Courts,  not  only  the  parties,  but  their  wives  and  all  other  persons, 
*should  be  witnesses  on  either  side.'  This  paved  the  way 
for  the  introduction  by  Lord  Brougham  of  the  last  and  '- 
most  sweeping  measure  upon  the  subject  of  the  inadmissibility  of 
witnesses  on  the  ground  of  interest,  viz.,  the  recent  "  Act  to  amend 
the  Law  of  Evidence.'"  This  statute,  after  reciting  that  "whereas 
it  is  expedient  to  amend  the  law  of  evidence  in  divers  particulars," 
enacts'"  "that  so  much  of  Sect.  1  of  the  Act  of  the  6th  and  7th 
years  of  Her  present  Majesty,  chap.  85,  as  provides  that  the  said 

•  9  &  10  Viot.  c.  95,  s.  83.  "  Sect.  1. 

•  14  &  15  Vict.  c.  99. 

criminal  offence  committed  by  him  against  her;  The  State  v.  Davis,  3  Brevard,  3. 
But  only  when  it  is  an  injury  to  her  person,  not  when  it  is  to  wrong  her  in  her 
property,  as  by  subornation  of  perjury ;  27ie  People  v.  Carpenter,  9  Barbour  S. 
0.  580.  So  she  is  a  competent  witness  for  him  to  disprove  the  charge  ;  The  State 
V.  Neill,  6  Alabama,  685.  The  husband  having  been  examined  for  the  State,  the 
wife  is  a  competent  witness  on  the  other  side,  to  show  that  the  husband  testified 
under  a  bias  against  the  defendant  but  not  to  contradict  him  ;  Cornelius  v.  The 
State,  1  English,  782.  The  wife  who  keeps  her  husband's  books  is  a  competent 
witness  to  prove  his  book  of  original  entries  ;  Littlefield  v.  Rice,\0  Metcalfe, 287. 
The  principle  of  necessity  which  enables  a  party  to  prove  the  contents  of  a  lost 
trunk  applies  to  the  wife,  and  renders  her  also  a  competent  witness  in  such  a  case ; 
McOill  V.  Rowand,  SBarr,  451. 

After  a  divorce,  or  death,  neither  will  be  permitted  to  testify  against  the  other 
in  respect  to  transactions  which  occurred  during  the  coverture ;  Barnes  v. 
GamacTc,  1  Barbour,  392  ;  Cooh  v.  Orange,  18  Ohio,  526  ;  Oashill  v.  King,  12 
Iredell,  211 ;  Bradford  v.  Williams,  2  Maryland'  Oh.  Decis.  1 ;  Hay  v.  Hay,  3 
Richardson  Bq.  384.  A  wife  after  the  death  of  her  husband  is  competent  to  prove 
facts  coming  to  her  knowledge  from  other  sources  than  by  means  of  her  situation 
as  wife,  notwithstanding  they  relate  to  the  transactions  of  her  husband ;  Wells 
V.  Tucker,  3  Binn.  366  ;  Cornell  v.  Vanartsdalen,  4  Barr,  374 ;  Chambers  v. 
Spencer,  5  Watts,  404. 


140      OBJECTIONS    IN-    EXOLUSIOK    OF    WITNESSES. 

Act  shall  not  render  competent  any  party  to  any  suit,  action,  or 
proceeding,  individually  named  in  the  record,  or  any  lessor  of  the 
plaintiff,  or  tenant  of  premises  sought  to  be  recovered  in  ejectment, 
or  the  landlord  or  other  person  in  whose  right  any  defendant  in 
replevin  may  make  cognizance,  or  any  person  in  -whose  immediate 
and  individual  behalf  any  action  may  be  brought  or  defended, 
either  -wholly  or  in  part,  is  hereby  repealed."  It  then  proceeds^ 
to  enact  that  "  on  the  trial  of  any  issue  joined  or  of  any  matter  or 
question,  or  on  any  inquiry  arising  ia  any  suit,  action,  or  other 
proceeding  in  any  court  of  justice ;  or  before  any  person  having  by 
law,  or  by  consent  of  parties,  authority  to  hear,  receive  and 
examine  evidence,  the  parties  thereto,  and  the  persons  on  whose 
behalf  any  such  suit,  action  or  other  proceeding  may  be  brought 
or  defended,  shall,  except  as  hereinafter  excepted,  be  competent 
and  compellable  to  give  evidence,  either  vivd  voce  or  by  deposition 
according  to  the  practice  of  the  court,  on  behalf  of  either  or  any 
of  the  parties  to  the  said  suit,  action  or  other  proceeding."  By 
way  of  exception,  however,  to  these  general  pro-visions,  it  is 
declared  that  "  nothing  herein  contained  shall  render  any  person 
who''  in  any  criminal  proceeding  is  charged  with  the  commission 
of  any  indictable  offence,  or  any  offence  punishable  on  summary 
-,  *conviction,  competent  or  compellable  to  give  evidence  for 
or  against  himself  or  herself,  or  shall  render  any  person 
compellable  to  answer  any  question  tending  to  criminate  himself 
or  herself,  or  shall  in  any  criminal  proceeding  render  any  husband 
competent  or  compellable  to  give  evidence  for  or  against  his  wife, 
or  any  wife  competent  or  compellable  to  give  evidence  for  or 
against  her  husband."  And  also"  that  "  nothing  herein  contained 
shall  apply  to  any  action,  suit,  proceeding,  or  bill,  in  any  Court 
of  Common  Law,  or  in  any  Ecclesiastical  Court,  or  in  either  House 
of  Parliament,  instituted  in  consequence  of  adultery,  or  to  any 
action  for  breach  of  promise  of  marriage." 

By  the  first  section  therefore  of  this  enactment  it  will  be  found, 
on  reference  to  Lord  Denmanh  Act,  that  the  whole  of  the  excep- 
tions contained  in  it,  save  the  last  which  related  to  the  husbands 
and  wives  of  the  parties  mentioned  in  all  the  exceptions,  was 
repealed,  and  the  general  enabling  clause  which  that  Act  contained 
would  have  prevailed.  It  therefore  became  requisite  to  limit  its 
operation  by  the  two  last  sections  above  quoted ;  and  in  order  to 

^  Sect.  2.  y  Sect.  3.  '  Sect.  4. 


INTEEEST  —  6  &  7  VICT.   0.   85  —  EXCEPTION  5.      141 

put  an  end  to  all  questions,  as  well  to  render  parties  compellable  by 
tbeir  adversaries  or  other  parties  to  give  evidence,  tbe  second  sec- 
tion seems  to  have  been  introduced.  The  exception  therefore  in 
the  prior  enactment  as  to  the  evidence  of  husbands  and  wives  in 
the  instances  mentioned  in  it,  and  the  two  clauses  above  quoted 
from  the  last  statute,  are  the  only  remnants  of  the  ancient  rule 
upon  this  subject ;  and  all  other  persons  are  now  admissible  as  wit- 
nesses without  reference  to  any  interest  they  may  possess.  With 
regard  to  those  two  clauses,  the  reasons  for  excluding  the  persons 
falling  within  them  are  so  obvious,  and  their  language  is  so  explicit, 
as  to  render  further  explanation  superfluous ;  but,  with  regard  to 
the  other  exception,  there  has  already  been  considerable  discussion, 
and  some  difference  of  opinion." 

*Whether  the  exclusion  of  the  evidence  of  the  wife  at  p^^  .„ 
common  law  depended  upon  the  identity  of  interest  between  '- 
her  and  her  husband,  or  upon  the  interest  which  society  has  to 
preserve  the  peace  and  confidence  of  families,  has  been  strongly 
disputed.  Whichever  be  the  foundation  of  the  rule,  the  legisla- 
ture seems  to  have  thought  that  the  question  of  the  admissibility  of 
the  evidence  of  husbands  and  wives,  for  or  against  one  another, 
involved  other  considerations  than  that  of  mere  interest,  and  pur- 
posely to  have  omitted  this  exception  from  the  repeal  effected  by 
the  1st  section.  It  is  however  singular  that,  either  from  inadver- 
tence or  for  some  reason  which  it  is  difficult  to  comprehend  in  the 
subsequent  section,  which  provides  that  parties  and  persons  on 
whose  behalf  the  action  is  brought  shall  be  competent  and  compel- 
lable to  give  evidence,  there  is  no  qualification  whatever  ;  and  the 
result  is,  that  under  that  provision,  where  the  husband  and  wife 
are  parties  to  the  action  or  suit,  they  may  both  give  evidence. 
Thus,  where  goods  were  supplied  to  a  wife  before  marriage,  and 
the  husband  and  wife  were  sued  for  the  price,  they  were  both  allowed 
to  give  evidence  for  the  defence.''  But  if  the  case  does  not  fall 
within  that  section,  and  both  the  husband  and  wife  are  not  parties, 
it  has  now  been  decided"  that  in  civil  proceedings  the  exception  in 
Lord  Denman's  Act  prevails,  and  the  old  rule  of  exclusion  applies, 
and  as  expressed  by  Parke,  B.,*  "  The  wife  is  not  a  competent  wit- 

"  See  Stapleton  v.  Croft,  16  Jur.  408. 

'  Christian  v.  Horwood  and  Ux.  cor.  Pollock,  0.  B.,  London  Sittings  after  M. 
T.  1851. 

"  Stapleton  v.  Croft,  16  Jar.  408,  dissentiente,  Earle,  J. ;  BarlatY.  Allen,  21  L. 
J.,  Ex.  154. 

*  Barhat  v.  Allen,  21  L.  J.,  Ex.  154. 


142     OBJECTIONS    IN     EXCLUSION    OF    WITNESSES. 

ness  in  a  civil  suit  to  wliicli  her  liusband  is  a  party.  Slie  was 
incompetent  in  sucli  cases  by  the  common  law,  and  I  do  not  stop  to 
inquire  whether  that  was  simply  on  the  ground  of  interest  or  of  the 
relationship  between  the  parties,  though  the  latter  is  the  reason 
usually  assigned  in  the  books,  and  it  is  clear  that  by  the  recent 
Law  of  Evidence  Act,  14  &  15  Vict.  c.  99,  it  was  never  meant  that 
*iaq1  ^^^  *'wife  should  be  a  competent  witness  for  or  against  her 
husband." 

If  however  the  adversary  do  not  object,  it  would  seem  that  the 
husband  or  wife  might  be  examined,  and  perhaps  the  judge  could 
not  reject  the  evidence  ;  but  after  the  party  has  once  objected,  it  is 
entirely  in  the  discretion  of  the  judge  whether  he  will  allow  the 
objection  to  be  withdrawn." 

Unless  the  interest  of  the  witness  was  apparent  from  the  record 
itself  or  from  the  admission  of  the  adversary,  it  lay  with  the  party 
making  the  objection  to  establish  if  to  the  satisfaction  of  the  judge," 
either  by  the  examination  of  the  witness  on  the  voir  dire  or  by 
independent  evidence.'' 

Notwithstanding  the  primd  facie  appearance  of  interest  on  the 
part  of  the  witness  on  the  face  of  the  record,  it  was  held  his 
evidence  ought  not  to  be  rejected  without  examining  him  on  the 
.  voir  dire  as  to  his  real  situation.'  The  witness  might  be  ex- 
amined generall  yas  to  his  situation,*  and  even  as  to  the  con- 

'  Barbat  v.  Allen,  supra. 

'  Doe  dem.  Norton  v.  Webster,  12  Ad.  &  E.  442  ;  B.  C.  L.  R.  40  ;  Bunter  v. 
Warre,  1  B.  &  C.  689 ;  E.  C.  L.  B.  8. 

s  The  judge  at  nisiprius  is  the  person  to  decide,  both  as  to  the  facts  and  the 
law,  on  a  question  as  to  the  competency  of  a  witness ;  Doe  dem.  Norton  v.  Web- 
ster, 12  Ad.  &  E.  442  ;  B.  0.  L.  R.  40. 

^  Formerly  it  was  necessary  to  have  the  witness  sworn  on  the  voir  dire,  and  to 
take  the  objection  before  he  was  sworn  in  chief,  but  the  rule  has  been  relaxed  for 
the  sake  of  convenience ;  Turner  v.  Pearte,  1  T.  B.  717.  The  witness  may  be 
examined  on  the  voir  dire  in  criminal  as  well  as  civil  cases ;  R.  v.  Muscot,  10 
Mod.  192  ;  see  Lord  Lovat's  case,  18  How.  St.  Tr.  530.  In  E.  v.  Wakefield  and 
others,  2  Lew.  Or.  0.  279,  on  an  indictment  for  a  conspiracy  to  carry  away  Miss 
Turner  and  marry  her  to  one  of  the  defendants,  on  an  objection  taken  by  the 
defendants  to  the  competency  of  Miss  T.,  on  the  ground  that  she  was  married  to 
one  of  the  defendants,  HuUock,  B.,  held,  that  the  proper  course  was  first  to  exam- 
ine Miss  T.  on  the  voir  dire,  and  afterwards  to  adduce  collateral  evidence. 

>  Bunter  v  Warre,  1  B.  &  0.  689  ;  B.  C.  L.  E.  8  ;  Goodhay  v.  Hendry,  Mood. 
&  M.  319 ;  B.  0.  L.  E.  22 ;  Carlile  v.  Eady,  1  0.  &  P.  234;  E.  0.  L.  E.  12 ; 
Lunniss  v.  Row,  10  Ad.  &  E.  606  ;  E.  0.  L.  R.  37 ;  Quarterman  v.  Cox,  8  0.  & 
P.  97 ;  E.  0.  L.  E.  34;  HartsJiorne  v.  Watson,  5  Bing.  N.  0.  477  ;  E.  0.  L.  E.  35. 


INTEREST — MODE    AND    TIME    OF    OBJECTION.    143 

tents  of  -written  documents  wliicli  were  not  produced ;''  for  tlie 
party  objecting  could  not  know  previ.ously  that  tlie  witness  would 
be  called,  and  consequently  might  not  be  prepared  with  the  best 
evidence  to  establish  his  objection ;  and  in  like  manner  his  com- 
petency might  be  restored  by  his  parol  evidence  on  the  voire  dire} ' 
If  the  witness  discharged  himself  on  the  voire  dire,  the  party  who 
objected  might  still  afterwards  support  his  objection  by  evidence ;""  * 

^  B.  V.  Gishurn,  15  Bast.  57  ;  Howell  v.  Locke,  2  Oamp.  14 ;  Lunniss  v.  Bow, 
10  Ad.  &  E.  606 ;  B.  0.  L.  R.  37. 

'  B.  V.  Gishurn,  15  Bast.  57 ;.  BrockbanJc  v.  Anderson,  7  M.  &  G-.  295  ;  B.  0. 
L.  R.  49 ;  and  see  Botham  v.  Swingler,  1  Esp.  0.  164 ;  Butcher's  Company  v. 
Jones,  ib.  160. 

"°  In  B.  V.  Muscat,  10  Mod.  192,  Parker,  0.  J.,  is  reported  to  have  stated  that  a 
party  has  his  election  to  prove  the  interest  of  the  witness  either  by  examination  on 
the  voir  dire  or  by  evidence,  but  that  he  could  not  do  both ;  and  see  Lord  Lovat's 
case,  18  How.  St.  R.  530. 

'  Stebbins  v.  Sachett,  5  Conn.  258 ;  Miller  v.  Mariner's  Gliurch,  7  Greenleaf, 
51 ;  Hays  v.  Bichardson,  1  Gill.  &  Johns.  366  ;  Mayo  v.  Gray,  2  Pennington, 
837  ;  Fifield  v.  Smith,  8  Shepley,  383. 

2  But  the  better  opinion  in  the  United  States  isthat  a  party  putting  a  witness  on 
his  voir  dire  is  bound  by  his  answers  and  cannot  establish  his  incompetency 
aliunde :  and  vice  versa,  if  he  fails  in  the  proof  aliunde,  he  cannot  resort  to  the 
examination  on  the  voir  dire.  It  is  however  always  open  to  the  party  to  adduce 
evidence  of  interest  in  the  witness  with  a  view  to  impeaching  his  competency  with 
the  jury ;  Mifflin  v.  Bingham,  1  Ball.  272  ;  Mallet  v.  Mallet,  1  Root,  501 ;  McAl- 
lister V.  Williams,  1  Overton,  107, 119  ;  Bridge  v.  Wellington,!  Mass.  219  ;  Chance 
v.  Hine.  6  Conn.  231 ;  JDorr  v.  Osgood,  2  Tyler,  28  ;  Bisbee  v.  Hall,  3  Hammond, 
449  ;  Welden  v.  Buck,  Anthon,  9 ;  Walker  v.  Sawyer,  13  New  Hampshire,  191 ; 
Schnader  v.  Schnader,  2  Casey,  384. 

Contra,  Stebbins  v.  Sackett,  5  Conn.  258. 

If  the  witness's  competency  is  impeached  aliunde,  it  must  be  sustained  aliunde. 
The  party  producing  him  is  not  entitled  to  put  him  on  his  voir  dire  ;  Wright  v. 
Mathews,  2  Blackford,  187  ;  The  Watchman,  Ware,  232  ;  Anderson  v.  Young, 
9  Harris,  443 ;  Haynes  v.  Hunsicker,  2  Casey,  58. 

When  a  party  has  attempted  to  exclude  a  witness  produced  against  him,  by 
evidence  from  others  of  Ms  interest  and  has  failed,  the  judge,  in  his  discretion,  may 
permit  him  to  examine  such  witness  on  the  voir  dire  ;  but  it  is  doubtful  whether 
this  may  be  claimed  as  a  right ;  Butler  v.  Tufts,  1  Shepley,  302.  Where  a  mere 
offer  has  been  made  to  prove  a  witness  interested,  he  may  still  be  examined  on  his 
voir  dire  when  the  testimony  offered  was  overruled ;  Main  v.  Newson,  Anthon^ 
11. 

If  the  interest  of  a  witness  appears  from  his  own  testimony  he  may  testify  to 
facts  which  will  remove  the  objection ;  aliter,  when  his  interest  is  otherwise  shown ; 
Montgomery  Plank  Boad  Co.  v.  Webb,  27  Alabama,  618.  If  however  the  interest 
of  the  witness  appears  of  record  or  on  the  face  of  the  instrument  sued  on,  he  is 
incompetent  to  prove  his  own  release  ;  Hiscox  v.  Hendree,  Ibid.  216.  When  the 


144    OBJECTIONS    IN    EXCLUSION    OF    WITNESSES. 

but  in  so  doing  tlae  objecting  party  was  bound  by  tbe  usual  rules 
of  evidence,  and  could  not  inquire  as  to  tbe  contents  of  a  written 
instrument  witbout  producing  it,  or  proving  tbe  usual  preparatory 
steps." 

Tbe  objection  to  competency  ougbt  properly  to  be  taken  in  the 
first  instance,  previously  to  an  examination  in  cbief ;"  where  it  is 
discovered  incidentally  in  the  course  of  the  cause  that  the  witness 
is  inadmissible,  his  evidence  will  be  struck  out,  although  no 
objection  has  been  made  to  him  on  the  voire  dire?^  Yet  it  seems 
that  a  party  who  is  cognizant  of  the  objection  of  the  witness  at 
the  time  when  he  is  called,  ought  to  make  his  objection  in  the  first 
^^  .  _  instance,  according  to  the  general  principle.''  *This  seems 
to  be  a  matter  entirely  within  the  discretion  of  the  court. 
"Where  the  witness,  having  been  examined,  had  left  the  box,  but 
on  being  recalled  answered  a  question  put  by  the  court,  from 
which  it  appeared  that  he  was  interested,  it  was  held  that  his 
competency  could  not  then  be  disputed.'  And  where  a  witness 
had  been  examined  and  cross-examined  or  interrogated  without 
objection,  it  was  held  that  the  objection  to  competency  could  not 

"  Howell  V.  Locke,  2  Camp.  14. 

"  Hartshorne  v.  Watson,  5  Bing.  N.  0.  477 ;  E.  C.  L.  E.  35.  The  ancient 
doctrine  on  this  head  was  so  strict,  that  if  a  witness  were  once  even  sworn  in  chief 
he  could  not  afterwards  be  objected  to  on  the  ground  of  interest ;  but  this  rule  has 
been  relaxed ;  see  Jacobs  v.  Layborn,  infra,  note.i 

P  Per  Lord  EUenborough,  Hoivell  v.  Locke,  2  Camp.  14 ;  Perigal  v.  Nicholson, 
1  Wightw.  64. 

'  Turner  v.  Pearte,  1  T.  E.  717.  But  the  doctrine  in  the  text  has  been  much 
shaken  in  Jacobs  v.  Layborn,  11  M.  &  W.  685,  where  a  witness  for  the  defendant 
after  answering  several  questions  upon  examination  in  chief,  was  stopped  by  the 
plaintiff's  counsel,  and  in  answer  to  his  questions  acknowledged  that  he  was 
answerable  to  the  defendant's  attorney  for  the  costs.  It  was  held  by  the  court  in 
banc  that  the  objection  to  his  competency  was  not  too  late,  and  Lord  Abinger,  C. 
B.,  there  observed,  that  a  counsel  may  wait  and  see  whether  the  witness  will  speak 
the  truth,  and  if  he  finds  he  does  not,  then  he  may  examine  him  on  the  voir  dire, 
and  exclude  his  testimony. 

"  Beeching  v.  Gower,  Holt's  C.  313 ;  B.  C.  L.  E.  3  ;  Wollaston  v.  Eakewill,  3 
M.  &  G-.  297  ;  E.  C.  L.  E.  42  ;  Fellingham  v.  Sparrow,  9  Dowl.  P.  C.  141 ;  Dewd- 
ney  v.  Palmer,  4  M.  &  "W.  664. 


interest  of  a  witness  as  partner  of  the  plaintiff  is  shown  by  evidence  aliunde  after 
he  has  been  examined  he  cannot  be  recalled  to  restore  his  testimony  on  his  voir 
dire ;  Robinson  v.  Turner,  3  Iowa,  540. 
'  See  ante,  p.  115,  note. 


EXAMINATION    OF    WITNESSES    IN    CHIEF.         145 

be  taken  at  the  trial."  The  courts  will  not,  it  seems,  grant  a  new- 
trial  on  the  mere  ground  that  it  has  been  discovered,  subsequently 
to  the  trial,  that  some  of  the  witnesses  were  inadmissible.'  If  the 
evidence  of  a  witness  be  improperly  admitted  or  rejected,  the 
court  will  grant  a  new  trial,  unless  perhaps  it  be  perfectly  clear 
that  its  admission  or  rejection  could  have  had  no  effect  on  the 
verdict,  or  the  court  beyond  all  doubt,  if  the  verdict  had  been  the 
other  way,  would  have  set  it  aside  as  improper,  or  where  it  related 
only  to  particular  issues ;  and  as  to  them  the  verdict  has  either 
been  found  for  the  objector  in  favour  of  the  party  applying  for  the 
new  trial,"  or  the  other  party  consents  that  it  shall  be  so  entered. 

*III.  The  mode  of  exam/ination  in  chief — Oross-exami-    r^-i^f,     *iflfi 
nation, — and  re-examination  of  witnesses. 

Upon  the  examination  of  a  witness  in  chief,  the  principal  rule 
to  be  observed  is,  that  leading  questions  are  not  to  be  asked ;  that 
is,  questions  which  suggest  to  a  witness  the  answer  which  he  is  to 
make.  Where  a  witness  is  too  ready  to  serve  the  cause  of  his 
party,  and  willing  to  adopt  and  assert  what  may  be  suggested  for 
his  benefit,  objections  to  questions  of  this  nature  are  of  the 
highest  importance ;  but  where  the  matter  to  which  the  witness 
is  examined  is  merely  introductory  of  that  which  is  material,  it  is 
frequently  desirable  to  lead  his  mind  directly  to  the  subject ;  and 
where  he  is  examined  as  to  material  facts,  it  is  in  general  neces- 
sary, to  some  extent,  to  do  this.  Questions  to  which  the  answer 
yes  or  no  would  be  conclusive,  would  certainly  be  objectionable ; 
and  so  would  any  question  which  plainly  suggested  to  the  witness 
the  answer  which  the  party,  or  his  counsel  hoped  to  extract." 
"Where  a  witness  betrays  a  forwardness  to  serve  the  party  for 
whom  he  is  called,  but  does  not  know  how  best  to  effect  his 
object,  it  is   most   essential  to   justice  that   he   should    not    be 

"  Ogle  V.  Paleski,  Holt,  C,  485 ;  E.  0.  L.  E.  3. 

"■  Turner  v.  Pearte,  1  T.  E.  717 ;  see  note  (m).  But,  if  there  were  any  thing 
like  fraud  on  the  part  of  the  party  producing  the  witness,  the  court  will  interfere  ; 
Wade  V.  Simeon,  2  0.  B.  342 ;  E.  C.  L.  E.  52. 

"  Wright  \.  Doe  dem.  Tatliam,  7  Ad.  &  E.  330;  E.  0.  L.  E.  34;  Crease  v. 
Barrett,  1  C.  M.  &  E.  919 ;  Be  Rutzen  v.  Farr,  4  Ad.  &  E.  53 ;  B.  0.  L.  E.  31 ; 
Horford  v.  Wilson,  1  Taunt.  12  ;  and  Edwards  v.  Evans,  3  East,  451. 

"  The  objection  in  principle  applies  to  those  cases  only  where  the  question  pro- 
pounded involves  an  answer  immediately  concluding  the  merits  of  the  case,  and 
indicating  to  the  witness  an  answer  which  will  best  accord  with  the  interests  of 
the  party ;  see  2  Pothier,  by  Evans,  265. 

10 


146         E2AMIKATI0N    OF    WITNESSES    IN    CHIEF. 

prompted.  And  it  is  to  be  observed,  that  answers  extracted 
by  such  improper  means  are  of  little  advantage  in  general  to 
the  party  in  whose  favour  they  are  given,  since  evidence  obtained 
from  a  partial  witness  by  unfair  means  must  necessarily  be  viewed 
with  the  utmost  jealousy. 

On  the  other  hand,  objections  of  this   nature  ought  not  to  be 

^-l  „^-^   wantonly  or  captiously  made,"  since  it  is,  to  some  *extent, 

always  necessary  to  lead  the  mind  of  the  witness  to   the 

•  Nicliolls  V.  Dowding,  1  Stark.  0.  81 ;  E.  0.  L.  E.  2.  In  order  to  prove  that 
Dowdiag  and  Kemp  were  partners,  the  witness  was  asked  whether  Kemp  had 
interfered  in  the  business  of  Dowding ;  and  upon  the  objection  being  taken  that 
this  wasa  leading  question,  Lord  EUenborough,  0.  J.,  held  that  it  was  a  proper 
question,  and  intimated  that  objections  of  this  nature  were  frequently  made  without 
consideration.  It  is  not  a  very  easy  thing  to  lay  down  any  precise  general  rule  as 
to  leading  questions  :  on  the  one  hand,  it  is  clear  that  the  mind  of  the  witness 
must  be  brought  into  contact  with  the  subject  of  inquiry ;  and,  on  the  other,  that 
he  ought  not  to  be  prompted  to  give  a  particular  answer,  or  to  be  asked  any  ques- 
tion to  which  the  answer  "  yes"  or  "  no"  would  be  conclusive.  But  how  far  It  may 
be  necessary  to  particularize,  in  framing  the  question,  must  depend  upon  the  cir- 
cumstances of  each  individual  case.  Upon  the  trial  of  De  Berenger  and  others, 
before  Lord  EUenborough,  at  Guildhall,  for  a  conspiracy,  it  became  necessary  for 
a  witness  (a  postboy  who  had  been  employed  to  drive  one  of  the  actors  in  the 
fraud)  to  identify  De  Berenger  with  that  person  :  and  Lord  EUenborough  held  that, 
for  this  purpose,  the  counsel  for  the  prosecution  might  point  out  De  Berenger  to 
the  witness,  and  ask  him  whether  he  was  the  person.  The  same  was  done  in 
Watson's  case,  upon  a  triaJ  at  bar ;  2  Stark.  0.  128  ;  E.  C.  L.  E.  3.  In  these 
cases,  the  question  was  as  to  a  mere  fact  to  be  determined  by  inspection  ;  and,  in 
all  such  cases,  it  seems  that  the  mind  of  the  witness  may  be  led  directly  to  the 
very  point,  although  a  more  general  question  might  have  been  proposed,  as, 
whether  the  witness  saw  the  person  whom  he  had  described  in  court.  So  where  a 
witness  is  called  to  prove  the  handwriting  of  another,  it  is  the  common  practice 
to  show  him  the  document,  and  to  ask,  directly,  whether  that  is  the  haudwriting  of 
A.  B.  But  where  a  witness  is  examined  as  to  any  conversation,  admission,  or 
agreement,  where  the  particular  terms  of  the  admission  or  contract  are  important, 
this  objection  chiefly  becomes  material,  since  there  is  danger  lest  the  witness 
should  by  design  or  mistake  be  guilty  of  some  variance,  and  give  a  false  colouring 
to  the  transaction.  In  such  cases  there  seems  to  be  no  objection  to  directing  the 
mind  of  the  witness  fully  to  the  subject,  by  asking  him  whether  he  was  present 
when  any  conversation  took  place  between  the  parties,  or  relating  to  the  particular 
subject ;  and  when  the  mind  of  the  witness  has  been  thus  directed  to  the  subject- 
matter,  to  request  him  to  state  what  passed.  It  is  obvious  that  observations  like 
these  are  intended  for  the  use  of  mere  students ;  to  such  it  may  not  be  improper 
to  suggest,  that  when  the  time  and  place  of  the  scene  of  action  have  once  been 
fixed,  it  is  generally  the  easiest  course  to  desire  the  witness  to  give  his  own  account 
of  the  matter,  making  him  omit,  as  he  goes  along,  an  account  of  what  he  has 
heard  from  others,  which  he  always  supposes  to  be  quite  as  material  as  that  which 


LEADING    QUESTIONS.  147 

subject  of  inquiry.     In  some  instances  the  court  will  allow  leading 
questions  to  be  put  upon  an  examination  in  *cliief,  as  wbere   ^^ 
it  evidently  appears  that  the  witness  wishes  to  conceal  the 
truth,    or  to   favour  the  opposite  party .^     Thus   a  party's   own 
witness  who,  having  given  one  account  of  the  matter,  when  called 
on  the  trial  gives  a  different  account,  may  be  asked  by  the  party 
calling  him  whether  he  had  given  such   account,  stating  it,  to 
the  attorney .1    And  if  a  witness  called  stands  in  a  situation  which, 
of  necessity,  makes  him  adverse  to  the  party  calling  him,  counsel 
may  cross-examine  him.'    Thus,  where  an  issue  has  been  *.di- 
rected,  with  power  to  examine  a  party,  the  counsel  of  the 
opposite  party  may  cross-examine  him,  for  being  a  party,  he  is  pre- 
sumed to  be  an  adverse  witness.*    In  like  manner  where,  on  an 
'  issue  of  devisavit  vel  non  from  the  Court  of  Chancery,  the  party,  in 

he  himself  has  seen.  If  a  vulgar,  ignorant  witness  be  not  allowed  to  tell  his  story 
in  Ms  own  way,  he  becomes  embarrassed  and  confused,  and  mixes  up  distinct 
branches  of  his  testimony.  He  always  takes  it  for  granted  that  the  Court  and 
jury  know  as  much  of  the  matter  as  he  does  himself,  because  it  has  been  the 
common  topic  of  conversation  in  his  own  neighbourhood ;  and  therefore  his  atten- 
tion cannot  easily  be  drawn  so  as  to  answer  particular  questions,  without  putting 
them  in  the  most  direct  form.  It  is  difficult,  therefore,  to  extract  the  important 
parts  of  his  evidence  piecemeal ;  but  if  his  attention  be  first  drawn  to  the  trans- 
action by  asking  him  when  and  where  it  happened,  and  he  be  told  to  describe  it 
from  the  beginning,  he  will  generally  proceed  in  his  own  way  to  detail  all  the  facts 
in  the  order  of  time. 

'In  Clarke  v.  Saffery,  Ey.  &  M.  126  ;  E.  0.  L.  E.  21 ;  Best,  0.  J.,  observed, 
"  There  is  no  fixed  rule  which  binds  the  counsel  calling  the  witness  to  a  particular 
mode  of  examining  him.  If  a  witness,  by  his  conduct  in  the  box,  shows  himself 
decidedly  adverse,  it  is  always  in  the  discretion  of  the  judge  to  allow  a  cross- 
examination."  And,  in  Bastin  v.  Garew,  Ry.  &  M.  127  ;  E.  0.  L.  B.  21 ; 
Abbott,  C.  J.,  in  allowing  the  ci-oss-examination  by  the  counsel  who  called  him 
of  an  adverse  witness,  said,  "that  in  each  particular  case  there  must  be  some 
discretion  in  the  presiding  judge,  as  to  the  mode  in  which  the  examination  shall  be 
conducted,  in  order  best  to  answer  the  purposes  of  justice."  And  see  Dicldnson 
V.  Shee,  4  Esp.  67 ;  Parkin  v.  Moon,  7  0.  &  P.  408 ;  E.  C.  L.  K.  32  ;  R.  v. 
Chapman,  8  0.  &  P.  558;  E.  0.  L.  E.  34;  R.  v.  Ball,  8  0.  &  P.  745  ;  E.  C.L. 
E.  34. 

1  Melhuish  v.  Collier,  19  L.  J.,  Q.  B.  493. 

"Per  Best,  0.  J.,  Clarke  v.  Saffery,  Ey.  &  M.  126;  E.  0.  L.  R.  21.  The 
situation  of  the  witness,  and  the  inducements  under  which  he  may  labour  to  give 
an  unfair  account,  are  material  considerations  in  this  respect.  A  son  will  not  be 
very  forward  in  stating  the  misconduct  of  his  father,  of  which  he  has  been  the 
only  witness.  A  servant  will  not,  in  an  action  against  the  master,  readily  admit 
his  own  negligence.     See  2  Pothier,  by  Evans,  267. 

■  Clarke  v.  Saffery,  Ey.  &  M.  126  ;  E.  C.  L.  E.  21. 


148         ESAMINATIOSr    OF    WITISTESSES    IN    CHIEF. 

obedience  to  the  requisition  of  that  court,  having  called  one,  pro- 
ceeded to  call  another  attesting  witness  to  the  will,  who  gave  evi- 
dence tending  to  prove  the  testator  to  have  been  insane,  he  was 
allowed  to  cross-examine  him :  the  witness  in  such  a  case,  not  being 
regarded  as  the  witness  of  the  party,  but  rather  of  the  court,  and 
the  party  having  no  option  as  to  producing  him.'  And  where, 
from  the  nature  of  the  case,  the  mind  of  the  witness  cannot  be 
directed  to  the  subject  of  inquiry  without  a  particular  specification 
of  it,  as  when  he  is  called  to  contradict  another  as  to  the  contents 
of  a  particular  letter  which  is  lost,  and  cannot  without  suggestion, 
recollect  the  contents,  the  particular  passage  may  be  suggested  to 
him."  So  where  a  witness  is  called  in  order  to  contradict  the  testi- 
mony of  a  former  witness,  who  has  stated  that  such  and  such 
„ -,  ^^,  expressions  were  used,  or  such  *and  such  things  were  said, 
-•  it  is  the  usual  practice  to  ask  whether  those  particular  ex- 
pressions were  used,  or  those  things  were  said,  without  putting  the 
question  in  a  general  form  by  inquiring  what  was  said.  If  this 
were  not  to  be  allowed,  it  is  obvious  that  much  irrelevant  and  inad- 
missible matter  would  frequently  be  detailed  by  the  witness. 

The  negative,  if  not  allowed  to  be  directly  proved,  could  only  be 
proved  indirectly,  by  calling  on  the  witness  to  detail  the  whole  of 
what  was  said  on  the  particular  occasion,  if  any  such  were  singled 
out  by  the  evidence,  or  to  detail  the  whole  of  several  such  conver- 
sations, where  the  use  of  the  alleged  expressions  or  words  was  not 
limited  to  any  conversation  in  particular ;  and,  after  all,  the  evi- 
dence would  not  be  complete  and  satisfactory  to  establish  the 
negative,  unless  sooner  or  later  the  question  as  to  the  use  of  the 
particular  expressions  were  to  be  directly  put,  for  till  then  the 

'  Per  Cresswell,  J.,  Bowman  v.  Bowman,  2  M.  &  Rob.  501. 

"  Courteeny.  Touse,  1  Camp.  43.  The  plaintiff's  son,  in  an  action  on  a  policy 
on  goods,  being  asked  whether  the  plaintiff  had  not  written  a  letter  to  him,  saying, 
"  that  he  had  disposed  of  all  his  goods  at  a  profit,"  swore  that  he  did  not,  but  only 
said  that  "  he  might  have  disposed  of  the  goods  at  a  great  profit,  as  he  had  been 
offered  8d.  a  pair,"  &c.  To  contradict  this  a  witness  was  called  by  the  defendant, 
and,  after  having  stated  all  he  recollected  about  the  letter,  he  was  asked  if  it  con- 
tained anything  about  the  plaintiff  having  been  offered  8d.  a  pair,  &c.  Lord 
Bllenborough  held  that  after  exhausting  the  witness's  memory  as  to  the  contents 
of  the  letter,  he  might  be  asked  if  it  contained  the  passage  recited ;  for  otherwise 
it  would  be  impossible  to  come  to  a  direct  contradiction.  Where  a  witness  was 
called  to  contradict  a  former  witness  as  to  a  conversation  which  he  had  denied,  it 
was  held  that  the  terms  might  be  suggested  to  him  in  the  first  instance ;  Edmonds 
V.  Walker,  cor.  Abbott,  C.  J.,  3  Stark.  8 ;  E.  0.  L.  E.  3 ;  but  see  Hallett  v. 
Coxisens,  2  M.  &  Eob.  238,  infra,  p.  171. 


LEADING    QUESTIONS,  149 

evidence  would  slio-w  only  that  tlie  witness  did  not  remember  their 
use ;  but  the  direct  negative,  after  the  attention  of  the  witness  had 
been  excited  by  the  suggestion  of  the  very  expressions,  would  go 
much  further.  It  may  frequently  happen  that  a  witness,  unable  to 
detail  even  the  substance  of  a  particular  conversation,  may  yet  be 
able  to  negative  with  confidence  proposals,  offers,  statements,  or 
other  matters,  sworn  to  have  been  made  in  the  course  of  a  conver- 
sation. In  such  cases,  therefore,  this  form  of  inquiry  is  absolutely 
necessary  for  obtaining  complete  information  on  the  subject.  So 
where  a  witness  is  called  to  prove  affirmatively  what  a  witness  on 
the  other  side  has  denied,  as,  for  instance,  to  prove  that  on  some 
former  occasion  that  witness  gave  a  diflEerent  account  of  the  trans- 
action, a  difficulty  may  frequently  arise  in  proving  affirmatively 
that  the  first  witness  did  make  such  other  statement,  without  a 
direct  question  to  that  effect. 

But  although  the  practice  above  stated  is,  to  a  certain  extent, 
sanctioned  by  a  principle  of  convenience,  and  although,  after  other 
attempts  have  failed,  it  becomes  a  matter  not  of  mere  convenience 
but  of  absolute  necessity  *so  to  put  the  question  to  a  witness 
called  to  contradict  a  former  one,  it  is  plain  that  the  conve-  '- 
nience  so  attained  to  is  purchased  at  the  expense  of  some  departure 
from  a  general  principle,  and  that  it  would  usually  be  more  satis- 
factory, where  that  is  practicable,  that  the  desired  answer  should  be 
obtained  without  a  direct  suggestion,  by  which  a  fraudulent  witness 
might  be  greatly  aided.  And  it  seems  that  the  consideration  of 
mere  convenience  ought  not  to  operate  at  all  where  the  contents  of 
a  particular  document,  or  the  details  of  a  particular  conversation, 
are  material"  to  the  issue.     As  where  the  question  in  an  action  of 

"  Upon  this  principle,  in  Hallett  v.  Cousens,  2  M.  &  Rob.  238,  a  witness  having 
denied  on  cross-examination  that  he  had  used  certain  expressions  in  a  conversation 
at  which  the  plaintiff  and  defendant  were  alleged  to'have  been  present,  Brskine, 
J.,  considering  that  the  conversation  was  evidence  per  se,  and  not  proved  for  the 
simple  purpose  of  discrediting  the  witness,  held,  that  the  very  words  could  not  be 
suggested  to  a  witness  called  to  prove  that  they  had  been  used ;  and  this  seems 
perfectly  consistent  with  principle,  inasmuch  as  a  party  has  a  right  to  have  every 
part  of  the  conversation  laid  before  the  jury,  which  could  in  any  way  qualify  or 
explain  the  expressions  as  to  which  the  witness  had  been  cross-examined  (see 
Prince  v.  Samo,  7  Aid.  &  E.  627  ;  E.  C.  L.  E.  34;  post) :  but  it  would  also 
appear,  from  the  same  case,  to  be  proper  to  lead  the  witness's  mind  to  the  particu- 
lar matter,  and  direct  him  to  confine  his  attention  to  that,  as  the  party  certainly 
has  no  right  to  have  the  whole  of  the  conversation,  if  it  involved  independent 
matter. 


150         EXAMINATION    OF    WITNESSES    IN    CHIEF. 

assumpsit  turns  upon  tte  terms  of  a  lost  written  agreement,  or  on  an 
alleged  oral  contract,  e.  g.,  the  warranty  of  a  horse.  In  such  cases 
each  is  interested  in  showing  what  the  terms  of  the  lost  writing  or 
conversation  alleged  to  amount  to  a  warranty  really  were ;  and  as 
the  attention  of  both  parties  would  be  preyiously  drawn  to  the  sub- 
ject, there  would  be  but  little  inconvenience  in  adhering  to  the 
ordinary  course  of  examination,  reserving  the  power  to  deviate 
where  the  necessity  for  deviation  arose.  And  it  is  further  observ- 
able that  in  the  case  of  Gourteen  v.  Touse/  where  Lord  EUenborough 
ruled  that  the  witness  might  be  *asked  whether  a  particular 
-'  letter  contained  a  passage  sworn  to  by  another  witness,  this 
was  to  be  done  after  exhausting  the  witness's  memory  as  to  the 
contents  of  the  letter.  This  decision,  therefore,  turned  not  upon  a 
principle  of  convenience,  but  of  necessity. 

Another  illustration  of  the  general  principle  occurs  where  de- 
tails are  to  be  made  of  such  length  or  diiSculty  that  the  memory 
of  the  witness  will  not  enable  him  to  give  his  testimony  without 
assistance.  Thus  where  a  witness  is  called  to  prove  a  co-partner- 
ship between  a  number  of  persons  whose  names  he  cannot  recollect, 
the  list  of  names  may  be  read  to  him,  and  he  may  be  asked  whether 
those  persons  are  members  of  the  firm.^^ 

A  witness  is  examined  either  as  to  facts,  simply,  which  he  him- 
self knows,  or  in  some  instances  as  to  his  own  inferences  from 

y  1  Camp.  43,  supra. 

^  Acerro  t.  Petroni,  1  Stark.  C.  100  ;  E.  0.  L.  B.  2. 

'  In  general  the  principles  laid  down  in  the  text  are  sustained  throughout  by  the 
American  cases  ;  Snyder  v.  Snyder,  6  Binn,  483  ;  People  v.  Mather,  4  Wendell, 
229 ;  McLean  v.  Thorp,  3  Missouri,  315 ;  IT.  States  v.  DicTcenson,  %  McLean, 
325  ;  Barik  of  Northern  Liberties  v.  Davis,  6  Watts  &  Serg.  285 ;  Towns  v. 
Alford,  2  Alabama,  378 ;  Sadler  v.  Murrah,  3  How.  Miss.  195 ;  Turney  v.  State, 
8  Smedes  &  Marshall,  104 ;.  Strawbridge  v.  Spann,  8  Alabama,  820 ;  Hopper  v. 
The  Commonwealth,  6  Grattan,  684 ;  Able  v.  Sparks,  6  Texas,  349  ;  Long  v. 
Steiger,  8  Ibid.  460;  Stringfdlow  v.  State,  26  Mississippi,  157  ;  Willis  v.  Quimby, 
11  Poster,  485.  Putting  a  question  in  the  alternative  does  not  remove  the  objec- 
tion to  its  being  leading ;  People  v.  Mather,  4  Wendell,  229.  A  question  to  a 
witness  proposed  in  the  form  "Whether  or  not"  is  not  ordinarily  objectionable  as 
leading.  It  may  be  so,  when  proposed  in  that  form,  if  it  be  otherwise  in  such 
terms,  that  from  the  nature  of  the  question,  in  connection  with  its  subject-matter, 
it  suggests  to  the  witness  the  answer  desired ;  Bartlett  v.  Hoyt,  33  N.  Hamp.  151. 
It  is  a  matter  within  the  discretion  of  the  court,  and  the  allowance  of  a  lead- 
ing question  is  not  the  subject  of  a  writ  of  error,  although  the  refusal  to  allow  a 
party  to  put  a  leading  question  who  is  entitled  to  do  so  as  on  cross-examination,  is : 
Yarborough  v.  Moss,  9  Alabama,  382  ;  Sears  v.  Sliafer,  1  Barbour  S.  0.  408 ; 


BELIEF  —  OPINIO  N.  151 

facts,  or  as  to  facts  whicli  he  lias  heard  from  others.  In  ordinary 
cases  the  witness  ought  to  be  examined  as  to  fagts  only,  and  not  as 
to  any  opinion  or  conclusion  which  he  may  have  drawn  from  facts, 
for  those  are  to  be  formed  by  a  jury,  except  indeed  where  the 
conclusion  is  an  inference  of  skill  and  judgment." 

A  witness  examined  as  to  facts  ought  to  state  those  only  of 
which  he  has  had  personal  knowledge;  and  such  knowledge  is 
supposed,  if  not  expressly  stated  upon  the  examination  in  chief; 
and  upon  cross-examination,  his  means  of  knowledge  may  be 
fully  inyestigated,  and  if  he  has  not  had  sufficient  and  adequate 
means  of  knowledge,  his  evidence  will  be  struck  out.  It  has  been 
said,  that  a  witness  must  not  be  examined  in  chief  as  to  his  belief 
or  persuasion,  but  only  as  to  his  knowledge  of  the  fact,  since  judg- 
ment must  be  given  secundum  allegata  et  probata  ;  and  a  man  cannot 
be  indicted  for  perjury  who  falsely  swears  as  to  his  persuasion  or 
belief. *"  As  far  as  regards  *mere  behef  or  persuasion,  which  ^ 
does  not  rest  upon  a  sufficient  or  legal  foundation,  this  posi- 
tion is  correct;  as  where  a  man  believes  a  fact  to  be  true,  merely 
because  he  has  heard  it  said  to  be  so ;  but  with  respect  to  persua- 
sion or  belief  as  founded  on  facts  within  the  actual  knowledge  of 
the  witness,  the  position  is  not  true.  On  questions  of  identity  of 
persons,  and  of  handwriting,  it  is  every-day's  practice  for  witnesses 
to  swear  that  they  believe  the  person  to  be  the  same,  or  the  hand- 
writing to  be  that  of  a  particular  individual,  although  they  will 
not  swear  positively ;  and  the  degree  of  credit  to  be  attached  to  the 
evidence  is  a  question  for  the  jury.  And  with  regard  to  the  second 
objection,  it  has  been  decided  that  a  man  who  falsely  swears  that 
he  thinks  or  believes,  may  be  indicted  for  perjury." 

So  where  professional  men  and  others  give  evidence  on  matters 
of  skill  and  judgment,  their  evidence  frequently  does  not,  and 

"  Ooodtitle  dem.  Bevett  v.  Braham,  4  T.  E.  497. 
''  Adams  v.  Canon,  Dyer,  53';  note  to  Bolfe  v.  Hampden,  Dyer,  53. 
'  Millar's  case,  3  Wils.  427  ;  2  Bl.  881 ;  Pedley's  case,  1  Leach,  327  ;  Beg  v. 
ScMesinger,  10  Q.  B.  670  ;  E.  0.  L.  B.  59. 

People  V.  Lohman,  2  Ibid.  216  ;  Donnell  v.  Jones,  13  Alabama,  490  ;  Badlong 
T.  Van  Nastrund,  24  Barb.  S.  0.  25. 

Oontra,  Parsons  v.  Bridgham,  34  Maine,  240. 

A  judge  at  the  trial  may  permit  counsel,  on  a  direct"  examination,  to  suggest  to 
a  witness  names,  dates,  and  items,  provided  that  the  witness  has  exhausted  his 
memory,  and  the  purposes  of  justice  require  such  a  course  to  betaken;  Huchins  v. 
The  People's  Mutual  Fire  Ins.  Co.,  11  Foster,  238. 


152         EXAMINATION    OF    WITNESSES    IN    CHIEF. 

often  cannot,  from  tlie  nature  of  tlie  case,  extend  beyond  opinion 
and  belief.  But  in  general,  wherever  the  inference  is  one  of  skill 
and  judgment,  the  opinion  of  experienced  persons  is  admissible, 
for  by  such  means  only  can  the  jury  be  -enabled  to  form  a  correct 
conclusion. 

The  general  distinction  is  this,  that  the  jury  must  judge  of  the 
facts  for  themselves,  but  that  wherever  the  question  depends  on 
the  exercise  of  peculiar  skill  and  knowledge  that  may  be  made 
available,  it  is  not  a  decision  by  the  witness  on  a  fact  to  the  exclu- 
sion of  the  jury,  but  the  establishment  of  a  new  fact,  relation,  or 
connection,  which  would  otherwise  remain  unproved.  Not  to 
admit  such  evidence,  would  be  to  reject  what  was  essential  to  the 
investigation  of  truth.  Thus  an  engineer  may  be  examined  as  to 
his  judgment  on  the  effect  of  an  embankment  on  a  harbour,  as 
collected  from  experiment."*  So  *upon  the  question  whether 
■^  a  seal  has  been  forged,  the  testimony  of  a  seal-engraver,  as 
to  the  difference  between  the  impression  in  question  and  a  genuine 
one,  is  also  admissible.^  In  like  manner  a  ship-builder  may  be 
examined  to  state  his  opinion  as  to  the  sea- worthiness  of  a  ship, 
from  a  survey  made  by  others.^  So  the  testimony  of  medical  men 
is  constantly  admitted  with  respect  to  the  cause  of  disease,  or  of 
death,  in  order  to  connect  them  with  particular  acts,  and  as  to  the 
general  sane  or  insane  state  of  the  mind  of  the  patient,  as  collected 
from  the  number  of  circumstances.      Such  opinions  are  admis- 

^  Folhes  V.  Chadd,  Mich.  23  Geo.  III.,  3  Dougl.  157  ;  ET.  0.  L.  E.  26 ;  Vol.  II. 
tit.  Handweitino. 

'  By  Lord  Mansfield,  in  Folkes  v.  Chadd,  3  Dougl.  157 ;  E.  C.  L.  E.  26.  Such 
evidence  is  also  admissible  to  showwliethera  particular  handwriting  is  natural  and 
genuine,  or  forged  and  imitated ;  Gary  v.  Pitt,  Peake,  Ev.  Ixxxv. ;  R.  v.  Gator, 
4  Bsp.  C.  117.  But  in  Qurney  v.  Langlands,  5  B.  &  A.  330  ;  B.  0.  L.  E.  7,  the 
Court  held,  that  the  opinion  of  an  inspector  of  franks,  whether  a  particular  writing 
was  in  a  forged  or  imitated  hand,  was  of  little  weight ;  and  see  further,  Doe  v. 
SucJcermore,  5  Ad.  &  E.  751 ;  E.  0.  L.  E.  31.  But  antiquaries  may  be  called  to 
express  their  opinion  as  to  the  date  at  which  an  apparently  ancient  document  was 
written  {Tracy  Peerage  case,  10  01.  &  Pin.  191) ;  and  the  opinion  of  a  person  in 
the  habit  of  receiving  letters  is,  it  seems,  evidence  of  the  genuineness  of  a  post- 
mark ;  Abbey  v.  Lill,  5  Bing,  299 ;  E.  0.  L.  E.  15.  But  see  further,  as  to  post- 
marks, which  are  not  evidence  per  se  without  proof,  R.  v.  Watson,  1  Camp.  215  ; 
Woodcock  V.  Houldsworth,  16  M.  &  W.  124 ;  K&nt  v.  Lowen,  1  Camp.  178 ; 
Fletcher  v.  Braddyll,  3  Stark.  64 ;  E.  C.  L.  E.  3 ;  Plumer's  case,  E.  &  E.  C.  0. 
264. 

'  TliorntonY.  Boyal  Exchange  Assurance  Company,  Peake's  C.  37  ;  Chaurand 
v.  Angerstein,  44 ;  BecTcwith  v.  Sydebotham,  1  Camp.  117. 


OPINIOX  —  QUESTIONS    OF    SKILL.  153 

sible  in  evidence,  altliougli  tlie  professional  witnesses  found  them 
entirely  on  tlie  facts,  circumstances,  and  symptoms  establislied  in 
evidence  by  otliers,  and  witbout  being  personally  acquainted  with, 
the  facts.*  But  in  such  a  case  evidence  is  not  admissible  that  a 
particular  act  for  which  a  prisoner  is  tried  was  an  act  of  insanity ."^ 
And,  in  general,  scientific  men  ought  to  be  examined  only  as  to 
their  opinion  *on  the  facts  proved,  and  not  as  to  the  merits  ^^^  ^ 
of  the  case.'' 

e  Wright's  case,  Russ.  &  Ey.  0.  0.  L.  456 ;  B.  v.  Searle,  1  Mood.  &  Eob.  75  ; 
and  see  M'JSfaghten's  case,  10  01.  &  Pin.  200. 

■^  Ibid. 

'  Thus,  in  an  action  for  unskilfully  navigating  a  ship,  a  master  of  the  Trinity 
House,  or  other  nautical  man,  cannot  be  asked  whether,  having  heard  the  evidence, 
he  considers  the  ship  was  improperly  navigated,  for  that  would  be  requiring  him  to 
draw  a  conclusion  of  fact  and  then  to  give  an  opinion  upon  it,  and  would  make 
him  a  judge  not  only  of  the  matter  of  skill  and  science  but  also  of  the  truth  of 
the  facts  in  dispute ;  but  he  may  be  asked  what  was  the  duty  of  a  captain  under 
certain  specified  circumstances ;  Sills  v.  Brown,  9  Car.  &  P.  604 ;  B.  0.  L.  E. 
38  ;  or  whether,  admitting  the  facts  as  proved  by  the  plaintiff  to  be  true,  he  is  of 
opinion  that  a  collision  could  have  been  avoided  by  proper  care  on  the  part  of 
defendant's  servants  ;  Fenwick  v.  Bell,  1  Car.  &  K.  312 ;  B.  C.  L.  E.  47.  And 
see  Malton  v.  NesUt,  1  Car.  &  P.  70  ;  E.  C.  L.  E.  12  ;  Jameson  v.  Drinhald,  12 
Moore,  148 ;  B.  0.  L.  E.  22.  So  where  the  sanity  or  insanity  of  an  individual  is 
the  point  to  be  decided  by  the  jury,  and  medical  men  who  previously  knew  nothing 
of  the  prisoner,  but  have  heard  the  evidence,  are  called  on  to  give  an  opinion,  the 
proper  course  is  not  to  ask  them  what  their  opinion  is  as  to  the  state  of  mind  of 
the  party,  for  that  would  necessarily  assume  and  involve  the  truth  of  the  evidence 
which  it  is  for  the  jury,  and  not  the  witnesses,  to  weigh  and  decide,  but  they 
should  be  asked  what  is  their  opinion,  assuming  the  facts  stated  by  the  witnesses 
to  be  true,  as  to  his  state  of  mind ;  M'NagMen's  case,  10  CI.  &  Pin.  200 ;  1  Car. 
&  K.  135 ;  E.  C.  L.  E.  47.  Where,  however,  the  truth  of  the  facts  is  not  disputed, 
and  the  question  remaining  is  one  almost  exclusively  of  science,  it  is  usual  to  allow 
the  question  to  be  thus  broadly  put,  though,  if  objected  to,  it  could  not  be  insisted 
upon.  If  doubts  exist  as  to  the  accuracy  of  some  of  the  facts,  it  may  perhaps  be 
well  in  propounding  the  question  to  the  witnesses  to  exclude  those  facts  from  their 
consideration;  and  see  Wheeler  v.  Alderson,  3  Hagg.  Eccl.  E.  574. 

'  Persons  of  skill  are  allowed  to  give  their  opinion  in  evidence,  only  in  cases 
where,  from  the  nature  of  the  subject,  facts  disconnected  from  such  opinions  cannot 
be  so  presented  to  a  jury  as  to  enable  them  to  pass  upon  the  question  with  the 
requisite  knowledge  and  judgment ;  Jefferson  Ins.  Co.  v.  Cotheal,  7-  "Wend.  72. 
Persons  skilled  in  the  knowledge  of  handwritings  are  competent  to  testify  concern- 
ing them,  although  they  never  saw  the  parties  write ;  Hess  v.  The  State  of  Ohio,  5 
Ohio  Eep.  6.  So  a  practical  surveyor  in  testifying  respecting  marks  on  trees  or 
piles  of  stones  may  express  his  opinion  whether  they  were  intended  as  monuments 
of  boundaries ;  Davis  v.  Mann,  4  Pick.  156.  In  an  action  for  the  materials  found 
in  building  a  house  and  the  labour  done  in  erecting  it,  the  testimony  of  master 


154         EXAMINATION    OF    WITNESSES    IN    CHIEF. 

In  order  likewise  to  prove  tlie  law  of  a  foreign  country,  or  even 
of  Scotland,''  where  it  does  not  depend  upon  tte  statutes  of  the 
^^^f,-.  United  Kingdom,  the  only  proper'  evidence*  is  that  of  men 
conversant™  with  the  law  of  the  particular  country.  Upon 
such  a  question,"  as  well  as  any  other  question  of  science,  books  of 
science  cannot  he  received  in  evidence,  yet  a  witness  may  be  asked 
as  to  his  judgment,  although  his  means  of  judging  may  be  derived 
partly  from  books."' 

■^  Balrymple  v.  Dalrynvple,  2  Hagg.  54 ;  Reg  v.  Dent,  1  Oar.  &  K.  97 ;  B.  0. 
L.  E.  47. 

'  Baron  de  Bode's  case,  8  Q.  B.  208 ;  E.  0.  L.  R.  55  ;  Sussex  Peerage  case,  H 
01.  &  Pin.  85.  These  authorities  overrule  Clegg  v.  Levy,  3  Camp.  166  ;  Millar  v. 
HeinricTc,  4  Camp.  155 ;  Picton's  case,  30  Howell,  St.  T.  225  ;  Boehtlinck  t. 
Schneider,  3  Esp.  58,  where  it  was  thought  that  the  written  law  of  a  foreign 
country  must  be  proved  by  properly  authenticated  documents.  The  Sussex  Peer- 
age case  also  overrules  R.  v.  Dent,  so  far  as  the  latter  case  admitted  a  person  not 
peritus  virtute  officii  or  virtute  professionis  to  "prove  foreign  law. 

"  Sussex  Peerage  case,  11  01.  &  Fin.  85  ;  Bristow  v.  Secqueville,  19  L.  J.,  Ex. 
289  ;   Vanderdoncld  v.  Thellusson.  ib.  C.  P.  12. 

"  Sussex  Peerage  case,  11  01.  &  Ein.  85. 

"  Collier  v.  Simpson,  5  0.  &  P.  73  ;  E.  C.  L.  E.  24 ;  which  was  an  action  for 
imputing  want  of  skill  to  a  medical  man.  And  he  may  refer  to  them  for  the  pur- 
pose of  refreshing  his  memory ;  Sussex  Peerage  case,  11  01.  &  Pin.  114. 

builders,  who  had  examined  the  house  and  made  an  estimate  of  the  expense  of 
erecting  it,  is  admissible  to  ascertain  the  amount  of  damages ;  Tebbetts  v.  HasTcins, 
16  Shepley,  283.  In  an  action  for  a  breach  of  warranty  of  the  soundness  of  a 
horse  a  witness  called  to  give  an  opinion  relative  to  the  defects  of  a  horse's  eyes, 
stated  that  he  was  not  a  farrier,  but  that  he  professed  to  understand  when  he  tried 
a  horse,  whether  his  eyes  were  good  or  not,  though  there  might  be  diseases  of  the 
eyes  of  horses  with  which  he  was  unacquainted;  held  that  the  witness  might  be 
examined  ;  House  v.  Fort,  4  Blackf.  293.  G. 

'  Poreign  laws  cannot  be  judicially  noticed,  but  must  be  proved  as  facts, 
and  in  making  such  proof  the  general  principle  is  applicable,  that  the  best 
evidence  the  nature  of  the  case  admits  of  must  be  given.  But  this  rule  may 
be  relaxed  or  changed  as  necessity  either  physical  or  moral  may  require,  and 
when  a  rigid  adherence  to  it  may  produce  extreme  inconvenience  or  manifest 
injustice ;  Phillips  v.  Gregg,  10  Watts,  158  ;  Dyer  v.  Smith,  12  Conn.  Rep. 
384 ;  Talbot  v.  Seeman,  1  Oranch,  1 ;  see  also  Ghanoine  v.  Fowler,  3  "Wendell, 
173  ;  Lincoln  v.  Battelle,  6  Wend.  475 ;  Hasford  v.  Nicholls,  1  Paige,  220  ;  Mal- 
pica  V.  McKown,  1  Louis.  Rep.  255 ;  Newson  v.  Adams,  2  Id.  154  Taylor  v. 
Swett,  2  Id.  30 ;  Dougherty  v.  Snyder,  15  Serg.  &  Rawle,  84.  A  printed  copy 
of  the  Irish  statutes,  with  the  oath  of  a  barrister  in  Ireland,  that  he  received 
them  from  the  King's  printer  in  Ireland,  and  that  they  are  good  evidence  there, 
•was  held  admissible  in  evidence ;  Jones  v.  Maffet,  5  Serg.  &  Eawie,  523.  But 
although  as  a  general  rule,  the  written  statutes  and  edicts  of  foreign  countries  must 
be  produced ;  common  or  unwritten  laws  may  be  proved  by  parol ;  Robinson  v. 
Clifford,  2  Wash.  0.  C.  Eep.  1 ;  see  also  Dyer  v.  Smith,  Supra ;  Consequa  v. 


OPINION  —  GENERAL    EESULTS.  155 

But  wliere  the  inquiry  relates  to  a  subject  wliicli  does  not  require 
peculiar  habits  of  study,  in  order  to  enable  a  man  to  understand 
it,  the  opinion  of  skilled  or  scientific  witnesses  is  not  admissible. 
Thus,  where  an  alleged  libel  imputed,  inter  alia,  that  a  physician 
in  refusing  to  act  with  the  plaintifi'  as  a  physician  had  well  and 
faithfully  discharged  his  duty  to  his  medical  brethren,  the  defend- 
ant cannot  in  support  of  a  plea  of  justification  examine  a  medical 
witness  as  to  his  opinion  on  the  subject."  And  so  the  opinion  of  a 
broker,  whether  particular  facts  ought  to  have  been  disclosed  to 
the  underwriter,  was  held  inadmissible.^  So  the  opinion  of  skilled 
persons  upon  the  construction  of  a  legal  instrument  is  inadmissible ; 
e.  g.,  the  opinion  of  a  witness  as  to  the  effect  of  a  clause  in  a  policy 
of  insurance.'' 

Although  a  witness  cannot  be  examined  as  to  the  contents  of  a 
written  document  not  produced,  yet  he  may,  in  some  instances,  be 
examined  as  to  the  general  result  from  *a  great  number  of  j-^^  fj„ 
documents  too  voluminous  to  be  read  in  court.^ 

p  Ramadge  v.  Ryan,  9  Bing.  333 ;  E.  0.  L.  E.  23 ;  but  see  an  instance  in  wMcli 
such  an  opinion  may  be  incidentally  introduced  ;  Greville  v.  Chapman,  5  Q.  B. 
731 ;  E.  0.  L.  R.  48. 

«  Carter  v.  Boehm,  Burr.  1905  ;  1  Smith,  Lead.  Gas.  270 ;  Campbell  v.  Richards, 
5  B.  &  Ad.  840 ;  E.  0.  L.  E.  27 ;  reviewing  Richards  v.  Murdoch,  10  B.  &  0. 
527  ;  E.  C.  L.  E.  21 ;  see  Chapman  v.  Walton,  10  Bing.  57  ;  E.  0.  L.  B.  25. 

"■  Syers  v.  Bridge,  Doug.  527.  But  the  practice  under  similar  circumstances 
would  be  legal  evidence.    Ibid. 

'  Meyer's  Assignees  v.  Sefton,  2  Stark.  C.  276  ;  E.  0.  L.  E.  3 ;  Roberts  v.  Doxon, 
Peake's  0.  83  ;  Spencer  v.  Billing,  3  Camp.  310.  And  so  in  Rowe  v.  Brenton, 
3  Man.  &  Ey.  212,  a  witness  called  to  read  and  explain  a  series  of  ancient  records 
which  were  produced,  was  allowed  to  state  what  he  had  collected  to  be  the  result 
of  them  from  his  perusal.  But  in  Topham  v.  M'Oregor,  1  0.  &  K.  320,  Eolfe, 
E.  0.  L.  E.  47,  B.  refused  to  allow  a  witness  to  be  examined  generally  as  to  the 
contents  of  a  number  of  letters  which  he  had  received  from  one  of  the  parties,  but 
had  destroyed,  for  the  purpose  of  ascertaining  the  impression  produced  on  his 
mind  by  them  with  reference  to  the  terms  on  which  two  parties  lived  together. 

Willing,  Peter's  C.  0.  Eep.  225 ;  Seton  v.  Delaware  Ins.  Co.,  2  Wash.  0.  0. 
Eep.  175.  But  the  construction  of  a  foreign  law  is  matter  for  the  court,  and  not 
the  jury ;  Sidwell  v.  Evans,  1  Penna.  Rep.  388.  No  court  gives  effect  to  the 
local  laws  of  another  country  or  State,  in  respect  to  the  forms  or  force  of  process. 
When  the  right  exists  the  remedy  is  to  be  pursued  according  to  the  lex  fori,  where 
the  suit  is  brought ;  Hinhley  v.  Marian,  2  Mason's  C.  0.  Eep.  890.  In  two  cases 
■  only  can  foreign  laws  affect  the  contracts  of  American  citizens  :  First,  when  they 
reside  or  trade  in  a  foreign  country ;  and  secondly,  when  the  contract  plainly  referring 
to  a  foreign  country  for  its  execution,  adopts  and  recognizes  the  lex  loci :  Searight 
V.  Calbraith,  4  Dallas,  325  ;  see  also  Webster  v.  Massey,  2  Wash.  0.  0.  Eep.  157. 


156         EXAMINATION'    OF    WITNESSES    IN    CHIEF. 

Altliough  in  general,  leading  questions  are  not  to  be  put  to  a 
■witness,  yet,  "where  Ms  memory  lias  failed,  he  may,  even  during 
examination,  read,  or,  if , necessary,  hear  the  contents  of  a  document 
read,  for  the  purpose  of  reviving  his  former  recollection.  And  if 
by  that  means  he  obtains  a  recollection  of  the  facts  themselves  as 
distinct  from  the  memorandum,  his  statement  is  admissible  in  evi- 
dence.^ A  witness  is,  of  course,  competent  to  testify  as  to  his 
actual  present  recollection  of  a  fact,  although  in  the  interval  his 
memory  may  have  failed,  and  although  such  defect,  and  the  means 
of  restoration  may  be  the  subject  of  comment  in  cases  to  -which  any 
suspicion  is  attached.  The  law  however  goes  further,  and  in  some 
instances  permits  a  witness  to  give  evidence  as  to  a  fact,  although 
he  has  no  present  recollection  of  the  fact  itself.  This  happens  in 
the  first  place  where  the  witness  having  no  longer  any  recollection 
of  the  fact  itself,  is  yet  enabled  to  state  that  at  some  former  time, 
and  whilst  he  had  a  perfect  recollection  of  that  fact,  he  committed 
it  to  writing.  If  the  witness  be  correct  in  that  which  he  positively 
states  from  present  recollection,  viz.,  that  at  a  prior  time  he  had  a 
perfect  recollection,  and  having  that  recollection,  truly  stated  it  in 
the  document  produced  in  writing,  though  its  contents  are  thus 
but  mediately  proved,  must  be  true.  Such  evidence,  though  its 
^^  ^n-  reception  be  warranted  by  sound  principles,  is  not  in  *ordi- 
nary  cases'  as  strong  and  satisfactory  as  immediate  testi- 

'  See  E.  V.  St.  Martin's,  Leicester,  2  Ad.  &  B.  210  ;  B.  0.  L.  E.  29.  In  many 
cases,  such  as  where  an  agent  has  been  employed  to  make  a  plan  or  map,  and  has 
lost  the  items  of  actual  admeasurement,  all  he  can  state  is,  that  the  plan  or  map 
is  correct,  and  has  been  constructed  from  materials  which  he  knew  at  the  time  to  be 
true ;  and  see  Home  v.  Mackenzie,  post,  p.  182,  n.  [g). 

'  Feeter  v.  Heath,  11  "Wend.  478.  It  is  proper  for  a  witness,  who  swears  to  the 
correctness  of  his  notes  of  a  transaction,  and  that  without  them  his  recollection  of 
the  facts  is  indistinct,  to  read  those  notes  to  the  jury  ;  Rogers  y.  Burton,  et  al., 
Peck's  Eep.  108.  A  witness  will  be  permitted  to  refer  to  a  summary  of  his  testi- 
mony given  on  a  former  trial  for  the  purpose  of  reviving  his  recollection ;  Siordon 
T.  Davis,  9  Louis.  Rep.  242.  But  a  witness  for  plaintiff  has  no  right  to  refresh  his 
memory  by  reference  to  the  plaintiff's  books,  when  it  does  not  appear  that  the 
entries  were  made  by  the  witness  ;  Pargaud  v.  Guice,  Adv.  6  Louis.  Rep.  77.  G. 
Welcome  v.  Batchelder,  10  Shepley,  85 ;  Vasthinder  v.  Metcalf,  3  Alabama, 
100  ;  Lawrence  v.  Bates,  5  Wend.  301 ;  Owings  v.  Shannon,  1  A.  K.  Marshall, 
188  ;  Columbia  v.  Harrison,  2  Rep.  Const.  Ot.  213  ;  Bahh  v.  Glemson,  12  Serg.' 
&  Rawle,  328 ;  Key  v.  Lynn,  4  Litt.  338  ;  Kendall  v.  Stone,  2  Sandf.  Sup.  Ct. 
269 ;  Neil  v.  Childs,  10  Iredell,  195  ;  Rutherford  v.  7%e  Branch  Bank,  14  Ala- 
bama, 92  ;  Huff  V.  Bennett,  2  Selden,  337  ;  State  v.  Lull,  37  Maine,  246  ;  George 


EEFEESHIKG    MEMORY.  157 

mony,  for  in  sucli  cases,  tlie  -witness  professing  to  have  no  recol- 
lection left  as  to  tlie  facts  themselves,  there  is  less  opportunity  for 
cross-examination,  and  fraud  is  more  easily*  practised.' 

There  is  also  a  class  of  cases  where  the  testimony  of  a  witness 
is  admissible  to  prove  a  fact,  although  he  has  neither  any  recollec- 
tion of  the  fact  itself,  nor  mediate  knowledge  of  the  fact,  by  means 
of  a  memorial  of  the  truth  of  which  he  has  a  present  recollection. 
This  happens  where  the  memorandum  is  such  as  to  enable  the 
witness  to  state  with  certainty  that  it  would  not  have  been  made 
had  not  the  fact  in  question  been  true. .  Here  the  truth  of  the  evi- 
dence does  not  wholly  depend  on  the  contents  of  the  document 
itself,  or  on  any  recollection  of  the  witness  of  the  document  itself, 
or  of  the  circumstances  under  which  it  was  made,  but  upon  a  con- 
viction arising  from  the  knowledge  of  his  own  habits  and  conduct 
sufficiently  strong  to  make  the  existence  of  the  document  wholly 
irreconcilable  with  the  non-existence  of  the  fact,  and  so  to  convince 
him  of  the  affirmative. 

Thus,  in  proving  the  execution  of  a  deed  or  other  instrument 
(one  of  the  most  ordinary  and  cogent  cases  within  this  class,)  where 
a  witness  called  to  prove  the  execution  of  a  deed  sees  his  signature 
to  the  attestation,  and  says  he  is  thereby  sure  that  he  saw  the  party 
execute  the  deed,  that  is  a  sufficient  proof  of  the  execution  of  the 

V.  hoy,  19  N.  Hamp.  544.  The  book  or  paper  used  to  refresh  memory  need  aot 
be  produced  at  the  trial ;  Rowland  v.  The  Sheriff  of  Queen's  County,  5  Sandf. 
219;   The  State  T.  Cheek,  13  Iredell,  114. 

Contra,  Harrison  v.  Middleton,  11  Grattan,  527. 

'  When  a  witness,  of  his  own  free  will  and  accord,  draws  up  a  memorandum  or 
has  it  drawn  up  under  Ms  immediate  direction  at  the  time  of  the  fact,  or  soon  after- 
wards, for  the  purpose  of  preserving  the  memory  of  it,  he  may  adopt  its  contents 
as  his  testimony ;  although  at  the  time  of  testifying  he  recollects  nothing  further 
than  that  he  had  accurately  reduced  or  procured  to  be  reduced  the  whole  transac- 
tion to  writing.  But  if  the  paper  was  drawn  up  weeks  after  the  fact  occurred,  or 
if  it  was  drawn  up,  or  procured  to  be  drawn  up,  by  the  party  in  whose  favour  the 
witness  is  called  to  give  evidence,  he  cannotbe  allowed  to  testify  to  its  contents,  if 
he  does  not  recollect  them  independently  of  the  paper ;  O'Neal  v.  Walton,  1 
Eichardson,  234.  Where  ship  timber  was  sold,  without  being  scheduled  or  set 
apart  from  similar  timber  with  which  it  was  mingled,  a  witness  called  to  identify 
the  timber  who  was  unable  to  do  it  except  by  a  schedule  made  some  months  atter 
the  sale,  and  even  with  that  having  no  present  recollection  of  the  articles  enume- 
rated, was  admitted ;  Glover  v.  Hannewell,  6  Pick.  222 ;  Downes  v.  Rowell,  24 
Vermont,  343 ;  Seavy  v.  Dearborn,  19  N.  Hamp.  351 ;  Webster  v.  Clark,  10  Foster, 
245 ;  State  v.  Colwell,  3  Ehode  Isl.  132  ;  Tuttle  v.  Robinson,  33  N.  Hamp.  104 ; 
Bartlett  v.  Hoyt,  Ibid.  151 ;  Halsey  v.  Sinsebaugh,  1  Smith  (N.  Y.)  485  ;  Heart 
T.  Hammd,  3  Barr,  414.    Contra,  Reddon  v.  Spruance,  4  Harrington,  217. 


158         EXAMINATION    OF    WITNESSES    IN    CHIEF. 

deed,  tliat  is  a  suiScient  proof  of  tlie  execution  of  the  deed,  althougli 
the  witness  should  add  that  he  has  no  recollection  of  the  fact  of 
^^  ^,Q-.  the  execution  of  the  deed."  The  admission  of  such  evi- 
dence* is  not  confined  to  attestations  of  the  execution  of 
written  instruments."  A  plaintiff  called  a  bankrupt  in  an  action 
against  his  assignees  to  prove  the  receipt  of  £20  by  him  from  the 
plaintiff;  the  witness  stated  that  £20  had  been  received  from  the 
plaintiff,  and  not  carried  to  account.  A  rough  cash-book  of  the 
plaintiff's  was  then  put  into  the  witness's  hands,  containing  the 
entry,  "4th  Nov.  1822,  Debtor  B.  Lancaster,  check  £20,  B.  L.f 
the  witness  then  said,  "  The  entry  of  £20  in  the  plaintiff's  book 
has  my  initials,  written  at  the  time.  I  have  no  recollection  that  I 
received  the  money.  I  know  nothing  but  by  the  book ;  but,  seeing 
my  initials,  I  have  no  doubt  that  I  received  the  money."  An 
objection  was  made  to  the  reading  of  the  paper  without  the  stamp 
was  overruled.  Lord  Tenterden  being  of  opinion  that,  though  it 
was  not  in  itself  admissible  evidence  to  prove  the  payment  of  the 
money,  the  witness  might  use  it  to  refresh  his  memory,  and  that 
his  saying  he  had  no  doubt  that  he  had  received  the  money  was 
suf&cient  evidence  of  the  fact.  On  a  motion  for  a  new  trial.  Lord 
Tenterden  said,  "  Here  the  witness,  on  seeing  the  entry  signed  by 
himself,  said  he  had  no  doubt  that  he  had  received  the  money. 
The  paper  itself  was  not  used  as  evidence  of  the  receipt  of  the 
money,  but  only  to  enable  the  witness  to  refresh  his  memory,  and 
when  he  had  said  that  he  had  no  doubt  that  he  had  received  the 
money,  there  was  suf&cient  parol  evidence  to  prove  the  payment." 

It  is  of  course  essential  that  the  witness  should  be  enabled,  upon 
seeing  the  memorandum  or  other  entry,  to  swear  positively  to  the 
truth  of  the  fact,  although  he  has  no  present  independent  recollec- 
tion of  it.^ 

It  is  not  essential  that  the  memorandum  should  have  been  con- 
temporary with  the  fact.  It  seems  to  be  suificient  if  it  has  been 
made  by  the  witness,  or  by  another  with  his  *privity,  at  a 
-'    time^  when  the  facts  were  fresh  in  the  recollection  of  the 

"  Per  Bayley,  J.,  in  Ilaugham  v.  Hubbard,  8  B.  &  C.  14 ;  B.  0.  L.  E.  15  ;  and 
see  Bringloe  v.  Goodson,  5  Bing.  N.  0.  738  ;  B.  0.  L.  R.  35. 

"  Maugham  v.  Hubbard  and  others,  Assignees  of  Lancaster,  8  B.  &  0.  14  ;  E. 
C.  L.  B.  15. 

y  R.  V.  St.  Martin's  Leicester,  2  Ad.  &  B.  210 ;  E.  0.  L.  E.  29 ;  Maugham  v. 
Hubbard,  8  B.  &  0.  14 ;  E.  0.  L.  E.  15. 

'  Wood  V.  Cooper,  1  Car.  &  K.  645  ;  E.  0.  L.  E.  47  ;  Smith  v.  Morgan,  2  M.  & 
Eob.  257.   In  the  case  of  Sandioell  v.  Sandwell,  Comb.  445,  Lord  Holt  is  reported 


EEFRESHING    MEMOET.  159 

witness,  and  that  tlie  reading  sucli  memorandum  restores  the  recol- 
lection of  the  fact  which  had  faded  in  the  memory,"  or  enables  him 
to  swear  to  the  truth  of  the  fact.'  Neither,  is  it  necessary  that  the 
paper  should  have  been  written  by  the  witness  himself,  provided  he 
recollects  having  seen  it  when  his  memory  as  to  the  facts  was  still 
fresh,  and  he  remembers  that  he  then  knew  the  statement  to  be  cor- 
rect.'^ A  deposition  formerly  made  by  an  aged  witness  was  allowed 
to  be  read  to  him  at  the  trial,  in  order  to  refresh  his  memory :°  and 

to  have  said,  that  the  memorandum  must  have  been  made  presently ;  and  in  Whit- 
field V.  Aland,  2  Oar.  &  K.  1015  ;  E.  0.  L.  R.  61,  it  was  held  that  the  entry,  if  not 
contemporaneous,  should  be  nearly  so,  and  if  it  has  been  made  at  some  time  sub- 
sequently at  the  instigation  of  the  party  or  his  attorney,  the  witness  will  certainly 
not  be  allowed  to  use  it ;  Steinkeller  v.  Newton,  9  Oar.  &  P.  313 ;  E.  0.  L.  R. 
38. 

•  Tanner  v.  Taylor,  3  T.  E.  754 ;  8  Bast,  284 ;  Doe  v.  Perkins,  3  T.  B.  749 ; 
Sandwell  v.  Sandwell,  Comb.  445  ;  Rambert  v.  Cohen,  4  Bsp.  0.  213 ;  Duchess 
of  Kingston's  case,  20  How.  St.  T.  355 ;  Henry  v.  Lee,  2  Chit.  124 ;  Jones  v. 
Stroud,  2  0.  &  P.  196  ;  B.  0.  L.  R.  12  ;  R.  v.  Hedges,  28  How.  St.  T.  1367.  So 
a  person  who  has  from  time  to  time  examined  entries  in  a  log-book,  whilst  the 
events  were  fresh  in  his  recollection,  may  refer  to  the  book  to  refresh  his  memory 
when  examined  as  to  a  fact  recorded  there,  and  which  he  remembers  to  have  seen 
there  when  he  had  a  clear  recollection  of  the  circumstances ;  Burrough  v.  Martin, 
2  Camp.  112. 

"  Burton  v.  Plummer,  2  Ad.  &  Ell.  341 ;  E.  0.  L.  E.  29  ;  Burrough  v.  Martin, 
2  Camp.  0.  112 ;  Jacob  v.  Lindsay,  1  Bast,  460  ;  Howard  v.  Canfield,  5  Dowl. 
417  ;  Henry  v.  Lee,  2  Chit.  124 ;  Duchess  of  Kingston's  case,  20  How.  St.  T.  619. 
A  witness  may  refresh  his  memory  from  notes  of  counsel  taken  at  a  former  trial ; 
Lawes  v.  Reed,  2  Lew.  0.  C.  152.  But  Lord  Tenterden  would  not  allow  the 
memory  of  a  witness,  who  had  denied  that  he  had  been  sentenced  to  imprisonment 
in  Prance,  to  be  refreshed  by  showing  him  a  copy  of  the  sentence  of  the  French 
Court ;  Meagoe  v.  Simmons,  3  Car.  &  P.  75 ;  B.  C.  L.  E.  14. 

"  Vaughan  v.  Martin,  1  Bsp.  C.  440 ;  see  Doe  v.  Perkins,  3  T.  E.  749  ;  but  see 
2  M.  &  Eob.  257.    A  witness  was  allowed  to  refer  to  his  deposition  taken  before 

'  A  witness  will  be  allowed  to  refer  to  a  report  of  experts  of  whom  he  was  one 
which  has  been  set  aside,  for  the  purpose  of  refreshing  his  memory,  when  the  fact 
to  be  proved  was  what  estimate  he  had  put  on  the  work  done,  the  reference  being 
as  to  a  memorandum  deliberately  made  at  the  time ;  Riorden  v.  Davis,  9  Louis. 
E.  242.     See  also  Olover  v.  Hunnewell,  6  Pick.  222.  G. 

^  In  South  Carolina,  it  is  held,  that  when  a  witness  has  made  a  memorandum  at 
the  time  of  the  happening  of  certain  facts,  for  the  purpose  of  perpetuating  the 
memory  of  them,  and  can  at  a  subsequent  period  swear  that  he  made  the  entry  at 
the  time  for  that  purpose  and  that  he  knows  from  that  memorandum  that  the  facts 
did  exist ;  it  will  be  good  evidence,  though  the  witness  does  not  retain  a  distinct 
recollection  of  the  facts  themselves,  and  the  rule  is  the  same  in  criminal  as  in  civil 
cases ;  State  v.  Rawle,  2  Nott  &  McCord,  331.  M. 


160         EZAMINATION    OF    "WITNESSES    IN    CHIEF. 

*isn  "^^®^s  ^  *witness  who  had  received  money,  and  giyen  a 
receipt  for  it,  -wtiicli  could  not  be  read  in  evidence  for  want 
of  a  proper  stamp,  had  become  blind,  the  receipt  was  read  to  him. 
in  court  for  a  similar  purpose."  And  where  the  plaintiff  had 
entered  an  account  in  writing  of  goods  and  money  from  time  to 
time  forwarded  to  the  defendant,  and  the  defendant  had,  by  his  sig- 
nature at  the  foot  of  each  page,  admmitted  the  truth  of  the  items, 
but  the  writing  itself  could  not  be  given  in  evidence  for  want  of 
receipt  of  stamps,  as  the  cash  items  in  each  page  exceeded  40s.,  yet 
it  was  held  that  the  plaintiff  might  prove,  that  upon  calling  over 
each  article  to  the  defendant  he  admitted  the  receipt,  and  that  the 
witness  who  heard  him  might  refresh  his  memory  by  referring  to 
the  account."  So  where  a  person  employed  to  let  lands  read  over 
the  terms  to  the  defendant  from  a  written  paper,  he  was  allowed  to 
refresh  his  memory  by  that  document.' 

"Whether  the  writing  be  used  merely  as  an  instrument  for 
restoring  the  recollection  of  a  fact,  or  be  offered  to  be  read  as  con- 
taining a  true  account  of  particulars  entirely  forgotten,  it  must,  in 
conformity  with  the  general  principle  *of  evidence,  be  the 
-'  best  for  the  purpose  that  the  case  admits  of.  Tor  although 
it  be  plain  that  if  the  recollection  of  a  forgotten  fact  be  completely 
restored,  the  means  of  restoration  are  immaterial,  yet,  where  the 
questions  are,  whether  knowledge  of  the  fact  once  existed,  and 
whether  it  will  be  restored  by  the  means  proposed,  it  is  obvious  that 
such  restoration  is  more  likely  to  be  accomplished  by  a  genuine 
than  by  a  false,  or  even  imperfect  memorandum,  and  that  a  false 
suggestion  made  by  such  means  is  more  likely  to  create  an  errone- 

commissioners  of  bankruptcy,  to  refresh  Ms  memory  as  to  a  date,  Wood  v.  Cooper, 
1  0.  &  K.  645  ;  B.  C.  L.  E.  47  ;  but  not  to  go  through  the  whole ;  Smithy.  Mor- 
gan, 2  M.  &  Rob.  257.  Whether  in  a  criminal  case  the  prisoner's  counsel  may 
offer  a  deposition  to  a  witness  on  examination  to  refresh  his  memory,  qucere. 
Denied  by  Parke,  B.,  and  Coltman,  J.,  York,  S.  Assizes,  1837.  Admitted  by  Pat- 
terson, J.,  at  a  former  assizes ;  and  in  a  subsequent  case  at  the  same  assizes, 
admitted  by  Parke,  B.,  and  Coltman,  J. — Mr.  Starkie's  Note,  3rd  edit.  vol.  i.  p. 
601. 

*  Catt  V.  Howard,  3  Stark.  0.3;  B.  C.  L.  E.  3.  Where  a  witness  to  prove  the 
receipt  of  money,  after  having  denied  all  recollection  of  it,  was  shown  a  written 
entry  with  his  initials,  and  then  said  he  had  no  doubt  of  his  having  received  the 
money  ;  held  that  it  was  not  necessary  such  paper  should  be  stamped,  after  being 
looked  at  to  refresh  his  memory ;  the  parol  evidence  to  prove  the  payment  was 
sufficient ;  Maugham  v.  Hubbard,  8  B.  &  0.  14 ;  B.  0.  L.  R.  15. 

"  Jacob  V.  Ldndsay,  1  East,  460  ;  supra,  tit.  Stamp. 

'  Lord  BoUon  v.  Tomlin,  5  Ad.  &  E.  856  ;  E.  C.  L.  R.  31. 


EBFEESHING    MEMOET.  161 

ous  than  to  restore  a  correct  impression.  The  general  principle, 
therefore;  operates  to  the  exclusion  of  the  inferior  evidence.  Where 
the  object  is  not  to  restore  recollection,  but  to  get  at  the  contents  of 
a  -writing,  on  the  ground  that  the  witness  knows  those  contents  to 
be  true,  it  is  in  effect  to  give  the  writing  in  evidence,  and  conse- 
quently to  give  force  to  the  objection  that  it  is  not  the  best  evi- 
dence the  case  admits  of.  Two  steps  are  essential  in  such  a  case  to 
the  truth  of  the  conclusion ;  first,  that  the  witness  knows  that  the 
fact  was  truly  stated  on  a  former  occasion  in  some  particular  docu- 
ment ;  secondly,  that  the  document  produced  contains  that  state- 
ment ;  and  the  best  evidence  of  this  is  by  the  production  of  the 
original  document.  In  conformity  with  this  principle,  it  has  been 
held  that  a  mere  copy  of  a  writing,^  *although  made  by  the  j-^^no 
witness  himself,  cannot  be  used  for  the  purposes."" 

B  The  rule  does  not  extend  to  the  exclusion  of  a  duplicate  original,  and  in  prac- 
tice a  witness  is  admitted  to  refresh  his  memory,  as  to  items  of  goods  delivered,  by 
a  copy  recently  taken  by  him  from  a  shop-book,  or  other  documents  of  his  own 
writing,  or  written  with  his  knowledge.  And  where  A.  having  made  a  survey 
furnished  a  report  to  his  employers,  and  being  afterwards  called  as  a  witness  pro- 
duced a  printed  copy  of  it,  in  the  margin  of  which  he  had,  two  days  before,  to 
assist  him  in  giving  explanations,  made  some  jottings,  and  this  report  was  made 
up  from  Ms  original  notes,  and  was  in  substance,  though  not  in  words  a  transcript 
of  them,  the  House  of  Lords  held  that  he  might  look  at  such  printed  copy  to 
refresh  his  memory ;  Home  v.  Mackenzie,  6  CI.  &  Pin.  628.  And  where  an  editor 
of  a  newspaper  swore  that  A.  wrote  the  article  in  question,  but  the  MS.  had  been 
lost,  and  A.  stated  that  he  had  been  in  the  habit  of  writing  such  articles,  and  that 
they  were  all  true,  but  he  did  not  recollect  the  article  in  question ;  he  was  allowed 
by  Eolfe,  B.,  to  refresh  his  memory  with  the  newspaper  ;  Topham  v.  M'  Oregor,  1 
0.  &  K.  320 ;  E.  0.  L.  R.  47. 

"  In  the  case  of  Burton  v.  Plummer,  2  Ad.  &  E.  343 ;  B.  0.  L.  R.  29,  Patte- 
son,  J.,  observed ;  "  The  copy  of  an  entry  not  made  by  the  witness  contempora- 
neously, does  not  seem  to  me  to  be  admissible  for  the  purpose  of  refreshing  a 
witness's  memory.  The  rule  is,  that  the  best  evidence  must  be  produced,  and  that 
rule  appears  to  me  to  be  applicable,  whether  a  paper  be  produced  as  evidence  in 
itself,  or  to  be  used  merely  to  refresh  the  memory.  In  the  case  of  JDoe  v.  Perkins, 
3  T.  R.  752,  Lord  Kenyon  cited  a  case  in  Chancery,  where  a  motion  was  made  to 
suppress  a  deposition  on  a  certificate  from  the  commissioners  that  the  witness 
refreshed  her  memory  by  minutes,  consisting  of  six  sheets  of  paper  of  her  own 
handwriting,  the  substance  of  which  she  declared  she  had  set  down  from  time  to 
time  as  the  facts  occurred  to  her  memory ;  that  five  of  the  six  sheets  were  drawn 
up  in  the  form  of  a  deposition  by  the  plaintiff's  solicitor,  whom  she  had  requested 
to  digest  her  notes,  and  reduce  them  to  some  order  ;  and  that,  after  he  had  done  so, 
she  transcribed  and  altered  them  wherever  it  was  necessary  to  make  them  consis- 
tent with  her  meaning,  and  that  the  Lord  Chancellor,  in  giving  judgment,  said : 
''  Should  the  Court  connive  at  proceedings  like  these,  depositions  would  really  be 

II 


162         EXAMIlSrATION    OF    WITNESSES    IN    CHIEF. 

In  analogy  to  the  ordinary  rules  of  documentary  evidence,  a  copy 
may  be  used  to  refresh  the  memory,  on  proof  that  the  original  has 
been  lost.  Yet,  in  one  instance,  it  was  held'  that  a  copy  made  by 
*i  RAn  *^®  "witness  himself  six  *months  after  the  fact,  from  his  own 
-■  memorandum  made  at  the  time  of  the  fact,  could  not  be  used, 
although  the  witness  swore  that  the  original  was  lost,  and  was  at  the 
time  of  the  loss  illegible,  being  covered  with  figures. 

"Where  a  witness  refreshes  his  memory  from  memoranda,  it  is 
usual  and  reasonable  that  the  adverse  counsel  should  have  an 
opportunity  of  inspecting  them''  for  the  purpose  of  cross-examiaing 
the  witness  ;^  and  he  is  entitled  to  cross-examine  not  only  as  to  the 
particular  part  referred  to,  but  as  to  other  parts  of  the  entry ."" 

no  better  than  affidavits,  for  should  a  witness  be  permitted  to  use  a  paper,  especi- 
ally one  drawn  up  by  the  attorney  of  one  of  the  parties,  though  from  memoranda 
furnished  by  the  witness,  I  might  as  well  let  the  attorney  draw  an  affidavit  for  her, 
and  use  that  instead  of  a  deposition  To  be  sure,  in  some  cases,  a  man  may  use 
papers  at  law,  but  I  have  known  some  Judges  (and,  I  think,  I  adhered  chiefly  to 
that  rule  myself)  let  them  use  only  papers  drawn  up  as  the  facts  happened,  and  all 
other  papers  I  have  bid  them  put  in  their  pockets ;  and  if  any  had  been  offered 
which  had  been  drawn  by  the  attorney,  I  should  have  reprimanded  him  severely. 
As  to  dates  and  names,  which  are  merely  technical,  it  is  quite  another  thing."  In 
Solomons  v.  Campbell,  cor.  Abbott,  J.,  Sitt.  after  Mich.  1822,  also,  a  witness  was 
not  allowed  to  refresh  his  memory  by  a  copy  taken  from  a  shopbook,  neither  of  the 
entries  having  been  written  by  himself. 

'  Jones  V.  Stroud,  2  0.  &  P.  196  ;  E.  0.  L.  E.  12  ;  and  see  Burton  v.  Plummer, 
2  Ad.  &  E.  343 ;  E.  0.  L.  B.  29 ;  and  also  contra,  Wood  v.  Cooper,  1  C.  &  K. 
646  ;  E.  0.  L.  E.  47 ;  R.  v.  Kinloch,  25  How.  St.  T.  937. 

*  Where  a  party  possessed  the  means,  the  recollection  of  the  witness  would  of 
course  be  refreshed  before  the  trial,  and  then  if  he  testified  as  to  his  having  an 
actual  present  recollection  of  the  fact,  it  would  of  course  be  unnecessary,  as  regards 
his  testimony  in  chief,  to  refer  to  the  means  by  which  his  recollection  was  restored 
after  it  had  once  been  lost.  Where  such  means  were  wanting,  or  the  defect  was 
not  anticipated,  the  attempt  may  be  made,  as  above  stated,  at  the  trial ;  but  as 
the  license  might  be  used  for  the  purpose  of  putting  leading  questions  or  sugges- 
tions in  the  most  objectionable  form,  and  facility  might,  by  such  means,  be  given 
to  fraudulent  testimony,  it  is  expedient  that  opportunity  should  be  afforded  for  the 
prevention  of  abuse. 

'  Per  Eyre,  0.  J. ;  Hardy's  case,  24  Howell's  St.  Tr.  824 ;  R.  v.  Ramsden,  2 
C.  &  P.  603  ;  E.  0.  L.  E.  12  ;  Sinclair  v.  Stevenson,  1  0.  &  P.  582  ;  E.  0.  L.  E. 
12  ;  see  Howard  v.  Canfield,  5  Bowl.  P.  0.  417.  But  if  the  question  founded 
upon  the  memoranda  wholly  fail,  the  adverse  counsel  has  no  right  to  see  them  ;  Reg. 
V.  Buncombe,  8  0,  &  P.  369 ;  E.  0.  L.  E.  34. 

"  Lloyd  V.  Preshfteld,  2  C.  &  P.  325  ;  E.  C.  L.  E.  12.  But  if  he  cross-examine 
as  to  other  entries  in  the  same  book,  he  makes  them  his  own  evidence ;  Gregory 
V.  Tavernor,  6  Car.  &  P.  280 ;  E.  C.  L.  E.  25. 


H  E  A  E  S  A  Y.  163 

"Where  the  memory  of  a  witness  has  been  refreshed  previous  to 
the  trial,  it  is  not  necessary  that  the  writing  by  means  of  which 
this  was  done  should  be  produced  at  the  trial ;°  the  omission  to  pro- 
duce it  would  of  course  afford  matter  for  observation.  Where  the 
witness  has  no  distinct  recollection  of  a  fact  independently  of  the 
writing,  the  writing  itself  must  be  produced." 

*A  witness  may  also  in  some  instances,  on  principles  [-^^q^. 
which  have  already  been  adverted  to,  be  examined  as  to 
what  he  has  heard  from  others;  and  evidence  of  this  nature  is 
either  original  evidence,  which  is  admissible  without  previous  proof 
to  warrant  it,  or  is  merely  secondary,  and  admissible  only  in  failure 
of  some  other  and  superior  evidence,  which  is  no  longer  attainable. 
Of  the  first  description  is  evidence  o'f  reputation,  of  declarations 
*which  accompany  and  explain  material  facts,  and  of  de-  r^->c>n 
clarations  made  by  the  adverse  party  in  the  cause.'' 

°  See  Kensington  v.  Inglis,  8  East,  273. 

°  Doe  V.  Perkins,  3  T.  R.  749.  The  question  was,  at  what  time  the  annal  hold- 
ing of  several  tenants  expired.  Aldridge  had  gone  round  with  the  receiver  of  the 
rents  to  the  different  tenants,  whose  declarations  as  to  their  times  of  entry  were 
noted  down  in  a  book,  some  by  Aldridge  and  some  by  the  receiver.  Aldridge  was 
examined  as  to  these  declarations,  the  original  book  not  being  in  court ;  he  ad- 
mitted that  he  had  no  recollection  on  the  subject,  except  from  extracts  made  by 
him  from  the  book ;  and  the  evidence  was  afterwards  held  by  the  Court  of  K.  B. 
to  have  been  inadmissible. 

In  the  above  case,  that  of  Tanner  v.  Taylor  was  cited,  which  had  been  decided 
by  Legge,  B.,  Hereford  Spring  Assizes,  1751 ;  where,  in  an  action  for  goods  sold 
and  delivered,  the  witness  who  proved  the  delivery  took  it  from  an  account  which 
he  had  in  his  hand ;  being  a  copy,  as  he  said,  of  the  day-book  which  he  had  left  at 
home ;  and  Mr.  Baron  Legge  held,  that  if  he  could  swear  positively  to  the  deliv- 
ery from  recollection,  and  the  paper  was  only  to  refresh  his  memory,  he  might 
make  oath  of  it ;  but  if  he  could  not  from  recollection  swear  to  the  deliveries  any 
further  than  as  finding  them  entered  in  his  book,  then  the  original  should  have 
been  produced ;  and  the  witness  saying  he  could  not  swear  from  recollection,  the 
plaintiff  was  nonsuited.  In  Beech  v.  Jones,  5  0.  B.  696,  E.  C.  L.  E.  57,  a  banker's 
clerk  was  called  to  give  secondary  evidence  that  a  bill  was  made  payable  at  Mold. 
He  stated  that  on  the  preceding  day  he  had  looked  at  an  entry  in  his  own  hand- 
writing, made  when  the  bank  received  the  bUl,  which  had  been  redelivered  to  the 
defendant,  which  entry  described  the  bill  as  payable  at  Mold ;  but  he  admitted 
that  he  had  no  recollection  whatever  of  the  bill  or  its  contents,  save  what  he 
derived  from  the  entry.  The  book  not  being  produced,  it  was  objected  that 
evidence  in  its  absence  was  not  admissible ;  but  Ooltman,  J.,  having  admitted  it, 
the  Court  of  C.  P.  granted  a  new  trial,  on  the  authority  of  Doe  v.  Perkins.  And 
see  a  case  cited  from  Lord  Ashburton's  notes,  3  T.  E.  752 ;  Rex  v.  Duchess  of 
Kingston,  20  How.  St.  Tr.  355  ;  8  Bast,  289;  Kensington  v.  Inglis,  8  East,  273; 
Hedge's  case, -28  How.  St.  Tr.  1367. 

'  See  tit.  Admissions. 


164         EXAMINATION    OF    WITNESSES    IN    CHIEF. 

Evidence  of  reputation,  subject  to  the  limitations  already  stated,' 
is  admissible  upon  questions  as  to  tbe  boundaries  of  parishes,  man- 
ors, or  other  districts  in  which  many  persons  possess  an  interest  j'' 

1 1t  will  be  seen,  from  what  has  been  already  observed  on  this  subject,  that  the 
term  reputation,  as  denoting  a  class  of  evidence,  has  acquired  a  technical  sense, 
which  differs  in  some  respects  from  the  ordinary  sense  of  the  term,  and  includes  all 
evidence,  whether  oral  or  written,  which  on  principles  already  adverted  to  is 
admissible  to  prove  matters  of  public  and  general  interest. 

The  cases  on  this  subject  will  be  found  under  the  heads  of  Ebputation — Pedi- 
gree— Pkesceiption — Highway — Common  —  Manor,  and  other  particular  titles 
to  which  the  decisions  relate. 

'  See  Vol.  II.  tit.  Custom.  Hearsay  evidence  is  admissible  on  a  question  of 
parochial  or  manorial  boundary,  although  the  persons  who  have  been  heard  to 
speak  of  the  boundary  were  parishioners,  and  claimed  rights  of  common  on  the 
very  wastes  which  their  declarations  have  a  tendency  to  enlarge ;  Nicholls  v. 
Parker,  14  East,  331 ;  Brisco  v.  Lomax,  8  Ad.  &  B.  198  ;  B.  C.  L.  E.  35 ;  Evans 
v.  Rees,  10  Ad.  &  B.  151 ;  B.  C.  L.  B.  37 ;  Thomas  v.  Jenkins,  6  Ad.  &  B.  525 ; 
B.  C.  L.  R.  33.  So  on  a  question  of  boundary  between  old  and  new  land  in  a 
manor;  Barnes  v.  Mawson,  1  M.  &  S.  77. 

Where,  in  trespass  for  levying  a  distress  for  rates  claimed  to  be  due  on  lands  in 
the  parish  A.,  the  question  was  whether  they  were  situate  in  that  or  the  adjoining 
parish  B. ;  it  was  held,  that  being  a  question  of  boundary,  in  which  reputation  was 
admissible,  leases  granted  by  the  deceased  ancestors  of  the  plaintiffs  landlord, 
describing  the  land  to  be  situated  in  B.,  were  properly  received  in  evidence ;  also, 
that  the  accounts  of  deceased  overseers  of  B.,  to  which  the  tenants  of  the  lands 
were  successively  assessed,  and  against  whose  names  crosses  were  made,  were 
admissible  in  evidence  of  payment  of  such  rates  by  them,  as  a  common  mode  of 
denoting  payment ;  Plaxton  v.  Dare,  10  B.  &  C.  17  ;  B.  C.  L.  R.  21.  A  book  of 
leases  of  the  Dean  and  Chapter,  kept  in  the  chapter-house,  is  evidence  as  reputa- 
tion on  a  question  of  boundary ;  Coombs  v.  Coether,  M.  &  M.  398 ;  B.  C.  L.  R. 
22.  Upon  the  question,  whether  a  particular  place  be  parcel  of  a  parish,  old 
entries  made  by  a  churchwarden,  not  charging  himself,  relating  to  the  repairs  of  a 
chapel  alleged  to  belong  to  the  place  in  question,  are  not  admissible ;  Cooke  v. 
Bankes,  2  0.  &  P.  478 ;  B.  C.  L.  R.  12.  But  orders  of  Justices  at  Sessions  are 
evidence  to  prove  a  district  to  be  parcel  of  a  hundred ;  Duke  of  Newcastle  v. 
Hundred  of  Broxtowe,  4  B.  &  Ad.  273 ;  B.  C.  L.  R.  24.  Such  evidence  is  not, 
however,  evidence  to  prove  the  boundary  of  a  private  estate ;  Clothier  v.  Chap- 
man, 14  East,  331,  n. ;  Donnison  v.  Elsley,  3  Bag.  &  Yo.  Tithe  Oases,  1393, 

'  General  reputation  is  admissible  as  evidence  in  cases  of  boundary;  Standin 
V.  Bains,  1  Hayw.  238 ;  Tate  v.  Southard,  1  Hawks.  45 ;  Beard's  Lessee  v.  Talbot, 
Oooke's  Rep.  142.  But  not  to  contradict  record  evidence  on  the  subject ;  Lessee 
of  McCay,  v.  Galloway,  3  Ohio  Rep.  282.  So  also  what  has  been  said  by  a 
deceased  person  in  relation  to  a  boundary  is  admissible  as  evidence ;  Caufman 
V.  Congregation  of  Cedar  Spring,  6  Binn.  59;  Wolfy.  Wyeth,  11  Serg.  &  Rawle, 
149.  But  declarations  respecting  a  boundary  by  a  person  living,  and  who  might 
be  produced  are  not  evidence ;  Buchanan  v.  More,  10  Serg.  &  Rawle,  275.     G. 


EEPUTATION.  165 

upon  questions  *relating"  to  rights  of  common/  or  other  cus- 
tomary  rights"  or  obligations,  upon  questions  as  to  public 

where  the  testimony  of  a  witness  derived  from  hearsay  as  to  the  extent  of  bound- 
aries and  parcels  of  an  estate  was  rejected ;  though  in  Davies  v.  Lewis,  2  Chitty, 
35,  B.  0.  L.  R.  18,  hearsay  evidence  was  admitted  upon  the  question  whether  a 
particular  place  was  parcel  of  a  sheep-walk.  As  this,  however,  was  a  question  of 
mere  private  right,  the  authority  of  this  case  seems  to  be  very  doubtful.  And,  in 
Thomas  v.  Jenkins,  6  Ad.  &  E.  525,  B.  0.  L.  E.  33,  where  the  boundary  of  an 
estate  was  proved  to  be  the  same  as  that  of  two  hamlets,  the  court  held,  that 
though  reputation  would  not  have  been  admissible  as  evidence  to  prove  the  bound- 
aries of  the  estate,  per  se,  yet  it  was  evidence  to  prove  the  boundaries  of  the 
hamlet,  and  through  that  medium  admissible ;  Steel  v.  Prickett,  2  Stark.  0.  466  ; 
E.  0.  L.  E.  3. 

'  It  is  evidence  equally  to  prove  or  disprove  the  right  asserted ;  Drinkwater  v. 
Porter,  7  C.  &  P.  181 ;  E.  0.  L.  E.  32  ;  Marquis  of  Anglesea  v.  Lord  Hather- 
ton,  10  M.  &  W.  218. 

*  See  Vol.  II.  tit.  Common,  where  the  cases  are  set  forth.  A  paper  signed  by 
many  deceased  copyholders  of  a  manor,  importing  what  was  the  general  right  of 
common  in  each  copyholder,  and  agreeing  to  restrict  it,  is  evidence  of  reputation, 
even  against  other  copyholders  not  claiming  under  those  who  signed  it ;  Chapman 
V.  Cowland,  13  East,  10.  So  reputation  is  evidence  of  a  right  of  common  pur 
cause  de  vicinage  between  two  manors ;  Prichard  v.  Powell,  10  Q.  B.  589 ;  E. 
0.  L.  E.  59.  But  in  Lord  Dunraven  v.  Llewellyn,  19  L.  J.,  Q.  B.  388,  the  Court 
of  Exchequer  Chamber  held  that  reputation  was  not  admissible  evidence  on  a 
question  as  to  common  appendant,  that  not  being  a  customary,  but  a  mere  private 
right  derived  from  some  grant ;  and  observed  that  the  reasons  given  for  the  judg- 
ment in  Weeks  v.  Sparke,  1  M.  &  S.  679,  in  which  such  evidence  was  admitted  on 
the  like  question,  would  certainly  not  be  satisfactory  at  the  present  day. 

"  Reputation  is  evidence  on  questions  respecting  general  customs  concerning 
parishes  or  manors,  or  the  inhabitants  of  towns  and  other  places ;  Morewood  v. 
Wood,  14  East,  327,  n.  Thus,  where  it  is  contended  that,  by  the  custom  of  a 
manor,  land  shall  descend  to  the  eldest  female  heir,  general  reputation  of  such 
custom,  and  instances  of  its  having  so  descended  on  some  occasions,  is  evidence 
proper  to  be  left  to  a  jury,  though  the  descent  contended  for  in  the  particular 
instance  is  not  exactly  similar  to  any  of  those  that  are  adduced  in  evidence ;  as 
where  the  estate  is  claimed  by  the  grandson  of  an  eldest  sister,  and  the  instances 
proved  are  only  of  descents  to  eldest  daughters  and  eldest  sisters ;  Doe  ex  dem. 
Poster  T.  Sisson,  12  East,  62.  In  a  suit  between  a  copyholder  and  his  lord,  the 
copyholder  rested  his  case  upon  an  immemorial  custom  of  the  manor,  the  existence 
of  which  the  lord  denied.  At  the  trial  the  lord  produced  the  record  of  a  suit  by 
bill  in  the  Exchequer,  4  W.  &  M.,  wherem  the  parties  litigant  were  described  as 
lord  and  copyholder  (of  the  same  manor),  and  the  parties  deposing  for  the  copy- 
holder were  so  described,  that  if  the  description  were  true,  they  were  legally 
competent  to  give  evidence  touching  the  customs  of  the  manor.  Their  depositions 
went  to  prove  a  custom  inconsistent  with  that  relied  upon  by  the  now  plaintiff ; 
and  to  disprove  the  existence  of  such  last-mentioned  custom,  the  lord  offered  them 
as  evidence.  It  was  objected:  1.  That  the  present  parties  were  not  privies  to  the 
record  of  the  former  suit,  and  therefore  could  not  be  affected  by  any  matter  therein 


166         EXAMINATION    OF    WITNESSES    IN    CHIEF. 

^^  „„:,   highways,^*  questions  of  pedigree/  questions  as  to  rights 
of  toll/  and  of  some  other  questions  of  public  and  general 
interest."^ 

contained ;  it  was  res  inter  alios  acta.  2.  Or  supposing  that  the  depositions  were 
admissible  as  evidence  of  reputation,  still  that  it  must  be  shown  that  the  parties 
were  invested  with  the  characters  described  in  the  depositions,  and  not  having 
which,  they  were  incompetent  to  depose.  3.  Or  even  waiving  the  two  former 
objections,  that  the  depositions  were  inadmissible  in  evidence,  being  declarations 
made  post  litem  motam.  The  objections  were  overruled :  because,  1.  The  depo- 
sitions were  not  offered  as  a  record  estopping  the  plaintiff,  but  as  declarations  of 
deceased  persons,  touching  a  reputation  or  received  opinion :  their  simple  asser- 
tions would  have  been  evidence ;  &  fortiori  those  made  under  the  sanction  of  an 
oath.  2.  That  at  the  distance  of  time,  the  fact  that  the  witnesses  were  clothed 
vrith  the  character  in  which  they  deposed  must  be  taken  for  granted ;  else  it  would 
be  requiring  a  proof  which,  in  all  probability,  it  were  impossible  to  adduce.  3. 
The  two  customs — the  one  litigated  in  the  former,  the  other  in  the  present  suit — 
were  different ;  the  declarations,  therefore,  though  made  after  the  first  custom  was 
questioned,  were  made  before  the  controversy  touching  the  present  was  raised ; 
Freeman  v.  Phillips,  4  M.  &  S.  486.  Upon  a  question  as  to  the  custom  of  tithing 
in  the  parish  of  A.,  evidence  that  such  a  custom  exists  in  the  adjacent  parishes  is 
not  admissible.  Secus,  if  the  custom  be  laid  as  the  general  custom  of  the  whole 
country ;  Furneaux  v.  Hutchins,  Oowp.  807.  But  where  a  right  is  claimed  by 
custom  in  a  particular  manor  or  parish,  proof  of  a  similar  custom  in  an  adjoining 
parish  or  manor  is  not  admissible  evidence ;  Furneaux  v.  Hutchins,  Oowp.  807  ; 
Dougl.  512 ;  Doe  d.  Foster  v.  Sisson,  12  East,  62  ;  Marquis  of  Anglesea  v.  Lord 
Hatherton,  10  M.  &  W.  218. 

^  See  tit.  Highway  ;  Reed  v.  Jackson,  1  East,  356 ;  R.  v.  Bliss,  7  Ad.  &  E. 
550 ;  E.  C.  L.  K.  34.  Such  evidence  is  admissible  upon  an  indictment  for  not 
repairing  a  public  bridge,  to  show  that  it  is  a  public  bridge ;  R.  v.  Sutton,  8  Ad. 
&  E.  516  ;  E.  0.  L.  B.  35  ;  although,  in  one  case,  this  seems  to  have  been  doubted ; 
R.  V.  Antrohus,  2  Ad.  &  B.  794;  E.  0.  L.  E.  29.  So,  to  prove  a  public  right  of 
landing  on  a  particular  spot ;  Drinkwater  v.  Porter,  7  0.  &  P.  181 ;  B.  0.  L.  E.  32. 

^  See  Pedigkeb. 

•  A  deed  under  the  seal  of  the  University  of  Cambridge,  between  them  and  the 
town  of  Cambridge,  relating  to  the  tolls  in  question  was  held  admissible  as  evidence 
of  reputation  respecting  them ;  Brett  v.  Beales,  M.  &  M.  417  ;  E.  0.  L.  E.  22  ;  see 
Vol.  II.  tit.  Presceiption. 

'  Such  evidence  has  been  received  concerning  the  jurisdiction  of  a  court  upon  a 
question  whether  it  was  or  was  not  a  court  of  record ;  Rogers  v.  Wood,  2  B.  & 
Ad.  245  ;  E.  0.  L.  E.  22  ;  Braine  v.  Dew,  2  Peake's  0.  204.     To  prove  a  cus-tom 

'  Evidence  of  hearsay  is  admissible  in  order  to  prove  pedigree  ;  Strickland  v. 
Poole,  1  Dall.  14.  So  also  in  favour  of  freedom ;  Jenkins  v.  Tom,  1  Wash.  123 ; 
Gregory  v.  BaugTi,  4  Eand.  611.  But  evidence  of  hearsay  from  the  father  or 
mother  is  not  admissible  in  a  question  of  age  ;  Alhertson  v.  Robeston,  1  Dall.  9. 
Nor  for  the  purpose  of  proving  a  person's  birth-place  ;  The  Inhabitants  of  Wil- 
mington V.  The  Inhabitants  of  Burlington,  4  Pick.  174.  Common  reputation  is 
the  best  evidence  of  the  state  of  a  man's  property  when  collaterally  questioned  ; 
State  V.  Cochryn,  2  Dev.  63.  G. 


EBPUTATION.  167 

*It  is  not  essential  to  the  reception  of  sucli  evidence,   r^^QQ 
where  it  is  adduced  in  proof  of  a  right,  that  a  foundation   ^ 
*should  previously  have  been  laid  by  evidence  of  enjoy- 


r*190 
ment,  but  without  such  proof,  evidence  of  this  kind  is  of 

little  weight.*"    It  is  usually  essential  to  the  reception  of  evidence 

of  any  declaration  or  entry  falling  within  this  description,  that  it 

should  have  been  made  ante  litem  motam;"  but  the  circumstance 

of  a  corporation  to  exclude  foreigners  from  trading  in  a  particular  place ;  Davis 
v.  Morgan,  1  0.  &  J.  587  ;  or  a  right  in  a  recognized  body  of  persons  to  unload 
or  deliver  certain  goods  brought  to  a  port ;  Layhourn  v.  Crisp,  4  M.  &  W.  320  ; 
or  a  right  in  the  lord  to  all  the  coals  under  a  certain  district  of  a  manor ;  Barnes 
V.  Mawson,  1  M.  &  S.  77  ;  or  a  right  of  free  warren  over  all  the  copyhold  lands  in 
a  manor ;  Lord  Carnaervon  v.  Villebois,  13  M.  &  "W.  313 ;  or  a  right  to  a  public 
ferry ;  Pirn  v.  Gurell,  6  M.  &  W.  234 ;  or  a  parochial  or  district  modus  ;  Moseley 
V.  Davies,  11  Price,  162  ;  Rudd  v.  WrigU,  1  Phill.  on  Ev.  9th  edit.  240 ;  but 
not  a  farm  modus.  Wells  v.  Jesus  College,  Oxford,  7  0.  &  P.  284 ;  B.  0.  L.  E.  32. 
So,  to  prove  a  liability  to  repair  a  sea  wall ;  R.  v.  Leigh,  10  Ad.  &  B.  398  ;  E.  C. 
Xi.  E.  37 ;  or  to  disprove  a  liability  to  repair  a  public  bridge  ratione  tenures  ;  R. 
V.  Sutton,  8  Ad.  &  E.  516 ;  B.  0.  L.  E.  35 ;  or  to  prove  a,  mining  custom  in  a 
particular  district ;  Crease  v.  BcLrrett,  1  0.  M.  &  E.  919 ;  and  upon  an  issue 
whether  A.  was  a  parochial  chapelry,  evidence  by  a  witness  of  what  he  had  heard 
a  former  incumbent  say  respecting  the  chapelry  was  held  admissible,  the  right 
involved  being  of  a  public  nature ;  Carr  v.  Mostyn,  5  Ex.  69.  But,  in  R.  v. 
Antrohus,  2  Ad.  &  E.  788,  B.  0.  L.  E.  29,  on  the  trial  of  an  information  against 
the  sheriff  of  a  county  for  not  executing  a  convict  under  sentence  of  death,  it  was 
held  that  a  witness  could  not  be  examined  as  to  his  having  heard  that  it  was  the 
.  custom  for  the  sheriff  to  be  exempted  from  performing,  and  for  another  to  perform 
the  duty  in  that  county ;  although  proof  had  been  given  that  another  had  always 
performed  it  within  the  time  of  living  memory,  because,  as  was  said,  the  public 
were  not  interested  in  the  question  which  officer  was  to  perform  the  duty.  Lord 
Holt,  in  Harcourt's  case.  Comb.  902,  admitted  evidence  of  reputation  to  prove,  in 
an  action  of  ejections  firmce  for  a  rectory,  that  the  plaintiff  was  in  holy  orders, 
proof  having  been  previously  given  of  presentation,  admission,  and  institution,  and 
of  the  reading  of  the  articles.  Such  a  fact  seems,  however,  to  be  more  properly 
the  subject  of  presumption  than  of  proof  by  reputation ;  see  the  Bishop  of  Meath 
V.  Lord  Belfield,  B.  N.  P.  295.  Evidence  of  reputation  that  the  land  in  question 
had  belonged  to  a  particular  individual,  and  been  purchased  of  him  by  an  alleged 
testator,  has  been  held  to  be  clearly  inadmissible ;  Doe  v.  Thomas,  14  Bast,  323. 

^Crease  v.  Barrett,  1  0.  M.  &  E.  919  ;  per  cur.  Lord  Dunraven  v.  Llewellyn, 
19  L.  J.,  Q.  B.  388. 

°  Berkeley  Peerage  case,  4  Camp.  401 ;  Slaney  v.  Wade,  1  Myl.  &  Or.  338 ; 
Freeman  v.  Phillips,  4  M.  &  S.  486  ;  Richards  v.  Bassett,  10  B.  &  0.  657  ;  B.  C. 
L.  E.  21.  But  although  this  be  generally  true  as  to  mere  traditionary  declarations, 
the  rule  is  not,  and  indeed  cannot  be  applicable  to  verdicts  and  judgments  which 
fall  within  the  general  description  of  evidence  by  reputation ;  see  Reed  v.  Jack- 
son, 1  Bast,  356.  Oases  t)f  this  description  stand,  in  fact,  upon  a  foundation  some- 
what different  from  ordinary  declarations  or  entries  by  private  persons.  On  this 
subject  some  observations  will  afterwards  be  made. 


168         EXAMINATION    OF    WITNESSES    IN    CHIEF. 

that  it  "was  made  "witK  the  express  intention  of  preventing  dis- 
pute,* or  that  it  was  made  by  a  person  whose  title  it  supports,' 
or  that  it  was  made  by  one  who  was,  or  believed  himself  to  be  in 
pari  jure  with  the  party  relying  on  the  declaration,' will  not  exclude 
the  evidence. 

^^  Q^,,  *In  other  cases  a  witness  may  be  examined  as  to  matter 
of  hearsay,  where  the  evidence  is  admissible  as  secondary 
evidence.^  Such  evidence  is  in  some  instances  admissible  to  prove 
the  testimony  given  by  a  witness  in  a  former  suit  between  the  same 
parties,  who  is  since  deceased ; ''  but  in  this,  as  well  as  in  all  other 
cases  where  such  secondary  testimony  is  admitted,  it  is  necessary 
to  lay  the  foundation,  by  previous  proof,  that  the  superior  evi- 
dence, in  place  of  which  the  secondary  evidence  is  offered,  is  no 
longer  attainable.  In  order  to  warrant  the  reception  of  evidence 
of  what  a  deceased  witness  swore  on  a  former  trial  between  the 
same  parties,  it  is  necessary  to  prove,  not  only  the  death  of  that 
witness,  but  also  that  the  testimony  was  given  in  a  cause  legally 
depending  between  the  same  parties.'  After  such  evidence  has 
been  given,  parol  evidence  of  what  the  deceased  witness  swore 
upon  the  former  trial  is  admissible.* 

Previous  also  to  the  admission  of  evidence  of  traditionary 
declarations,  which  the  witness  has  heard  made  by  others,  it  is 
necessary  to  prove  the  deaths  of  the  parties  who  made  them. 
And  where  the  declarations  of  deceased  persons  are  admissible 
on  special  grounds,  the  circumstances  which  warrant  the  reception 
of  the  evidence  require  collateral  proof.' 

^  Berkeley  Peerage  case,  4  Oamp.  418 ;  Monktony.  Attorney-General,  2  Euss. 
&  M.  147,  164 ;  Slaney  v.  Wade,  1  M.  &  C.  338. 

'  Doe  d.  Jenkins  v.  Davies,  10  Q.  B.  314;  B.  0.  L.  R.  59. 

'  Monldon  v.  Attorney-General,  2  Russ.  &  M.  159. 

»  Supra,  part  i.  cap.  3.  But  evidence  cannot  be  given  of  declarations  by  a 
deceased  person,  that  a  document  purporting  to  be  attested  by  Mm  was  actually 
forged  by  Mm ;  Stobart  v.  Dryden,  1  M.  &  W.  615. 

■^  Lord  Falmerston's  case,  cited  4  T.  E.  290  ;  Mayor  of  Doncaster  v.  Day,  3 
Taunt.  262. 

'  See  below,  tit.  Judicial  Peocbbdings — Deposition. 

"  Where  a  witness  on  a  former  trial  of  an  issue  out  of  Chancery  died,  and  a  new 
trial  was  granted,  parol  evidence  of  what  such  witness  had  sworn  was  held  to  be 
admissible,  notwithstanding  an  order  for  reading  the  depositions  of  such  witnesses 
had  died  since  the  first  trial ;  Tod  v.  Winchelsea,  Earl  o/',  3  0.  &  P.  387  ;  E.  0.  L. 
R.  14. 

'  For  instances  where  such  evidence  is  admissible,  and  the  nature  of  the  proof 
previously  requisite  to  warrant  its  admission,  see  below,  tit.  Entries  by  Third 
Persons. 


MATTERS    OP    CONFIDENCE.  169 

It  has  already  been  seen  that  the  law,  up.on  grounds  of 
*policy,°'  in  some  instances,  precludes  a  witness  from  reveal-  '- 
ing  matters  of  political  or  professional  confidence.  And,  therefore, 
upon  a  trial  for  high  treason,  it  was  held  that  although  a  witness 
who  had  made  communications  in  order  to  their  transmission 
to  the  Government,  might  be  properly  asked  whether  he  had 
made  such  communication  to  any  magistrate,  and  that  he  could 
be  farther  asked  to  whom  he  made  such  communication ; "  yet  a 
majority  of  the  judges"  were  of  opinion  that  on  the  witness  having 
admitted  that  he  had  communicated  what  he  knew  to  a  friend, 
which  friend  had  advised  him  to  make  the  same  communication 
to  another ;  and  having  stated  that  such  friend  was  not  a  magis- 
trate, he  could  not  be  asked  who  that  friend  was,  on  the  ground 
that  the  person  by  whose  advice  the  information  was  given  to  a 
person  standing  in  •  the  situation  of  a  magistrate,  was  in  effect  the 
informer.  So  a  witness  who  has  been  employed  by  an  officer  to 
collect  evidence  as  to  the  proceedings  of  suspected  persons,  is  not 
allowed  to  disclose  the  name  of  his  employer,  or  the  nature  of  the 
connection  that  subsisted  *between  them."  The  rule  of  pub-  p^-,Qq 
lie  policy,  which  protects  a  witness  from  being  asked  such 
questions  as  would  disclose  the  informer,  if  he  were  a  third  person, 
equally  applies  to  questions  which  would  disclose  whether  the  wit- 
ness himself  gave  the  information ;  therefore,  on  an  information  by 
Attorney-General  for  a  breach  of  the  revenue  laws,  a  witness  for 
the  Crown  cannot  be  asked,  in  cross-examination,  "  Did  you  give 

"■  Where  a  commander-in-chief  directed  the  defendant  (a  major-general)  with 
six  other  officers,  to  inquire  into  the  conduct  of  the  plaintiff,  and  to  report  the 
opinion  of  those  officers,  which  was  done  accordingly,  and  the  plaintiff  brought  an 
action  for  an  alleged  libel  contained  in  that  report,  and  the  secretary  of  the  com- 
mander-in-chief attended  with  the  minutes  of  the  report,  the  Court  refused  to 
allow  it  to  be  read.  Home  v.  Bentinck,  2  B.  &  B.  130 ;  E.  C.  L.  E.  6.  So  official 
communications  between  the  governor  and  law-officer  of  a  colony  as  to  the  state 
of  the  colony,  Wyatt  v.  Gore,  Holt's  0.  299  ;  B.  0.  L.  E.  3  ;  or  between  a  gover- 
nor and  a  military  officer  under  him,  Cooke  v.  Maxwell,  2  Stark.  0.  183  ;  B.  C.  L. 
E.  3  ;  or  between  an  agent  of  government  and  a  secretary  of  state,  Anderson  v. 
Sir  W.  Hamilton,  2  B.  &  B.  156  ;  E.  0.  L.  E.  6,  are  privileged ;  or  the  Bast  India 
Company  and  the  Board  of  Control,  Smith  v.  The  East  India  Compuny,  1  Phill. 
50  ;  or  an  officer  of  customs  and  the  commissioners. 

"  Hardy's  case,  24  How.  St.  Tr.  808 ;  B.  v.  Watson,  32  How.  St.  Tr.  100. 

"  The  Lord  Chief  Baron  Macdonald  and  Buller,  J.,  were  of  opinion  that  the 
question  was  proper ;  Lord  C.  J.  Eyre,  Mr.  Baron  Hotham,  and  Mr.  J.  Grose, 
were  of  a  different  opinion. 

p  R.  v.  Hardy,  24  How.  St.  Tr.  753. 


170         EXAMINATION    OF    WITNESSES    IN    CHIEF. 

tlie  information ?"i  But  there  is  no  sucli  privilege  in  cases  -where 
the  communication  was  not  made  in  the  discharge  of  official  duty, 
or  where  its  disclosure  does  not  violate  official  confidence/' 

In  some  other  instances  also,  witnesses  on  grounds  of  general 
policy,  are  not  allowed  to  be  examined.  Thus  a  member  of  Parlia- 
ment cannot  be  cross-examined  as  to  what  has  passed  in  Parlia- 
ment.^ And  upon  the  same  principle  it  would,  no  doubt,  he  held 
that  a  privy  councillor  could  not  be  examined  as  to  disclosures 
made  before  the  queen  in  council.'  Lord  Kenyon  is  in  one 
instance  reported  to  have  held  that  it  was  competent  to  the 
plaintiff's  counsel,  in  an  action  for  a  malicious  prosecution,  to 
inquire  of  a  grand  juror  whether  the  defendant  was  prosecutor  of 
an  indictment "  being  of  opinion  that  an  answer  to  such  *an 
■^  inquiry  would  not  infringe  upon  the  witness's  official  oath.^ 
But  Lord  BUenborough,  C.  J.,  has  since  said  that  he  had  doubts 
upon  the  point,  and  many  eminent  men  had  entertained  doubts 
upon  it.''  And  grand  jurors  have  not  been  allowed  to  disclose  who, 
or  how  many  were  present  when  a  case  was  brought  before  them, 
or  who  agreed,  or  refused  to  find  the  bill  of  indictment ;'  neither 
can  they  be  called  to  detail  the  evidence  on  which  the  bill  was 
found,"  or  to  show  that  a  witness  gave  before  them  evidence  differ- 
ent from  that  he  has  given  on  the  trial,""  or  to  explain  their  find- 

'  Att.-General  v.  Briant,  15  M.  &  W.  169. 

'  Blalce  V.  Pilfold,  1  M.  &  Bob.  198. 

■  Plunkeft  V.  Cohbett,  29  How.  St.  Tr.  71.  The  action  was  for  a  libel ;  .and  on 
the  defendant's  inquiring  on  cross-examination  as  to  expressions  used  by  the  plain- 
tiff in  parliament,  Lord  BUenborough  observed  that  it  would  be  a  breach  of  duty 
in  the  witness,  as  a  member  of  the  (Irish)  parliament,  and  a  breach  of  his  oath,  to 
reveal  the  councils  of  the  nation. 

'  Evidence  was  permitted  to  be  given  by  a  privy  councillor  against  Lord  Straf- 
ford, of  confidential  advice  given  by  the  latter  to  the  King  at  the  council-table ;  4 
Inst.  54:  a  proceeding  jnstly  reprobated  by  Lord  Clarendon. 

»  Syhes  V.  Dunbar,  2  Sel.  N.  P.  1075,  11th  ed. ;  Freeman  v.  Arkell,  1  0.  &  P. 
137  ;  E.  0.  L.  E.  12.  See  Lee  v.  Birrell,  3  Camp.  337,  where  it  was  held  that  a 
clerk  to  Commissioners  of  Taxes  was  bound  to  produce  his  books  and  answer  all 
questions  relevant  to  the  matter,  notwithstanding  his  oath  of  office. 

^  "  The  King's  counsel,  your  own,  and  your  fellows'  you  shall  keep  secret." 

y  Watson's  case,  32  How.  St.  Tr.  107. 

•  R.  V.  Marsh,  6  Ad.  &  E.  236  ;  E.  C.  L.  R.  33. 
"  B.  V.  Watson,  32  How.  St.  Tr.  107. 

*  12  Vin.  Abr.  Evid.  H. 

'  As  to  privilege  of  officers  of  justice.  United  States  v.  Moses,  4  Wash.  C.  C. 
726. 


CEOSS-EXAMINATIOir    OF    WITNESSES.  171 

ing.°     And  the  clerk  attending  tlie  grand  jury  is  included  in  tlie 
same  rule.* 

So  it  has  been  seen  that  the  law,  on  grounds  of  extrinsic  policy, 
prohibits  the  disclosure  of  confidential  communications  between  a 
counsel,  or  an  attorney  and  his  client ;"  and  also  usually  prohibits 
a  husband  or  wife  from  giving  testimony  against  the  other  .^ 

When  the  witness  has  been  examined  in  chief,  the  adverse  party 
is  at  liberty  to  cross-examine  him.^  The  *power  and  oppor- 
tunity  to  cross-examine,  it  will  be  recollected,  is  one  of  the  '- 
principal  tests  which  the  law  has  devised  for  the  ascertainment  of 
truth,  and  this  is  certainly  a  most  efficacious  test.  By  this  means 
the  situation  of  the  witness  with  respect  to  the  parties  and  the  sub- 
ject of  litigation,  his  interest,  his  motives,  his  inclination  and  preju- 
dices, his  means  of  obtaining  a  correct  and  certain  knowledge  of  the 
facts  to  which  he  bears  testimony,  the  manner  in  which  he  has  used 
those  means,  his  powers  of  discerning  facts  in  the  first  instance,  and 
his  capacity  for  retaining  and  describing  them,  are  fully  investi- 
gated, and  ascertained,  and  submitted  to  the  consideration  of  the 
jury,  who  have  an  opportunity  of  observing  the  manner  and 
demeanour  of  the  witness ;  circumstances  which  are  often  of  as  high 
importance  as  the  answers  themselves.''  It  is  not  easy  for  a  witness 
who  is  subjected  to  this  test,  to  impose  upon  the  court ;  for  how- 

"  R.  y.Coohe,  8  0.  &  P.  584;  E.  0.  L.  E.  34. 

^  12  Vin.  Abr.  Bvid.  B.  a.  5. 

'  Supra,  and  see  Vol.  II.  tit.  Confidential  Communications.  In  the  case  of 
Curry  v.  Walter,  1  Esp.  C.  456,  Eyre,  C.  J.,  held  that  it  is  at  the  option  of  a  bar- 
rister, whether  he  will  give  evidence  of  what  he  stated  to  the  Court  upon  making 
a  motion.     Qu. 

'  Supra,  and  see  Vol.  II.  tit.  Husband  and  Wife. 

e  In  criminal  cases  the  right  to  cross-examine  is  not  strictly  confined  to  witnesses 
who  have  been  examined  in  chief.  For,  although  the  prosecutor  is  not  bound  to 
call  all  the  witnesses  whose  names  are  on  the  back  of  the  bill  of  indictment,  the 
judge  may  do  so,  and  in  that  case  the  prisoner's  counsel  may  cross-examine  them  ; 
R.  v.  Simmonds,  1  0.  &  P.  84;  B.  C.  L.  E.  12  ;  R.  v.  Beezley,  4  C.  &  P.  220  ; 
B.  0.  L.  E.  19 ;  R.  v.  Bull,  9  C.  &  P.  22  ;  E.  C.  L.  E.  38 ;  R.  v.  Vincent,  9  0.  & 
P.  9  ;  E.  C.  L.  E.  38.  The  judge  may  call  such  a  witness  for  the  purpose  of  suf- 
fering him  to  be  cross-examined,  although  he  has  not  been  examined  before  the 
grand  jury ;  R.  v.  Bolle,  6  C.  &  P.  186 ;  E.  C.  L.  E.  25 ;  and  even  although  the 
witness's  name  be  not  on  the  back  of  the  indictment;  R.  v.  Holden,  8  C.  &  P. 
609 ;  B.  C.  L.  E.  34 ;  R.  v.  Chapman,  ib.  558 ;  jB.  v.  Orchard,  ih.  559 ;  R.  v. 
Stroner,  1  0.  &  K.  650 ;  E.  0.  L.  E.  47.  But  the  prisoner's  counsel,  having 
cross-examined  him,  cannot  call  fitnesses  simply  to  contradict  him ;  R.  v.  Bodle, 
6  C.  &  P.  186 ;  B.  0.  L.  E.  25. 

"  Bac.  Abr.  Ev.  E. ;  Hob.  325 ;  Vaugh.  Eep.  143. 


172  CEOSS-EXAMINATION    OF    WITNESSES. 

ever  artful  the  fabrication  of  tlie  falseliood  may  be,  it  cannot  em- 
brace all  tbe  circumstances  to  -which  the  cross-examination  may  be 
extended ;  the  fraud  is  therefore  open  to  detection  for  want  of  con- 
sistency bet"ween  that  which  has  been  invented,  and  that  which  the 
witness  must  either  represent  according  to  the  truth,  for  want  of 
previous  preparation,  or  misrepresent  according  to  his  own  imme- 
diate invention.  In  the  latter  case,  the  imposition  must  obviously 
be  very  liable  to  detection ;  so  difficult  is  it  to  invent  extempora- 
neously, and  with  a  rapidity  equal  to  that  with  which  a  series  of 
questions  is  proposed,  in  the  face  of  a  court  of  justice,  and  in  the 
heariug  of  a  listening  and  attentive  multitude,  a  fiction  consistent 
with  itself  and  the  other  evidence  in  the  cause.* 
*iQflT  *'^  witness  when  once  called,  sworn  and  examined,  al- 
■^  though  merely  as  to  the  formal  proof  of  a  document,  may  be 
cross-examined,  although  he  be  the  substantial  party  in  the  cause.'  ^ 
And  it  has  been  held,  that  if  a  witness  has  once  been  called  into  the 
box  and  sworn,  he  may  be  cross-examined  by  the  opposite  side, 
although  he  has  not  been  examined  in  chief.''  But  it  has  since  been 
ruled,  that  where  a  witness  is  merely  called  to  produce  a  writing  in 
his  possession,  and  no  question  is  asked,  he  need  not  be  sworn,  and 
the  adverse  party  is  not  entitled  to  cross-examine.*    And  even  when 

'  Morgan  v.  Brydges,  2  Stark.  0.  314 ;  B.  0.  L.  R.  3.  So  in  a  criminal  case  ; 
B.  V.  Brooke,  2  Stark.  0.  472 ;  E.  0.  L.  E.  3. 

"  Phillips  T.  Earner,  1  Esp.  0.  357 ;  R.  v.  Brooke,  2  Stark.  C.  472  ;  E.  C.  L. 
E.  3. 

'  Simpson  v.  Smith,  cor.  Holroyd,  J.,  Nottingham  Summer  Ass.  1822,  2  Phil, 
on  Ev.  397,  9th  ed. ;  and^er  Bayley,  J.,  Lancaster  Spring  Assizes,  1824.     In  an 
action  for  a  malicious  prosecution,  the  magistrate  who  committed  the  plaintiff  was 
called  to  produce  the  information,  but  was  asked  no  question,  and  the  learned 
judge  held  that  the  defendant's  counsel  were  not  entitled  to  cross-examine  him 
JDavis  V.  Dale,  Mood.  &  M.  514 ;  B.  0.  L.  R.  22 ;  4  0.  &  P.  335  ;  B.  0.  L.  E.  19 
see  also  Summers  v.  Moseley,  2  Or.  &  M.  477  ;  Rush  v.  Smith,  1  Or.  M.  &  R.  94 
Perry  v.  Gibson,  1  Ad.  &  B.  48  ;  B.  C.  L.  E.  28.     So  in  criminal  cases ;  R.  v. 
Murlis,  Moo.  &  M.  515 ;  E.  0.  L.  R.  22. 

'  Evidence  obtained  in  a  direct  examination  is  not  admissible  when  the  witness 
dies  before  there  is  an  opportunity  for  a  cross-examination ;  Kissam  v.  Forrest,  25 
Wend.  651'. 

'  Where  a  witness  has  been  sworn  in  chief,  the  opposite  party  may  not  only 
cross-examine  him  in  relation  to  the  point  which  he  was  called  to  prove,  but  he 
may  examine  him  as  to  any  matter  embraced  in  the  issue ;  and  the  party  who 
originally  called  such  witness  and  availed  himself  of  his  testimony,  cannot  subse- 
quently object  to  him  on  the  ground  of  interest  'any  more  than  he  can  impeach  his 
general  character ;  Fulton  Bank  v.  Stafford,  2  Wend.  483  ;  Varrick  v.  Jackson, 

Wend.  666,  and  7  Cow.  238.  G-. 


PEACTICE    OF.  173 

a  "witness  is  sworn  by  mistake:  and  the  mistake  is  discovered 
before  any  question  is  put,  tlie  same  rule  applies :"  also  where  a 
witness  was  sworn,  and  having  answered  an  immaterial  question 
was  stopped  by  the  judge,  this  was  held  to  give  no  right  to  cross- 
examine  him."  And  where,  before  the  passing  of  Lord  Denman's 
Act,  in  an  action  by  the  assignees  of  a  bankrupt,  the  petitioning 
creditor  was  called  for  the  purpose  of  producing  the  bill  of  exchange 
on  which  the  debt  was  founded,  the  court  would  not  permit  him  to 
be  cross-examined  by  the  defendant,  since  he  could  not  have  been 
examined  by  the  plaintiffs."  But,  in  general,  if  the  witness  be 
sworn,  and  would  be  a  competent  witness  for  *the  party  p^^^^ 
calling  him,  the  adversary  will  be  entitled  to  cross-examine  '- 
him,  although  he  has  not  been  examined  in  chief,'  unless  he  was 
sworn  by  mistake  .1 

The  courts  do  not  usually  exclude  a  party  on  the  cross-examina- 
tion of  a  witness  from  putting  leading  questions,  although  the 
witness  betrayed  an  anxiety  to  serve  that  party;  it  is  however 
obvious  that  evidence  so  obtained  is  very  unsatisfactory,  and  is 
open  to  much  observation.'  Although  upon  cross-examination  a 
counsel  may  put  leading  questions,  those  questions  must  not 
assume  facts  to  have  been  proved  which  have  not  been  proved, 

"  Wood  V.  MacUnson,  2  M.  &  Bob.  273 ;  Clifford  v.  Hunter,  3  0.  &  P.  16  ; 
E.  0.  L.  R.  14. 

"  Creevy  v.  Carr,  7  0.  &  P.  65  ;  E.  0.  L.  K.  32. 

"  Reed  v.  James,  1  Starkie's  C.  132 ;  B.  C.  L.  E.  2. 

!>  Phillips  v.  Earner,  1  Bsp.  0.  357 ;  R.  v.  Brooke,  2  Stark.  C.  473 ;  E.  0.  L. 
B.  3. 

"  Clifford  V.  Hunter,  3  C.  &  P.  16  ;  B.  0.  L.  B.  14;  Rush  v.  Smith,  1  Or.  M. 
&  E.  94. 

"■  I  have  heard  Lord  Tenterden,  0.  J.,  express  himself  to  that  effect  more  than 
once.  In  Hardy's  case,  24  How.  St.  E.  755,  upon  a  trial  for  high  treason,  a 
witness  having  been  called  for  the  prosecution  who  was  favourable  to  the  prisoner, 
and  who  had  been  a  member  of  the  Corresponding  Society,  was  asked  whether 
particular  expressions,  which  were  suggested  to  him,  had  not  been  used  by  the 
members  of  that  saciety,  and  Lord  Chief  Justice  Eyre  informed  the  counsel  that 
he  could  not  put  words  into  the  mouth  of  the  witness,  and  that  this  was  contrary 
to  the  practice  of  the  court,  and  to  his  opinion.  And  BuUer,  J.,  upon  the  same 
trial,  said,  "  You  may  lead  a  witness,  upon  cross-examination,  to  bring  him  directly 
to  the  point  as  to  the  answer ;  but  not  go  the  length,  as  was  attempted  yesterday, 
of  putting  into  the  witness's  mouth  the  very  words  which  he  is  to  echo  back 
again."  In  the  late  case  of  Parkin  v.  Moon,  7  C.  &  P.  408,  E.  0.  L.  B.  32, 
Alderson,  B.,  said :  "  I  apprehend  you  may  put  a  leading  question  to  an  unwilling 
witness  on  the  examination  in  chief,  but  you  may  always  put  a  leading  question  in 
cross-examination,  whether  a  witness  be  willing  or  not." 


174  CROSS-EXAMINATION    OF    WITNESSES. 

or  that  particiular  answers  have  been  given  contrary  to  the  facts.' 
The  witness  cannot  be  cross-examined  as  to  the  contents  of  a 
^^go^  written  document  which  is  not  produced;' nor  as  to  *the 
contents  of  a  written  document  which  is  in  the  hands  of 
the  adversary,  and  which  he  has  had  notice  to  produce ;  for  this 
is  part  of  the  case  of  the  party  who  cross-examines,  which  cannot 
be  gone  into  until  that  of  his  adversary  has  been  concluded. 

It  has  been  said,  that  where  a  witness  has  been  examined  by  one 
party,  he  may  afterwards  be  cross-examined  by  the  same  party  as 
an  adverse  witness,  when  he  is  called  by  the  adversary  as  one  of 
his  own  witnesses.^  If  a  party  omit,  from  prudential  motives,  to 
examine  his  adversary's  witness  as  to  any  branch-  of  his  own  case, 
there  seems  to  be  no  reason  why,  when  he  afterwards  adopts  him 
as  his  own  witness,  he  should  not  be  so  considered  to  all  purposes, 
and  why  the  adversary  should  not  then  be  entitled  to  cross- 
examine  him.  The  same  witness  may  know  distinct  parts  of  the 
transaction,  one  branch  of  which  makes  for  the  plaintiftj  and  the 
other  for  the  defendant ;  and  if  each  party  call  him  as  his  own 
witness,  there  seems  to  be  no  reason  why  each  should  not  be  in 
turn  bound  by  the  same  principle ;  why  each,  in  examining  into 
his  own  case,  should  not  be  precluded  from  putting  leading  ques- 
tions, and  be  entitled  to  cross-examine  as  to  his  adversary's  case.^ 
And  when  a  witness  on  the  bill  was  tendered,  but  not  examined 
by  the  prosecutor,  and  was  examined  for  the  prisoner,  it  was  held 
he  might  be  cross-examined  by  the  prosecutor.^ 

The  mode  of  examination  is,  in  truth,  regulated  by  the  discre- 

"  Hill  T.  Goombe,  cor.  Abbott,  J.,  Exeter  Spring  Assizes,  1818 ;  Handley  t. 
Ward,  cor.  Abbott,  L.  0.  J.,  Lancaster  Spring  Assizes,  1818. 

'  Sainthill  v.  Bound,  4  Esp.  0.  74.  But  the  right  of  cross-examination  is  not 
limited  to  the  matter  as  to  which  the  witness  has  been  examined  in  chief,  e^en  in 
equity ;  The  Mayor,  Sfc,  of  Berwick  upon  Tweed  v.  Murray,  19  L.  J.,  Chan.  281. 

^  Dickinson  v.  Sliee,  4  Esp.  0.  67. 

y  E  V.  Earris,  7  C.  &  P.  581 ;  B.  C.  L.  R.  32. 

'  A  party  cannot  introduce  his  case  to  the  jury  by  cross-examining  the  witnesses 
of  the  adverse  party ;  Ellmaker  v.  Buckley,  16  Serg.  &  Bawle,  72  ;  McKinley  v. 
McGregor,  3  Whart.  369  ;  Hartness  v.  Boyd,  5  Wend.  563.  G. 

If  a  party  wishes  to  examine  a  witness  of  the  opposite  side  with  regard  to  new 
matter  not  introduced  by  the  opposite  party,  he  must  make  the  witness  his  own  by 
introducing  him  in  a  subsequent  part  of  the  cause ;  Philadelphia  and  Trenton 
Railroad  Co.  v.  Stimpson,  14  Peters,  448 ;  Hartness  v.  Boyd,  5  "Wend.  563 ; 
Floyd  V.  Bovard,  6  Watts  &  Serg.  75  ;  Castor  v.  Bavington,  2  Ibid.  505  ;  Rucker 
V.  Eddings,  1  Missouri,  115  j  Beal  v.  Nichols,  2  Gray,  262. 


PBACTICE    OF.  175 

tion  of  tlie  court,  according  to  the  disposition  and  temper  of  the 
witnesses ;  the  court  frequently  permitting,  as  before  stated,  an 
adverse  witness  to  be  cross-examined  by  the  party  who  calls  him. 

For  the  purpose  of  furthering  the  object  of  cross-examination, 
the  court  will,  in  general,  at  the  instance  of  either  party,^  direct 
that  the  witnesses  shall  be  examined  each  *separately,  apart  j^ 
from  the  hearing  of  the  rest ; "  a  strong  test  to  try  the  con- 
sistency of  their  account;''  and  the  same  indulgence  may  be 
granted  to  a  prisoner,  but  not  as  a  matter  of  right."  An  order 
of  exclusion  does  not  extend  to  an  attorney  in  the  cause,  if  his 
presence  in  court  be  necessary.*  Where  a  witness  remains  in  court 
after  an  order  for  the  exclusion  of  witnesses,  the  rejection  or 
admission  of  his  testimony  is  a  question  for  the  discretion  of  the 
judge  under  all  the  circumstances  of  the  case;"  *thus,  r^nnnn 
where  the  witness  remained  from  mistake,  and  from  no 

'  The  court  will  order  the  witnesses  on  the  part  of  the  defendant  out  of  court 
even  after  the  plaintiff's  case  is  closed ;  Taylor  v.  Lawson,  3  0.  &  P.  543 ;  E.  0. 
L.  R.  14 ;  Williams  v.  Hulie,  1  Sid.  131.  So  either  party  at  any  period  of  the 
trial  may  require  witnesses  to  be  ordered  out  of  court ;  Southey  v.  Nash,  7  C.  & 
P.  632  ;  E.  0.  L.  E.  32. 

'^  Attorney- General  v.  Bulpit,  9  Price,  4 ;  Taylor  v.  Lawson,  3  C.  &  P.  543 ; 
E.  0.  L.  B.  14.  In  the  House  of  Lords,  no  witness  but  the  person  under  exami- 
nation is  allowed  to  be  present ;  Tb.  It  is  almost  a  matter  of  right  to  have  the 
witness  ordered  out  of  court  when  an  argument  is  going  on  respecting  his  evidence ; 
R.  V.  Murphy,  8  0.  &  P.  307 ;  E.  0.  L.  R.  34. 

'^  No  falsehoods  are  so  difficult  to  be  detected  as  those  which  are  mixed  up  with 
a  great  portion  of  truth ;  the  greater  the  proportion  which  the  true  facts  bear  to 
the  false  ones,  the  less  opportunity  will  there  be  to  detect  the  false  by  comparison 
with  facts  ascertained  to  be  true.  An  ingenious  mode  of  proving  an  alibi  with 
consistency  has  long  been  known  and  practised  by  roguish  adepts.  The  intended 
witnesses  meet  and  pass  the  afternoon  or  evening  together  in  convivial  entertain- 
ment :  when  they  are  afterwards  examined,  they  are  all  consistent  as  to  the  cir- 
cumstances which  attended  their  meeting,  for  so  far  they  relate  nothing  more  than 
the  truth ;  they  misrepresent  nothing  but  the  time  when  the  transaction  took  place, 
which,  for  the  purpose  of  the  alibi,  is  of  course  represented  to  be  that  of  the 
robbery. 

"  R.  V.  Gook,  13  How.  St.  Tr.  348 ;  R.  v.  Gooden,  17  How.  St.  Tr.  1015. 

^  Pomeroy  v.  Baddeley,  Ey.  &  M.  430  ;  E.  0.  L.  E.  21 ;  Everett  v.  Lowdham, 
5  0.  &  P.  91 ;  E.  C.  L.  E.  24 ;  R.  v.  Webb,  Sarum  Summer  Ass.  1819,  cor.  Best, 
J.,  contra. 

'  A  new  trial  in  one  case  was  granted  because  a  witness's  testimony  had  been 
rejected  on  that  ground ;  per  Alderson,  B.,  in  Gooke  v.  Nethercote,  6  0.  &  P.  741 ; 

B.  0.  L.  E.  25 ;  and  the  case  reported  in  the  note ;  see  also  Beaman  v.  Ellice,  4 

C.  &  P.  585 ;  E.  0.  L.  E.  19 ;  R.  v.  Wylde,  6  0.  &  P.  380 ;  E.  0.  L.  E.  25 ; 
Thomas  v.  David,  7  C.  &  P.  350 ;  B.  0.  L.  E.  32  ;  R.  v.  Golly,  Mood.  &  M.  329  ; 


176  CROSS-EXAMINATIO]Sr    OF    WITNESSES. 

undue  motive,  Ms  testimony  was  received.'  But  wliere,  after 
witnesses  had  been  ordered  out  of  court,  one  liad  returned,  and 
heard  another  give  his  evidence,  the  judge  allowed  him  to  be 
examined  as  to  facts  not  sworn  to  by  any  previous  witness,  but 
with  liberty  to  move  to  enter  a  nonsuit.^  In  the  Court  of  Exche- 
quer, however,  the  rule  for  the  rejection  of  such  a  witness,  whether 
for  the  Crown  or  the  defendant,  in  revenue  cases,  is  known,  and 
inflexible.'' 1 

It  is  here  to  be  observed,  that  a  witness  is  not  to  be  cross- 
examined  as  to  any  distinct  collateral  fact  for  the  purpose  of 
afterwards  impeaching  his  testimony  by  contradicting  him;  for 
this  would  render  an  inquiry,  which  ought  to  be  simple,  and  con- 
fined to  the  matter  in  issue,  intolerably  complicated  and  prolix, 
by  causing  it  to  branch  out  into  an  indefinite  number  of  collateral 
issues.^    In  the  case  of  Spencely  v.  Willot,^  which  was  a  penal  action 

E.  0.  L.  R.  22.  The  witness  is  liable  to  attachment  for  contempt ;  Chandler  v. 
Home,  2  M.  &  Bob.  423. 

'  R.  v.  Cully,  Moo.  &  M.  329  ;  E.  0.  L.  R.  22. 

e  Beamon  v.  Ellice,  4  0.  &  P.  585 ;  B.  C.  L.  E.  19. 

^  Attorney-General  v.  Bulpit,  9  Price,  4 ;  Parker  v.  Mc  William,  6  Bing.  683 ; 
E.  0.  L.  B.  19  ;  Thomas  v.  David,  7  0.  &  P.  351 ;  E.  0.  L.  B.  32. 

'  7  Bast,  108.  See  Mr.  J.  Holroyd's  observations  on  the  case,  2  Stark.  0.  156  ; 
E.  0.  L.  E.  3 ;  Harris  v.  Tippett,  2  Camp.  638.  It  is  an  acknowledged  law  of 
evidence,  said  Lord  Oottenham,  C,  in  giving  judgment  in  the  House  of  Lords  in 
Tennant  v.  Hamilton,  7  CI.  &  Pin.  122,  that  you  cannot  go  into  an  irrelevant 
inquiry  for  the  purpose  of  causing  a  collateral  issue  to  discredit  a  witness  produced 
on  the  other  side.  The  object  of  the  action  {a  Scotch  one)  was  to  try  a  question 
of  nuisance  to  a  garden  said  to  be  injured  by  vapour  emitted  from  a  neighbouring 
manufactory.  A  witness  called  for  the  defendants  had  been  examined  as  to  other 
gardens  and  premises  in  the  neighbourhood,  and  had  said  that  he  knew  Glasgow 
Field,  but  never  knew  of  any  damage  done  there.  The  pursuer  then  proposed  to 
ask  him  whether  he  had  ever  known  of  any  sum  having  been  paid  by  the  defend- 
ants to  the  proprietors  of  Glasgow  Field  for  alleged  damage  there  occasioned  by 
the  works.  The  House  of  Lords,  for  the  reason  above  assigned,  held  that  the 
question  could  not  be  put.  But  although  the  question  appear  to  be  irrelevant  to 
the  issue,  it  is  to  be  allowed,  if  counsel  undertake  to  show  by  other  evidence  that 
it  is  relevant ;  Haigh  v.  Belcher,  7  C.  &  P.  389  ;  B.  C.  L.  E.  32. 

'  As  to  the  separate  examination  of  witnesses,  see  Anon.,  1  Hill,  (S.  C.)  251 ;  . 
^ate  V.  Sellers,  2  Halst.  220 ;  The  State  v.  Sparrow,  3  Murph.  487  ;  The  State  v. 
Brookshire,  2  Alabama,  303 ;  Keith  v.  Wilson,  6  Missouri,  435  ;  Nelson  v.  State, 
2  Swan.  237. 

^  A  witness  cannot  be  asked  a  collateral  question,  irrelevant  to  the  matter  in 
issue,  merely  to  test  his  credibility ;  Odiorne  v.  Winkdey,  2  Gall.  31 ;  Laiurence 
v.  Barker,  5  Wend.  301 ;  Radford  v.  Rice,  2  Dev.  &  Bat.  39  ;  Jones  v.  McNeil, 


AS    TO    COLLATERAL    FACTS.  177 

for  usury,  the  defendant's*  counsel  were  not  permitted  to  p^g^., 
cross-examine  as  to  other  contracts  made  on  the  same  days 
with  other  persons,  in  order  to  show  that  the  contracts  in  question 
were  of  the  same  nature,  and  not  usurious,  if  the  witness  answered 
one  way,  or  to  contradict  him  if  he  answered  the  other  way.  And 
should  such  questions  be  answered,  evidence  cannot  afterwards  be 
adduced  for  the  purpose  of  contradiction."  The  same  rule  obtains, 
if  a  question  as  to  a  collateral  fact  be  put  to  a  witness  for  the  purr 
pose  of  discrediting  his  testimony;  his  answer  must  be  taken  as 
conclusive,  and  no  evidence  can  be  afterwards  admitted  to  contra- 
dict it.'^  Thus,  in  an  information  under  the  revenue*  laws,  y^^nr,^ 
a  witness  who  had  given  material  evidence  as  to  the  fact  in 

*  Harris  v.  T-ippeU,  2  Camp.  638,  639  ;  R.  v.  Watson,  2  Stark.  0. 149 ;  B.  C. 
L.  E.  3 ;  Hughes  v.  Rogers,  8  M.  &  W.  123  ;  Lee's  case,  2  Lew.  0.  0. 154 ;  Har- 
rison v.  Gorton,  ibid.  156. 

'  R.  V.  Watson,  2  Stark.  0.  149 ;  E.  C.  L.  E.  3 ;  R.  v.  Teale  and  others,  cor. 
Lawrence,  J.,  at  York.  It  is  said  to  have  been  held,  that  the  question,  whether  a 
witness  for  one  party  had  not  attempted  to  dissuade  a  witness  for  the  adversary 
from  attending  to  give  evidence  at  the  trial,  was  so  immaterial,  that  if  the  witness 
answered  in  the  negative  he  could  not  be  contradicted ;  Harris  v.  Tippett,  2  Camp. 
637,  cor.  Lawrence,  J.  It  cannot,  however,  be  doubted  that  the  fact,  if  proved, 
would  show  a  very  strong  and  improper  bias  on  the  mind  of  the  witness,  and  in  a 
doubtful  case  afford  a  fair  ground  for  suspecting  his  sincerity.  In  Lord  Stafford's 
case,  7  Howell's  St.  Tr.  1400,  the  prisoner  was  allowed  to  prove  that  Dugdale,  a 
witness  for  the  prosecution,  had  endeavoured  to  suborn  witnesses  to  give  false 

2  Bailey,  466  ;  Atwood  v.  Welton,  7  Conn.  66 ;  United  States  v.  Dickenson,  2 
McLean,  325 ;  Bozier  v.  Joyce,  8  Porter,  303 ;  Ortez  v.  Jewett,  23  Ala.  662  ; 
Seavy  v.  Dearhom,  19  N.  Hamp.,  351 ;  Cornelius  v.  The  Commonwealth,  15 
B.  Mjnroe,  539. 

It  is  in  the  discretion  of  the  court  trying  a  case  to  say  how  far  irrelevant  ques- 
tions may  be  asked  of  a  witness  on  a  cross-examination ;  ClarJc  v.  Trinity  Church, 
5  Watts  &  Serg.  266  ;  Gloucester  v.  Bridgham,  28  Maine,  60 ;  Powers  v.  Leach, 
26  Verm.  270. 

'  A  defendant  having  cross-examined  a  plaintiff's  witness  on  subjects  irrelevant 
to  the  issue,  will  not  be  permitted  to  give  evidence  that  the  witness  testified  falsely 
on  those  subjects  ;  Griffith  v.  Eshelman,  4  "Watts,  51 ;  Smith  v.  Dreer,  3  "Whart. 
154 ;  Stevens  v.  Beach,  12  Verm.  585 ;  The  People  v.  Rector,  19  Wend.  569  ; 
McTntyre  v.  Young,  6  Blackford,  496;  Wuu-kon-chaw-neck-kaw  v.  United 
States,  1  Morris,  332  ;  Howard  v.  City  Fire  Ins.  Co.,  4  Denio,  502  ;  Herson  v. 
Henderson,  3  Poster,  498 ;  Morgan  v.  Frees,  15  Barb.  352 ;  Ortez  v.  Jewett,  23 
Ala.  662. 

The  statements  of  a  witness,  made  out  of  court,  contrary  to  what  he  swears  at 
the  trial,  concerning  facts  relevant  to  the  issue,  may  be  proved  to  impeach  his 
credit ;  but  not  if  they  be  of  irrelevant  facts ;  Shields  v.  Cunningham,  1  Black- 
ford, 86. 

12 


178  CEOSS-EXAMINATION    OF    'WITNESSES. 

issue  "was  asked,  on  cross-examination,  "wlietlier  he  had  not  said 
that  the  oificer  of  the  Crown  had  offered  him  a  bribe  to  give 
that  evidence.  He  denied  having  said  so,  and  evidence  being 
then  tendered  to  prove  that  he  had  made  such  a  statement,  it  Avas 
rejected.™  This  rule  does  not  of  course  exclude  the  contradiction 
of  the  witness  as  to  any  facts  immediately  connected  -with  the  sub- 
ject of  inquiry,  which  in  themselves  would  otherwise  be  legitimate 
evidence  in  the  cause.'^  A  witness  may,  however,  be  asked  whether, 
^  in  consequence  of  his  *having  been  charged  with  robbing 

the  prisoner,  he  has  not  said  that  he  would  be  revenged 

evidence  against  the  prisoner.    The  late  case  of  Thomas  v.  David,  7  0.  &  P.  350, 
B.  0.  L.  R.  32,  tends  to  overrule  Harris  v.  Tippett.    There,  in  an  action  on  a 
promissory  note,  the  plaintiff's  servant  (an  attesting  witness)  being  called  to  prove 
the  signature,  was  asked  on  cross-examination,  whether  she  did  not  sleep  in  the 
same  bed  with  the  plaintiff.     On  its  being  objected  that  the  point  of  intended 
contradiction  was  merely  collateral,  Coleridge,  J.,  in  overruling  the  objection, 
said :  "  Is  it  not  material  to  the  issue  whether  the  principal  witness  who  comes  to 
support  the  plaintiff's  case  was  his  kept  mistress?    If  the  question  had  been 
whether  the  witness  had  walked  the  streets  as  a  common  prostitute,  I  think  that 
would  have  been  collateral  to  the  issue,  and  that,  if  the  witness  had  denied  such 
a  charge,  she  could  not  have  been  contradicted ;  but  here  the  question  is,  whether 
the  witness  had  contracted  such  a  relation  with  the  plaintiff  as  might  induce  her 
the  more  readily  to  support  a  forgery — just  in  the  same  way  as  if  she  had  been 
asked,  if  she  was  the  sister  or  daughter  of  the  plaintiff."    And  where  the  question 
was,  what  consideration  passed  on  discounting  a  bill  of  exchange.  Lord  Tenterden 
held,  that  what  a  witness  had  said  upon  a  former  trial  between  the  parties  con- 
cerning another  bill  discounted  at  the  same  time  and  under  the  same  circum- 
stances was  not  collateral ;  Meagoe  v.  Simmons,  3  0.  &  P.  76 ;  E.  C.  L.  E.  14. 
But,  in  an  action  on  a  policy  of  insurance,  a  witness  for  the  defendant  was  asked, 
whether  he  had  not  said  that  "  they  had  not  a  leg  to  stand  upon."    Tindal,  0.  J., 
held,  that  contradiction  was  inadmissible ;  Elton  v.  Larkins,  5  0.  &  P.  590 ;  E. 
0.  L.  R.  24.    Upon  this  principle,  on  a  question  as  to  the  genuineness  of  hand- 
writing, though  the  jury  may  compare  the  document  with  the  authentic  writings 
of  the  party  to  whom  it  is  ascribed,  provided  such  writings  are  in  evidence  for 
other  purposes,  Doe  dem.  Perry  v.  Newlor,  5  Ad.  &  E.  514,  E.  0.  L.  R.  31, 
witnesses  cannot  be  asked  whether  papers,  not  in  evidence  in  the  cause,  placed  on 
the  witness-box,  were  signed  by  the  party  with  a  view  to  test  their  knowledge  of 
the  handwriting  by  their  agreement  or  disagreement ;  Oriffits  v.  Ivery,  11  Ad.  & 
E.  322  ;  B.  0.  L.  R.  39.     So  where  a  witness,  called  to  prove  the  handwriting  of 
an  attesting  witness  to  a  bond,  swore  that  it  was  not  his  handwriting,  and  another 
paper  was  then  shown  him  which  he  also  stated  was  not  in  that  person's  hand- 
writing, which  latter  paper  was  not  in  evidence  in  the  cause,  it  was  held  that  the 
plaintiff  could  not,  for  the  purpose  of  contradicting  the  witness,  prove  that  the 
latter  paper  was  written  by  the  attesting  witness ;  Hughes  v.  Rogers,  8  M.  &  W. 
123.     See  Vol.  II.,  Handwriting. 

■"  Attorney-General  v.  Hitchcock,  1  Exch.  91. 

"  Per  Alderson,  B.,  in  Attorney-Genera},  v.  Hitchcock,  1  Exch.  91. 


CEIMINATING    QUESTIONS.  179 

upon  Mm:  and,  in  case  of  denial,  he  may  be  contradicted."  In 
sncli  a  case  tlie  inquiry  is  not  collateral,  but  most  important,  in 
order  to  show  the  motives  and  temper  of  the  witness  in  the  par- 
ticular transaction.  But,  in  order  to  let  in  such  a  contradiction, 
the  witness  should  have  been  cross-examined  as  to  the  use  of  such 
expressions  in  order  to  enable  him  to  explain  them;  thus,  in  an 
action  for  seduction  of  the  plaintiff's  daughter,  she  was  asked 
whether  she  knew  A.  B.,  and  she  thereupon  having  denied  that 
she  knew  him,  evidence  that  she  had  told  a  witness  that  A.  B.  was 
the  father  of  her  child  and  had  seduced  her,  offered  by  way  of 
contradiction,  was  rejected.  But  the  Court  observed  that  had  she 
been  cross-examined  as  to  statements  made  by  her  relating  to  him, 
such  evidence  would  have  been  admissible.""  Of  course  witnesses 
cannot  be  called  to  contradict  a  witness  as  to  a  fact  which  he  says 
he  does  not  recollect,  or  to  which  he  will  not  positively  depose.'' 

It  is  now  settled  by  the  authority  of  the  legislature,  that  a  wit- 
ness cannot  refuse  to  answer  questions'  because  *he  may  sub-    ,-„„„, 
ject  himself  to  a  civil  liability  or  charge;  but  he  is  not  bound   *- 
to  answer  any  question,  either  in  a  court  of  law  or  of  equity,  if  his 

°  Yewin's  case,  2  Camp.  638,  n.,  cor.  Lawrence,  J. 

p  Carpenter  v.  Wall,  11  Ad.  &  B.  303 ;  E.  0.  L.  B.  39. 

1  Long  V.  Hitchcock,  9  C.  &  P.  619  ;  B.  0.  L.  E.  38. 

'  Before  the  passing  of  the  46  Geo.  III.  c.  37,  it  was  vexata  quoestio,  whether  a 
witness  was  bound  to  answer  when  the  answer  might  subject  him  to  civil  liabili- 
ties. On  the  question  being  proposed  by  the  House  of  Lords  to  the  Judges, 
Mansfield,  0.  J.  of  0.  P.,  Grose  and  Eooke,  Js.,  and  Thompson,  B.,  were  of 
opinion  that  he  was  not ;  but  the  Lord  Chancellor  and  the  other  Judges  were  of  a 
contrary  opinion.  They  were  all  of  opinion  that  a  promise  to  a  witness  that  he 
should  be  excused  from  certain  debts,  provided  he  made  a  full  and  fair  disclosure, 
dfd  not  render  him  incompetent  on  the  score  of  interest;  Oobbett's  P.  D.  vol.  6,  p. 
167.  But  this  statute  declares  and  enacts,  that  a  witness  cannot  by  law  refuse  to 
answer  a  question  relevant  to  the  matter  in  issue,  the  answering  of  which  has  no 
tendency  to  expose  him  to  a  penalty  or  forfeiture  of  any  nature  whatsoever,  by 
reason  only,  or  on  the  sole  ground,  that  the  answering  of  such  question  may  esta- 
blish, or  tend  to  establish,  that  he  owes  a  debt,  or  is  otherwise  subject  to  a  civU  suit, 
either  at  the  instance  of  his  Majesty  or  of  any  other  person  or  persona. 

Although  this  statute  in  its  terms  applies  to  oral  evidence  only,  yet  it  has  been 
held  that  a  witness  is  not  excused  from  producing  papers  merely  because  they  may 
subject  him  to  an  action,  or  be  prejudicial  to  his  pecuniary  interest ;  Doe  v.  Bate, 
3  Q.  B.  609 ;  E.  C.  L.  E.  43;  Doe  v.  Earl  of  Egremont,  2  M.  &  Eob.  386  ;  other- 
wise, of  course,  if  they  are  his  muniments  of  title  ;  Ibid. 

A  rated  parishioner  in  a  settlement  case  is  a  party  to  the  appeal,  and  therefore 
does  not  come  within  the  words  or  meaning  of  the  Act ;  R.  v.  Wohurn,  10  East, 
395  ;  see  54  Geo.  III.,  c.  170. 


180  CEOSS-EXAMINATION    OF    WITNESSES. 

answer  ■will  expose  him  to  any  criminal  punisliment  or  penal  lia- 
bility, or  even  tends  collaterally  to  convict  Mm,  agreeably  to  tlie 
wise  and  humane  principle  that  no  man  is  bound  to  criminate  him- 
^  self." '    *Accordingly,  a  witness  is  not  compellable  to  say 

-'   whether  he  published  a  particular  paper,  if  the  contents  be 

'  R.  V.  Barber,  Stra.  444 ;  Gates  v.  Hardacre,  3  Taunt.  424 ;  Sir  J.  Friend's 
case,  13  How.  St.  Tr.  1 ;  Lord  Macclesfield's  case,  16  How.  St.  Tr.  T67;  16  Yes. 
jun.  242  ;   Title  v.  Grevei,  2  Ld.  Kaym.  1008  ;  R.  v.  Oates,  10  How.  St.  Tr.  1079 

2  Haw.  c.  46;  Mitford's  Ch.  PI.  157;  R.  t.  Lord  George  Gordon,  2  Doug.  593 
Hardy's  case,  24  How.  St.  Tr.  755 ;  R.  v.  Slaney,  5  0.  &  P.  213 ;  B.  0.  L.  E.  24 
R.  V.  Pegler,  ibid.  521 ;  Maloney  v.  Bartley,  3  Camp.  210 ;  Dandridge  v.  Corden] 

3  0.  &  P.  11 ;  E.  0.  L.  E.  14 ;  R.  v.  De  Berenger  and  others,  reported  by  Gumey 

■  As  to  the  privilege  of  a  witness  to  refuse  an  answer  which  may  criminate  or 
disgrace  him,  see  People  v.  HerricJc,  13  Johns.  82  ;  Grannis  v.  Brandon,  5  Day, 
260 ;  State  v.  Bailey,  1  Pennington,  415  ;  Vaughn  v.  Paine,  2  Ibid.  728  ;  United 
States  Y.  Craig,  i  Wash.  0.  0.  729;  Sodusky  y.  McGee,  5  J.  J.  Marsh.  621; 
Southard  v.  Rexford,  6  Cow.  254;  Fries  v.  Brugler,  7  Halst.  79;  People  y. 
Mather,  4  Wend.  229  ;  U.  States  v.  Dickenson,  2  McLean,  325  ;  Poole  y.  Perritt, 
1  Speers,  128  ;  Chamberlin  v.  Wilson,  12  Verm.  491 ;  The  People  y.  Rector,  19 
Wend.  569 ;  Robinson  v.  Neal,  5  Monroe,  212  ;  Lister  v.  Baker,  6  Blackf.  439  ; 
Henry  v.  Salina  Bank,  1  Oomst.  83 ;  Janvrin  Y.  Scarnmon,  9  Foster,  280. 

But  when  his  objection  to  answer  is,  that  he  may  thereby  be  subjected  to  a 
penalty,  and  it  appears  to  the  court  that  the  statute  of  limitation  has  barred  the 
penal  action  or  proceeding,  he  cannot  insist  on  his  privilege ;  Close  v.  Olney,  1 
Denio,  319 ;  Bank  of  Salina  v.  Henry,  2  Ibid.  155 ;  S.  0.,  3  Denio,  593  ;  Weldon 
Y.  Burch,  12  niinois,  374. 

If  a  witness,  called  to  support  a  criminal  prosecution,  objects  to  give  his  testi- 
mony, because  it  will  criminate  himself,  but  is,  nevertheless,  erroneously  compelled 
to  testify,  and  the  defendant  is  convicted,  it  seems  that  the  error  does  not  affect 
the  rights  of  the  witness  alone,  but  that  the  defendant  may  object  that  the  convic- 
tion was  founded  upon  illegal  evidence ;  The  Comm'th  v.  Kimball,  24  Pick.  366. 

The  witness,  with  the  instruction  of  the  court  when  necessary,  must  decide 
whether  his  answer  will  tend  to  criminate  him  ;  and  his  decision  is  upon  oath  and 
at  the  peril  of  perjury ;  The  People  v.  Rector,  19  Wend.  569  ;  Poole  v.  Perritt, 
1  Speers,  128. 

Although  a  witness  is  his  own  judge  as  to  whether  his  answer  would  criminate 
himself,  he  is  nevertheless  liable  to  an  action  by  the  party  for  a  refusal  to  testify, 
if  his  refusal  be  wilful  and  his  excuse  false ;   Warner  v.  Lucas,  10  Ohio,  336. 

A  witness  is  bound  to  answer,  though  he  may  be  thereby  subjected  to  a  pecuni- 
ary liability ;  Bull  v.  Loveland,  10  Pick.  9  ;  Hays  v.  Richardson,  1  Gill  &  Johns. 
366 ;  Comm'th  v.  Thurston,  1  J.  J.  Marsh.  62 ;  Naylor  v.  Semmes,  4  Gill  & 
Johns.  273 ;  Copp  v.  Vpliam,  3  N.  Hamp.  159  ;  Devoll  v.  Brownell,  5  Pick.  448 ; 
Baird  v.  Cochran,  4  Serg.  &  Eawle,  397  ;  Alexander  v.  Knox,  7  Alabama,  503 ; 
Judge  of  Probate  v.  Green,  1  How.  Miss.  146  ;  Zollicoffer  v.  Turner,  6  Yerger, 
297  ;  Lowney  v.  Perham,  2  App.  235 ;  Conover  v.  Bell,  6  Monroe,  157 ;  Stevens 
Y.  Whitcomb,  16  Vermont,  121. 


CSIMINATING    QUESTIONS.  181 

libellous ;'  and  upon  an  appeal  against  an  order  of  bastardy,  lie  is 
not  bound  to  declare  -whetlier  he  is  the  father  of  a  bastard  child." 
In  an  action  against  the  acceptor  of  a  bill  of  exchange,  a  witness 
is  not  bound  to  answer  whether  the  bill  was  not  given  for  differ- 
ences on  stock -jobbing  transactions  for  time.''  The  prosecutrix  on 
an  indictment  for  a  rape  is  not  bound  to  answer  whether  she  has 
had  criminal  intercourse  with  any  other  person.''  An  accomplice, 
admitted  to  give  evidence  for  the  Crown,  is  not  bound  to  disclose 
his  share  in  other  offences  which  are  not  the  subject  of  inquiry,  and 
for  which  he  would  be  liable  to  prosecution."  A  witness  is  also 
protected  from  answering  any  question  which  would  subject  r^^nf^o 
him  to  any  penalty,  or  to  forfeiture  of  his  estate."    In  *Sir 

195 ;  Gates  v.  Hardacre,  3  Taunt.  424 ;  16  Ves.  242.  In  some  instances  it  has 
been  found  necessary  to  protect  witnesses  from  penalties  to  wliicli  their  evidence 
has  rendered  them  liable  by  an  Act  of  Parliament ;  see  45  Geo.  III.,  c.  126  ;  1  &  2 
G-eo.  IV.,  c.  21.  Macallum  v.  Turton,  2  Y.  &  J.  183.  In  strictness,  however,  it 
is  no  ground  of  legal  objection  by  the  party  in  the  cause,  that  the  answer  to  a  pro- 
posed question  may  place  the  witness  in  jeopardy ;  it  is  peculiarly  the  objection  of 
the  witness  himself,  who  is  under  the  protection  of  the  law,  and  is  always  apprised 
of  his  situation  by  the  presiding  Judge ;  Parkhurst  v.  Lowten,  2  Swanst.  216. 
The  same  rule  applies  if  the  husband  or  wife  would  be  exposed  in  like  manner ; 
Cartwright  v.  Green,  8  Ves.  405  ;  and  whether  the  punishment  would  be  imposed 
by  a  temporal,  or  ecclesiastical  Court ;  Brownsword  v.  Edwards,  2  Ves.  245 ; 
Chetwynd  v.  Lindon,  ibid.  450 ;  Finch  v.  Finch,  ibid.  493.  Where  a  witness 
declined  on  cross-examination  to  state  where  he  lived,  as  he  believed  that  a  bailable 
writ  was  out  against  him  at  the  suit  of  the  defendant,  the  court  would  not  compel 
him  to  answer ;   Watson  v.  Severn,  1  0.  &.  P.  363 ;  B.  0.  L.  R.  12. 

'  B.  V.  Barber,  Stra.  444 ;  Moloney  v.  Bartley,  3  Gamp.  210,  where,  in  an  action 
for  a  libel  published  in  an  affidavit  sworn  before  a  magistrate,  it  was  held  that  the 
magistrate's  clerk  was  not  bound  to  state  whether  he  wrote  the  affidavit  and 
delivered  it  to  the  magistrate  :  a  bill  of  exceptions  was  tendered,  but  not  proceeded 
in.  In  an  action  for  a  libel  on  the  plaintiff  as  hundred  constable,  purporting  to  be 
a  memorial  from  the  vestry  of  P.,  the  vestry-clerk  being  called  to  produce  the 
vestry-books,  it  was  held  that  he  could  not  refuse  on  the  ground  that  he  might 
thereby  criminate  himself,  the  books  being  directed  to  be  kept  by  58  Geo.  III.,  c. 
69,  s.  2  ;  Bradshaw  v.  Murphy,  7  0.  &  P.  612  ;  B.  0.  L.  E.  32. 

"  R.  V.  St.  Mary's,  Nottingham,  13  Bast,  57,  n. 

^  Thomas  v.  Tucker,  cor.  Lord  Tenterden,  0.  J.,  Sitt  aft  Easter,  1827. 

'  R.  V.  Hodgson,  1  Russ.  &  Ry.  0.  0.  211 ;  and  see  Dodd  v.  Norris,  3  Gamp. 
519.  The  answer  here,  however,  might  have  subjected  the  witness  to  spiritual 
censure  and  punishment. 

^  West's  case,  0.  B.  Sess.  after  Easter  T.  1823. 

"  The  declaratory  statute,  46  Geo.  III.,  c.  37,  imports  that  a  witness  is  not  bound 
to  answer  any  question  the  answering  of  which  tends  to  expose  him  to  a  penalty 
or  forfeiture  of  any  nature  whatever.     So  in  equity  a  party  is  not  bound  to  answer 


182  CEOSS-EXAMINATIO^r    OF    WITNE.SSES. 

J.  Friend's  case,'^  it  was  ruled,  that  the  witness  could  not  be 
asked  whether  he  was  a  Eoman  Catholic,  since  he  might  thereby 
subject  himself  to  penalties.  And  it  has  eren  been  held,  that  a 
witness  is  protected  from  admitting  his  commission  of  an  offence, 
although  he  has  received  a  pardon ;°  for  the  answer  may  place  him. 
in  jeopardy,  and  he  would  have  to  set  up  the  pardon  in  bar  to  the 
prosecution.  But  where  a  witness  has  been  guilty  of  an  infamous 
crime,  and  has  been  punished  for  it,  he  may,  it  is  said,  be  asked 
whether  he  has  not  undergone  the  punishment,  because  his  answer 
cannot  subject  him  to  further  punishment.''  And  where  the  ques- 
tions migh  subject  the  witness  to  penalties,  but  the  time  for  pro- 
ceeding against  him  is  passed,  he  is  bound  to  answer.'  If  the  wit- 
ness voluntarily  answer  questions  improperly  put,  his  answers  may 
afterwards  be  used  as  evidence  against  him.'  Where  a  witness, 
after  having  been  cautioned  that  he  is  not  compelled  to  answer  a 
question  on  the  ground  that  his  answers  might  subject  him  to  an 
indictment,  answers  at  all,  it  has  been  held  that  he  is  bound  to  dis- 
close the  whole  of  the  transaction.^^  If,  however,  the  witness 
claims  the  protection  of  the  court,  and  there  appears  reasonable 
ground  to  believe  that  his  answer  would  criminate  him,  but  not- 
withstanding he  is  obliged  to  answer,  what  he  says  must  be  consi- 
dered as  obtained  by  a  species  of  duress,  and  cannot  be  used  in 

so  as  to  subject  himself  to  any  punishment,  pains,  penalties,  or  forfeiture  of  interest ; 
see  Mitford's  Oh.  PI.  157.  But  the  full  effect  of  the  privilege  is  not  allowed  in 
bankruptcy ;  Ex  parte  Cossens  re  Worrall,  Buck.  531. 

'  13  How.  St.  Tr.  1.    But  the  statutes  inflicting  these  penalties  are  now  repealed. 

=  R.  V.  Reading,  1  How.  St.  Tr.  259 ;  R.  v.  Earl  of  Shaftesbury,  6  How.  St. 
Tr.  1171 ;  S.  C,  M.  &  M.  193 ;  E.  0.  L.  E.  22  ;  note ;  but  see  two  next  notes. 

*  R.  V.  Edwards,  4  T.  E.  440 ;  but  see  note  {k),  post,  p.  207. 

=  Roberts  v.  Allatt,  Mood.  &  M.  192 ;  E.  0.  L.  E.  22. 

'  Stockfleth  V.  De  Tastet,  4  Camp.  10 ;  Smith  v.  Beadnell,  1  Camp.  30 ;  R.  t. 
Merceron,  2  Stark.  0.  366 ;  E.  0.  L.  E.  3. 

8  Dixon  V.  Vale,  1  0.  &  P.  278  ;  E.  0.  L.  E.  12  ;  East  v.  Chapman,  2  0.  &  P. 
570;  E.  0.  L.  E.  12.  So  in  the  case  of  a  witness  interrogated  in  equity;  Austin 
v.  Prince,  1  Sim.  348. 


■  If  he  voluntarily  state  a  fact,  he  is  bound  to  state  how  he  knows  it,  although 

in  so  doing  he  may  expose  himself  to  a  criminal  charge ;  State  v.  K ,  4  N. 

Hamp.  562.  If  the  witness  understandingly  waive  his  privilege,  and  begin  to 
testify,  he  must  submit  to  a  full  cross-examination,  if  required;  Ghamberliny. 
Willson,  12  Verm.  491 ;  Amherst  v.  Hollis,  9  N.  Hamp.  107 ;  People  v.  Lohman, 
2  Barb.  S.  0.  Eep.  216 ;  The  State  v.  Foster,  3  Poster,  348  ;  Coburn  v.  Odell,  10 
Poster,  540 ;  Foster  v.  Pierce,  11  Gushing,  437. 


DEGRADING    QUESTIONS.  183 

evidence  against  Mm.''    And  it  makes  no  difference  as  to  the  right 
of  the  witness  to  protection,  that  he  *had  before  answered   |-^„  ,^ 
in  part.     He  may  claim  his  privilege  at  any  stage  of  the   '- 
inquiry.' 

The  protection  has  been  carried  much  further.  It  has  been 
held,  that  a  witness  is  not  bound  to  answer  any  question  which 
tends  to  render  him  infamous,  or  even  to  disgrace  him,  and  that 
such  evidence  was  inadmissible.  In  Coolc's  case^  Treby,  C.  J.,  said, 
"  If  it  he  an  infamous  thing,  that  is  enough  to  preserve  a  man  from  being 
hound  to  answer;"  and  he  therefore  held,  that  persons  convicted  and 
pardoned,  or  convicted  and  punished  for  crimes,  could  not  be 
obliged  to  answer,  since  it  was  matter  of  reproach,  and  that  it 
should  not  be  put  upon  a  man  to  answer  a  question,  wherein  he 
would  be  forced  to  forswear  or  disgrace  himself.'  It  is  however 
to  be  observed,  that  the  case  of  The  King  v.  Edwards'^  is  incon- 
sistent with  the  above  dictum;  since  it  was  there  held  that  a  person 
proposed  as  bail  was  bound  to  answer  the  question  whether  he  had 
stood  in  the  pillory  for  perjury, 

The  question,  whether  a  witness  must  answer  questions  which 
tend  to  disgrace  him,"  is,  like  many  other  diificult  questions  on  the 
subject  of  evidence,  one  of  policy  and  convenience.  On  the  one 
hand,  it  is  highly  desirable  that  the  jury  should  thoroughly  under- 
stand the  character  of  the  persons  on  whose  credit  they  are  to 
decide  upon  the  property  and  lives  of  others ;  and  neither  life  nor 
property  ought  to  be  placed  in  competition  with  a  doubtful  and 
contingent  injury  to  the  feelings  of  individual  witnesses.     On  the 

other  hand,  it  mav  be  said  that  it  is  hard  that  a  *witness 

[208 
should  be  obliged  upon  oath  to  accuse  himself  of  a  crime,  or   '- 

even  to  disgrace  himself  in  the  eyes  of  the  public ;  that  it  is  a  harsh 

alternative  to  compel  a  man  tc  destroy  his  own  character,  or  to 

commit  perjury ;  that  it  is  impolitic  to  expose  a  witness  to  so  great 

a  temptation ;  and  that  it  must  operate  as  a  great  discouragement 

"  Reg.  V.  Garhett,  2  0.  &  K.  474;  E.  0.  L.  R.  61. 

'  Reg.  V.  Garhett,  2  0.  &  K.  474;  B.  0.  L.  E.  61. 

^  13  How.  St.  Tr.  311 ;  1  Salk.  153. 

'  The  question  in  that  case  was,  whether  a  juryman  who  had  been  challenged 
could  be  asked  whether  he  had  not  before  the  trial  asserted  the  guilt  of  the  prisoner. 

"  4  T.  R.  440.  See  Rex  v.  Lewis  and  otliers,  4  Esp.  0.  225,  where  it  is  said  to 
have  been  ruled,  that  a  witness  could  not  be  asked  whether  he  had  been  in  the 
House  of  Correction ;  and  MacBride  t.  MacBride,  4  Esp.  242,  where  it  was  held 
that  a  witness  could  not  be  asked  questions  which  tended  directly  to  disgrace  him. 

"  See  tit.  Rape — Seduction. 


184  CROSS-EXAMINATION    OF    WITNESSES. 

to  witnesses,  to  oblige  them  to  give  an  account  of  tlie  most  secret 
transactions  of  their  lives  before  a  public  tribunal.  That  a  col- 
lateral fact  tending  merely  to  disgrace  the  witness,  is  not  one  which 
is  properly  relevant  to  the  issue,  since  it  could  not  be  proved  by 
any  other  witness ;  and  that  there  would  be,  perhaps,  some  incon- 
sistency in  protecting  a  witness  against  any  question,  the  answer 
to  which  would  subject  him  to  a  pecuniary  penalty,  and  yet  to 
leave  his  character  exposed. 

In  the  first  place,  it  is  quite  settled  that  a  man  is  not  bound  td 
Criminate  himself,  or  to  answer  any  question  by  which  he  may 
incur  a  penalty."  It  may  be  observed  further,  that  the  principle 
extends  not  only  to  questions  where  the  answer  would  immediately 
criminate  the  witness,  but  to  all  questions  which  tend  collaterally 
to  his  conviction,  or  to  supply  any  link  in  proof  of  a  charge  against 
him."  As  to  questions  which  tend  merely  to  disgrace  the  witness, 
there  is  some  difficulty. 

In  Cooys  case,^  the  prisoner,  on  an  indictment  for  high  treason, 
asked  the  jurors,  in  order  to  challenge  them,  whether  they  had  not 
said  that  he  was  guilty,  and  would  be  hanged  ?  and  the  question 
was  overruled;  and  the  court  said,  You  shall  not  ask  a  witness  or 
juryman  whether  he  hath  been  whipped  for  larceny,  or  convicted 
of  felony ;  or  whether  he  was  ever  committed  to  Bridewell  for  a 
pilferer,  or  to  Newgate  for  clipping  and  coining ;  or  whether  he  is 
a  villain  or  outlawed ;  because  that  would  make  a  man  discover  that 

of  himself  which  tends  to  shame,  *crime,  infamy,  or  misde- 

*2091  T 

-'   meanor.     In  this  case  it  is  to  be  recollected  that  the  object 

was  to  exclude  the  juryman  entirely  by  raising  an  objection  to  his 

competency.     The  same  observation  applies  also  to  Layer^s  case,'^ 

where  the  court  overruled  the  attempt  of  the  prisoner  to  ask  a 

witness  on  the  voir  dire,  whether  he  had  been  promised  a  pardon, 

or  some  reward  for  swearing  against  the  prisoner ;  and  in  that  case 

L.  C.  J.  Pratt  said,  If  the  objection  goes  to  his  credit,  must  he  not 

be  sworn,  and  his  credit  left  to  the  jury  ?     No  person  is  to  discredit 

himself,  but  is  always  taken  to  be  innocent  till  it  appear  otherwise. 

"  See,  as  to  these  two  propositions,  ante,  p.  204,  note  (s),  where  the  authorities 
are  collected. 

p  1  Salk.  153 ;  13  How.  St  Tr.  311 ;  and  see  the  observations  of  Treby,  J., 
above. 

°  16  How.  St.  Tr.  101.  The  Chief  J.  (Pratt)  did  not  deny  that  the  question 
might  be  put  after  the  witness  had  been  sworn.  The  cases  of  a  witness  and  juror 
differ  very  materially.  With  respect  to  jurors,  no  question  is  properly  allowable, 
except  for  the  purpose  of  showing  total  incompetency. 


QUESTIONS    TESTDISTG    TO    DISGRACE.  185 

The  question,  'wlietlier  a  witness  was  bound  to  answer  a  question 
upon  a  collateral  fact  tending  to  disgrace  him,  did  not  arise  in  any 
of  the  foregoing  cases,'  and  therefore  the  dicta  thrown  out  by  the 
court  were,"  in  some  measure,  extra-judicial,  as  far  as  regards  the 
present  question.  In  the  case  of  B.  v.  Lewis,^  which  was  an  indict- 
ment for  an  assault,  a  witness,  who  is  stated  in  the  report  of  the 
case  to  have  been  a  common  informer,  and  a  man  of  suspicious 
character,  was  asked,  upon  cross-examination,  if  he  had  been  in  the 
house  of  correction  in  Sussex  ?  And  Lord  EUenborough  is  stated 
to  have  interposed,  and  to  have  said,  that  the  question  should  not 
be  asked,  since  it  had  formerly  been  settled  by  the  judges,  among 
whom  were  C.  J.  Treby  and  Mr.  J.  Powell,  both  very  great  law- 
yers, that  a  witness  was  not  bound  to  answer  any  question  the 
Object  of  which  *was  to  degrade  or  render  him  infamous.  p.^„^. 
It  is  to  be  observed,  however,  that  his  Lordship  did  not  '- 
afterwards  strictly  adhere  to  this  rule.'  In  the  case  of  Macbride  v 
Macbride,''  a  witness  for  the  plaintiff,  in  an  action  for  assumpsit,  was 
questioned  as  to  her  cohabiting  with  the  plaintiff;  Lord  Alvanley 
interposed,  and  excluded  the  question ;  but  his  Lordship  added,  "  I 
do  not  go  so  far  as  others  may ;  I  will  not  say  that  a  witness  shall 
not  be  asked  to  what  may  tend  to  disparage  him ;  that  Would  pre- 
vent an  investigation  into  the  character  of  the  witness,  which  it 
may  be  of  importance  to  ascertain.  I  think  those  questions  only 
should  not  be  asked  which  have  a  direct  and  immediate  effect  to 
disparage."  Upon  the  trial  of  Qi'Coigly  and  O^GonTusr,"'  the  witness 
having,  upon  a  question  being  put  which  threw  an  imputation  on 
him,  appealed  to  the  court  for  protection  in  the  first  instance,  the 
court  would  not  permit  the  question  to  be  repeated.    In  the  case  of 

'  There  are  many  instances  in  wHch  a  man  may  be  a  witness  who  cannot  be  a 
juror ;  2  Hale,  278,  11  H.  4.  One  attainted  and  pardoned  cannot  be  a  juror ;  per 
Holt,  C.  J.,  Rookwood's  case,  4  St.  Tr.  642  ;  but  he  maybe  a  witness.  The  reason 
is,  that  a  juror  cannot  be  examined  and  sifted  as  to  the  grounds  of  his  verdict,  as 
a  witness  may  as  to  his  testimony.     The  ancient  rule  of  law  was  otherwise. 

»  4  Esp.  0.  225. 

'  At  the  sittings  of  "Westminster  after  Hil.  Term,  1818,  a  witness  was  compelled 
by  his  Lordship  to  answer  the  question  whether  he  had  not  been  confined  in  a» 
particular  gaol ;  infra,  p.  212,  note  [z). 

'  4  Esp.  0.  242 ;  but  see  supra,  p.  201. 

^  Upon  the  trial  of  O'Coigly  and  O'Connor,  24  How.  St.  Tr.  1353,  the  witness 
having,  upon  a  question  being  put  which  threw  an  imputation  on  him,  appealed  to 
the  court  for  protection  in  the  first  instance,  the  court  would  not  permit  the  question, 
to  be  repeated. 


186  CEOSS-EXAMINATION    OF    WITNESSES. 

Sarins  v.  Tippett,''  the  ■witness  was  asked  in  cross-examination, 
wlietlier  lie  had  not  attempted  to  dissuade  a  witness  for  the  plaintiff 
from  attending  the  trial ;  he  swore  that  he  had  not ;  and  on  its 
being  proposed  to  bring  evidence  to  contradict  the  witness  on  this 
point,  Mr.  J.  Lawrence  would  not  allow  it,  the  fact  being  collateral 
to  the  issue ;  but  he  added,  "  I  will  permit  questions  to  be  put  to  a 
witness  as  to  any  improper  conduct  of  which  he  may  have  been 
guilty,  for  the  purpose  of  trying  his  credit ;  but  when  those  ques- 
«9in  *i°^^  ^^^  irrelevant  to  the  issue  upon  *record,  you  cannot 
^  call  other  witnesses  to  contradict  the  answers  he  gives." 
And  in  Yewin's  case''  the  same  learned  judge  allowed  the  prisoner's 
counsel  to  ask  a  witness  in  cross-examination,  whether  he  had  not 
been  charged  with  robbing  his  master.  Where  a  man's  liberty,  or 
even  life,  depends  upon  the  testimony  of  another,  it  is  of  infinite 
importance  that  those  who  are  to  decide  upon  that  testimony 
should  know,  to  the  greatest  extent,  how  far  the  witness  is  to  be 
trusted;  they  cannot  look  into  his  breast  and  see  what  passes 
there,  but  must  form  their  opinion  on  collateral  indications  of  his 
good  faith  and  sincerity.  Whatever,  therefore,  may  materially 
assist  them  in  their  inquiry,  is  most  essential  to  the  investigation 
of  truth  ;  and  it  cannot  but  be  material  for  the  jury  to  understand 
the  character  of  the  witness  whom  they  are  called  to  believe ;  and 
to  know  whether,  although  he  has  not  been  actually  convicted  of 
any  crime,  he  has  not  in  some  measure  rendered  himself  less  cre- 
dible by  his  disgraceful  conduct.  In  the  case  of  The  King  v. 
Edwards/  on  an  application  to  bail  the  prisoner,  who  was  charged 
with  felony,  one  of  the  bail  was  asked,  whether  he  had  not  stood 
in  the  pillory  for  perjury  ?  and  upon  objection  being  made  that  it 
tended  to  criminate  the  party,  the  court  held  that  there  was  no 
impropriety  in  the  question,  since  his  answer  could  not  subject  him 
to  any  punishment. 

The  great  question,  therefore,  whether  a  witness  is  hound  to 
answer  a  question  to  his  own  disgrace,  has  not  yet  undergone  any 
direct  and  solemn  decision,  and  appears  to  be  still  open  for  con- 
sideration. The  truth  or  falsehood  of  testimony  frequently  can- 
not be  ascertained  by  mere  analysis  of  the  evidence  itself;  the 
investigation  requires  collateral  and  extrinsic  aids,  the  principal 
of  which  consists  in  a  knowledge  of  the  source  or  depository  from 

^  2  Camp.  637,  cited  in  R.  v.  Watson,  2  Stark.  C.  116 ;  E.  C.  L.  R.  3 ;  but  see 
supra,  p.  201. 

^  2  Camp.  638,  n.  ^  4  T.  E.  440. 


QUESTIONS    TENDING    TO    DISGRACE.  187 

"whicli  such  testimony  is  derived:  tlie  whole  question  resolves 
itself  into  one  of  policy  and  convenience,  that  is,  whether  p^.„-,n 
it  *would  be  a  greater  evil  that  an  important  test  of  truth  '- 
should  be  sacrificed,  or  that  by  subjecting  witnesses  to  the  opera- 
tion of  this  test,  their  feelings  should  be  wounded,  and  their 
attendance  for  the  purposes  of  justice  discouraged?  The  latter 
point  seems  to  deserve  the  more  serious  consideration,  since  the 
mere  offence  to  the  private  feelings  of  a  witness  who  has  miscon- 
ducted himself  cannot  well  be  put  in  competition  with  the  mischief 
which  might  otherwise  result  to  the  liberties  and  lives  of  others. 
No  great  injustice  is  done  to  any  individual  upon  whose  oath  the 
property  or  personal  security  of  others  is  to  depend,  in  exhibiting 
him  to  the  jury  such  as  he  is.  As  to  the  other  consideration,  it 
does  not  seem  to  be  very  clear  that  by  permitting  siich  examina- 
tions any  serious  evil  would  result ;  the  law  possesses  ample  means 
for  compelling  the  attendance  of  witnesses,  however  unwilling  they 
may  be.  The  evil  on  this  side  of  the  question  is  at  all  events 
doubtful  and  contingent ;  on  the  other  side  it  is  plain  and  certain. 

The  principle  on  which  such  evidence  is  admissible  is  clear  and 
obvious ;  the  reason  for  excluding  it  is  extrinsic  and  artificial, 
and,  it  may  be  added,  but  theoretical ;  for  courts  are  in  the  con- 
stant habit  of  permitting  such  questions  to  be  put,"  and  answers 
to  be  given  and  received  as  evidence  for  the  consideration  of  the 
jury. 

"  In  the  case  of  Frost  v.  HoUoway,  K.  B.  sitt.  after  Hil.  Term,  1818,  Lord 
Ellenborough,  0.  J.,  compelled  a  witness  to  answer  whether  he  had  not  been 
confined  for  theft  in  gaol ;  and,  on  the  witness's  appealing  to  the  Court,  said,  "  If 
you  do  not  answer  I  will  send  you  there ;"  Ex  relatione  Gurney.  In  the  case  of 
Gundell  v.  Pratt,  Moo.  &  M.  108 ;  E.  0.  L.  E.  22 ;  the  witness  was  asked,  on 
cross-examination,  whether  she  was  not  cohabiting  in  a,  state  of  incest  with  a 
particular  individual ;  Best,  0.  J.,  interfered  to  prohibit  the  question ;  it  was  urged 
by  Spankie,  Serj.,  that  he  had  a  right  to  put  questions  tending  to  degrade  a  witness, 
for  the  purpose  of  trying  his  character ;  but  Best,  0.  J.,  said :  "  I  do  not  forbid  the 
question  on  that  ground ;  I  for  one  will  never  go  that  length.  Until  I  am  told  by 
the  House  of  Lords  I  am  wrong,  the  rule  I  shall  always  act  upon  is,  to  protect 
witnesses  from  questions,  the  answers  to  which  may  expose  them  to  punishment. 
If  they  are  protected  beyond  this,  from  questions  that  tend  to  degrade  them,  many 
an  innocent  man  would  unjustly  suffer.  This  question  may  subject  her  to  punish- 
ment; I  think,  therefore,  it  ought  not  to  be  put."  In  point  of  practice,  such 
questions  are  every  day  put  and  answers  exacted.  And  now,  when  infamy  forms 
no  objection  to  a  witness's  competency,  and  therefore  a  party  would  not  be  allowed 
to  adduce  evidence  upon  the  point  {Harris  v.  Tippett,  2  Camp.  637,)  it  seems 
to  be  essential  to  the  ends  of  justice  that  the  witness  should  be  compelled  to 
answer  such  questions. 


18S  CEOSS-EXAMINATION    OF    WITNESSES. 

^n-j  „,  *The  decision  of  this  question  is  of  less  practical  import- 
ance than  might  have  been  expected,  since,  whether  a  witness 
be  or  be  not  bound  to  answer  such  questions  as  tend  to  his  disgrace, 
it  seems  to  be  allowed  that  the  questions  may  be  put ; "  and  it  is  ob- 
viously of  little  consequence  whether  the  witness  admits  that  which 
is  insinuated  against  him,  or  refuses  to  answer  the  question ;  for 
though  in  strictness  no  inference  ought  to  be  made  as  to  the  truth 
of  the  fact  where  the  witness  has  refused  to  answer, ''  yet  the  refusal 
must  make  an  unfavourable  impression  upon  the  jury,  since  an  hon- 
est man  would  naturally  be  eager  to  deny  the  fact  and  rescue  his 
character  from  suspicion,  and  would  not  refuse  to  answer  merely 
because  he  had  a  strict  legal  right  to  refuse." 

Where  the  question  is  so  connected  with  the  point  in  issue  that 
the  witness  may  be  contradicted  by  other  evidence  if  he  deny  the 
fact,  the  law  itself  requires  that  the  question  should  be  put  to  the 
witness,  in  order  to  afford  him  an  opportunity  for  explanation, 
although  the  answer  may  involve  him  in  consequences  highly 
penal.*  It  was  held  by  all  the  judges,  not  only  that  a  question,  as 
*914.i  **°  ^^  ^^^  done  by  the  witness,  the  answer  to  which  might 
criminate  him,  might  be  put,  in  order  to  afford  a  founda- 
tion for  contradicting  him  if  he  denied  the  fact,  but  even  that  the 
adverse  party  could  not,  without  asking  the  question,  adduce  such 
evidence  to  impeach  the  credit  of  the  witness." 

The  privilege  of  refusing  to  answer  is  that  of  the  witness,  and 
not  of  the  party ;  and  Lord  Tenterden  refused  to  allow  the  question 
to  be  argued  by  the  counsel  of  the  party  who  called  the  witness.^ 

"  Harris  v.  Ttppett,  2  Oamp.  638  ;  Lord  Cockrane's  trial,  by  G-umey,  p.  419 ; 
Hardy's  case,  24  Howell's  St.  Tr.  726 ;  B.  v.  Yewin,  2  Camp.  638,  n. ;  R.  v. 
Watson,  2  Stark.  0.  116 ;  E.  0.  L.  E.  3. 

"  Rose  V.  Blakeman,  Ry.  &  M.  383 ;  B.  0.  L.  E.  21 ;  see  Lord  EUenborough's 
remarks  in  Milman  v.  Tucker,  2  Peake,  N.  P.  0.  222. 

"  See  the  observations  of  the  Judges  ia  R.  v.  Wai,son,  2  Stark.  0. 116  ;  E.  C.  L. 
E.  3. 

a  The  Queen's  case,  2  B.  &  B.  311 ;  E.  C.  L.  E.  6. 

°  TJie  Queen's  case,  2  B.  &  B.  311 ;  E.  0.  L.  E.  6.  Thus  in  an  action  against 
A.  for  seducing  plaintiff's  daughter,  which  fact  the  daughter  proved,  it  was  held 
the  defendant  could  not  give  evidence  that  she  had  talked  of  B.  as  her  seducer  and 
the  father  of  her  child,  unless  she  had  been  first  asked  in  cross-examination 
whether  she  had  ever  said  so ;  Carpenter  v.  Wall,  11  Ad.  &  E.  803  ;  E.  0.  L.  E.  39. 

•"By  Lord  Tenterden,  in  Thomas  v.  Newton,  Moo.  &  M.  48,  n. ;  E.  0.  L.  E.  22  ; 
R.  V.  Adey,  1  M.  &  Rob.  94 ;  and  it  seems  doubtful  whether  the  court  can  review 
the  decision  of  a  judge,  when  he  has  compelled  the  witness  to  answer  or  produce 
the  document;  see  Marston  v.  Downes,  1  Ad.  &  E.  34;  E.  0.  L.  E.  28;  Doe  v. 
Date,  3  Q.  B.  609 ;  E.  C.  L.  E.  43. 


EFFECT    OP    AJSrSWEES.  189 

It  was  formerly  tKouglit  that  if  a  witness  voluntarily  answered 
questions  tending  to  criminate  him  on  his  examination  in  chief,  he 
was  bound  to  answer,  on  cross-examination,  however  penal  the 
consequence  might  he,  and  if  he  answered  the  question  in  part, 
he  was  bound  to  disclose  the  whole  truth  ;^  but  on  consideration 
by  the  whole  of  the  judges,  it  has  been  held  by  a  majority  that  a 
witness  after  having  answered  some  questions  may  stop  at  any 
moment  and  claim  his  privilege,  and  that  if  the  judge  neverthe- 
less force  him  to  proceed,  what  he  says  cannot  be  made  use  of 
against  him  in  a  criminal  proceeding.''  If,  however,  the  witness 
voluntarily  choose  to  answer  a  question  to  which  he  might  have 
demurred,  his  answer  may  afterwards  be  used  in  evidence  against 
him  for  all  purposes.' 

*If  a  witness  give  an  answer  to  a  question  put  for  the   ^^-^  p, 
purpose  of  degrading  his  character,  the  party  will  be  bound 
by  his  answer,  and  cannot  adduce  evidence  in  contradiction.''    This 
is  but  a  particular  application  of  the  general  rule  applicable  in  all 
cases  of  inquiry  as  to  mere  collateral  facts. 

If  by  an  unfortunate  or  unskilful  question  put  on  cross-examina- 
tion a  fact  be  extracted  which  would  not  have  been  evidence  upon 
an  examination  in  chief,  it  then  becomes  evidence  against  the  party 
so  cross-examining."  *But  a  witness  is  not  allowed  volun-  ^^  . 
tarily  to  obtrude  inadmissible  evidence,  and  if  he  do,  it  is 

s  Per  Dampier,  J.,  Wincliester  Sum.  Ass.  1815,  Mann.  Index,  Witness,  222  ; 
East  V.  Chapman,  Moo.  &  M.  47 ;  B.  0.  L.  E.  22. 

"  Beg.  V.  Garhett,  2  Car.  &  K.  474;  E.  0.  L.  R.  61. 

'  Smith  v.  Beadnell,  1  Camp.  30  ;  Stockfleth  v.  De  Tastet,  4  Camp  10. 

J  Lord  EUenborough,  in  Watson's  case,  Grurney's  Rep.,  vol.  ii.,  288,  observed, 
"Whether  he  has  been  guilty  of  such  a  crime  is  improperly  asking  him  in  a 
degree,  because  you  are  calling  upon  him,  upon  the  sanction  of  his  oath,  to  answer 
that  which  he  is  not  bound  to  answer,  for  no  man  is  bound  to  criminate  himself; 
but  if,  from  a  desire  to  exculpate  himself  from  the  imputation  of  a  crime,  he  gives 
an  answer,  it  has  been  held  by  many  of  our  judges,  and  I  never  knew  it  ruled  to 
the  contrary,  that  having  put  such  question  he  must  be  bound  by  the  answer.  The 
court  is  not  a  court  to  try  a.coUateral  question  of  crime,  and  it  would  be  unjust  if 
it  were ;  for  how  can  the  party  be  prepared  with  a  case  of  exculpation,  or  with  an 
answer  to  any  evidence  which  may  be  adduced  to  charge  him  ?  There  is  no  pos- 
sibility of  a  fair  and  competent  trial  on  that  subject,  and  therefore  in  no  instance 
is  it  done.'' 

'  Wright  dem.  Clymer  v.  Ldttler,  Burr.  1244 ;  1  Bla.  346.  The  lessor  of  the 
plaintiff  claimed  under  a  will  dated  in  1743.  The  defendant  relied  on  a  will  bear- 
ing datef  1745.  The  plaintiff,  in  answer,  called  Mary  Victor,  the  sister  of  William 
Medlicott,  deceased,  whose  name  appeared  as  an  attesting  witness  to  the  will  of 
1745,  to  prove  that  her  brother,  in  his  last  illness,  and  three  weeks  before  his 


190  CEOSS-EXAMIITATION-    OF    WITNESSES. 

not  to  be  considered  as  evidence  in  the  cause.^  This  is  a  just 
and  most  important  rule;  a  fraudulent  and  subtle  witness  will 
sometimes  endeayour  to  baffle  his  cross-examiner,  and  deter  him 
from  pursuing  his  course  by  introducing  into  his  answers  matters 
foreign  to  the  question,  but  unfavourable  to  the  cross-examining 
party. 

Where  a  witness  is  cross-examined  as  to  writings,  the  examina- 
tion is  conducted  with  a  view  either  to  establish  in  evidence  the 
contents  of  a  written  document  as  material  to  the  cause,  or  to  test 
the  memory  or  the  credit  of  the  witness.  In  the  former  view,  the 
subject  of  cross-examination  has  been  the  object  of  much  considera- 
tion by  the  judges. 

In  the  course  of  the  proceedings  in  the  House  of  Lords  in  The 
Queen's  case,  Louisa  Dumont,  a  witness  in  support  of  the  charge, 
having  been  asked,  upon  cross-examination,  whether  she  did  not 
use  certain  expressions  which  the  counsel  read  from  a  supposed 
letter  from  the  witness  to  her  sister,  it  was  objected  by  the  Attor- 
ney-General that  the  letter  itself  ought  to  be  put  in  before  any  use 
could  be  made  of  its  contents. 

The  following  questions  were  in  consequence  proposed  to  the 
judges:" 

First.  "Vyhether  in  the  courts  below  a  party,  on  cross-examina- 
tion, would  be  allowed  to  represent  in  the  statement  of  a  question 
the  contents  of  a  letter,  and  to  ask  the  witness  whether  the  witness 
wrote  a  letter  to  any  person  with  such  contents,  or  contents  to  the 
like  effect,  without  having  first  shown  to  the  witness  the  letter, 
and  having  asked  that  witness  whether  the  witness  wrote  the  let- 
ter, and  his  admitting  that  he  wrote  such  letter  ?  • 

death,  pulled  out  of  his  bosom  the  will  of  1743,  and  said  it  was  the  true  will  of 
/.  C  Upon  cross-examination  by  the  counsel  for  the  defendants,  the  witness 
further  stated  that  her  brother,  when  he  produced  the  will  of  1743,  acknowledged 
and  declared  that  the  will  of  1745  was  forged  by  himself.  After  a  verdict  for  the 
plaintiff,  upon  a  motion  for  a,  new  trial,  upon  the  ground,  inter  alia,  that  the 
declaration  by  Medlicott  of  his  having  forged  the  will  of  1745  ought  not  to  have 
been  left  to  the  jury,  it  was  answered  by  the  court  that  the  fact  came  out  upon  the 
defendant's  own  cross-examination,  and  he  made  no  objection  to.it  at  the  trial. 
See  the  observations  on  this  case  in  Stohart  v.  Dryden,  1  M.  &  W.  624,  625.  It 
would  thence  appear  that  the  statement  in  the  text  is  by  no  means  clear. 

^BlewettY.  Tregonning,  3  Ad.  &  E.  554;  E.  0.  L.  E.  30.  Consequently,  if 
any  dispute  arise  as  to  such  inadmissible  evidence,  the  witness  will  not  be  recalled 
to  settle  it ;  Cattlin  v.  Barker,  5  0.  B.  201 ;  E.  0.  L.  E.  57. 

■°  The  Queen's  case,  2  B.  &  B.  286  ;  E.  0.  L.  E.  6. 


AS  TO  WBITINGS,   TO   ESTABLISH  DOCUMEKTS.     191 

Secondly,  Whetlier,  when  a  letter  is  produced  in  ttie 
courts  belo-ff,  the  court  -would  allow  a  witness  to  be  asked, 
upon  showing  a  witness  only  a  part  of  or  one  or  more  lines  of  such 
letter,  and  not  the  whole  of  it,  whether  he  wrote  such  part,  or  such 
one  or  more  lines ;  and  in  case  the  witness  shall  not  admit  that  he 
did  or  did  not  write  the  same,  the  witness  can  be  examined  to  the 
contents  of  such  letter  ? 

The  iirst  question  was  answered  in  the  negative  for  the  following 
reasons : — "  The  contents  of  every  written  paper  are,  according  to 
the  ordinary  and  well-established  rules  of  evidence,  to  be  proved 
by  the  paper  itself  and  by  that  alone,  if  the  paper  be  in  existence. 
The  proper  course,  therefore,  is  to  ask  the  witness  whether  or  no 
that  letter  is  of  the  handwriting  of  the  witness  ?  If  the  witness 
admits  that  it  is  of  his  or  her  handwriting,  the  cross-examining 
counsel  may,  at  his  proper  season,  read  that  letter  as  evidence,  and 
when  the  letter  is  produced  then  the  whole  of  the  letter  is  made 
evidence.  One  of  the  reasons  for  the  rule  requiring  the  production 
of  written  instruments  is,  in  order  that  the  court  may  be  possessed 
of  the  whole.  If  the  course  which  is  here  proposed  should  be  'fol- 
lowed, the  cross-examining  counsel  may  put  the  court  in  possession 
only  of  a  part  of  the  contents  of  the  written  paper ;  and  thus  the 
court  may  never  be  in  possession  of  the  whole,  though  it  may 
happen  that  the  whole,  if  produced,  may  have  an  effect  very  dif- 
ferent from  that  which  might  be  produced  by  a  statement  of  a 
part." 

To  the  second  question  the  judges  returned  the  following  answer: 
— "  In  answer  to  the  first  part,  '  Whether  when  a  letter  is  produced 
in  the  courts  below  the  court  would  allow  a  witness  to  be  asked, 
upon  showing  the  witness  only  a  part  or  one  or  more  lines  of  such 
letter,  and  not  the  whole  of  it,  whether  he  wrote  such  part?'  the 
judges  are  of  opinion  that  that  question  should  be  answered  by  them 
in  the  affirmative  in  that  form ;  but  in  answer  to  the  latter  part, 
which  is  this,  'And  in  case  the  *witness  shall  not  admit  that  |-^n-,Q 
he  did  or  did  not  write  such  part,  whether  he  can  be  exam-  '- 
ined  as  to  the  contents  of  such  letter?'  the  learned  judges  answer 
in  the  negative,  for  the  reason  already  given,  namely,  that  the 
paper  itself  is  to  be  produced  in  order  that  the  whole  may  be  seen, 
and  the  one  part  explained  by  the  other." 

Upon  the  further  question  proposed,  "  "Whether,  when  a  witness 
is  cross-examined,  and,  upon  the  production  of  a  letter  to  the  wit- 
ness under  cross-examination,  the  witness  admits  that  he  wrote 


192  CROSS-EXAMINATION    OF    WITNESSES. 

that  letter,  the  "witness  can  be  examined  in  the  courts  belo-w, 
whether  he  did  or  did  not  make  statements  snch  as  the  counsel 
shall,  by  questions  addressed  to  the  witness,  inquire  are  or  are  not 
made  therein ;  or  whether  the  letter  itself  must  be  read  as  the  evir 
dence  to  manifest  that  such  statements  are  not  contained  in  the 
letter?"  The  judges  were  of  opinion,  that  the  counsel  cannot,  by 
questions  addressed  to  the  witness,  inquire  whether  or  no  such 
statements  are  contained  in  the  letter,  but  that  the  letter  itself  must 
be  read  to  manifest  whether  such  statements  are  or  are  not  con- 
tained in  that  letter.  They  found  their  opinion  upon  what,  in 
their  opinion,  is  a  rule  cf  evidence  as  old  as  any  part  of  the 
common  law  of  England,  namely,  that  the  contents  of  a  written 
instrument,  if  it  be  in  existence,  are  to  be  proved  by  that  instru- 
ment itself,  and  not  by  any  parol  evidence. 

To  another  question,  viz. :  "  In  what  stage  of  the  proceedings, 
according  to  the  practice  of  the  courts  below,  such  letter  could  be 
required  by  counsel  to  be  read,  or  be  permitted  by  the  court  below 
to  be  read,"  the  learned  judges  answered,  that  according  to  the 
ordinary  rule  of  proceedings  in  the  courts  below,  the  letter  is  to 
be  read  as  the  evidence  of  the  cross-examining  counsel,  as  part  of 
his  evidence  in  his  turn,  after  he  shall  have  opened  his  case ;  that 
that  is  the  ordinary  course ;  but  that,  if  the  counsel  who  is  cross- 
examining,  suggests  to  the  court  that  he  wishes  to  have  the  letter 
read  immediately,  in  order  that  *he  may  after  the  contents 
^  of  that  letter  shall  have  been  made  known  to  the  court, 
found  certain  questions  upon  the  contents  of  that  letter,  which 
could  not  well  or  effectually  be  done  without  reading  the  letter 
itself,  that  becomes  an  excepted  case  in  the  courts  below ;  and  for 
the  convenient  administration  of  justice  the  letter  is  permitted  to  be 
read  at  the  suggestion  of  the  counsel ;  but  considering  it,  however, 
as  part  of  the  evidence  of  the  counsel  proposing  it,  and  subject  to 
all  the  consequences  of  having  such  letter  considered  as  part  of  his 
evidence. 

In  the  course  of  the  same  proceeding,  the  counsel  for  the  Queen, 
having  cross-examined  Guiseppe  Sacchi,  whether  he  had  ever  repre- 
sented to  any  person  after  he  had  left  the  service  of  the  princess, 
that  he  had  taxed  himself  with  ingratitude  towards  a  generous  mis- 
tress ;  it  was  objected,  that  the  witness  should  be  asked  whether 
such  representation  made  by  him  was  an  oral  or  written  one, 
because,  if  written,  the  writing  itself  should  be  produced  before 
the  question  could  be  put.     The  following  question  was  in  conse- 


AS   TO   WRITINGS,    TO   ESTABLISH   DOCUMENTS.     193 

quence  proposed  to  tlie  judges :  "  Whether,  according  to  the  esta- 
blished practice  in  the  courts  below,  counsel,  in  cross-examining, 
are  entitled,  if  the  counsel  on  the  other  side  object  to  it,  to  ask  a 
witness  whether  he  has  made  representations  of  a  particular  nature, 
not  specifying  in  his  question  whether  the  question  refers  to  repre- 
sentations in  writing  or  in  words?" 

The  Lord  Chief  Justice,  in  delivering  the  opinions  of  the  judges, 
observed,  that  they  felt  some  dijfSculty  in  giving  a  distinct  answer 
to  that  proposition,  as  they  did  not  remember  an  instance  of  a 
question  having  been  asked  by  the  cross-examining  counsel,  pre- 
cisely in  those  words,  and  were  not  aware  of  any  established  prac- 
tice distinctly  referring  to  such  a  question.  He  adverted  to  the 
rule  of  law  respecting  the  examination  of  a  witness  as  to  a  contract 
or  agreement,  in  which  case,  if  the  counsel  on  one  side  were  to  put 
a  question  generally  as  to  the  contract,  the  ordinary  course  is  for 
the  counsel  on  the  other  side  to  *interpose  an  immediate  p^-oA 
question,  whether  the  contract  referred  to  was  in  writing,  '- 
and  if  the  contract  should  appear  to  have  been  in  writing,  then  all 
further  inquiry  would  be  stopped,  because  the  writing  itself  must 
be  produced.  "With  reference  to  this  established  rule,  they  considered 
the  question  proposed  to  them,  and  were  of  opinion  that  the 
witness  could  not  properly  be  asked  on  cross-examination,  whether 
he  had  written  such  a  thing,  the  proper  course  being  to  put  the 
writing  into  his  hands,  and  ask  him  whether  it  be  his  writing. 
They  held,  also,  that  if  the  witness  were  asked  whether  he  had 
represented  such  a  thing,  they  should  direct  the  counsel  to  ask 
whether  the  represenaation  had  been  made  in  writing  or  by  words ; 
and  if  in  consequence  he  should  ask  whether  it  had  been  made  in 
writing,  the  counsel  on  the  other  side  would  object  to  the  question; 
but  if  he  should  ask  whether  the  witness  had  said  such  a  thing,  the 
counsel  would  undoubtedly  have  a  right  to  put  that  question. 

It  seems  to  be  perfectly  clear,  that  if  it  appear  from  the  cross- 
examination  of  the  witness,  or  from  any  antecedent  evidence,  that 
the  writing  in  question  has  been  destroyed,  the  objection  founded 
on  the  reasons  alleged  by  the  learned  judges  ceases ;  and  as  the 
defendant  may  at  all  events,  in  his  turn,  adduce  secondary  evidence 
of  the  contents,  there  is  no  objection  to  his  proving  the  contents  in 
the  first  instance  by  means  of  the  adversary's  witness.  Thus  it  has 
been  held,  where  depositions  have  been  taken  and  lost,  a  witness, 
after  proof  of  the  loss,  may  be  cross-examined  from  copies."     And 

"  B.  V.  Shellard,  9  C.  &  P.  277  ;  B.  0.  L.  E.  38.    So  he  may  be  cross-examined 

13 


194  OEOSS-EXAMINATION    OF    WITNESSES. 

in  order  to  let  in  this  secondary  evidence,  tlie  cross-examining 
party,  before  or  during  the  cross-examination,  may  call  a  person  on 
*oon  ^^^  sulpcena  duces  tecum  to  produce  the  writing,"  or  *call  on 
-'   the  adversary  so  to  do,  if  he  has  had  no  notice  to  produce.^ 

It  is  to  be  observed,  that  the  opinions  delivered  by  the  judges 
upon  the  preceding  questions,  were  founded,  for  the  most  part,  on 
the  principle  that  the  best  evidence  must  be  adduced  which  the 
case  admits  of,  and  on  the  supposition  that  the  object  of  the  cross- 
examination  is  to  establish  in  evidence  the  contents  of  a  written 
document  as  material  to  the  cause.  Where  that  is  the  case  the 
objection  is  invincible. 

But  it  frequently  happens  that  the  cross-examination  of  a  witness 
as  to  what  he  has  before  said  or  written  on  the  subject  of  inquiry, 
is  material  only  as  a  test  to  try  his  memory  and  his  credit. 

Such  evidence  is  usually  admissible  for  no  other  purpose  than 
to  try  the  credit  or  capacity  of  the  witness.  "What  a  witness  stated 
on  a  former  occasion  may  be  very  material  evidence  to  contradict 
him,  or  impeach  his  testimony,  but  can  rarely  be  evidence  of  the 
fact  stated;  and  it  is  a  remarkable  circumstance,  that  the  question 
was  never,  in  the  course  of  inquiry  in  the  case  which  occasioned 
so  much  discussion  on  the  subject,  directly  raised,  whether  a  cross- 
examination  as  to  something  written  by  the  witness,  for  the  pur- 
pose, not  of  proving  any  fact  in  the  cause,  but  simply  of  trying 
the  credit  or  ability  of  the  witness,  was  subject  to  the  same  strict 
rules  as  governed  examination  for  proving  material  facts,  and 
whether  the  witness  might  not  be  cross-examined  as  to  what  he 
had  written,  without  producing  the  writing,  where,  although  not 
proved  to  be  lost,  it  was  not  in  the  possession  of  the  examining 
party.  It  is  also  observable  that  the  answers  are  founded  mainly, 
if  not  wholly,  on  the  supposition  that  the  writing  to  which  the 
question  relates  is  in  the  possession  of  the  examining  party. 

As  the  decisions  of  the  judges  have,  according  to  opinions  enti- 
tled to  consideration,  left  the  question,  whether  a  witness  may  not 
^  be  cross-examined  as  to  the  contents  of  a  *written  document, 

for  the  purpose  of  impeaching  his  credit,  without  producing 
the  document,  still  open,  it  may  not  perhaps  be  deemed  presump- 
tuous to  offer  a  very  few  remarks  upon  this  subject. 

upon  an  office-copy  of  an  affidavit  used  on  moving  for  a  new  trial,  which  on  a 
summons  has  been  admitted  to  be  a  true  copy ;  Davies  v.  Davies,  9  0.  &  P.  252 
E.  0.  L.  R.  38;  Attorney-General  v.  Bond,  9  0.  &  P.  189 ;  E.  0.  L.  R.  38. 

°  Attorney-General  v.  Bond,  9  C.  &  P.  189;  E.  0.  L.  R.  38. 

!■  Calvert  v.  Flower,  7  0.  &  P.  386;  E.  C.  L.  R.  32. 


AS    TO    WETTINGS,    TO    TEST    CBBDIT.  195 

Upon  every  question  of  ttis  nature  two  considerations  arise :  in 
the  first  place,  wlietlier  the  practice  be  advantageous  and  desirable 
with  reference  to  some  particular  object ;  and  if  so,  still  whether, 
on  the  other  hand,  it  may  not  be  politic  to  exclude  it,  in  order  to 
avoid  some  inconvenience  which  would  result  from  its  reception 
greater  than  that  which  would  accrue  from  its  rejection. 

That  the  permitting  such  a  cross-examination  may  frequently 
supply  a  desirable  test  for  trying  the  memory  and  -the  credit  of 
the  witness,  admits  of  little  doubt.  If,  for  example,  a  witness  pro- 
fess to  give  a  minute  and  detailed  account  of  a  transaction  long 
past,  such  as  the  particulars  of  a  conversation,  Or  the  contents  of 
a  written  document,  and  consequently  where  much  depends  upon 
the  strength  of  his  memory,  it  is  most  desirable  to  put  that  memory 
to  the  test  by  every  fair  and  competent  means.  His  inability 
under  those  circumstances  to  state  whether  he  afterwards  com- 
mitted the  details  of  the  transaction  to  writing,  or  if  he  admitted 
that  he  did  so,  his  inability  to  state  whether  he  then  gave  the  same 
or  a  different  account,  or  his  admission  that  he  gave  a  different 
account,  without  being  able  to  explain  why  he  did  so,  must  neces- 
sarily operate  to  a  greater  or  less  extent  to  show  the  imperfection 
of  his  memory. 

If  a  witness  be  called  to  prove  the  contents  of  a  document  writ- 
ten by  another,  which,  it  may  be,  he  has  seen  but  once,  and  that  at 
a  distant  time,  must  it  not  be  of  the  highest  importance  to  ascer- 
tain whether  his  powers  of  memory  are  suf6.ciently  strong  to  enable 
him  to  swear  to  the  contents  of  a  document  written  by  himself  at  a 
later  period  relating  to  the  same  subject-matter?  If  he  either  deny 
that  he  has  made  any  representation  on  the  subject,  or  be  unable 
to  recollect  what  statement  he  has  made,  *the  circumstance  (-^nt^q 
tends  to  impeach  the  faithfulness  of  his  memory,  even  to  a 
greater  extent  than  if  the  representation  had  been  merely  oral, 
inasmuch  as  the  act  of  writing  is  more  deliberate,  and  more  likely 
to  remain  impressed  on  the  memory,  than  a  mere  oral  communi- 
cation ;  and  the  contradiction  which  the  witness  receives  from  the 
writing  itself  is  also  more  important  and  more  complete  than  that 
which  results  from  the  testimony  of  another,  whose  memory  may 
be  as  liable  to  imperfection  as  that  of  the  witness. 

A  cross-examination  of  this  nature  affords  no  mean  test  for  try- 
ing the  integrity  of  the  witness.  An  insincere  witness,  who  is  not 
aware  that  his  adversary  has  it  in  his  power  to  contradict  him,  will 
frequently  deny  having  made  declarations  and  used  expressions 


I 
196  CROSS-EXAMINATION    OF    WITNESSES. 

Avliicli  he  is,  on  cross-examination,  tiltimately  forced  to  avow ;  and 
it  often  happens,  that  hy  his  palpable  and  disingenuous  attempts 
to  conceal  the  truth,  he  betrays  his  real  character ;  and  thus  his 
denials,  his  manner  and  conduct,  become  of  far  greater  importance, 
and  much  more  strongly  impeach  his  credit,  than  the  answer  itself 
does  which  he  is  at  last  reluctantly  constrained  to  give. 

Where  the  party  is  coniined  to  the  mere  production  and  reading 
of  the  paper,  without  previous  cross-examination,  all  inferences  of 
this  nature  are  obviously  excluded,  and  the  opportunity  of  contra- 
dicting him  by  the  production  of  the  document  in  opposition  to 
his  statement  on  bath,  cannot  occur. 

These  observations  apply  even  although  the  writing  containing 
the  contradiction  be  in  the  possession  of  the  party  who  cross- 
examines  ;  but  it  may  frequently  happen  that  the  document  may 
have  been  lost,  but  that  proof  of  the  loss,  and  of  the  contents  of 
the  document,  are  in  the  power  of  the  party  cross-examining.  In 
such  a  case,  if  the  rule  were  strictly  adhered  to,  a  dilemma  would 
occur,  the  effect  of  which  might  be  to  exclude  the  contradicting 
^  .  evidence.  The  adverse  party  would  not  be  able  to  go  *into 
evidence  of  the  contradictory  document  before  he  had,  upon 
cross-examination,  given  an  opportunity  of  explanation  to  the  wit- 
ness, and  he  could  not,  according  to  the  rule,  examine  as  to  the 
contents  of  the  writing  before  he  had  proved  the  contents.  At  all 
events  he  would  labour  under  a  difficulty  in  securing  the  attend- 
ance of  an  adverse  witness  until  such  time  as  he  had  established 
the  necessary  proof.' 

1 1t  has  been  suggested,  that  for  the  purpose  of  warranting  the  cross-examina- 
tion of  a  witness  as  to  the  contents  of  a  writing  which  has  in  fact  been  destroyed, 
or  is  in  the  hands  of  the  other  party,  it  is  fit  that  the  party  proposing  to  cross- 
examine  should  be  allowed  to  interpose  evidence  out  of  his  turn  to  prove  the  fact 
of  destruction  or  its  being  in  such  hands  ;  or,  that  if  any  inconvenience  should 
result  from  pursuing  this  course,  the  court  should,  in  the  exercise  of  its  discretion, 
either  admit  the  witness's  statement  in  the  first  instance,  or  defer  the  cross-exami- 
nation until  the  adversary  shall  have  entered  on  his  case.  With  respect  to  the 
second  alternative,  it  may  be  observed,  that  to  allow  a  party  to  enter  upon  second- 
ary evidence,  as  it  were  de  bene  esse,  and  subject  to  be  established  or  defeated  by 
the  subsequent  proof  or  failure  of  proof,  would  be  going  farther  than  any  existing 
precedent  seems  to  warrant,  and  the  party  might  reasonably  object  to  admitting 
secondary  evidence,  which  may  in  the  result  turn  out  to  have  been  wholly  inad- 
missible, nay,  which  perhaps  his  opponent  might  render  inadmissible,  if  it  served 
his  purpose,  by  afterwards  omitting  to  support  it  by  legal  evidence.  Although,  in 
Graham  t.  Dyster,  2  Stark.  C.  21,  B.  0.  L.  E.  3,  Sideways  v.  Dyson,  ibid.  49, 
Lord  Ellenborough  ruled,  that  a  defendant,  having  given  the  plaintiff  notice  to 


AS    TO    WEITINGS,    TO    TEST    CREDIT.  197 

*Suc]i  a  cross-examination  -would  also  frequently  afford  a  r-^^on 
test  of  credit  where  the  writing  could  not  be  produced,  or 
its  loss  proved ;  for  if  the  witness  has  in  fact  made  statements  in 
writing  which,  if  produced,  would  impeach  his  credit,  and  either 
out  of  regard  to  his  oath,  or  for  fear  of  consequences,  is  induced  to 
admit  the  fact,  his  answer,  subject  to  the  explanation  which  he 
may  be  able  to  give,  must  produce  the  same  effect. 

The  objections  on  the  score  of  policy  are,  on  the  contrary,  of  a 
limited  nature,  it  being  admitted  on  all  hands  that  the  answers 
given  cannot  be  received  as  any  evidence  of  the  writing  itself  for 
the  purposes  of  the  cause.  It  is  possible  that  the  witness  having 
written  what  was  true,  may  not  recollect  what  he  had  written,  or, 
to  go  to  the  greatest  extent,  may,  even  mistakingly,  and  from 
defect  of  memory,  admit  (even  contrary  to  the  truth)  that  he  has 
given  a  description  of  the  transaction  inconsistent  with  his  pre- 
sent testimony;  but  even  this  would  operate  as  a  test  to  try  his 
memory,  and  the  result  would  show  that  his  recollection  was 
imperfect:  a  consideration  of  the  highest  importance  where  the 
witness  is  called  to  detail  coversations  or  the  contents  of  a  written 
document ;  a  task  to  which  few  memories  are  adequate  under  ordi- 
nary circumstances. 

And  instances  may  be  cited  where  evidence  is  admitted  for  one 
purpose  and  object  to  which  it  is  applicable,  although  with  refer- 

produce  writings  in  his  possession,  cannot  cross-examine  the  plaintiff's  witnesses 
as  to  their  contents ;  yet,  in  the  latter  case,  he  observed,  that  though  in  strictness 
the  evidence  could  not  be  anticipated,  it  was  rigorous  to  insist  upon  the  rule,  and 
a  close  adherence  to  it  might  be  productive  of  inconvenience.  And,  in  Calvert, 
Administrator,  v.  Mower,  7  C.  &  P.  386,  B.  0.  L.  R.  32,  the  defendant,  in  the 
course  of  cross-examining  the  plaintiff's  witness,  called  for  the  intestate's  ledger 
under  a  notice  to  produce.  Lord  Denman,  0.  J.,  said,  that  if  it  was  not  produced, 
the  defendant's  counsel  might  cross-examine  as  to  its  contents.  In  Attorney- 
General  V.  Bond,  9  0.  &  P.  189,  E.  C.  L.  R.  38,  the  defendant's  counsel,  in  order 
to  cross-examine  a  witness  for  the  Crown,  called  a  witness  on  his  subpoena  to  pro- 
duce an  affidavit.  And,  in  Reg.  v.  Shellard,  9  0.  &  P.  277,  E.  0.  L.  R.  38,  in 
order  to  cross-examine  a  witness  for  the  prosecution  as  to  what  he  said  before  the 
magistrates,  the  defendant  called  the  officer  of  the  court  to  prove  that  the  deposi- 
tions had  been  mislaid,  and  the  magistrate's  clerk  to  show  that  they  had  been 
taken,  and  to  prove  a  copy.  In  the  two  latter  cases  it  is  obvious  that  it  is  essen- 
tial for  the  simple  purpose  of  cross-examining  the  witness ;  and  then  it  would 
appear  that  it  may  undoubtedly  be  done,  the  evidence  interposed  being  evidence 
for  the  court  and  not  for  the  jury ;  but  where,  as  in  the  two  first  cases  cited  above, 
the  object  is  to  establish  independent  proof,  it  may  be  questioned  whether  the 
proper  course  is  not  to  postpone  the  cross-examination  on  this  point,  or  to  force 
the  party  to  call  the  vritness  as  his  own. 


198  CROSS-EXAMINATION    OF    WITNESSES. 

ence  to  otlier  purposes  and  objects  to  wMcli  the  evidence  relates 
^nnpn  it  is  inadmissible  and  wliolly  *inoperative.  Thus,  in  the 
ordinary  case  where  a  witness  is  cross-examined  as  to  oral 
declarations  made  by  him  and  connected  with  the  cause,  evidence 
is  constantly  offered  to  prove  those  declarations,  where  he  denies 
them,  not  with  a  view  to  prove  the  truth  of  a  declaration,  but  in 
order  to  impeach  his  credit.  If,  for  instance,  in  an  action  for 
goods  sold  and  delivered,  a  witness  called  to  prove  the  delivery 
of  the  goods  were  to  deny  that  he  said  to  A.  B.  that  the  defendant 
in  fact  never  had  the  goods,  it  would  be  competent  to  the  defend- 
ant to  call  A.  B.  to  prove  that  the  witness  did  in  fact  make  that 
declaration,  not  with  a  view  to  affect  the  plaintiff  by  making  the 
declaration  evidence  of  non-delivery  (for  it  is  no  evidence  of  the 
fact,)  but  to  impeach  the  credit  of  the  witness. 

Here  the  question  is  allowed  for  the  purpose  of  impeaching  the 
testimony  of  the  witness,  although  it  involves  a  fact  of  which  the 
answer  would  be  no  evidence.  If  so,  then,  if  the  very  same  state- 
ment were  in  writing,  why  might  not  the  question  also  be  allowable 
for  the  very  same  limited  purpose,  that  is,  to  impeach  the  witness's 
credit,  although  to  establish  the  truth  of  the  written  statement,  viz., 
that  the  goods  had  not  been  delivered,  it  would  afford  no  evidence 
whatsoever. 

Again,  upon  the  ordinary  examination  of  a  witness  on  the  voir 
dire,  with  a  view  to  show  that  he  is  wholly  incompetent,  he  might 
have  been  examined  as  to  the  contents  of  a  written  document  not 
produced ;  and  the  reason  is,  that  it  is  not  probable  that  the  writing 
which  created  his  incompetency  would  be  in  possession  or  within 
the  knowledge  of  the  adversary :  a  reason  which  would  frequently 
apply  in  full  force  in  the  present  instance.^ 

^     ^       *To  the  objection  that  to  allow  such  a  cross-examination 

-'  would  be  to  deviate  from  the  rule  that  the  best  evidence 

ought  to  be  adduced  that  the  case  admits  of,  it  may  be  answered 

that  the  principle  of  the  rule  is  applicable  only  to  evidence  offered 

to  prove  a  material  fact,  and  is  inapplicable  where  the  object  is 

'  It  is  true,  that  if  the  witness,  upon  examination  on  the  voir  dire,  has  the 
instrument  with  him,  it  must  be  produced;  for  the  reason  for  dispensing  with  its 
actual  production,  viz.,  the  difficulty  of  procuring  it,  has  ceased ;  Butler  v.  Carver, 
2  Stark.  0.  433 ;  B.  C.  L.  E.  3.  But  where  a  witness  is  cross-examined  in  rela- 
tion to  a  writing  to  try  his  credit,  the  reasons  for  permitting  such  cross-examina- 
tion do  not  cease,  although  the  party  cross-examining  be  in  possession  of  that 
instrument. 


As    TO    WRITINGS,    TO    TEST    CEEDIT.  199 

merely  to  try  the  credit  or  ability  of  the  ■witness.  The  objection 
that  otherwise  only  part  of  a  document  might  be  proved,  seems  to 
admit  of  the  same  answer.  Besides,  if  the  witness  did  recollect 
■what  he  had  written,  he  would  be  entitled  to  state  the  whole,  or  at 
least  so  much  as  was  material ;  and  if  he  denied  having  written  to 
the  effect  stated,  he  could  not  be  contradicted  without  producing 
the  document  and  reading  the  whole. 

It  has,  however,  very  recently  been  held  by  the  Court  of  Com- 
mon Pleas,  that  a  witness  cannot  on  cross-examination  be  asked 
whether  he  did  not  write  an  answer  to  a  letter  which  charged  him 
with  an  offence,  unless  that  letter  is  produced  or  its  absence  satis- 
factorily accounted  for,  although  the  sole  object  be  to  discredit  the 
witness.'  In  an  earlier  case,  also,  the  Court  of  Queen's  Bench  has 
said  that  a  party  has  no  right  to  cross-examine  a  witness  on  the 
contents  of  an  affidavit  made  by  him,  without  putting  the  original, 
or  an  examined  or  admitted  copy  of  it,  into  his  hands  f  and,  of 
course,  where  an  affidavit  *is  produced  with  a  view  to  cross-  p^n„o 
examine  the  witness  who  made  it,  and  it  appears  to  be  the 
joint  affidavit  of  the  witness  and  another,  and  to  relate  to  other 
persons  besides  the  party  adducing  it,  he  can  use  so  much  of  it 
only  as  relates  to  himself  and  was  made  by  the  witness.^  "^ 

A  party  having  produced  a  document  in  cross-examination,  is 
not  bound  to  read  it  before  he  comes  to  his  own  case,  althogh  he 
has  shown  it  to  the  witness  and  cross-examined  him  upon  it ;''  and 
if  a  party  on  cross-examination  obtains  proof  of  a  document,  the 
adversary,  it  has  been  said,  has  no  right  to  see  the  paper  for  the 
purpose  of  re-examining  the  witness  as  to  the  paper  being  in  the 
handwriting  of  the  party  whose  handwriting  is  sworn  to."     If  the 

'  Macdonnell  v.  Evans,  21  L.  J.,  C.  P.  141. 

8  Bastard  v.  Smith,  10  Ad.  &  E.  213,  E.  0.  L.  E.  37,  in  which  case  the  original 
was  produced,  and  the  expense  of  carrying  it  down  was  allowed  by  the  court,  on 
the  ground,  it  would  seem,  that  Tindal,  C.  J.,  had  held  that  the  original  must  be 
produced.  But  in  Highfield  v.  Peake,  M.  &  M.  109,  E.  0.  L.  E.  22,  which  was 
an  issue  out  of  Chancery,  an  examined  office-copy,  and  in  Davies  v.  Davies,  9 
Car.  &  P.  252,  E.  C.  L.  E.  38,  an  office  copy,  admitted  to  be  a  copy  under  a 
judge's  order,  of  an  affidavit  made  by  a  witness  in  the  cause,  were  allowed  to  be 
used  for  the  purpose  of  cross-examination  and  contradiction.  So  an  examined 
copy  of  an  answer  of  the  witness  in  Chancery  was  allowed  to  be  used  in  Eiuer  v. 
Ambrose,  4  B.  &  C.  25 ;  E.  C.  L.  E.  10. 

s«  Attorney-General  v.  Bond,  9  C.  &  P.  189 ;  E.  0.  L.  E.  38. 

"  Holland  v.  Eeeves,  7  0.  &  P.  36,  B.  0.  L.  E.  32,  cor.  Alderson,  B. 

'  By  Bosanquet,  J.,  in  Russell  v.  Rider,  6  C.  &  P.  416  ;  E.  C.  L.  E.  25.  But 
it  is  extremely  difficult  to  understand  upon  what  ground  this  can  be  sustained,  and 


200  CROSS-EXAMINATION    OF    WITNESSES. 

cross-examining  counsel  merely  produce  a  paper  and  ask  tHe  wit- 
ness whetlier  it  is  in  his  handwriting,  that  does  not  entitle  the 
other  side  to  see  it,  but  if  he  proceed  to  found  any  question  on  the 
document,  the  opposite  counsel  has  a  right  to  see  it  f  and  if,  upon 
a  writing  being  put  into  the  witness's  hand  for  the  purpose  of 
cross-examination,  the  cross-examination  wholly  fails,  the  adverse 
counsel  is  not  entitled  to  look  at  the  paper.^  And  it  has  been 
held,  that  where  a  witness  has  been  examined  as  to  entries  in  a 
*ooQT  ^°°^'  *^®  adversary  cannot  cross-examine  as  to  other  en- 
-*  tries  which  have  not  been  used,  without  putting  them  in  as 
his  evidence.' 

With  respect  to  the  cross-examination  of  witnesses  in  criminal 
cases,  as  to  matters  occurring  before  the  magistrates,  the  following 
rules  of  practice  have  been  laid  down  by  the  judges"  since  the 
passing  of  the  Prisoners'  Counsel  Bill: — 

1.  That  where  a  witness  for  the  Crown  has  made  a  deposition 
before  a  magistrate,  he  cannot,  upon  his  cross-examination  by  the 
prisoner's  counsel,  be  asked  whether  he  did  or  did  not  in  his  depo- 
sition make  such  or  such  a  statement,  until  the  deposition  itself 
has  been  read,  m  order  to  manifest  whether  such  statement  is  or  is 
not  contained  therein,  and  that  such  deposition  must  be  read  as 
part  of  the  evidence  of  the  cross-examining  counsel. 

2.  That  after  such  deposition  has  been  read,  the  prisoner's 
counsel  may  proceed  in  his  cross-examination  of  the  witness  as  to 
any  supposed  contradiction  or  variance  between  the  testimony  of 
the  witness  in  court  and  his  former  deposition,  after  which  the 
counsel  for  the  prosecution  may  re-examine  the  witness,  and,  after 

Holland  v.  Reeves,  7  0.  &  P.  36,  E.  0.  L.  R.  32,  is  opposed  to  it.  In  Collier  v. 
Nolces,  2  Car.  &  K.  1012,  E.  0.  L.  R.  61,  it  was  said  that  Parke,  B.,  had  ruled  in 
the  same  way  as  Bosanquet,  J. ;  and  Wilde,  C.  J.,  in  deference  to  that  opinion, 
acquiesced  in  the  same  course,  but  expressed  his  own  opinion  that  the  opposite 
counsel  had  the  right  to  see  the  document.  If  the  proof  failed,  he  certainly  would 
have  no  right  to  see  the  paper,  and  perhaps  it  was  confounded  with  that  case. 

J  Cope  V.  Tliames  Haven  Bock  Company,  2  0.  &  K.  757  ;  B.  0.  L.  R.  61. 

'^  R.  V.  Buncombe,  8  0.  &  P.  369  ;  E.  C.  L.  R.  34. 

1  By  Gumey,  B.,  Gregory  v.  Tavernon,  6  0.  &  P.  280  ;  E.  C.  L.  R.  25.  But, 
semble,  he  might  use  them  to  refresh  the  memory  of  the  witness ;  a  writing  may 
(as  has  been  seen)  be  used  for  this  purpose  without  making  it  evidence. 

"  These  rules  have  been  laid  down  by  the  judges  for  the  regulation  of  counsel, 
but  it  is  discretionary  with  the  judge  whether  he  will  put  questions  to  the  witness 
as  to  any  discrepancy  between  the  statement  of  the  witness  on  the  trial  and  that 
contained  in  his  depositions,  without  having  it  first  read;  Rex  v.  Edwards,  8  C. 
&  P.  26  ;  B.  0.  L.  R.  34. 


AS    TO,   DEPOSITIONS    BEFORE    MAGISTEATES.      201 

tlie  prisoner's  counsel  has  addressed  tlae  jury,  will  be  entitled  to 
the  reply,  and  in  case  the  counsel  for  the  prisoner  comments  upon 
any  supposed  variance  or  contradiction  without  having  read  the 
deposition,  the  court  may  direct  it  to  be  read,  and  the  counsel  for 
the  prosecution  will  be  entitled  to  reply  upon  it. 

3.  That  the  witness  cannot  in  cross-examination  be  compelled  to 
answer  whether  he  did  or  did  not  make  such  a  *statement 
before  the  magistrate  until  after  his  deposition  has  been  '• 
read,  and  it  appears  that  it  contains  no  mention  of  such  statement. 
In  that  event  the  counsel  for  the  prisoner  may  proceed  with  his 
cross-examination,  and  if  the  witness  admits  such  a  statement  to 
have  been  made,  he  may  comment  upon  such  omission,  or  upon 
the  effect  of  it  upon  the  other  part  of  his  testimony ;  or  if  the  wit- 
ness denies  that  he  made  such  statement,  the  counsel  for  the 
prisoner  may  then,  if  such  statement  be  material  to  the  matter  in 
issue,  call  witnesses  to  prove  that  he  had  made  such  statement. 
But  in  either  event  the  reading  of  the  deposition  is  the  prisoner's 
evidence,  and  the  counsel  for  the  prosecution  will  be  entitled  to 
reply. 

The  witness  therefore  cannot,  on  cross-examination,  be  asked 
any  question  as  to  his  statement  before  the  magistrates  without 
putting  in  his  deposition ;  and  indeed,  in  cross-examining  a  witness 
as  to  any  other  statement  he  may  have  made,  it  has  been  ruled 
that  the  questions  put  to  him  should  expressly  exclude  the  occa- 
sion of  his  examination  before  the  magistrates  or  coroner."  If 
however,  from  any  accident,  the  deposition  of  the  witness  has  not 
been  duly  taken  or  returned,  this  rule  of  course  ceases  to  apply : " 
but  the  mere  circumstance  of  the  magistrate  having  omitted 
to  set  forth  the  cross-examination  before  *him  will  not  ex-    '- 

"  Per  Patteson,  J.,  in  Rex  v.  Holden,  8  0.  &  P.  609 ;  E.  0.  L.  R.  34 ;  and  Rex 
V.  Shellard,  9  0.  &  P.  280 ;  E.  0.  L.  R.  38 ;  but  Eolfe,  B.,  has  dissented  from  this 
ruling ;  Harris's  case,  Liv.  Sum  Ass.  1845,  Eoscoe's  Orim.  Ev.  3rd  ed.  237. 

°  Rex  V.  Griffiths,  9  0.  &  P.  746  ;  E.  C.  L.  B.  38.  And  where  minutes  of  the 
examination  of  the  witnesses  before  the  magistrates  were  made,  and  then  a  clerk 
by  himself  proceeded  to  put  them  in  form,  and  in  doing  so  put  questions  to  the 
witnesses,  the  answers  to  which  he  embodied  in  the  depositions,  it  was  held  by  the 
Court  of  Criminal  Appeal  that  a  witness  might  be  asked  whether  he  did  not  make 
a  particular  statement  to  the  clerk,  without  putting  in  his  deposition,  though  that 
statement  was  inserted  in  his  deposition,  which  was  afterwards  read  over  to  him, 
after  he  had  been  re-sworn,  in  the  presence  of  the  magistrate  and  the  prisoner, 
who  had  full  power  to  cross-examine  him ;  Reg.  v.  Christopher,  2  0.  &  K.  994 ; 
E.  C.  L.  R.  61. 


202  EE-EXAMINATION    OF    WITNESSES. 

elude  the  operation  of  tlie  rule ;  tlie  deposition  should  be  read  to  evi- 
dence the  fact  of  the  statement  alluded  to  not  being  contained  in  it.' 

A  witness  may  be  re-examined  by  the  party  who  called  him, 
Upon  all  the  topics  on  which  he  has  been  cross-examined  :'i  this 
gives  an  opportunity  of  explaining  any  new  facts  which  have  come 
out  upon  cross-examination  f  but  as  the  object  of  re-examining  a 
witness  is  to  explain  the  facts  stated  by  the  witness  upon  cross- 
examination,  the  re-examination  is  of  course  to  be  confined  to  the 
subject-matter  of  cross-examination.' 

"Where  the  witness  has  been  cross-examined  as  to  declarations 
made  by  him,  a  counsel  has  a  right,  on  re-examination,  to  ask  all 
questions  which  may  he  proper  to  draw  forth  an  explanation  of 
the  sense  and  meaning  of  the  expressions  used  by  the  witness  on 
cross-examination,  if  they  be  in  themselves  doubtful,  and  also  of 
the  motive  by  which  the  witness  was  induced  to  use  those  expres- 
sions ;  but  he  has  no  right  to  go  farther,  and  to  introduce  matter 
new  in  itself,  and  not  suited  to  the  purpose  of  explaining  either 
the  expressions  or  the  motives  of  the  witness."" 

p  Rex  V.  Taylor,  8  0.  &  P.  726  ;  E.  0.  L.  R.  34.  The  absence  of  such  state- 
ment in  the  deposition  will  not,  however,  preclude  the  prisoner  from  asking  the 
question ;  Reg.  v.  Curtis,  2  Car.  &  K.  763 ;  E.  C.  L.  B.  61. 

1 1n  the  cases  mentioned,  ante,  p.  194,  where  a  witness,  whose  name  is  on  the 
back  of  the  indictment,  not  having  been  called  for  the  prosecution,  may  be  called 
by  the  judge  and  cross-examined  by  the  prisoner,  the  counsel  for  the  prosecution 
cannot  examine  him  on  any  point  which  did  not  arise  on  the  cross-examination, 
and  perhaps  cannot  examine  him  at  all ;  R.  v.  Bezley,  4  0.  &  P.  220 ;  B.  C.  L.  E. 
19 ;  R.  V.  Harris,  7  0.  &  P.  581 ;  E.  0.  L.  E.  32.  This  is  a  reason  why  the 
power,  there  alluded  to,  should  be  very  rarely  exercised  by  the  judge ;  and  why 
the  rule,  said  to  be  laid  down  by  the  judges,  that  the  prisoner  should  call  such  a 
witness  as  his  own,  {Reg.  v.  Woodhead,  2  Car.  &  K.  520,  E.  0.  L.  E.  61,)  should 
be  adhered  to.  It  has,  however,  been  held  that  the  judge  may  direct  the  witness's 
deposition  to  be  read  for  the  purpose  of  contradicting  his  statement  at  the  trial ; 
Oldroyd's  case,  Euss.  &  Ey.  88. 

'■  The  Queen's  case,  2  B.  &  B.  297  ;  E.  C.  L.  B.  6.  Thus,  upon  an  issue  whether 
a  cargo  which  had  been  loaded  on  deck  was  improperly  loaded,  the  plaintiff's  wit- 
nesses, called  to  prove  that  loading  part  of  the  cargo  on  deck  was  dangerous, 
stated  in  cross-examination  that  it  was  usual  on  spring  and  fall  voyages  for  ships 
in  the  particular  trade  to  carry  deck  cargoes.  On  re-examination,  they  were  asked 
whether  deck  cargoes  shipped  on  fall  voyages  were  at  the  risk  of  the  ship-owner 

'  A  witness  may  be  re-examined  by  the  party  calling  him  even  after  a  cross- 
examination,  as  well  for  the  introduction  of  matter  new  in  itself  as  for  the  purpose 
of  explaining  the  expressions  or  the  motives  of  the  witness,  when  the  omission  to 
examine  as  to  such  new  matter,  when  first  called,  arose  from  inadvertence  or  other 
cause  to  be  approved  by  the  court ;  Clarke  v.  Voree,  18  Wend.  193.  G. 


AS    TO    CONVERSATIONS    AND    WEITINGS.  203 

*It  was  formerly  held  that  where  a  witness  has  been  cross-  p^^on 
examined  as  to  a  conversation  with  the  adverse  party  in  the 
suit,  whether  criminal  or  civil,  the  counsel  for  that  party  has  a 
right  to  lay  before  the  court  the  whole  which  was  said  by  his 
client  in  the  same  conversation ;  not  only  so  much  as  may  explain 
or  qualify  the  matter  introduced  by  the  previous  examination,  but 
even  matter  not  properly  connected  with  the  part  introduced  upon 
the  previous  examination,  provided  only  that  it  relate  to  the  sub- 
ject-matter of  the  suit ;  because  it  would  not  be  just  to  take  part  of 
a  conversation  as  evidence  against  a  party,  without  giving  him  at 
the  same  time  the  benefit  of  the  entire  residue  of  what  he  said  on 
the  same  occasion.^^  But  in  the  Queen's  case  eleven  of  the  judges 
were  of  opinion  that  the  conversation  of  a  witness  with  a  third 
person  stood  upon  a  different  footing,  and  was  distinguishable  from 
the  case  of  *a  conversation  with  a  party,  on  the  following  r-^^oo 
grounds,  viz. :  "  The  conversation  of  a  witness  with  a  third 
person  is  not  in  itself  evidence  in  the  suit  against  any  party  in  the 
suit.  It  becomes  evidence  only  as  it  may  affect  the  character  and 
credit  of  the  witness,  which  may  be  affected  by  his  antecedent 

or  the  merchant ;  an  objection  to  this  question  was  held  to  have  been  properly 
overruled ;  Goald  and  others  v.  Oliver,  2  M.  &  G.  208 :  B.  0.  L.  E.  40.  So 
vfhere,  on  the  trial  of  A.  for  discharging  loaded  arms  at  B.,  B.  was  cross-exam- 
ined, with  a  view  to  discredit  his  evidence,  as  to  whether  he  had  not  used  violent 
language  towards  his  father ;  having  admitted  it,  he  was  allowed  to  be  asked  on 
re-examination  how  his  father  had  acted  towards  him  before  he  used  that  language ; 
R.  V.  St.  George,  9  0.  &  P.  483 ;  B.  0.  L.  E.  38.  And  on  the  trial  of  an  action 
for  a  libel,  imputing  fraud  to  the  plaintiff  in  betting  against  his  own  horse  and 
then  withdrawing  him,  a  witness  for  the  plaintiff  having  stated  on  cross-examina- 
tion that,  by  the  rules  of  the  Jockey  Club,  the  owner  of  a  horse  might  bet  against 
his  own  horse  and  then  withdraw  him,  the  witness  was  allowed  to  be  asked  on 
re-examination  whether  he  did  not  consider  such  conduct  to  be  dishonourable ; 
Greville  v.  Lamh,  5  Q.  B.  731 ;  E.  0.  L.  E.  48.  Thus,  even  if  the  facts  elicited 
on  cross-examination  are  not  strictly  evidence,  but  are  of  a  nature  to  prejudice  the 
plaintiff,  he  may  re-examine  upon  them,  unless  the  defendant  applies  to  strike  them 
out;  Blewett  v.  Tregonmg,  3  Ad.  &  B.  554;  B.  0.  L.  E.  30. 
•  Queen's  case,  2  B.  &  B.  298 ;  E.  0.  L.  E.  6. 

'  Where  a  witness  is  introduced  by  a  party  and  is  interrogated  as  to  a  particular 
fact  and  the  opposite  party  on  cross-examination  asks  him  generally  if  he  ever 
communicated  that  fact  to  any  one  and  to  whom,  and  he  answers  that  he  commu- 
nicated it  to  the  party  calling  him,  this  does  not  entitle  the  party  calling  him,  to 
pursue  the  inquiry  as  to  his  own  reply,  and  other  conversation  with  the  witness  at 
the  time  of  the  communication.  Otherwise,  if  the  witness  be  asked  on  cross- 
examination  specifically  whether  he  made  the  communication  to  the  party  calling 
him ;  Winchell  v.  Latham,  6  Cow.  682.  G. 


204  BE-EXAMINATIOlSr    OP    WITNESSES. 

declarations,  and  by  the  motive  under  which  he  made  them ;  but 
when  once  all  which  had  constituted  the  motive  and  inducement, 
and  all  which  may  show  the  meaning  of  the  words  and  declara- 
tions, has  been  laid  before  the  court,  the  court  becomes  possessed 
of  all  which  can  affect  the  character  or  credit  of  the  witness,  and 
all  beyond  this  is  irrelevant  and  incompetent.'" 

'  Upon  these  grounds,  eight  of  the  judges  (Best,  J.,  dissentiente)  were  of  opinion 
that  if,  on  the  trial  of  an  action  or  indictment,  a  witness  examined  on  behalf  of  the 
plaintiff  or  prosecutor,  upon  cross-examination  by  the  defendant's  counsel,  states 
that  at  a  time  specified  he  told  A.  that  he  was  one  of  the  witnesses  to  be  examined 
against  the  defendant,  and  being  re-examined  by  the  plaintiff's  or  prosecutor's 
counsel,  states  what  induced  him  to  mention  this  to  A.,  the  plaintiff  or  prosecutor's 
counsel  cannot  further  re-examine  the  witness  as  to  such  conversation,  even  so  far 
only  as  it  relates  to  his  being  one  of  the  witnesses. 

Abbott,  0.  J.,  in  delivering  the  opinion  of  the  judges,  observed :  "  The  question, 
as  proposed  by  the  House,  contains  these  words :  '  and  being  re-examined,  had 
stated  what  induced  him  to  mention  to  A.  what  he  had  so  told  him ;'  by  which  I 
understand  that  the  witness  had  fully  explained  his  whole  motive  and  inducement 
to  inform  A.  that  he  was  to  be  one  of  the  witnesses ;  and  so  understanding  the 
matter,  and  there  being  no  ambiguity  in  the  words,  '  I  am  to  be  one  of  the  wit- 
nesses,' I  think  there  is  no  distinction  between  the  previous  and  subsequent  parts 
of  the  conversation,  and  I  think  myself  bound  to  answer  your  Lordships'  question 
in  the  negative." 

His  Lordship  then  gave  the  reasons  of  the  eight  judges  for  distinguishing  be- 
tween a  conversation  between  the  witness  and  a  party,  and  one  between  the  witness 
and  a  third  person,  to  the  effect  above  stated. 

Best,  J.,  was  of  opinion  that  the  rule  which  was  acknowledged  to  have  been 
settled  as  to  conversations  of  a  party  to  the  suit,  applied  with  equal  reason  and 
force  to  the  statements  and  conversations  of  a  witness ;  and  held,  that  if  one  part 
of  the  conversation  of  a  witness  has  been  drawn  from  him  by  cross-examination, 
with  a  view  of  disparaging  his  testimony,  the  whole  of  what  passed  in  that  cross- 
examination  ought  to  be  admitted  on  re-examination ;  that  this  is  justly  due  to  the 
character  of  the  witness,  who  is  entitled,  in  vindication  of  his  character,  to  have 
the  entire  conversation  fairly  and  fully  detailed  in  evidence ;  it  was  due  to  him 
also,  as  a  security  against  proceedings  which  might  otherwise  be  instituted  against 
him  on  statements  partially  extracted  on  cross-examination. 

The  Lord  Chancellor  and  Lord  Eedesdale  also  differed  from  the  majority  of  the 
judges.  As  the  learned  judges  were  pleased  to  guard  their  opinion  by  stating 
that  they  understood  the  question  not  to  assume  that  the  witness  had  fully 
explained  his  whole  motive  and  inducement  to  inform  A.,  the  decision  in  the 
particular  instance  thus  presented  to  them  does  not  go  the  length  of  excluding  the 
cotemporaneous  statement  made  by  the  witness  where  it  would  be  the  best  expo- 
sition of  his  real  motives.  And  where  a  witness  was  asked,  on  cross-examination, 
as  to  part  of  a  conversation  between  the  plaintiff  and  defendant  relative  to  the 
subject-matter  of  the  action,  of  which  conversation  the  plaintiff  had  informed  the 
witness ;  it  was  held,  that  on  re-examination  he  might  properly  be  asked  to  relate 
the  whole  of  that  conversation ;  Glynn  v.  Houston,  2  M.  &  G.  337  ;  E.  0.  L.  R.  40. 


AS    TO    CONVERSATIONS    AND    WRITINGS.  205 

*In  the  late  case  oi  Prince  v.  Samo'^  the  Court  of  Queen's  r^n^A 
Bench,  after  much  deliberation,  overruled  this  distinction, 
and  laid  down  a  rule,  founded  in  good  policy,  that  whether  the 
witness  be  cross-examined  as  to  a  conversation  with  a  party  to  the 
suit  or  with  a  third  person,  the  re-examination  must,  in  the  former 
case,  as  well  as  the  latter,  be  confined  to  matters  connected  with 
the  evidence  given  on  cross-examination,  as  tending  to  show  its 
true  nature  and  bearing.  The  action  in  that  case  was  for  a  mali- 
cious arrest  for  money  alleged  by  the  plaintiff  to  have  been  given 
to  him.  The  plaintiff  called  as  a  witness  his  attorney,  who  having 
been  present  when  the  plaintiff  was  examined  as  a  witness  on  an 
indictment  for  perjury,  stated,  on  cross-examination,  that  the  plain- 
tiff on  the  trial  of  the  indictment  admitted  that  he  had  repeatedly 
been  insolvent  and  remanded  by  the  court.  It  was  proposed,  on 
re-examiaation,  to  inquire  whether  the  plaintiff  had  not  also  upon 
the  same  occasion  stated  the  circumstances  out  of  which  the  arrest 
had  arisen,  and  what  that  statement  was.  Lord  Denman,  on  the 
objection  being  taken,  rejected  the  evidence*  on  the  ground,  r^fnoc 
"  that  the  witness  might  be  asked  as  to  every  thing  said  by 
the  plaintiff  on  the  trial  of  the  indictment  that  could  in  any  way 
qualify  or  explain  the  statement  to  which  he  had  been  cross- 
examined,  but  that  he  had  no  right  to  add  any  independent  his- 
tory of  transactions  wholly  unconnected  with  it."  On  a  motion 
for  a  new  trial  the  court  held,  that  the  same  rule  which  applied 
to  statements  made  by  a  witness  applied  also  to  those  made  by  a 
party;  and,  after  observing  that  the  opinion  of  Lord  Tenterden 
was  extra-judicial,  and  not  in  terms  adopted  by  Lord  Eldon  and 
the  judges,  who  concurred  in  the  answer  to  the  proposed  question, 
and  was  expressly  denied  by  Lords  Eedesdale  and  Wynford,  added: 
"  In  our  opinion  the  reason  of  the  thing  would  rather  go  to  exclude 
the  statements  of  a  party  making  declarations  which  cannot  be  dis- 
interested. Nothing  would  be  more  easy  than  to  find  or  imagine 
examples  of  the  extreme  injustice  that  might  result  from  allowing 
such  statements  to  be  received ;'  but  none  can  be  stronger  than  the 
actual  case.  Because  the  plaintiff  was  shown  to  have  said  that  he 
was  insolvent,  he  would  have  been  allowed,  without  any  reference 
to  his  own  insolvency,  to  prove  by  his  discourse  at  the  same  period 
every  averment  in  his  declaration,  with  every  circumstance  likely 
to  excite  prejudice  and  odium  against  the  defendant ;  and  if  this 
were  evidence,  the  jury  would  be  bound  to  consider  and  give  full 
°  7  A.  &  B.  627  ;  E.  0.  L.  E.  34. 


206  EE-EXAMINATION    OF    WITNESSES. 

effect  to  it,  and  thus  award  large  damages  for  an  injury  of  whioli 
no  particle  of  proof  could  be  giyen  excepting  the  plaintiff's  own 
assertion."" 

*9^fiT  ^"^  contrary  rule  would  be  supported  by  a  specious,  but 
in  this  and  in  several  other  instances  a  fallacious,  principle ; 
for  whilst  it  may,  at  first  view,  seem  to  be  conducive  to  'enlarge 
views  of  policy  and  convenience  to  admit  the  whole  of  a  particular 
conversation  where  part  of  it  is  given  on  evidence,  and  so  to  afford 
to  the  jury  the  most  ample  means  for  attaining  to  the  truth,  yet 
here  the  reverse  is  true ;  for  were  this  to  be  allowed,  parties  appre- 
hensive of  the  unjust  consequences  so  forciby  represented  in  the 
foregoing  judgment,  would  frequently  be  deterred  from  giving  any 
such  admission  or  statement  by  the  adversary  in  evidence ;  and 
thus  the  means  of  information  afforded  to  the  jury  would  be  nar- 
rowed rather  than  enlarged  by  the  more  extensive  rule. 

Where  a  witness,  on  cross-examination,  varies  from  the  state- 
rnent  made  on  his  examination  in  chief,  the  party  calling  him  (it 
has  been  held)  may,  on  re-examination,  inquire  into  facts  to  show 
that  the  witness  had  been  induced  to  betray  that  party .^ 

It  has  already  been  seen  that  a  witness  cannot  obtrude  evidence 
on  cross-examination  which  he  could  not  have  given  in  chief;  but 
if  counsel  voluntarily  cross-examine  as  to  inadmissible  matter,  the 
adverse  counsel  is  entitled  to  re-examine  upon  it." 

It  seems  that  the  court  will,  after  a  case  is  closed,  allow  a  witness 

to  be  called  back,  or  receive  fresh  evidence,  to  get  rid  of  objections 

^  ^     which  are  beside  the  justice  of  the  case,  and  little  more 

-'   than  mere  form,  but  not  to  get  rid  of  *any  dif&culty  on  the 

'  In  Sturge  v.  Buchanan,  10  Ad.  &  E.  598,  E.  0.  L.  E.  37,  a  defendant  pro- 
duced, under  a  notice  so  to  do,  a  book  containing  copies  of  letters  written  by  him 
to  his  partners,  and  some  of  these  having  been  read  on  the  part  of  the  plaintiff, 
the  defendant  claimed  a  right  to  read  to  the  jury  other  letters  upon  the  same  sub- 
ject copied  in  the  same  book,  but  not  referred  to  in  those  read  by  the  plaintiff:  it 
was,  however,  held,  that  he  had  no  right  to  do  this  ;  and  the  case  of  Prince  v. 
Samo  was  cited  and  confirmed  by  the  court.  And  see  Whitfield  v.  Aland,  2  Car. 
&  K.  1015 ;  E.  0.  L.  B.  61. 

"  Dunn  V.  Aslett,  2  M.  &  Eob.  122,  ante,  p.  168.  But  where  a  witness  for  the 
plaintiff,  not  varying  from  his  examination  in  chief,  stated,  on  cross-examination 
by  the  defendant,  important  facts  for  the  latter,  by  whom  also  he  had  been  sub- 
poenaed, the  plaintiff  was  not  allowed,  on  re-examination,  to  ask  him  whether  he 
had  not  given  a  different  account  to  the  plaintiff's  attorney ;  Winter  v.  Butt,  2  M. 
&  Eob.  357  ;  and  seepos*,  as  to  the  right  of  a  party  to  discredit  his  own  witness. 

=*  Blewett  v.  Tregoning,  3  Ad.  &  B.  554 ;  E.  0.  L.  E.  30 ;  5  Nev.  &  M.  308 ; 
E.  C.  L.  E.  36.     And  see  Greville  v.  Lamb,  5  Q.  B.  731 ;  E.  C.  L.  E.  48. 


EEBUTTINGTHE    TESTIMONY   OF  WITNESSES.      207 

merits.  "Where  the  question  was  as  to  the  petitioning  creditor's 
debt  on  a  bill  of  which  the  bankrupt  was  the  drawer,  and  no  proof 
of  any  default  by  the  acceptor  had  been  shown,  the  court  allowed 
a  witness  to  be  called,  after  the  case  had  been  closed,  to  prove  the 
dishonour  and  notice  to  the  bankrupt.^ 


.y 


lY.  The  mode  of  rebutting  the  testimony  of  witnesses. 

The  credit  of  a  witness  may  be  impeached  either  by  cross-exam- 
ination, subject  to  the  rules  already  mentioned,  or  by  general 
evidence  affecting  his  credit,  or  by  evidence  that  he  has  before 
done  or  said  that  which  is  inconsistent  with  his  evidence  on  the 
trial ;  or,  lastly,  by  contrary  evidence  as  to  the  facts  themselves.'- 

It  is  perfectly  well  settled  that  the  credit  of  a  witness  can  be 
impeached  by  general  evidence  only,  and  not  by  evidence  as  to 
particular  facts  not  relevant  to  the  issue  f  for  this  would  cause  the 
inquiry,  which  ought  to  be  simple  and  confined  to  the  matters  in 
issue,  to  branch  out  into  an  indefinite  number  of  issues.  The 
characters,  not  only  of  the  witnesses  in  the  principal  cause,  but 
of  every  one  of  the  impeaching  collateral  witnesses,  might  be 
impeached  by  separate  charges,  and  loaded  with  such  an  accumu- 
lated burthen  of  collateral  proof,  that  the  administration  of  justice 
would  become  impracticable.  Besides  this,  no  man  could  come 
prepared  to  defend  himself  against  charges  *which  might  ^.j^noo 
thus  be  brought  against  him,  without  previous  notice ;  and 
though  every  man  may  be  supposed  to  be  capable  of  defending 
his  general  character,  he  cannot  be  prepared  to  defend  himself 

y  Giles  V.  Powell,  2  Car.  &  P.  259  ;  B.  C.  L.  E.  12  ;  S.  P.,  Walls  v.  AtcTieson, 
ibid,  268  ;  and  see  2  PMl.  Bvid.  409,  9th  edit. ;  Brown  v.  Giles,  1  C.  &  P.  118  ; 
B.  0.  L.  E.  12  ;  S.  P.,  R.  V.  Watson,  6  0.  &  P.  653  ;  B.  0.  L.  E.  25.  But  where 
the  question  was,  which  of  two  sisters  had  taken  the  plaintiiFs  house,  and  his 
witness,  on  his  examination  in  chief,  had  said  it  was  E.  D.,  but  the  defendant's 
witnesses  gave  evidence  that  it  was  the  sister,  Park,  J.,  would  not  allow  the  first 
witness  to  be  recalled,  in  order,  now  that  he  had  seen  E.  D.  in  court,  that  he 
might  speak  more  confidently  as  to  her  identity,  observing  that  if  he  did  so  he 
must  allow  all  the  plaintiff's  witnesses  to  be  examined  over  again ;  Roe  v.  Day,  7 
0.  &  P.  705 ;  B.  C.  L.  E.  32. 

"  See  Vol.  II.  tit.  Ohaeactbe. 

'  A  party  who  has  cross-examined  a  witness  may  impeach  him  unless  he  has 
introduced  new  matter  in  the  cross-examination  ;  People  v.  Moore,  15  "Wend.  419, 
If  a  party  cross-examining  a  witness  draws  out  facts  material  to  the  issue,  other 
than  those  elicited  by  the  party  calling  him,  which  are  not  satisfactory  he  may 
contradict  or  discredit  them,  by  any  legal  proof;  Lewis  v.  Hodgdon,  5  Bhepley,  267 


208      REBUTTING    THE    TESTIMONY  OF  WITNESSES. 

against  particular  charges  of  wliicli  lie  lias  had  no  previous  notice.'' 
Questions  put  to  a  witness  himself  upon  cross-examination  are  not, 
it  may  be  observed,  open  to  this  objection,  since  his  answer  is  con- 
clusive as  to  all  collateral  matters.  The  proper  question  to  be  put 
to  a  witness  for  the  purpose  of  impeaching  the  general  character 
of  another  witness  is,  whether  he  could  believe  him  upon  hie  oath? 
When  general  evidence  of  this  nature  has  been  given  to  impeach 
the  credit  of  a  witness,  the  opposite  party  may  cross-examine  as  to 
the  grounds  upon  which  that  belief  is  founded."* 

"  R.  V.  Watson,  2  Stark.  0.  151 ;  E.  C.  L.  R.  3 ;  32  How.  St.  Tr.  458  ;  Gurney's 
Eep.  of  same  case,  vol.  ii.  p.  288 ;  Layer's  case,  16  How.  St.  Tr.  285 ;  Rook- 
wood's  case,  13  How.  St.  Tr.  210 ;  B.  N.  P.  296 ;  see  also  Sharp  v.  Scogmg, 
Holt's  0.  541;  Be  la  Matte's  case,  21  How.  St.  Tr.  811  ;■  Mawson  v.  Hartsink,  4 
Esp.  0.  102. 

"  Mawson  V.  Hartsink,  4  Esp.  102 ;  Sharp  v.  Scogmg,  Holt,  541.  Where  a 
party  states  that  he  would  not  believe  a  witness  on  his  oath,  it  is  no  objection  that 
he  has  never  heard  him  examined  on  his  oath,  if  he  have,  from  previous  knowledge 
of  his  character,  reasonable  ground  of  belief  that  his  word  cannot  be  trusted  on 
oath ;  R.  v.  Bispham,  4  0.  &  P.  392  ;  B.  0.  L.  E.  19. 

'  "  A  witness  called  to  impeach  or  support  the  general  character  (reputation)  of 
another,"  says  Judge  Swift,  "is  not  to  speak  of  his  private  opinion  or  of  particular 
facts  in  his  own  knowledge  ;  but  he  must  speak  of  the  common  reputation  among 
his  neighbors  and  acquaintances.  The  only  proper  questions  to  be  put  to  him, 
are — whether  he  knows  the  general  character  (reputation)  of  the  witness  intended 
to  be  impeached,  in  point  of  truth,  among  his  neighbors ;  and  what  that  character 
(reputation)  is  ?  Whether  good  or  bad  ?  The  witness  may  be  inquired  of  as  to 
the  means  and  opportunity  he  has  of  knowing  the  character  (reputation)  of  the 
witness  impeached ;  as  long  as  he  has  known  him  ;  how  near  he  lives  to  him  ;  and 
whether  his  character  has  been  a  subject  of  general  conversation ;  but  his  testimony 
must  be  founded  on  the  common  repute  and  understanding  of  his  acquaintance  as 
to  truth,  and  not  as  to  honesty,  &c. ;"  Swift's  Evidence,  143.  See  Kimmel  v.  Kim- 
mel,  3  Serg.  &  Eawle,  336  ;   Wike  v.  Lightner,  11  Serg.  &  Eawle,  198. 

The  credit  of  a  witness  may  be  impeached  by  showing  that  he  was  intoxicated 
at  the  time  the  transaction  happened  about  which  he  testifies ;  Tuttle  v.  Russell, 
2  Day,  201 ;  Swift's  Evid.  144. 

It  has  been  decided  in  North  Carolina  and  Kentucky,  that  a  party  may  impeach 
the  general  moral  character  of  his  adversary's  witness,  and  ig  not  confined  to  the 
question  of  his  reputation  for  veracity ;  State  v.  Stallings  et  at,  2  Hayw.  300 ; 
Hume  V.  Scott,  3  Marsh.  261.  But  the  adverse  party  may  afterwards  inquire 
respecting  the  reputation  of  the  witness  in  point  of  veracity ;  Noel  v.  Dickey,  3 
Bibb,  258. 

In  Massachusetts,  the  credit  of  a  female  witness  may  be  impeached,  by  showing 
that  she  is  a  common  prostitute :  Commonwealth  v.  Murphy,  14  Mass.  Eep.  387  ; 
Aliter  in  New  York ;  Jackson  v.  Lewis,  13  Johns.  504.  M. 

But  the  decision  in  The  Commonwealth  v.  Murphy,  if  not  overruled,  seems  to 
be  confined  in  its  application  to  the  case  in  which  a  common  prostitute  is  offered 


CHAKACTEB,  HOW  IMPEACHED.         209 

In  the  next  place,  tlie  witness  may  be  contradicted  by  others 
■who  represent  the  fact  differently,  or  by  proof  that  lie  has  said 

as  a  witness  ;  for  where  upon  a  complaint  under  Statute  1 785,  c.  66,  §  2,  for  the  main- 
tenance of  a  bastard  child,  it  was  ruled,  that  evidence  that  the  general  character 
of  the  complainant  for  chastity,  previous  to  her  connection  with  the  respondent 
was  bad,  and  that  she  had  previously  had  frequent  criminal  intercourse  with  other 
persons,  was  not  admissible  for  the  purpose  of  impeaching  her  credit  as  a  witness  ; 
Gomrnonwealfh  v.  Moore,  3  Pick.  Bep.  194.  But  in  such  a  suit  the  woman  herself 
may  be  asked  on  the  cross-examination  whether  she  had  had  criminal  connection 
with  any  other  man,  about  the  time  she  charged  the  "child  to  have  been  begotten, 
as  such  a  question  would  be  material  and  relevant  to  the  issue,  for,  if  answered  in 
the  affirmative,  it  would  prove  a  fact  rendering  it  impossible  for  her  to  have 
determined  who  was  the  father  of  the  child  ;  and  she  could  not  refuse  to  answer, 
on  the  ground  that  she  would  thereby  criminate  herself,  having  waived  her  privi- 
lege by  voluntarily  testifying  to  matters  necessarily  criminating  herself  upon  her 
examination-in-chief;  Swift's  Law  of  Bvid.  80.  I. 

Evidence  of  character  is  admissible  to  discredit  a  witness,  but  it  must  go  to  his 
general  character  and  not  to  specific  facts ;  WiTce  v.  Lightner,  11  Serg.  &  Rawle, 
198 ;  Kimmel  v.  Kimmel,  3  Serg.  &  Eawle,  336 ;  The  State  v.  Parks,  3  Iredell, 
296 ;  Ramsey  v.  Johnson,  3  Penna.  Eep.  293 ;  Gliess  v.  Chess,  1  Penna.  Eep.  32  ; 
Barton  v.  Morphes,  2  Dev.  520 ;  Walker  v.  The  State,  6  Blackf.  1 ;  Rixey  v. 
Bayce,  4  Leigh,  330 ;  Frye  v.  Bank  of  IlUnois,  11  Illinois,  367 ;  Hoitt  v.  Moulton, 
1  Poster,  586 ;  GfilheH  v.  Sheldon,  13  Barb.  623 ;  Nugent  y.  The  State,  18  Ala.  521. 

That  the  evidence  must  go  to  the  character  of  the  witness  for  truth  and  vera- 
city, and  not  to  general  character ;  see  Jackson  v.  Lewis,  13  Johns.  504 ;  Gilchrist 
V.  McKee,  4  Watts,  380 ;  Tlie  State  v.  Howard,  9  N.  Hamp.  485 ;  Wilds  v. 
Blanehard,  7  Termont,  141 ;  Commonwealth  v.  Moore,  3  Pick.  194 ;  Bakeman 
V.  Rose,  14  "Wend.  105 ;  United  States  v.  Vansickle,  2  McLean,  219 ;  Phillips  v. 
Kingfield,  1  Appleton,  375;  The  State  v.  Bruce,  11  Shepley,  71;  Spears  v. 
Forrest,  15  Verm.  435 ;  Bakeman  v.  Rose,  18  "Wend.  146  ;  The  State  v.  O'Neale, 
4  Iredell,  88  -'Crane  v.  Thayer,  IS^Verm.  162  ;  Sorrelle  v.  Craig,  9  Alabama,  534 ; 
Commonwealth  v.  Churchill,  11  Mete.  538 ;  Ford  v.  Ford,  7  Hnmph.  92. 

Contra,  Hume  v.  Scott,  3  A.  K.  Marsh.  260 ;  Tuckett  v.  May,  3  Pafla,  79  ;  Johnson 
V.  The  People,  3  Hill,  178 ;  The  State  v.  Boswell,  2  Dev.  209 ;  Bay  y.  The  State, 
13  Missouri,  422. 

But  evidence  of  the  general  good  character  of  a  witness  i^  iftadjiiissible  when 
his  general  character  has  not  been  impeached,  although  an  attempt  has  been  made 
to  prove  facts  inconsistent  with  hi^  testimony,  and  to  show  that  he  had  been  privy 
to  a  fraud ;  Rogers  v.  Moore,  10  Conn.  13 ;  Pratt  v.  Andrews,  4  Comst.  493 ; 
Braddee  v.  Brownfield,  9  "Watts,  124 ;  Starks  v.  The  People,  5  Denio,  106  ;  The 
People  V.  Gay,  3  Selden,  378 ;  Wester  v.  May,  9  Harris,  274 ;  except  when  he  is 
a  stranger ;  Mesnam  v.  Railroad,  20  Conn.  354. 

And  except  when  the  witness  and  person  injured  in  an  indictment  for  an  attempt 
to  commit  a  rape  was  deaf  and  dumb  ;  State  v.  Be  Wolf,  8  Conn.  93 ;  so  generally 
in  a  case  of  rape ;  Turney  v.  The  State,  8  Smedes  &  Marshall,  104. 

A  party  has  a  right  to  impeach  the  general  character  of  a  witness  for  his 
adversary,  though  the  testimony  which  such  witness  has  given  related  solely  to  the 
general  character  of  another  witness ;  Starks  v.  The  People,  5  Denio,  106. 

14 


210      REBUTTING    THE    TESTIMONY   OF   WITNESSES. 

or  -written  tliat  whicla  is  inconsistent  "with  his  present  testimony ; 
for  this  purpose  a  letter  may  be  read  in  wliich  lie  has  given  a  dif- 
ferent account  of  the  matter.^ 

It  is  a  general  rule,  that  whenever  the  credit  of  a  witness  is  to 
be  impeached  by  proof  of  any  thing  that  he  has  said,  or  declared, 
or  done  in  relation  to  the  cause,  he  is  first  to  be  asked,  upon  cross- 
examination,  whether  he  has  said  or  declared,  or  done  that  which 
*9qQ-i  is  intended  to  be  proved.  *For  in  every  such  case  there 
are  two  questions :  first,  whether  the  witness  ever  did  the 
act  or  used  the  expressions  alleged ;  secondly,  whether  his  having 
done  so  impeaches  his  credit,  or  is  capable  of  explanation.*  It 
would  be  manifestly  unjust  to  receive  the  testimony  of  the  adver- 

^  Be  Sailly  v.  Morgan,  2  Bsp.  0.  691.  The  action  was  by  a  schoolmaster,  for 
the  board  and  education  of  the  defendant's  sons :  the  defence  was,  his  neglect  of 
the  scholars,  &c.  A  witness  for  the  plaintiff,  the  usher  of  the  school,  swore  that 
the  treatment  of  the  scholars  was  proper ;  and,  to  contradict  him,  a,  letter  written 
by  him  to  a  former  scholar,  containing  immoral  matter,  was  read  in  evidence. — So 
a  prisoner  (ante,  pp.  229,  230)  or  a  prosecutor,  in  a  criminal  case,  may  contradict 
a  witness  by  means  of  his  deposition  before  the  magistrate ;  Oldroyd's  case,  E.  & 
E.  0.  0.  88,  see  ante,  p.  231,  and  post,  vol.  ii.  tit.  Depositions.  The  courts  of 
Scotland  exclude  such  evidence,  upon  the  principle  that  the  witness  ought  to 
deliver  his  testimony  unfettered  by  previous  declarations  ;  Hume's  Com.  on  Orim. 
Law  of  Scotland,  vol.  ii.  p.  36'7 ;  Burnet's  Treatise,  p.  467.  The  policy  of  this 
rule  is,  to  say  the  least,  questionable ;  if  it  relieve  a  well-disposed  witness  from 
embarrassment  in  stating  the  truth,  it  also  relieves  a  fraudulent  one  from  the  difli- 
culty  of  explaining  a  statement  made  at  a  time  when  he  was  under  no  temptation 
to  deceive,  and  thereby  excludes  a  considerable  test  of  credit.  An  honest  witness 
will  disclose  the  truth  in  spite  of  any  prior  declaration ;  a  dishonest  one  would 
certainly  be  encouraged  by  the  exclusion.  It  seems  to  be  the  wiser  policy  not  to 
yield  a  test  of  truth,  at  a  certain  sacrifice,  for  the  sake  of  an  advantage  so  doubtful. 

'  The  Queen's  case,  2  B.  &  B.  300;  E.  0.  L.  E.  6.  The  following  questions 
were  proposed  by  the  House  of  Lords  to  the  judges  :  "  If  a  witness  in  support  of  a 
prosecution  has  been  examined  in  chief,  and  has  not  been  asked  in  cross-examina- 
tion as  to  any  declaration  made  by  him,  or  as  to  acts  done  by  him,  to  procure 
persons  corruptly  to  give  evidence  in  support  of  the  prosecution,  would  it  be  com- 
petent to  the  party  accused  to  examine  witnesses  in  his  defence,  for  the  purpose  of 
proving  such  declarations  or  acts,  without  first  calling  back  the  witness  to  be 
examined  or  cross-examined  as  to  the  fact  whether  he  ever  made  such  declarations 
or  did  such  acts  ?"  Again :  "  If  a  witness,  called  on  the  part  of  a  plaintiff  or 
prosecutor,  gives  evidence  against  the  defendant,  and  if,  after  cross-examination, 
they  discover  that  the  witness  so  examined  has  corrupted  or  endeavored  to  corrupt 
another  person  to  give  false  testimony  in  such  cause,  whether  the  defendant's 
counsel  may  not  be  permitted  to  give  evidence  of  such  corrupt  act  of  the  witness, 
without  calling  him  back  ?"  The  judges  held,  that  the  proposed  proof  could  not, 
in  either  case,  be  adduced,  without  a  previous  cross-examination  of  the  witness  as 
to  the  subject-matter. 


INQUIEY    PREVIOUS    TO    CONTRADICTION.         211 

sary's  *mtness  to  prove  the  fact,  without  also  admitting  the   r^^  .^ 
party's  witness  to  deny  it;  and  assuming  the  act  to  have 
been  done,  or  expression  used,  it  would  also  be  unjust  to  deny  to 
the  party,  or  the  witness  who  admits  the  act  or  expression,  the 
best  or,  it  may  be,  the  only  means  of  explanation/* 

If  the  witness  admit  the  words,  declaration,  or  act,  proof  on  the 
other  side  becomes  unnecessary,  and  an  opportunity  is  afforded  to 
the  witness  of  giving  such  reasons,  explanations,  or  exculpations  of 
his  conduct,  if  any  there  be,  as  the  circumstances  may  furnish ;  and 
thus  the  whole  matter  is  brought  before  the  court  at  once,  which  is 
the  most  convenient  course.'^ 

If  the  witness  deny  the  words,  declaration,  or  act  imputed  to 
him,  then,  if  it  be  not  a  matter  collateral  to  the  cause,  witnesses 
may  be  called  to  contradict  him.''  But  it  is  not  enough  to  ask  a 
witness  (in  order  to  found  a  contradiction)  the  general  question 
whether  he  has  ever  said  so  and  so ;  he  must  be  asked  as  to  the 

'  It  is  upon  this  principle  that  statements  by  a  deceased  attesting  witness  to  a 
document  cannot  be  given  in  evidence  upon  proof  of  his  signature.  Thus,  in 
Stobart  V.  Dryden,  1  M.  &  W.  615,  it  was  held  that  evidence  of  declarations  by 
a  deceased  attesting  witness,  whose  signature  was  proved,  that  he  had  forged  or 
fraudulently  altered  the  instrument,  was  inadmissible. 

«  By  the  judges,  in  the  Queen's  case,  2  B.  &  B.  313;  E.  0.  L.  E.  6. 

"  2  B.  &  B.  313,  B.  C.  L.  E.  6,  and  supra;  Long  v.  Hitchcock,  9  0.  &  P.  619 ; 
E.  0.  L.  E.  38. 

'  In  general,  a  witness  cannot  be  impeached  by  proving  that  at  other  times  he 
made  contradictory  statements,  unless  he  has  been  interrogated  as  to  such  state- 
ments ;  McKinney  v.  Neil,  1  McLean,  540 ;  Everson  v.  Carpenter,  17  Wend. 
419;  Franklin  Bank  v.  Steam  Navigation  Co.,  11  Grill  &  Johns.  28;  Ahle-Y. 
Shields,  7  Missouri,J120 ;  Doe  v.  Reagan,  5  Blackford,  217 ;  The  State  v.  Marter, 
2  Alabama,  43 ;  Weaver  v.  Traylor,  5  Ibid.  564 ;  Garrett  v.  The  State,  6  Missouri, 
1 ;  McAleer  v.  McMullen,  2  Barr,  32  ;  Weinsorpflin  v.  State,  7  Blackf.  286 ;  Kay 
V.  Fredrigal,  3  Barr,  221 ;  Regnier  v.  Cabot,  2  Oilman,  34 ;  Downer  v.  Dana,  19 
Yerm.  338 ;  Palmer  v.  Haight,  2  Barb.  Sup.  Ct.  210 ;  Howell  v.  Reynolds,  12 
Alabama,  128 ;  Clapp  v.  Wilson,  5  Denio,  285  ;  Williams  v.  Turner,  7  Georgia, 
,348;  Johnson  v.  Kinsey,  Ibid.  428;  Moore  v.  Bettis,  11  Humph.  67  ;  Clementine 
V.  The  State,  14  Missouri,  112 ;  King  v.  Wicks,  20  Ohio,  87 ;  Sprague  v.  Cald- 
well, 12  Barb.  516  ;  Carlisle  v.  Hunley,  15  Abalama,  623 ;  Nelson  v.  Iverson,  17 
Ibid.  216  ;  Conrad  v.  Griffey,  16  How.  38. 

The  rule  does  not  however  apply  when  the  evidence  to  impeach  the  witness  is 
his  sworn  deposition  previously  taken  in  the  same  cause  ;  Williams  v.  Chapman, 
1  Georgia,  467. 

It  has  been  held  however  in  some  cases  not  to  be  matter  of  error  to  permit  such 
evidence  but  to  rest  altogether  in  the  sound  discretion  of  the  court ;  Hedge  v. 
Clapp,  22  Conn.  262  ;  Kay  v.  Fredrigal,  3  Barr,  221. 


212      KEBUTTING    THE    TESTIMONY  OF  WITNESSES. 

time,  place,  and  person  involved  in  the  supposed  contradiction,'  or 
some  other  circumstance^  suificient  to  point  out  the  particular  occa- 
sion. So,  if  the  statement  imputed  to  the  witness  be  contained  in 
any  writing,  it  must  be  put  into  his  hand,  and  he  must  be  asked  if 
it  is  in  his  handwriting.-" 

If  the  witness  neither  directly  admit  nor  deny  the  act  or  decla- 
ration, as  where  he  merely  says  that  he  does  not  recollect,  or,  as  it 
seems,  gives  any  other  indirect  answer  not  amounting  to  an  admis- 
*9Ai  1  ^^°^'  ^*  ^^  competent  for  the  *adversary  to  prove  the  affirma- 
-'  tive,  for  otherwise  the  witness  might  in  every  such  case 
exclude  evidence  of  what  he  had  done  or  said,  by  answering  that 
he  did  not  remember." 

If  the  witness  decline  to  answer  on  account  of  the  tendency  of 
the  question  to  criminate  him,  the  adverse  party  is  still  at  liberty 
to  adduce  the  same  proof."  And  the  possibility  that  the  witness 
may  on  that  ground  decline  to  answer  affords  no  sufficient  reason  for 
not  giving  him  the  opportunity  of  answering  with  a  view  to  explain 
the  circumstances  and  to  exculpate  himself.™  And  it  is  of  great 
importance  that  this  opportunity  should  be  thus  afforded,  not  only 
for  the  reasons  thus  suggested,  but  because  such  explanation,  if  not 
given  in  the  first  instance,  may  be  rendered  impossible ;  for  a  wit- 
ness who  has  been  examined,  and  has  no  reason  to  suppose  that  his 
farther  attendance  is  requisite,  often  departs  the  court,  and  may 
not  be  found  or  brought  back  until  the  trial  is  at  an  end." 

'  Angus  v.  Smith,  Mood.  &  M.  473 ;  E.  0.  L.  E.  22  ;  Andrews  v.  AsJcey,  8  C. 
&  P.  7  ;  E.  C.  L.  E.  34 ;   Crowlei/  v.  Page,  7  0.  &  P.  789  ;  E.  0.  L.  E.  32. 

'  Crowley  V.  Page,  7  0.  &  P.  789 ;  B.  0.  L.  R.  32. 

*  Crowley  v.  Page,  7  0.  &  P.  789,  E.  C.  L.  E.  32,  cor.  Parke,  B.,  who  observed, 
"  If  the  witness,  on  cross-examination,  admits  the  conversation  imputed  to  him, 
there  is  no  necessity  for  giving  further  evidence  of  it ;  but  if  he  says  he  does  not 
recollect,  that  is  not  an  admission,  and  you  may  give  evidence  on  the  other  side  to 
prove  that  the  witness  did  say  what  is  imputed,  always  supposing  the  statement  to 
be  relevant  to  the  matter  at  issue.  This  has  always  been  my  practice.  If  the  rule 
were  not  so,  you  could  never  contradict  a  witness  who  said  he  could  not  remem- 
ber." Tindal,  L.  0.  J.,  is  stated  to  have  ruled  the  contrary  in  an  earlier  case ; 
Pain  V.  Beeston,  1  M.  &  Rob.  20.  And  see  Long  v.  Hitchcock,  9  0.  &  P.  619  ; 
E.  0.  L.  R.  38. 

■  The  Queen's  case,  2  B.  &  E.  314;  B.  C.  L.  R.  6.  "  Ihid. 
"  By  the  judges,  in  The  Queen's  case,  2  B.  &  B.  314;  E.  C.  L.  E.  6. 

■  A  witness  is  not  bound  to  answer  as  to  how  he  testified  on  a  former  trial,  rela- 
tive to  the  matter  in  question,  if  he  objects  to  the  inquiry ;  Mitchell  v.  Hinman,  8 
Wend.  667. 


EVIDENCE    TO    COJSTTEADICT.  213 

If  indeed  tlie  witness's  moral  character  be  relevant  to  the  issue, 
as  in  an  action  for  seduction  where  the  seduced  person  is  examined, 
evidence  that  the  witness  has  used  expressions  inconsistent  with 
such  character  may  be  given,  without  first  asking  the  witness 
whether  they  have  *been  used.  But  if  the  expressions 
would  be  contradictory  to  the  evidence  she  has  given  in  the  '- 
cause,  and  evidence  of  them  is  tendered  simply  by  way  of  contra- 
diction, they  cannot  be  proved  without  asking  the  witness  the 
previous  question,  although  they  are  in  themselves  relevant  to  the 
issue.  Thus  where,  in  an  action  for  seduction  of  the  plaintiff's 
daughter,  she  proved  that  the  defendant  seduced  her  and  was  the 
father  of  her  child,  and  stated  that  she  did  not  know  A.  B.,  evi- 
■dence  that  she  had  said  that  A.  B.  was  her  seducer  and  the  father 
it  was  held  could  not  be  given  by  way  of  contradicting  her,  with- 
out first  asking  her  whether  she  had  said  so.° 

There  is  no  distinction  for  these  purposes  between  declarations 
made  by  the  witness,  and  acts  done  by  him  which  relate  to  the 
cause  ;■"  in  the  one  case  as  well  as  the  other,  an  opportunity  must 
be  afforded  the  witness  of  explaining  his  conduct  before  evidence 
is  adduced  to  impeach  his  credit  by  proof  of  the  fact. 

If  the  adverse  counsel  has  omitted  to  lay  such  a  foundation  by 
previously  interrogating  the  witness  on  the  subject  of  those  decla- 
tions,  the  court  will  of  its  own  authority,  call  back  the  witness,  in 
order  that  the  requisite  previous  questions  may  be  put.'^  And 
even  although  the  fact  to  be  adduced  in  order  to  impeach  the  wit- 
ness's testimony  be  not  discovered  until  after  the  conclusion  of  the 
cross-examination,  the  rule  still  holds ;  and  evidence  cannot  be 
given  for  the  purpose  of  thus  impeaching  his  testimony  without 
previous  examination  of  the  witness,  even  although  the  witness 
should  have  departed  the  court,  and  cannot  be  brought  back  after 
the  discovery  has  been  made."^ 

The  witness  having  been  asked  pn  cross-examination,  if  he  has 
not  used  particular  expressions,  in  order  to  lay  *a  founda-    ^^^nAo 
tion  for  contradicting  him ;  upon   his  denial,  the  witness    '- 
called  to  prove  that  he  did  use  them  may  be  asked  as  to  the  par- 
ticular words  read  from  the  brief.' 

°  Carpenter  v.  Wall,  11  A.  &  B.  803  ;  B.  0.  L.  E.  39. 
p  The  Queen's  case,  2  B.  &  B.  311 ;  B.  0.  L.  E.  6. 
«  By  the  judges,  in  The  Queen's  case,  2  B.  &  B.  314 ;  B.  0.  L.  E.  6. 
"■  The  Queen's  case,  2  B.  &  B.  312  ;  B.  C.  L.  E.  6. 

»  Edmonds  v.  Walter,  3  Stark.  C.  8  ;  E.  C.  L.-E.  3  ;  S.  P.,  Hallett  v.  Cousens, 
2  M.  &  Eob.  238;  ante,  p.  171. 


214      EEBUTTING    THE    TESTIMONY   OF   WITNESSES. 

The  evidence  tendered  by  way  of  contradiction  must  be  legiti- 
mate evidence  of  tlie  facts  or  statement ;  thus,  in  order  to  impeach 
the  credit  of  a  witness  for  a  defendant  upon  an  information  for 
assaulting  revenue  officers,  by  proving  his  previous  testimony  on 
an  information  before  two  magistrates  against  the  same  defendant 
for  having  smuggled  goods  in  his  possession,  proof  of  the  conviction 
containing  the  testimony  of  the  witness  is  insufficient ;  it  is  neces- 
sary to  prove  it  by  the  testimony  of  those  who  heard  what  was  said.' 
The  record  of  conviction  is  conclusive  for  the  purpose  for  which  it 
is  intended,  that  is,  to  prove  the  condemnation ;  but  it  is  no  evi- 
dence to  prove  the  testimony  of  the  witnesses. 

After  proof  in  a  criminal  proceeding  that  the  prosecutor  has 
employed  A.  B.,  an  agent,  to  procure  and  examine  witnesses  in 
support  of  the  charge,  it  is  not  competent  to  the  defendant  to 
examine  a  witness  to  prove  that  A,  B,  who  is  not  examined  as  a 
witness,  had  offered  a  bribe  to  give  evidence  upon  the  trial,  or  to 
bring  papers  with  him  belonging  to  the  defendant ;  for  the  mere 
employment  of  an  agent  for  the  purpose  of  procuring  and  examin- 
ing witnesses  is  in  itself  an  innocent,  and  in  many  cases  a  necessary 
act,  and  it  is  not  to  be  presumed  that  the  prosecutor  directed  the 
agent  to  use  any  unlawful  means  for  the  purpose ;  neither  can  any 
legitimate  inference  or  conclusion  be  drawn  from  this  fact  against 
the  credit  and  veracity  of  the  witnesses  who  are  examined ;  for  it 
is  not  to  be  presumed,  in  the  absence  of  all  proof,  that  they  were 
either  parties  to  the  illegal  act  or  privy  to  it,  or  to  any  act  of  the 
like  nature." 

*As  upon  an  indictment  for  a  conspiracy  it  is  competent 
-'  to  the  prosecutor  to  prove,  in  the  first  instance,  the  exist- 
ence of  a  conspiracy,  by  general  evidence,  without  proving  partici- 
pation by  the  defendant,''  so  it  is  competent  to  a  defendant  on  a 
criminal  charge,  first  to  prove  a  conspiracy  to  suborn  witnesses  for 
the  destruction  of  his  defence,  and  afterwards  to  affect  the  prosecu- 
tor by  proof  of  his  participation,''  provided  proof  of  such  a  con- 
spiracy would  afford  a  legitimate  ground  of  defence.'' 

A  party  cannot  discredit  the  testimony  of  his  own  witness,  by 

'  R.  V.  Howe,  1  Camp.  461,  cor.  Ld.  Bllenborough. 
"  By  the  judges,  in  Tlie  Queen's  case,  2  B.  &  B.  302 ;  E.  0.  L.  E.  6. 
"  Vol.  II.  tit.  Conspiracy  ;  2  B.  &  B.  303 ;  E.  0.  L.  R.  6. 
^  The  Queen's  case,  2  B.  &  B.  303,  309 ;  B.  C.  L.  E.  6. 

^  2  B.  &  B.  311 ;  B.  0.  L.  E.  6.  Quiiere,  In  what  cases  proof  of  a  crime  com- 
mitted by  a  prosecutor  in  so  conspiring  can  afford  any  legal  defence  to  a  defendant  ? 


PAETY  CONTRADICTING    HIS    OWN  WITNESS.      215 

general  evidence  of  incompetency ;  for  it  would  be  unfair  that  he 
should  have  the  benefit  of  the  testimony  if  favourable,  and  be  able 
to  reject  it  if  the  contrary/' 

Where,  however,  a  party  is  under  the  necessity  of  calling  a  wit- 
ness for  the  purpose  of  satisfying  the  formal  proof  which  the  law 
requires,  he  is  not  precluded  from  calling  other  witnesses  who  give 
contradictory  testimony."  And  even  where  a  witness  by  surprise 
gives  evidence  against  the  party  who  called  him,  that  party  will 
not  be  precluded  from  proving  his  case  by  other  witnesses ;  for  it 
would  be  contrary  to  justice  that  the  treachery  of  a  witness  should 
exclude  a  party  from  establishing  the  truth  by  aid  of  other  testi- 
mony. And  their  testimony,  which  would  have  been  admissible 
had  they  been  called  first,  cannot  in  principle  be  excluded  by  the 
circumstance  of  being  called  in  a  different  order  .^-  Accordingly, 
where  a  plaintiff  had  called  the  servant  of  the  defendant  to  prove 

y  Per  Buller,  J.,  B.  N.  P.  297 ;  see  also  Hastings's  trial,  2  Hawk.  c.  46,  s.  196, 
Curwood's  edition :  nor  can  he  object  to  the  admissibility  of  evidence,  after  having 
allowed  it  to  be  given ;   Webb  v.  Smith,  Ey.  &  M.  106  ;  E.  0.  L.  E.  21. 

^  As  in  the  remarkable  case  of  Mr.  Joliffe's  will.  See  tit.  Will  ;  and  see  Alex- 
ander v.  Gibson,  2  Camp.  556. 

'  Bean  v.  Hamilton,  Tayl.  14 ;  Sawi-ey  v.  Murrell,  et  al.,  2  Hayw.  397,  aoc. 
Where  one  witness  is  contradicted  by  another  who  is  called  by  the  same  party,  the 
first  cannot  be  called  to  disprove  what  the  second  has  testified;  P.app  v.  Le 
Blanc,  et  al.,  1  Dallas,  63. 

In  North  Carolina,  it  has  been  held,  that  in  criminal  prosecutions  the  Attorney- 
General  may  discredit  a  witness  called  by  him  to  testify  on  the  part  of  the  State ; 
State  V.  Norris,  2  Hayw.  429.  M. 

Aliter  in  Maryland ;  Queen  v.  Tlie  State.  I. 

^  A  party  cannot  impeach  the  character  of  his  own  witness ;  but  he  may  prove 
by  others  that  the  account  given  by  his  witness  is  incorrect ;  Lawrence  v.  Barker, 
5  Wend.  301 ;  Winston  v.  Moseley,  2  Stewart,  137  ;  Farr  v.  Thompson,  Cheves, 
37 ;  Stockton  v.  Bemuth,  7  Watts,  39 ;  Spencer  v.  White,  1  Iredell,  236  ;  Brown 
V.  Osgood,  25  Maine,  505  ;  Shelton  v.  Hampton,  6  Iredell,  216  ;  Bradford  v. 
Bush,  10  Alabama,  386 ;  Wolfe  v.  Hanon,  1  Gill.  84 ;  Chamberlain  v.  Sands,  27 
Maine,  458 ;  Hunt  v.  Fish,  4  Barb.  S.  C.  Eep.  324  ;  The  People  v.  Safford,  5 
Denio,  112  ;  Keutgen  v.  Parks,  2  Sanf.  S.  C.  Eep.  60  ;  Thompson  v.  Blanchard, 
4  Comst.  303 ;  Hice  v.  Cox,  12  Iredell,  315  ;  Swamscot  Machine  Co.  v.  Walker, 
2  Poster,  457  ;  Bank  of  Kentucky  v.  Shier,  4  Eich.  233 ;  Buckhalter  v.  Edwards, 
16  Georgia,  593 ;  Hall  v.  Houghton,  37  Maine,  411 ;  Scavy  v.  Dearborn,  19  N. 
Hamp.  351 ;  Brown  v.  Wood,  19  Missouri,  475. 

The  rule  that  a  party  cannot  discredit  his  own  witness  does  not  apply  to  those 
cases  where  the  party  is  under  the  necessity  of  calling  the  subscribing  witnesses 
to  an  instrument ;  Dennett  v.  Dow,  5  Shepley,  19 ;  Williams  v.  Walker,  2  Eich. 
Eq.  291 ;  Shorey  v.  Hussey,  32  Maine,  579. 


216      REBUTTING    THE   TESTIMONY  OP  WITNESSES. 

a  warranty  of  a  horse,  upon  wHcli  tlie  action  -was  founded,  and  the 
witness  denied  that  he  warranted  the  horse,  the  plaintiff  was 
^  .  allowed  to  *prove  the  fact  by  means  of  other  witnesses."'' 
-'  A  witness  called  by  the  plaintiff  in  an  action  on  a  policy  of 
insurance  against  fire,  to  prove  the  sale  of  goods  to  the  plaintiff, 
and  swore,  on  his  examination  in  chief,  that  an  invoice  of  the 
goods  in  his  handwriting  was  made  out  by  him  after  the  fire,  and 
that  a  letter,  in  his  handwriting,  was  in  fact  written  in  London,  at 
the  plaintiff's  house,  and  by  his  desire,  and  that  the  plaintiff's  son 
and  shopman  had  persuaded  him  to  say  that  he  had  sent  the  goods. 
Lord  Tenterden  refused  to  allow  the  son  and  shopman  to  be  called 
again  to  negative  this  statement,  but  the  Court  of  K.  B.  granted  a 
new  trial,  for  the  evidence  was  offered  to  prove  a  material  fact 
relevant  to  the  issue,  and  it  was  held  that,  by  such  evidence,  a 
party  might  contradict  his  own  witness." 

Where  a  party,  being  surprised  by  a  statement  of  his  own  wit- 
ness, calls  other  witnesses  to  contradict  him  as  to  a  particular 
fact,  the  whole  of  the  testimony  of  the  contradicted  witness  is  not 
therefore  to  be  repudiated.  The  whole  is,  it  seems,  open  to  the 
consideration  of  the  jury." 

Doubt  has  been  entertained  on  the  question  whether  it  be  com- 
petent to  a  party  to  impeach  the  testimony  of  his  own  witness  as 
to  a  particular  fact,  by  proof  that  on  a  former  occasion  he  gave  a 
difierent  account,  and  so  to  contradict  him  by  his  own  statement. 
The  resolution  of  this  doubt  depends,  as  it  seems,  on  the  considera- 
tion whether,  in  the  abstract,  such  evidence  is  essential  to  justice, 
and  if  so,  then  whether  the  party  is  to  be  excluded  from  such 
evidence,  either  by  reason  of  any  objection  in  the  nature  of  an 

*  Alexander  v.  Gibson,  2  Camp.  556  ;  and  see  Richardson  v.  Allan,  2  Stark. 
C.  334;  E.  0.  L.  E.  3:  Ewer  y.  Ambrose,  3  B.  &  C.  746;  E.  0.  L.  E.  10; 
JFViedlander  v.  The  London  Assurance  Company,  4  B.  &  Ad.  193  ;  E.  0.  L.  E. 
24 ;   WrigU  v.  Beckett,  1  M.  &  Eob.  429. 

■=  Friedlander  v.  Tlie  London  Assurance  Company,  4  B.  &  Ad.  193  ;  E.  C. 
L.  R.  24. 

°  Bradley  v.  Ricardo,  8  Bing.  57 ;  E.  C.  L.  E.  21. 

'  Jackson  v.  Varick,  7  Oow.  Rep.  239.  The  defendants  introduced  a  devisee  to 
prove  the  execution  of  a  bond  to  which  his  name  appeared  to  be  signed  as  a  witness. 
He  was  sworn  generally  as  a  witness  in  the  cause  and  denied  that  he  had  ever 
witnessed  the  bond.  The  plaintiff's  counsel  then  insisted  upon  cross-examining 
him  in  support  of  the  right,  to  which  the  defendants  objected  on  the  ground  of 
his  interest  as  a  devisee,  but  it  was  held  that  having  introduced  him  as  a  witness 
they  could  not  question  either  his  competency  or  credibility.  I. 


PARTY  CONTEADICTING    HIS    OWN  WITNESS.      217 

estoppel,  or  of  any  collateral  inconvenience  wMoli  might  result. 
As  a  general  proposition,  it  is  essential  to  *justice  that,  in  a  p^n  /  ^ 
case  where  the  testimony  of  two  witnesses  upon  a  question 
of  fact  is  contradictory,  every  aid  should  be  afforded  to  enable  the 
jury  to  decide  which  of  them  is  better  entitled  to  credit.  And 
there  can  be  no  doubt  that,  in  such  a  case,  the  knowledge  that 
one  of  those  witnesses  on  a  former  occasion  gave  an  account  of 
the  matter  inconsistent  with  his  present  testimony  is  of  import- 
ance in  order  to  enable  them  to  form  a  correct  conclusion.  It  is 
admitted  on  all  hands  that  a  party  may,  by  such  means,  impeach 
the  credit  of  his  adversary's  witness ;  and  it  is  manifest  that  a 
third  party,  vested  with  the  discretion  of  calling  what  witnesses 
he  thought  fit  for  the  ends  of  justice,  would,  in  the  exercise  of  that 
discretion,  submit  the  contradiction  to  the  jury.  It  has  indeed 
been  decided,  in  a  criminal  case,  that  it  is  competent  to  a  judge  to 
do  this.  Upon  the  trial  of  an  indictment  for  murder,''  the  judge, 
in  his  discretion,  thought  fit  to  call  as  a  witness  the  mother  of  the 
prisoner,  whose  name  was  indorsed  on  the  indictment,  but  who 
had  not  been  called  by  the  counsel  for  the  prosecution.  Her  evi- 
dence tended  to  acquit  the  prisoner,  and  the  judge,  with  a  view  to 
impeach  her  credit,  referred  to'  her  deposition ;  and  all  the  judges 
were  of  opinion  that  it  was  competent  to  the  judge  to  do  so ;  and  it 
is  material  to  observe,  that  Lords  BUenborough  and  Mansfield  inti- 
mated that  the  prosecutor  had  the  same  right. 

If,  as  an  abstract  position,  it  be  essential  to  the  ends  of  truth 
that  such  evidence  should  be  submitted  to  a  jury,  it  remains  to 
consider,  in  the  first  place,  whether  the  party  having  called  the 
witness  is,  as  it  were,  to  be  estopped  from  afterwards  so  impeach- 
ing his  credit.  It  is  diflBcult  to  come  to  this  conclusion.  A  party 
who  is  prepared  with  general  evidence  to  show  that  a  witness 
whom  he  calls  is  wholly  incompetent,  acts  unfairly  and  incon- 
sistently ;  for  knowing  his  witness  to  be  undeserving  of  credit,  he 
offers  *him  to  the  jury  as  the  witness  of  truth,  and  attempts  ^#047 
to  take  an  unfair  advantage,  by  concealing  or  disclosing  the 
real  character  of  his  witness,  as  best  serves  his  purpose.  But  a 
party  may  contradict  his  own  witness  in  the  mode  in  question, 
without  incurring  any  such  blame ;  he  may  have  been  purposely 
deceived  by  the  witness,  or,  though  not  under  a  legal  necessity  to 

*  B.  v.,  Old/royd,  Euss.  &  Ry.  0.  C.  L.  88.    So,  per  Lord  Lyndhurst,  C.  B.,  R. 
V.  Maddox  and  others,  Lancaster  Sp.  Ass.  1834 ;  1  Stark,  on  Evid.  606,  3rd  edit. 


218      EEBUTTIISTG    THE    TESTIMONY   OF   WITNESSES. 

call  him,  may  be  constrained  by  paucity  of  evidence  under  tbe 
particular  circumstances;  as  where  he  cannot  easily  prove  some 
other  fact  except  by  the  testimony  of  that  witness,  or  where  the 
not  calling  him  might  afford  a  ground  for  strong  observation 
against  him.  It  may  frequently  happen  in  such  oases  that  a  party 
may  with  great  propriety  call  a  witness  as  to  a  particular  fact,  and 
yet  impeach  his  testimony  upon  another  material  fact,  of  which 
the  witness,  without  intending  to  deceive,  may  have  obtained  but 
an  imperfect  knowledge,  or  in  respect  of  which  his  memory  may 
have  erred. 

It  may  happen  that,  although  under  no  legal  necessity  to  call  a 
particular  witness,  he  may  have  none  other  than  an  adverse  wit- 
ness to  prove  a  material  fact.  In  such  a  case,  it  would  frequently 
be  attended  with  great  hardship  to  preclude  the  party  from  using 
such  means  as  he  possessed,  to  show  that  the  witness  admitted  only 
such  facts  as  he  could  not  with  safety  deny,  but  misrepresented 
some  other  material  fact  in  which  he  could  not  be  contradicted, 
and  where  the  testimony,  though  false,  would  not  expose  him  to 
a  prosecution  for  perjury.  It  might  happen,  for  instance,  that  in 
an  action  by  two  partners,  for  goods  sold  and  delivered,  an  adverse 
witness  might  be  the  only  one  who  could  be  called  by  the  plain- 
tiffs to  prove  the  sale  and  delivery ;  a  fraudulent  witness  as  to  this 
might  be  obliged  to  state  the  truth,  for  fear  of  a  prosecution  for 
perjury,  but  still  he  might  with  safety  defeat  the  action  by  proof 
of  payment  to  himself,  as  the  agent  of  the  plaintiffs,  or  by  other 
evidence  which  would  not  expose  him  to  a  prosecution  for  per- 
jury. In  such,  and  many  other  cases  which  might  be  put,  it 
*9ASi  ''^o^-^'l  ^®  ^  harsh  rule  to  exclude  the  party  *from  defeating 
,  the  attempt  by  evidence  of  the  witness's  own  statements 

on  the  subject.^ 

In  the  case  of  an  adverse  witness,  it  may  frequently  happen 
that  what  he  states  in  favour  of  the  party  who  calls  him  may  be 
regarded  as  truth  unwillingly  wrung  from  a  reluctant  witness, 
whilst  his  counter-statements  are  open  to  great  suspicion ;  in  all 
such  cases,  former  declarations  by  the  witness  are  obviously  of 
importance,  with  a  view  to  ascertain  what  part  of  his  statement 

'  Although  a  party  calling  a  witness  shall  not  be  allowed  to  impeach  his  general 
character,  yet  he  may  show  that  he  has  told  a  different  story  at  another  time ;  Gow- 
den  T.  Reynolds,  12  Serg.  &  Rawle,  281 ;  State  v.  Norris,  1  Hay.  429  ;  Webster 
V.  Lee,  5  Mass.  Rep.  334 ;  see  also  Brown  v.  Bellows,  4  Pick.  179.  G. 


PARTY  CONTEADICTING    HIS    OWN  WITNESS.      219 

ouglit  to  be  discredited,  whilst  credit  is  given  to  tlie  rest.  The 
ordinary  rules,  as  to  the  examination  of  an  adverse  witness,  supply 
an  analogy  in  favour  of  the  affirmative  of  the  present  question,  in 
all  cases  at  least  where  the  witness  is  apparently  an  adverse  one. 
Considering  the  admission  of  such  evidence,  in  its  tendency  to 
occasion  collateral  inconvenience,  the  argument  that  a  party  ought 
not  to  be  allowed  to  discredit  his  own  witness,  by  general  evi- 
dence, seems  to  have  little  weight ;  the  contradiction  proposed 
being  plainly  distinguishable,  as  already  observed,  from  any  gene- 
ral impeachment  of  the  witness's  character,  by  evidence  showing 
him  to  be  altogether  unworthy  of  credit.  It  would,  as  was 
observed  in  the  case  of  Friedlander  v.  The  Londan  Assurance  Com- 
pany,^ be  against  all  justice  that  the  whole  of  a  man's  testimony 
should  be  struck  out  because  a  witness  sets  him  right  as  to  a 
single  fact.  A  party  may  with  perfect  propriety  and  consistency 
insist  on  the  general  competency  of  his  witness,  although  he 
alleges  that  his  testimony  as  to  one  particular  fact  is  erroneous. 
It  may  be  urged  that  the  practice  may  open  a  door  to  collusion, 
and  that  a  jury  may  mistake  such  a  statement  for  substantive  evi- 
dence. The  suspicion  of  collusion  in  such  a  case  is  at  most  but 
weak,  when  it  is  considered  how  remote  would  be  the  expectation 
of  benefit  to  be  derived  from  it.  A  party  might,  no  doubt,  by 
such  means,  fraudulently  introduce  into  the  evidence  a  former 
statement  by  his  own  witness*  in  his  favour ;  but  it  could  p^^n .  q 
not  be  of  any  use,  unless  the  jury,  against  the  direction  of 
the  judge,  should  regard  it  as  substantive  evidence.  The  latter 
objection  would  operate  with  equal  force  to  exclude  such  evidence, 
when  offered  to  impeach  the  adversary's  witness. 

It  has  been  truly  observed,  that  to  allow  the  evidence  of  a 
party's  own  witness  to  be  impeached  by  other  evidence  to  the  con- 
trary, is  not  founded  on  any  principle  generally  warranting  such 
an  impeachment  of  credit  by  the  party  who  calls  the  witness,  for 
the  witnesses  are  not  called  directly  to  discredit  the  first  witness ; 
the  impeachment  of  his  discredit  is  incidental  and  consequential 
only.  But  although  the  practice  of  contradicting  by  other  evi- 
dence may  supply  no  affirmative  argument  for  contradiction  by  the 
witness's  own  statement,  it  is  observable  that  such  practice  shows 
that  the  discrediting  of  the  witness  is  not  a  consequence  which 
ought  to  exclude  such  evidence  as  the  justice  of  the  case  may 

=  4  B.  &  Ad.  193 ;  E.  0.  L.  R.  24.    By  Parke,  Taunton,  and  Patteson,  Js. 


220      EBBUTTING    THE    TESTIMONY   OF   WITNESSES. 

Otherwise  require.  Tlie  admission  of  tMs  kind  of  evidence  seems 
to  stand  upon  a  substantive  reasonable  foundation.  For  sucli  a 
course  is  in  tbe  abstract  essential  to  tbe  forming  a  correct  estimate' 
of  the  respective  degrees  of  credit  due  to  conflicting  witnesses ; 
and  it  is  at  most  but  doubtful  whether  the  exclusion  of  such  evi- 
dence is  warranted  upon  any  collateral  grounds  of  convenience. 
In  the  case  of  Wright  v.  Bechett,'  Lord  Denman  having  received 
such  evidence,  the  case  was  argued  before  Lord  Denman  and  Mr. 
Baron  BoUand,  as  Judges  of  the  Court  of  Common  Pleas  at  Lan- 
ca'ster  ;■  Lord  Denman  cited  the  case  of  Bernasconi  v.  Fairhroiher,  in 
which  he  had  received  similar  evidence,  and  in  his  judgment  on 
^  the  principal  case  he  adhered  to  the  same  opinion.^    *Mr. 

^  Baron  BoUand  was  of  opinion  that  the  evidence  was  inad- 
missible, and  Lord  Denman  stated  that  others  of  great  weight  and 
authority  agreed  with  Mr.  Baron  BoUand.  And  notwithstanding 
the  reasons  above  suggested,  the  prevailing  opinion  seems  to  be 
that  a  party  who  calls  a  witness  is  not  at  liberty  thus  to  impeach  his 
credit  and  nullify  his  testimony.  In  the  more  recent  case  of  Holds- 
worth  V.  The  Mayor  of  Dartmouth^  an  action  against  the  corporation 
on  a  bond,  which  they  defended  on  the  ground  that  it  had  been 
obtained  by  fraud,  the  defendants  called  several  persons,  in  order 
to  establish  this,  who  were  members  of  the  corporation  at  the  time 
the  bond  was  given,  and  took  part  in  giving  it.  One  of  them  on 
cross-examination  stated  that  the  transaction  was,  as  far  as  he 
knew,  honest  and  correct.  On  re-examination  he  denied  having 
told  the  defendants'  attorney  that  it  was  a  shameful  transaction, 
whereupon  the  defendants'  counsel  proposed  to  call  the  attorney  to 
prove  that  he  had  said  so,  but  this  being  objected  to,  Parke,  B., 
rejected  the  evidence,  observing,  that  he  never  had  any  doubt  that 
BoUand,  B.,  was  right  in  the  case  above  cited,  and  added,  that  a 
party  has  no  right  to  put  a  witness  into  the  box  as  a  witness  of 
credit,  and  when  he  gives  unfavourable  evidence  to  call  evidence 
to  contradict  him,  and  that  it  made  no  difference  whether  the  fact 
was  elicited  on  the  examination  in  chief  or  on  cross-examination. 
In  Allay  v.  Hutcliings,'-  also,  Wightman,  J.,  rejected  similar  evi- 

'  1  M.  &  Eob.  427.  In  the  case  of  Ewer  v.  Amhrose,  3  B.  &  0.  746,  E.  0.  L. 
R.  10,  cited  below,  Mr.  J.  Bayley  seemed  to  be  of  opinion  (although  it  was  un- 
necessary to  decide  the  point)  that  the  answer  in  Chancery  was  inadmissible  alto- 
gether.    Holroyd  and  Littledale,  Justices,  expressed  no  opinion. 

8  And  again  in  Dwnn  v.  Aslett,  2  M.  &  Eob.  122. 

"  2  M.  &  Rob.  153.  '  2  M.  &  Rob.  358. 


PARTY  CONTEADICTING    HIS    OWN  WITNESS.      221 

dence ;  and  in  Winter  v.  Butt,'  Erskine,  J.,  ruled  the  same  way, 
observing  that  lie  liad  previously  done  so  on  one  occasion  witli  the 
approbation  of  Patteson,  J.,  and  that  he  had  since  talked  with 
several  of  the  other  judges,  and  found  that  in  their  opinion  the 
above-mentioned  decision  of  Parke,  B.,  was  right. 

It  is  observable,  that  the  case  of  a  witness  thus  giving  evidence 
of  a  fact  tending  to  negative  the  claim  made  by  *his  party  is  j-^n^i 
distinguishable  from  that  of  a  witness  who  denies  all  know-  ■- 
ledge  of  the  fact,  or  simply  fails  in  proving  the  fact  which  he  is 
called  to  prove.  In  the  former,  it  may  be  essential  to  justice  that 
the  jury,  who  might  otherwise  attribute  too  much  credit  to  the 
testimony  of  the  witness,  should  be  supplied  with  the  means  to 
enable  them  to  judge  of  the  degree  of  credit  which  they  ought  to 
give ;  but  in  the  latter,  the  witness  proving  nothing,  his  credit  is 
immaterial,  and  what  he  stated  upon  a  former  occasion  cannot  be 
received  as  substantive  evidence.''  Upon  the  trial  of  "Warren 
Hastings,  the  judges  delivered  the  following  answer,  by  the  Lord 
Chief  Baron,  to  a  question  proposed  by  the  House  of  Lords : — 
"  That  where  a  witness,  produced  and  examined  in  a  criminal  pro- 
ceeding by  the  prosecutor,  disclaimed  all  knowledge  of  any  matter  so 
interrogated,  it  is  not  competent  for  such  prosecutor  to  pursue 
such  examination  by  proposing  a  question  containing  the  particu- 
lars of  an  answer  supposed  to  have  been  made  by  such  witness 
before  a  Committee  of  the  House  of  Commons,  or  in  any  other 
place,  and  by  demanding  of  him  whether  the  particulars  so  sug- 
gested were  not  the  answers  he  had  so  made,'"  In  the  case  of 
Uwer  V.  Ambrose,''-  a  witness,  called  by  the  defendant,  to  prove  a 
partnership  between  himself  and  the  defendant,  having  denied  the 
fact,  an  answer  of  the  witness  in  Chancery  was  offered  in  evi- 
dence by  the  defendant's  counsel,  and  admitted.  It  was  left  to  the 
jury  to  find  for  the  plaintiff  or  defendant,  according  to  the  credit 
given  to  the  witness's  answer  in  Chancery  or  in  court.  After  a 
verdict  for  the  defendant,  the  court  granted  a  new  trial,  on  the 
ground  that  the  answer  was  not  substantive  evidence  of  the  fact. 

J  2  M.  &  Bob.  357. 

^  Ewer  V.  Ambrose,  3  B.  &  0.  746  ;  E.  C.  L.  E.  10. 

'  Journ.  D.  P.,  Ap.  10,  1788.  The  witness  had  been  asked  by  the  managers  for 
the  Commons  whether  he  had  not  been  examined  before  a  Committee  of  the  House 
of  Commons,  and  whether  he  had  not  before  that  Committee  given  a  particular 
answer  to  a  particular  question. 

"  3  B.  &  C.  746  ;  B.  0.  L.  E.  10. 


222    CONFIRMING  THE  TESTIMONY  OF  WITNESSES. 

*252]       V.  The  mode  of  confirming  the  testimxiny  of  witnesses. 

A  party  cannot  bring  eyidence  to  confirm  tke  character  of  a 
witness  before  tbe  credit  of  that  witness  has  been  impeached,  either 
upon  cross-examination  or  by  the  testimony  of  other  witnesses ;" 
but  if  the  character  of  a  witness  has  been  impeached,  although 
upon  cross-examination  only,  evidence  on  the  other  side  may  be 
given  to  support  the  character  of  the  witness"  by  general  evidence 
of  good  conduct. 

Where  the  character  of  a  witness  is  impeached  by  general  evi- 
dence the  party  who  calls  him  is  at  liberty  to  examine  the  wit- 
nesses as  to  the  grounds  of  their  belief;  and  in  all  cases  where  the 
credit  of  a  witness  has  been  attacked,  whether  by  general  evidence 
or  by  particular  questions  put  upon  cross-examination,  it  seems 
that  the  party  who  called  him  is  at  liberty  to  support  his  testi- 
mony by  general  evidence  of  good  character.''  So  if  the  character 
of  the  attesting  witness  to  a  deed  or  will  be  impeached  on  the 
ground  of  fraud,  evidence  of  his  general  good  character  is  admissi- 
ble,'' whether  he  be  living  or  dead.  But  mere  contrariety  between 
the  testimonies  of  adverse  witnesses,  without  any  direct  imputation 
of  fraud  on  the  part  of  either,  supplies  no  ground  for  admitting 
general  evidence  as  to  character.' ' 

"  Bishop  of  Durham  v.  Beaumont,  1  Camp.  207.  But  only  for  this  purpose ; 
he  may  not  introduce  new  matter  for  other  purposes  than  explaining  the  motives 
or  statements  of  the  witnesses ;  B.  v.  St.  George,  9  0.  &  P.  483 ;  E.  0.  L.  E. 
38 ;  Queen's  case,  2  B.  &  B.  297 ;  E.  0.  L.  E.  6  ;  Prince  v.  Samo,  7  Ad.  &  E. 
627 ;  B.  0.  L.  E.  34. 

"  E.  V.  Clarke,  2  Stark.  0.  241 ;  E.  0.  L.  E.  3.  Where  the  prosecutrix,  upon 
an  indictmnnt  for  an  attempt  to  commit  a  rape,  had  been  cross-examined  as  to  her 
having  been  sent  to  the  house  of  correction  on  a  charge  of  theft,  evidence  of  her 
subsequent  good  conduct  was  admitted  in  support  of  the  prosecution ;  Annesley 
V.  Anglesea,  17  How.  St.  Tr.  1139. 

p  See  R.  V.  Clarke,  2  Stark.  C.  241 ;  B.  0.  L.  E.  3. 

1  Doe  dem.  Walker  v.  Stephenson,  3  Esp.  0.  284 ;  Bishop  of  Durham  v. 
Beaumont,  1  Camp.  0.  210 ;  Doe  dem.  Stephenson  v.  Walker,  4  Esp.  0.  50 ; 
Provis  V.  Reed,  5  Bing.  435  ;  E.  C.  L.  E.  15. 

"■  Bishop  of  Durham  v.  Beaumont,  1  Camp.  207. 

'  It  is  now  well  settled  that  whenever  the  character  of  a  witness  for  truth  is 
attacked  in  any  way,  whether  by  cross-examination  or  by  general  evidence  of  want 
of  character  for  truth,  or  by  proving  statements  made  by  him  out  of  court  different 
from  those  sworn  to,  it  is  competent  for  the  party  calling  him  to  give  general  evi- 
dence of  his  good  character ;  Paine  v.  Tilden,  20  Verm.  554 ;  Hadjo  v.  Gooden, 
13  Alabama,  718 ;  Sweet  v.  Sherman,  21  Vermont,  23. 

Contra,  Stamper  v.  Griffin,  12  Geo.  450. 


EVIDENCE    TO    CONPIEM.  223 

*'Where  an  attested  document  is  disputed  on  the  ground 
of  fraud,  and  one  of  tlie  attesting  witnesses  impeaches  the 
credit  of  the  other  attesting  witnesses,  general  evidence  may  be 
given  of  the  good  character  of  the  latter,  for  the  credit  due  to 
their  attestation  is  put  in  issue  hy  the  evidence  on  the  other  side.' 
It  seems  to  be  the  better  opinion,  that  a  witness  cannot  be  con- 
firmed by  proof  that  he  has  given  the  same  account  before,  even 
although  it  has  been  proved  that  he  has  given  a  different  account, 
in  order  to  impeach  his  veracity;  for  his  mere  declaration  of  the 
fact  is  not  evidence.  .His  having  given  a  contrary  account, 
although  not  upon  oath,  necessarily  impeaches  either  his  veracity 
or  his  memory ;'  but  his  having  asserted  the  same  thing  does  not 
in  general  carry  his  credibility  further  than,  nor  so  far  as,  his 
oath."'  But  although  such  evidence  be  not  generally  admissible 
in  confirmation  of  a  witness,  there  may  be  many  cases  where 
under  special  circumstances  it  possibly  might  be  admissible;  as, 

'  Doe  dem.  Walker  v.  Stephenson,  3  Esp.  0.  284 ;  4  Esp.  0.  50 ;  1  Camp.  210. 

*  But  evidence  of  declarations  by  a  deceased  attesting  witness  who  has  not  been 
examined  cannot  be  proved,  even  to  show  that  he  forged  the  document ;  Stohart 
V.  Dryden,  1  M.  &  W.  615 ;  and  therefore,  of  course,  witnesses  cannot  be  called 
to  support  his  character  on  that  score. 

"  B.  N.  P.  294.  Buller,  J.,  was  clearly  of  opinion  that  such  evidence  was  not 
admissible  to  support  an  unimpeached  witness,  and  doubted  whether  it  was  evi- 
dence in  reply ;  R.  v.  Parker,  3  Doug.  242  ;  B.  0.  L.  E.  26.  In  the  case  of  The 
Berkeley  Peerage,  5th  June,  1811,  Lord  Eedesdale  held  that,  in  general,  declara- 
tions made  by  a  witness  at  another  time  could  not  be  examined  into  for  the 
purpose  of  supporting  his  testimony ;  and  he  referred  to  a  case  where  Lord  0.  J. 
Eyre  rejected  such  evidence  when  offered  for  the  prisoner  in  a  case  of  perjury.  On 
the  other  hand,  see  Gilb.  Ev.  135 ;  Lutterel  v.  Raynell,  1  Mod.  282  ;  Friend's 
case,  4  St.  Tr.  613 ;  Harrison's  case,  12  How.  St.  Tr.  861. 

'  When  a  witness  testifies  to  a  fact,  and  evidence  is  introduced  to  impeach  his 
credit,  he  may  be  corroborated  by  evidence  of  what  he  had  testified  or  stated  on 
former  occasions ;  Henderson  v.  Jones,  10  Serg.  <fe  Rawle,  322  ;  Cooke  v.  Curtis, 
6  Har.  &  Johns.  86  ;  Coffin  v.  Anderson,  4  Blackford,  395  ;  Beauchamp  v.  Tlie 
State,  6  Ibid.  300 ;  The  State  v.  George,  8  Iredell,  324 ;  Dossett  v.  Miller,  3 
Sneed.  12. 

Where  a  witness  is  discredited  by  testimony  against  his  general  character,  tes- 
timony to  show  that  he  has  formerly  made  the  same  statement  as  that  to  which  he 
now  testifies  is  not  admissible ;  Gihhs  v.  Linsley,  13  Vermont,  208.  Contra,  The 
State  V.  Dove,  10  Iredell,  469  ;  Pleasant  v.  State,  15  Ark.  624.  Proof  of  decla- 
ration made  by  a  witness  out  of  court,  in  corroboration  of  testimony  given  by  him 
on  the  trial  of  a  cause  is  as.an  almost  universal  rule,  inadmissible ;  Robb  v.  Hack- 
ley,  23  Wend.  50  ;  Dudley  v.  Bolles,  24  Ibid.  465  ;  Smith  v.  Stickney,  17  Barb. 
489 ;  The  People  v.  Finnegan,  1  Parker  0.  E.  147. 


224   CONFIRMIlSrG  the  testimony  of  "WITNESSES. 

for  instance,  in  contradiction  of  evidence  tending  to  show  that  the 
account  was  a  fabrication  of  late  date,  and  where  consequently  it 
hecomes  material  to  show  that  the  same  account  had  been  given 
^„_ .,  before  its  ultimate  effect  and  operation,*  arising  from  a 
change  of  circumstances,  could  have  been  foreseen.  So, 
where  an  immediate  account  is  given,  or  complaint  made,  by  an 
individual,  of  a  personal  injury  committed  against  him,  the  fact 
of  making  the  complaint  immediately,  and  before  it  is  likely  that 
any  thing  should  have  been  contrived  and  devised  for  the  private 
advantage  of  the  party,  is  sometimes  admissible  in  evidence ;  as 
upon  an  indictment  for  a  rape,''  or  upon  an  action  for  a  trespass 
and  assault  committed  on  the  wife.'' 

Where  a  register  of  baptism  stated  the  child  to  be  seven  years 
of  age  at  the  time  of  baptism,  it  was  held  that  the  entry  was  no 
evidence  to  prove  the  age,  on  an  issue  to  try  whether  the  party 
was  of  age  when  he  was  arrested.  But  Bayley,  J.,  expressed  an 
an  opinion,  that  if  it  could  have  been  shown  that  the  entry  had 
been  made  upon  the  representation  of  the  mother,  who  was  called 
as  a  witness  for  her  son,  in  order  to  prove  his  minority,  the  fact 
would  have  been  admissible  to  support  her  testimony  upon  its 
being  impeached.'' 

Unless  there  be  some  legislative  provision  to  the  contrary,  it  is 
no  objection  that  a  witness  called  to  support  the  appellant's  case 
before  a  court  of  appeal  was  not  examined  before  the  original 
court,''  even  although  the  party  who  obtained  the  conviction  is 
liable  to  double  costs  on  a  reversal  of  the  conviction. 

^  R.  V.  Clarke,  2  Stark.  0.  242 ;  E.  C.  L.  E.  3 ;  Brazier's  case,  East's  P.  C. 
443.  Such  evidence  would  appear  to  be  properly  admissible  only  as  confirmatory 
evidence  where  the  witness's  credit  is  impeached ;  Reg.  v.  Megson,  9  0.  &  P. 
420 ;  E.  0.  L.  E.  38 ;  B.  v.  Guttridge,  9  C.  &  P.  471 ;  E.  C.  L.  E.  38 ;  R.  v. 
Walker,  2  M.  &  Eob.  212.  It  seldom,  however,  happens  that,  in  such  a  case  as 
that  of  rape,  an  attempt  is  not  made  to  impeach  the  credit  of  the  witness. 

'"  Thompson  and  his  wife  v.  Trevanion,  Skinn.  402 ;  6  East,  193  ;  and  see 
Rex  Y.  Foster,  6  0.  &  P.  325 ;  E.  0.  L.  E.  25. 

^  Wihen  V.  Law,  3  Stark.  0.  63 ;  E.  0.  L.  E.  3. 

y  R.  Y.  Commissioners  of  Appeals,  3  M.  &  S.  133 ;  Breedon  v.  Gill,  1  Ld. 
Eaym.  219 ;  S.  C,  Salk.  555. 


•WRITTEN    EVIDEN-CE.  225 

*CHAPTEE  II.  [*25o 

WRITTEN    EVIDENCE. 

Weitten  Iksteuments  are,  first,  of  a  public  nature ;  secondly, 
of  a  mixed  nature,  partly  public  and  partly  private ;  thirdly,  of 
a  private  nature.  Public  documents,"  *again,  are  either  r^.np-(, 
judicial ;  or,  secondly,  not,  judicial ;  and,  with  a  view  to  their 
means  of  proof;  they  are  either,  first,  of  record ;  or,  secondly,  not  of 
record.  We  will  proceed  to  consider  them  in  this  order,  and  to 
treat  not  only  of  their  admissibility  and  effect,  but  also  of  the 
mode  in  which  they  are  to  be  proved.*" 

"  The  statute  1  &  2  Vict.  c.  94,  provides  for  the  establishment  of  a  record  office, 
and  places  under  the  superintendence  of  the  Master  of  the  Rolls  all  the  older 
general  records  of  the  realm.  Those  specifically  mentioned  in  the  Act  are  the 
records  then  deposited  in  the  Tower,  Chapter  House  of  Westminster,  Rolls  Chapel, 
Petty  Bag  Office,  the  Office  of  the  Queen's  Remembrancer,  Augmentation  Office, 
First  Fruits  and  Tenths  Office,  Office  of  the  Land  Revenue  and  Enrolments,  or  of 
the  late  Auditor  of  the  Land  Revenues,  formerly  in  the  Office  of  Pells,  and  then 
in  the  custody  of  the  Comptroller  of  the  Exchequer ;  the  records  of  the  Court  of 
Chancery,  Exchequer,  Admiralty,  Queen's  Bench,  Common  Pleas,  and  Marshalsea, 
wherever  then  deposited,  and  all  the  records  of  the  lately  abolished  Courts  of  the 
Principality  of  AVales,  Palatinates  of  Chester  and  Durham,  and  Isle  of  Ely.  The 
Queen  is  empowered  in  Council  to  place  any  other  records  under  the  same  superin- 
tendence ;  and  the  Master  of  the  Rolls  is  to  appoint  persons  to  receive  and  take 
charge  of  the  accumulating  records  of  these  various  Courts,  from  time  to  time 
after  they  are  twenty  years  old,  subject  to  certain  regulations.  He  is  also  to  make 
rules  for  the  admission  of  such  persons  as  ought  to  be  admitted  to  the  use  of  such 
records.  The  statute  authorizes  him  or  the  deputy  keeper  to  allow  copies  to  be 
made,  and  declares  it  to  be  expedient  "  to  allow  the  free  use  of  any  public  records 
as  far  as  stands  with  their  safety  and  integrity,  and  with  the  public  policy  of  the 
realm.''  The  principal  portion  of  these  records  are  at  present  kept  in  the  Stone 
Tower  in  Westminster  Hall,  in  the  Rolls  Chapel,  in  the  Carlton  Ride,  and  in  the 
Tower  of  London  An  order  of  the  court,  or  a  judge,  is  now  necessary  before 
issuing  a  subpoena  for  the  production  of  these  documents,  R.  C,  6  C.  B.  424  ;  but 
the  original  can  now  rarely  be  necessary,  as  by  s.  13  a  certified  copy  of  any  of 
them,  sealed  with  the  seal  of  the  Record  Office,  is  evidence  in  every  case  in  which 
the  original  record  could  have  been  received.  See  the  sections,  post,  p.  262, 
note  (n). 

*•  If  the  production  of  any  document  be  injurious  to  the  public  interest,  the  pro- 
duction or  even  the  inspection  of  it  will  not  be  granted.  The  principle  which 
privileges  persons  from  giving  parol  evidence  equally  applies  to  the  production  of 
written  instruments ;  Home  v.  Bentinck,  2  B.  &  B.  130  ;  E.  C.  L.  R.  6  ;  Smith  v. 
East  India  Company,  1  Phil.  50 ;  Cooke  v.  Maxwell,  2  Stark.  C.  183  ;  E.  C.  L. 

15 


226  DOCUMEN-TS    OF    A    PUBLIC    NATURE. 

I.   Documents  of  a  Public  Nature. 

Before  tlie  admissibility  and  effect  of  public  documents  are  con- 
sidered, it  will  be  convenient  to  consider  generally  tbe  means  by 
whicli  public  documents  are  to.be  procured"  and  proved." 

If  tbe  question  be  as  to  tbe  existence  or  contents  of  a  record 
in  the  same  court,  tbe  trial  is  by  inspection  of  tbe  record  itself.* 
"Wbere  tbe  disputed  record  is  one  of  another  court,  the  tenor  may 
^nf^n-t  be  obtained  by  means  of  a  ^certiorari  and  mittimus  out  of 
Chancery;"  for  it  would  be  inconvenient  to  remove  the 
original.  Where  the  record  of  an  inferior  court  is  disputed  in  a 
superior  court,  the  record  itself,  where  it  is  necessary,  and  in  other 
cases  the  tenor,  may  be  removed  by  certiorari  out  of  Chancery,'  or 
out  of  the  Queen's  Bench,  if  the  proof  is  needed  there.^  In  crimi- 
nal cases,  where  a  prisoner  pleads  auterfoits  acquit,  he  may  remove 
the  record  by  certiorari,  if  he  be  arraigned  in  the  King's  Bench."" 
In  other  cases,  he '  may  remove  the  tenor  of  the  record  of  acquittal 
into  Chancery  by  certiora,ri,  and  either  produce  it  in  court  with  his 
own  hands,  (m  poigne,)  or  procure  it  to  be  sent  to  the  justices  sub 
pede  sigilli}     But  the  record  in  such  case  must  be  removed  by  writ, 

E.  3 ;  Wyatt  v.  Gore,  Holt,  N.  P.  0.  299.  In  R.  v.  Staffordshire,  Justices,  j6 
Ad.  &  E.  99,  B.  0.  L.  E.  33,  the  court  considered  that  they  could  enforce  by 
mandamus  the  production  of  any  document  of  a  public  nature  in  which  any 
subject  could  prove  himself  to  be  interested,  and  that  any  ofBoer  appointed  to 
keep  records  ought  to  deem  himself  a  trustee  for  such  a  person,  but  the  court 
would  not  interfere,  unless  the  person  applying  had  such  an  interest.  There  are, 
however,  some  records  which  are  open  to  all,  thus  the  inspection  and  exemplifica- 
tion of  the  records  of  the  Queen's  Courts  are  of  right ;  3  Co.,  preface,  and  stat. 
46  Edw.  III.,  there  copied. 

"  See  tit.  Inspection  and  Public  Documents. 

*  Nul  tiel  record  was  pleaded  to  the  Composition  Act ;  2  Salk.  566.  Holt,  C. 
J.,  held  that  an  exemplification  was  necessary,  although  a  copy  printed  by  the 
King's  printer  would  be  sufficient  evidence  before  a  jury;  Anon.  2  Salk.  566, 
infra,  p.  231.  The  record  or  document  itself  must  also,  it  has  been  thought,  be 
produced  in  case  of  forgery  or  perjury,  sed  quxre ;  see  Fokgbky — Perjukt — 
Eecokd. 

=  Pitt  V.  Knight,  1  Saund.  98  ;  Hewson  v.  Brown,  2  Burr.  1034 ;  Luttrell  v. 
Lea,  Cro.  Oar.  297. 

'  Butcher  and  Aldworth's  case,  Cro.  Eliz.  821 ;  Guilliam  v.  Hardy,  1  Ld. 
Eaym.  216. 

B  2  Atk.  317  ;  Guilliam  v.  Hardy,  1  Ld.  Eaym.  216. 

^  20  E.  2,  Coron.  232  ;  Stark.  Crim.  PI.  318.  The  usual  practice  is  for  the 
clerk  of  assize  or  of  the  peace  to  make  up  the  record,  and  produce  it  in  court 
without  writ ;  see  1  Euss.  on  Crimes,  829,  837. 

1  2  Hale,  242  ;  2  E.  3,  26,  Coron.  150. 


HOW    PROVED  —  EXEMPLIFICATIONS.  227 

althougli  tlie  justices  may  receive  a  record  -without  writ,  -where  it 
is  to  be  proceeded  on  for  the  King.^ 

,,  A  record  may  be  proved  either,  first,  by  mere  production,  -without 
more ;  or,  secondly,  by  copy. 

Copies  of  records  are  either  exemplifications;  or,  secondly,  copies 
made  by  the  authorised  of&cer ;  or,  ihirclly,  s-worn  copies. 

First.  Exemplifications.  These  are,  exemplifications  under  the 
great  seal ;  or  under  the  seal  of  a  particular  court.''  The  reason  of 
admitting  a  copy  to  be  evidence  in  such  cases,  is  the  inconvenience 
to  the  public  of  removing  such  documents,  -which  may  be  -wanted 
in  t-wo  places  at  the  same  time.'  A  record  to  be  exemplified  under 
the  great  seal  must  either  be  a  record  of  the  Court  *of  r^oKo 
Chancery,  -which  is  the  centrd  of  all  the  courts,  or  must  be 
removed  thither  by  certiorari. ""^  Nothing  but  records  can  be  given 
in  e-?idence  exemplified  under  the  great  seal,  for  these  are  pre- 
sumed to  be  preserved  by  the  court  free  from  erasure  or  inter- 
lineation, to  -which  private  deeds  -which  are  in  the  hands  of  private 
persons,  are  subject."  Where  any  record  is  exemplified  the  whole 
must  be  exemplified,  for  the  construction  must  be  gathered  from 
the  whole  taken  together."  An  exemplification  under  the  broad 
seal  is  of  itself  a  record  of  the  greatest  authenticity .^  And  where 
an  exemplification  of  a  commission  of  the  time  of  Elizabeth  was 
produced  from  the  proper  custody,  and  there  was  a  slip  of  parch- 
ment at  the  foot,  corresponding  in  size  and  form  with  the  slips  on 
which  the  great  seal  is  usually  affixed,  the  court  allowed  it  to  be 
read  as  a  complete  exemplification.' 

As  to  exemplifications  under  the  seal  of  the  court.  The  seals 
of  the  King's  courts  of  justice  are  of  public  credit,  and  are  part  of 
the  constitution  of  the  courts,  and  supposed  to  be  known  to  all  -^ 
and  this,  whether  the  court  has  existed  from  time  beyond  memory, 

J  2  Hale,  242  ;  8  E.  4, 18,  B.  Coron.  218. 

^  Gilb.  Law  of  Ev.  12. 

'  Bao.  Ab.  Ev.  P. 

"  Bac.  Ab.  Ev.  F. ;  B.  N.  P.  226  ;  3  Ins.  173  ;  10  Co.  93,  a. 

"  B.  N.  P.  227  ;  Bac.  Ab.  Ev.  P. ;  3  Ins.  173  ;  Gilb.  Law  of  Ev.  12. 

°  3  Ins.  173 ;  Gilb.  Law  of  Ev.  17.  But  this  rule  is  to  be  taken  with  some 
restriction ;  vide  B.  N.  P.  227. 

p  Gilb.  Law  of  Evid.  14 ;  Bac.  Ab.  Ev.  F. ;  Sid.  145  ;  Hard.  118 ;  Plowd.  Com. 
411. 

1  Beverley  v.  Craven,  2  M.  &  Rob.  140. 

'  Gilb.  Law  of  Ev.  17,  20  ;  10  Co.  93,  a. 


228  DOCUMENTS    OF    A    PUBLIC    NATUEB. 

or  lias  been  recently  created  by  Act  of  Parliament.'  But  tbe  seals 
of  private  courts  and  persons  are  not  receivable  in  evidence,  unless 
j^np-n-]  proved  to  be  tbe  seals  of  tbe  respective  courts  or  persons.' 
*In  general  tbe  exemplification  of  any  record  under  tbe 
seal  of  one  of  tbe  King's  courts  of  justice  is  sufficient."  So  is  an 
exemplication  of  a  commission  and  return  under  tbe  seal  of  the 
Excbequer/  of  a  record  of  tbe  great  sessions  in  Wales,  or  in  a 
county  palatine,  under  the  seal  of  tlie  court.'^  Or  of  tbe  proceed- 
ings of  the  ecclesiastical  courts.^  So  is  an  exemplification  of  the 
pope's  bull,  under  the  seal  of  a  bishop.''  Or  of  the  grant  of  admin- 
istration with  the  will  annexed,  under  the  seal  of  the  archbishop.'' 
So  the  exemplification  of  the  enrolment  of  a  fine  or  recovery  in 
Wales,  or  in  the  counties  palatine,  under  the  appropriate  judicial 
seal,  is  evidence  of  such  fine  or  recovery."  But  the  mere  produc- 
tion of  an  exemplification  under  the  seal  of  an  university  is  not 
evidence,  without  proof  that  a  party  is  entitled  to  his  degree ; '' 
neither  is  the  exemplification  of  the  judgment  or  decree  of  any 
foreign  court  admissible  without  proof  of  the  seal  of  the  court." 
And  if  a  foreign  court  has  an  official  seal,  it  ought  to  be  used 
for  the  purpose  of  authenticating  its  judgments ;  and  no  copy  by 

■  Sid.  2,  146  ;  Gilb.  Law  of  Bv.  20.  The  courts  are  directed  to  take  judicial 
notice  of  the  Seal  of  the  Record  OfBce,  1  &  2  Vict.  c.  94,  s.  13 ;  and  Common 
Law  Seal,  and  Seal  of  the  Enrolment  Office  in  Chancery,  12  &  13  Vict.  c.  109 ; 
and  copies  under  those  seals  may,  to  a  certain  extent,  be  regarded  as  exemplifica- 
tions.    The  sections  are  given  at  length,  post,  pp.  262,  note  (re),  263,  notes  (p),  {q). 

'  Gilb.  Law  of  Ev.  20  ;  and  therefore,  formerly,  it  seems  to  have  been  the  prac- 
tice to  deliver  an  exemplification  under  the  seal  of  a  court  to  a  jury,  but  not  to 
deliver  a,  document  under  a  private  seal,  because  the  authenticity  of  the  latter 
depended  upon  a  collateral  oath ;  Gilb.  Law  of  Ev.  17, 18, 19.  The  common  seal 
of  the  city  of  London  proves  itself;  Doe  dem.  Woodmas  v.  Mason,  1  Esp.  53 ; 
Olive  V.  Owyn,  2  Siderf.  145  ;  S.  C,  Hardres,  118 ;  sed  vide  Moises  v.  Thornton, 
8  T.  R.  303. 

"  10  Co.  93,  a. 

'  Tooker  v.  The  Duke  of  Beaufort,  Say.  297. 

"  Tooker  v.  The  Duke  of  Beaufort,  Say.  297 ;  Hard.  120. 

'  1  Ford's  MSS.  166. 

3-  Hard.  118. 

'■  Kempton  v.  Gross,  8  G.  2,  B.  R.  H.  108,  although  it  merely  recite  the  fact ; 
Shepherd  v.  Shorthose,  1  Str.  412. 

»  By  the  stat.  27  Eliz.  c.  9,  s.  8,  they  are  of  as  great  force  as  the  record ;  Olive 

Qioyn,  2  Sid.  145. 

■■  Henry  y.  Adey,  3  Bast,  221 ;  vide  infra,  Judgments,  PRoor  op. 

"  Moises  V.  Thornton,  8  T.  R.  303. 


HOW    PEOVED  —  EXEMPLIFICATIONS.  229 

any  officer  of  the  court  will  be  considered  as  of  authority  in  this 
country.''^ 

*  Black  V.  Lord  Braybrooke,  2  Stark.  0.  7  ;  B.  0.  L.  R.  3 ;  and  Appleton  v. 
Lord  Braybrooke,  ib. ;  Anon.  9  Mod.  66. 

'  "  Pull  faith  and  credit  shall  be  given  in  each  State,  to  the  public  acts,  records, 
and  judicial  proceedings  of  every  other  State.  And  the  Congress  may,  by  general 
laws,  prescribe  the  manner  in  which  such  acts,  records,  and  proceedings  shall  be 
proved  and  the  effect  thereof;"  Const.  U.  S.,  Art.  IV.,  Sect.  1. 

The  Statute  of  the  United  States,  passed  May  26th,  1790,  provides,  "  that  the 
records  and  judicial  proceedings  of  the  courts  of  any  State  shall  be  proved  or 
admitted  in  any  other  'court  within  the  United  States,  by  the  attestation  of  the 
clerk  and  the  seal  of  the  court  annexed,  if  there  be  a  seal,  together  with  a  certifi- 
cate of  the  judge,  chief  justice  or  presiding  magistrate,  as  the  case  may  be,  that 
the  said  attestation  is  in  due  form.  And  the  said  records  and  judicial  proceedings, 
authenticated  as  aforesaid  shall  have  such  faith  and  credit  given  to  them  in  every 
court  within  the  United  States,  as  they  have  by  law  or  usage  in  the  courts  of  the 
State  from  whence  the  said  records  are  or  shall  be  taken."  By  the  second  section 
of  a  supplementary  statute,  passed  March  27th,  1804,  all  the  provisions  of  the 
statute  of  1790  are  made  to  apply  as  well  to  the  public  acts,  records,  judicial  pro- 
ceedings and  courts  of  the  respective  territories  of  the  United  States,  and  countries 
subject  to  the  jurisdiction  of  the  United  States,  as  to  the  public  acts,  &c.,  of  the 
several  States." 

Under  this  section  of  the  Constitution  and  the  statute  of  1790,  the  judgment  of 
a  State  court  has  the  same  credit,  validity  and  effect,  in  every  other  court  in  the 
United  States,  which  it  has  in  the  State  where  it  is  pronounced :  if  in  the  courts  of 
such  State  it  has  the  faith  and  credit  of  record  evidence,  it  must  have  the  same 
faith  and  credit  in  every  other  court ;  Mills  v.  Duryee,  7  Cranch,  481 ;  Hampton 
V.  McConnell,  3  Wheat.  234;  and  note  by  the  reporter. 

"Whether  a  will  of  lands  duly  proved  and  recorded  in  one  State,  so  as  to  be  evi- 
dence in  the  courts  of  that  State,  is  thereby  rendered  evidence  in  the  courts  of 
another  State,  (provided  the  record  on  its  face  shows  that  it  possesses  all  the 
solemnities  required  by  the  laws  of  the  State  where  the  land  lies,)  under  this 
section  of  the  constitution,  Qucere,  Darby's  Lessee  v.  Meyer,  et  al.  10  Wheat. 
469. 

The  above  provision  in  the  constitution  has  no  e'ifect  upon  judgments  in  criminal 
prosecutions,  but  only  on  judgments  in  civil  actions :  such  judgments  only  were 
intended  to  be  affected  by  this  provision  as  can  be  carried  into  effect  by  the  aid  of 
the  courts  of  States  in  which  they  were  not  rendered — but  fugitives  from  justice 
found  in  one  State,  cannot  be  directly  nor  collaterally  affected  by  any  judgment 
against  them  in  the  State  from  which  they  have  fled  ;  Commonwealth  v.  Green, 
17  Mass.  Eep.  546. 

Under  the  statute  of  1790,  the  Supreme  Court  of  the  United  States  have  de- 
cided that  a  copy  certified  by  the  clerk  without  a  certificate  of  the  presiding  judge 
that  the  attestation  is  in  due  form,  is  not  admissible  in  evidence  in  the  courts  of 
another  State  or  District,  &c. ;  Drummond's  Admrs.  v.  Magruder  Sf  Go's  Trus- 
tees, 9  Cranch,  122.  It  had  been  previously  held,  in  Pennsylvania  that  a  copy 
not  certified  according  to  the  statute  was  prima  facie  evidence,  though  not  conclu- 


230  DOCUMENTS    OF    A    PUBLIC    NATUEE. 

*9fini       *Secondly.  Copies  made  by  an  authorized  officer.     Wliere 
the  law  entrusts  a  particular  officer  with,  the  making  of 

sive  ;  Baker  et  al.  v.  Field,  2  Yeates,  532.  And  in  North  Carolina,  that  the 
statute  was  only  affirmative,  and  did  not  abolish  former  modes  of  authentication  ; 
Ellmore  v.  Mills,  1  Hayw.  359. 

If  the  clerk  of  a  court  certify  at  the  foot  of  a  paper  purporting  to  be  a  record, 
"  that  the  foregoing  is  truly  taken  from  the  record  of  the  proceedings  of  his  court," 
and  if  the  judge,  chief  justice  or  presiding  magistrate,  certify  that  such  attestation 
of  the  clerk  is  in  due  form  of  law,  it  is  to  be  presumed  that  the  paper  so  certified 
is  a  full  copy  of  all  the  proceedings  in  the  case,  and  it  is  admissible  in  evidence ; 
Ferguson  v.  Harwood,  1  Cranch,  408.  Aliter,  if  the  writings  do  not  purport  to 
be  a  record,  but  a  new  transcript  of  minutes  from  the  docket  of  the  court.    Ibid. 

A  record  of  another  State  informally  certified,  cannot  be  read,  even  on  a  question 
of  discharging  on  common  bail ;  Gratg  v.  Brown,  1  Peter's  0.  0.  Rep.  352.  And 
to  make  a  record  of  a  court  of  one  State  evidence  in  another,  the  attestation  must 
be  according  to  the  form  used  in  the  State  from  which  the  record  comes ;  and  the 
only  evidence  of  this  fact  is  the  certificate  of  the  presiding  judge  of  that  court. 
Ibid.  See  also  Smith  v.  Blagge,  1  Johns.  Oas.  238.  A  certificate  of  a  presiding 
judge,  stating  that  the  person,  whose  name  is  signed  to  the  attestation  of  the 
record,  is  clerk,  and  that  the  signature  is  his  handwriting,  is  not  in  conformity  with 
the  requirements  of  the  statute ;  Craig  v.  Brown,  uhi  sup.  Whenever  the  court, 
whose  record  is  certified,  has  no  seal,  this  fact  should  appear,  either  in  the  certifi- 
cate of  the  clerk  or  in  that  of  the  judge ;  Per  Washington,  J.,  Ibid.  See  also 
Alston  V.  Taylor,  1  Hayw.  395.  The  attestation  by  the  clerk,  of  the  record  of  a 
judgment  in  another  State,  must  have  the  seal  of  the  court  annexed  to  it,  and  it  is 
not  sufficient  that  such  seal  is  annexed  to  the  certificate  of  the  judge ;  Turner  v. 
Waddington,  0.  0.  Oct.  1811,  MS.  Wharton's  Digest,  224.  A  record  of  another 
State,  attested  by  the  clerk,  with  the  seal  of  the  court  annexed  and  the  certificate 
of  two  judges,  stating  it  to  be  in  due  form,  one  of  them  stating  himself  to  be  the 
judge  "  that  presided,  and  one  of  the  judges  of  the  superior  courts  of  law  of  said 
State,"  and  the  other  stating  himself  to  be  "  the  senior  judge  of  the  court  of  law 
of  said  State,"  was  held  in  Kentucky  to  be  an  insufficient  authentication ;  Stephen- 
son v.  Bannister,  3  Bibb,  369. 

In  those  States  where  a  justice  of  the  peace  holds  a  court  of  record  ;  where  he 
is  the  sole  justice  and  has  no  clerks ;  he  may  certify  that  he  is  the  presiding  magis- 
trate and  clerk  of  the  court,  that  there  is  no  seal,  and  that  the  attestation  is  in  the 
usual  form ;  and  a  copy  of  the  record  thus  certified  would  be  admissible  in  evidence. 
But  a  copy  of  a  record  of  a  judgment  rendered  by  a  justice  in  another  State, 
authenticated  only  by  his  certificate,  stating  that  it  is  a  true  copy  of  the  files  and 
records  remaining  in  his  office,  is  not  sufficiently  proved  either  at  common  law  or 
according  to  the  statute  of  the  United  States ;  Bissell  v.  Edwards,  5  Day,  363. 

A  decree  in  chancery  must  be  authenticated  according  to  the  statute  of  1790  ; 
Barbour  v.  Watts,  2  Marsh.  293. 

A  record  of  a  court  of  the  United  States  is  not  within  the  above-mentioned  sta- 
tute, and  if  under  the  seal  of  the  court  and  certified  by  the  clerk  as  a  copy,  it  is 
evidence  in  the  State  courts  ;  Pepoon  v.  Jenkins,  2  Johns  Gas.  119.  So  the  record 
of  a  court  of  a  territory  was  held,  in  Kentucky,  not  to  be  within  the  provision  of 


HOW    PROVED  —  EXEMPLIFICATIONS.  231 

copies,  it  also  gives  credit  to  tliem  in  evidence  witliout  furtlier 
proof,  altliougli  a  mere  office  copy  by  a  person  not  so  licensed  is 

the  constitution  and  the  statute,  and  the  record  of  such  court  attested  by  the  clerk, 
with  the  seal  of  the  court,  together  with  the  certificate  of  the  G-overnor  and  the 
great  seal  that  the  person  attesting  was  clerk  and  that  his  attestation  was  in  due 
form,  was  decided  to  be  sufficiently  authenticated ;  Haggin  v.  Squire,  2  Bibb,  334. 
See  The  statute  of  March  21th,  1804,  above  stated.  M. 

As  to  exemplification  of  foreign  judgments  it  has  been  held  that  where  the  court 
has  no  seal,  the  certificate  of  the  clerk,  accompanied  with  proof  of  his  handwriting 
and  that  it  is  authenticated  in  the  usual  form,  is  sufficient ;  Packard  v.  Hill,  7 
Oowen,  434 ;  Torhert  v.  Wilson,  1  Stew.  &  Port.  200  ;  Craig  v.  Brown,  Pet.  0. 0. 
352  ;  Allen  v.  Thaxter,  1  Blackf.  399 ;  Buttrich  v.  Allen,  8  Mass.  273. 

The  record  of  condemnation  of  a  vessel  in  a  foreign  court  of  Vice  Admiralty  is 
not  evidence  per  se.  The  seal  must  be  proved  by  a  witness  who  knows  it  or  the 
handwriting  of  the  judge  or  clerk  must  be  proved,  or  it  must  be  shown  that  it  is 
an  examined  copy.  The  consular  certificate  is  not  sufficient  to  authenticate  it ; 
Cartlettv.  Ins.  Co.,  Paine,  594.  On  the  other  hand  it  has  been  held  in  Connecti- 
cut that  the  record  of  a  foreign  Vice  Admiralty  Court  purporting  to  be  certified 
by  the  deputy  registrar,  under  the  seal  of  the  court  is  admissible  without  any  other 
proof  of  its  authenticity;  Thompson  v.  Stewart,  3  Conn.  171.  A  judicial  record, 
authenticated  only  by  the  great  seal  of  a  foreign  sovereign  State,  is  evidence  in 
our  courts,  although  it  is  not  accompanied  by  any  certificate  of  its  being  a  copy  of 
an  original  record,  under  the  official  signature  of  any  officer  of  the  court ;  Oriswold 
V.  Pitcairn,  2  Conn.  85.  The  proceedings  of  a  Vice  Admiralty  Court  of  a  foreign 
nation  were  held  to  be  sufficiently  verified,  by  proof  of  the  handwriting  of  the 
judge  and  of  the  registrar  of  the  court  to  a  certificate  that  the  papers  were  a  true 
copy  from  the  records  ;  Mumford  v.  Bowne,  Anthon,  40. 

The  public  seal  of  a  State,  affixed  to  the  exemplification  of  a  law  proves  itself ; 
it  is  a  matter  of  notoriety,  and  will  be  taken  notice  of,  as  part  of  the  law  of  nations 
acknowledged  by  all;  Robinson  v.  Oilman,  7  Shep.  299.  Courts  of  the  United 
States  are  domestic  tribunals,  whose  proceedings  State  Courts  are  bound  to  respect 
and  receive  when  exemplified  under  the  seal  of  the  court,  which  the  State  courts 
are  presumed  to  know ;  and  the  same  rule  applies  to  a  United  States  court  es- 
tablished in  a  territory ;  Wernock  v.  Dearman,  7  Port.  513 ;  Redman  v.  Gould, 
7  Blackf.  361 ;    Williams  v.  Wilkes,  2  Harris,  228. 

A  record  of  a  State  court,  certified  by  the  clerk  under  its  seal,  being  good  evi- 
dence in  another  court  of  the  same  State,  is  also  admissible  in  the  United  States 
courts  in  that  State  ;  Mewster  v.  Spalding,  6  McLean,  24. 

The  best  proofs  of  the  proceedings  of  a  foreign  court,  are  the  original  records  ; 
but  the  testimony  usually  produced  is  either  a  sworn  copy,  by  one  who  has  com- 
pared it  with  the  original  proceedings  or  an  exemplified  copy,  certified  by  the  clerk 
and  the  presiding  judge,  and  the  seal  of  the  court  with  the  broad  seal  of  the  pro- 
vince or  kingdom  of  the  appointment  "of  the  judge,  with  the  proper  certificate 
from  the  office  of  appointment ;  either  of  these  will  be  sufficient ;  Spaulding  v. 
Vincent,  24  Vermont,  501 ;  Steward  v.  Swanzy,  23  Mississippi,  502.  When  a  copy 
of  a  judgment  recovered  in  Canada,  was  certified  by  the  clerk,  and  purported  to  be 
under  the  seal  of  the  court,  and  a  witness  testified  that  he  knew  the  clerk  in  that 


232  DOCUMENTS    OF    A    PUBLIC    NATURE. 

inadmissible.'^  The  cliirograph  of  a  fine  is  evidence  of  the  fine 
itself,  because  the  chirographer  is  an  officer  appointed  by  the  law 

'  Bac.  Ab.  Ev.  P. ;  B.  N.  P.  229. 

'  Where  copies  are  made  evidence  by  statute,  the  mode  of  authentication  must 
be  strictly  pursued.  The  copy  may  be  strictly  accurate,  yet  if  the  certificate  be 
defective,  it  is  of  no  avail;  Smith  v.  United  States,  5  Peter's,  292.  A  copy  is 
not  admissible  upon  the  certificate  of  the  officer  having  the  custody  of  the  docu- 
ment unless  the  law  authorizes  him  to  certify  copies ;  Strother  v.  Christy,  2  Mis- 
souri, 148 ;  State  v.  Cake,  4  Zabriskie,  674.  If  the  law  does  not  authorize  an 
instrument  to  be  recorded,  a  certified  copy  will  not  be  admissible ;  Caale  v.  Har- 
rington, 7  Har.  &  Johns.  147  :  Raile  v.  Palmer,  5  Missouri,  403  ;  Webster  v 
Harris,  16  Ohio,  490  ;  New  York  Dry  Dock  v.  Hicks,  5  McLean,  111. 

capacity  and  helped  him  to  compare  the  copy  with  the  original  and  knew  it  to  be 
correct  and  knew  the  seal  of  the  court,  it  was  held  sufficient ;  Pickard  v.  Bailey, 
6  Poster,  152. 

As  to  exemplifications  of  judgments  and  other  records  under  the  Acts  of  Congress 
it  has  been  held  sufficient  that  the  presiding  judge-should  certify  that  the  clerk  was 
such  at  the  date  of  the  certificate  ;  Merriweather  v„  Garvin,  2  Port.  199  ;  Johnson 
V.  Howe,  2  Stew.  27.  The  certificate  of  the  presiding  judge  is  sufficient  evidence 
of  the  fact  that  he  holds  that  position ;  Hutchinson  v.  Patrick,  3  Missouri,  45. 

The  Act  of  Congress,  prescribing  the  mode  of  authenticating  the  Acts  of  the 
several  Legislatures,  declares  that  such  Acts  shall  be  authenticated  by  having  the 
seal  of  their  respective  States  affixed  thereto.  An  Act  certified  by  the  Secretary 
of  State,  to  which  is  appended  a  certificate  of  the  Governor  with  the  seal  of  the 
State  affixed,  certifying  to  the  official  character  of  the  person  signing  himself  as 
Secretary,  and  that  full  faith  and  credit  are  to  be  given  to  his  official  acts,  is  not  a 
compliance  with  the  Act  of  Congress  ;  La  Fayette  Bank  v.  Stone,  1  Scam.  424. 

Where  one  State  court  is  abolished  and  its  jurisdiction  is  transferred  to  another 
court,  the  clerk  and  presiding  judge  of  the  latter  court  are  competent  to  authenti- 
cate the  records  of  the  former  in  the  manner  prescribed  by  the  Act  of  Congress  so 
as  to  make  them  admissible  in  evidence  in  the  courts  of  another  State ;  Capen  v. 
Emery,  5  Mete.  436.  The  office  copy  of  a  deed  in  another  State  is  such  a  record 
as  must  be  authenticated  under  the  Act  of  Congress,  to  make  it  evidence ;  Pennel 
T.  Weyant,  2  Harring.  502.  A  certificate  of  a  clerk  of  the  court  of  another  State, 
under  his  private  seal,  if  he  certifies  that  there  is  no  seal  of  the  court,  and  the 
presiding  judge  certifies  that  the  certificate  is  in  due  form,  is  good ;  Strode  v. 
Churchill,  2  Litt.  75. 

A  court  is  not  prohibited  from  receiving  a  record,  although  not  certified  accord- 
ing to  the  Act  of  Congress,  if  proved  as  a  foreign  record ;  Lathrop  v.  Blake,  3 
Barr,  483  ;  Duvall  v.  Ellis,  13  Missouri,  203  ;  Settle  v.  Allison,  8  Georgia,  201. 

Any  State  may  prescribe  rules  for  the  authentication  of  judicial  records,  in  order 
to  make  them  admissible  in  evidence,  provided  such  rules  are  not  inconsistent  with 
the  Acts  of  Congress  on  this  subject,  and  a  record  is  admissible  which  conforms  to 
the  provisions  of  the  Acts  either  of  Congress  or  of  the  Legislature  of  the  State 


HOW    PROVED  —  EXEMPLIFICATIONS.  233 

to  make  out  sucli  copies ;  but  the  cMrograpli  is  not  evidence  of  tiie 
levying  of  a  fine  witli  proclamations,  as  the  officer  is  not  appointed 

in  which  the  record  is  sought  to  be  used  in  evidence ;  Ordway  v.  Gonroe,  4  Wis- 
consin, 45. 

To  let  in  the  exemplification  of  the  probate  of  a  will  in  the  courts  of  Alabama, 
under  the  Act  of  Congress,  no  particular  form  of  certificate  is  necessary.  If  the 
record  is  attested  by  the  clerk,  and  his  attestation  is  certified  by  the  presiding 
judge  to  be  in  due  form,  it  is  immaterial  how  the  attestation  is  made ;  White  v. 
Strother,  11  Alab.  720. 

A  document  attested  by  the  clerk  of  a  court  with  its  seal,  and  the  certificate  of 
its  presiding  judge  and  called  an  "  exemplified  copy"  is  competent  evidence  of  the 
judgment  described  in  it  under  the  Act  of  Congress,  though  it  may  not  conform 
to  the  mode  at  common  law  or  in  the  State  where  the  judgment  was  rendered  ; 
Taylor  v.  Carpenter,  2  Woodbury  &  Minot,  1. 

The  certificate  to  the  record  of  a  judgment  rendered  in  one  State  to  be  used  in 
another,  by  the  first  justice,  is  not  sufficient  under  the  Act  of  Congress,  unless  it 
appear  that  the  first  justice  is  the  chief  justice  or  presiding  magistrate  ;  Hudson 
v.  Daily,  13  Alab.  722  ;  Stewart  v.  Gray,  1  Hempstead,  94. 

The  certificate  of  a  justice  of  the  peace  of  a  sister  State,  that  one  who  attests  a 
copy  of  a  deed  recorded  in  that  State  is  clerk,  is  not  such  authentication  as  will 
authorize  the  reading  of  the  copy  in  evidence.  It  is  necessary  that  the  certificate 
be  by  the  judge,  chief  justice  or  presiding  magistrate  of  the  court ;  Waller  v.  Cralle, 
8  B.  Monroe,  11. 

A  copy  certified  by  a  surrogate  who  acted  as  his  own  clerk,  under  his  official 
seal,  but  without  his  certificate  that  the  attestation  is  in  due  form,  held  not  admis- 
sible in  evidence ;  Catlinv.  £/mder7w7Z,  4  McLean,  199;  but  with  such  attestation 
it  is  sufficient ;  State  v.  Hinchman,  3  Casey,  479. 

The  record  and  judicial  proceedings  of  a  county  court  in  Virginia  were  certified 
by  a  person  who  styled  himself  presiding  magistrate  of  the  county,  held  inadmissible 
since  it  did  not  appear  that  he  was  presiding  magistrate  of  the  court ;  Settle  v. 
Allison,  8  Georgia,  ,201. 

The  certificate  of  a  judge  to  the  exemplification  of  a  record  of  another  State, 
that  the  attestation  of  the  clerk  is  in  due  form  is  sufficient,  though  he  may  not  cer. 
tify  directly  to  the  official  character  of  the  clerk ;  Linch  v.  McLemore,  15  Ala- 
bama, 632. 

The  record  is  not  duly  authenticated  without  a  certificate  that  the  attestation  of 
the  clerk  is  in  due  form ;  Trigg  v.  Conway,  1  Hempstead,  538  ;  Wilhurn  v.  Hall, 
16  Missouri,  426 ;  Thompson  v.  Manrow  1  California,  428 ;  Shown  v.  Barr,  11 
Iredell,  296. 

The  form  of  the  certificate  attesting  the  judgment  of  a  court  of  another  State 
depends  on  the  usage  of  the  State  whence  the  record  comes ;  and  if  the  judge 
certifies  that  it  is  in  due  form,  this  will  be  sufficient  without  setting  out  the  form  ; 
Began  v.  McOormick,  4  Harrington,  435  ;  Lewis  v.  Sutliff,  2  Greene,  186  ; 
Schoonmaker  v.  Lloyd,  9  Richardson  Law  Eep.  173. 

Where  the  judge  is  described  as  judge  of  the  court,  without  saying  that  he  is 
the  judge  or  the  sole  judge,  where  there  is  nothing  on  the  face  of  the  record  pro- 


234  DOCUMENTS    OF    A    PUBLIC    NATURE. 

to  make  copies  of  tlieni/  So  a  copy  of  a  judgment  made  out, 
examined,  and  indorsed  by  the  clerk  of  the  court,  is  not  in  itself 
evidence,  for  he  is  intrusted  as  to  the  keeping  only  of  records, 
and  not  with  the  making  out  copies  of  them.^  So  where  a  deed 
enrolled  is  lost,  a  copy  of  the  enrolment  by  the  clerk  of  the  peace 
is  not  admissible  in  evidence,  for  he  is  empowered  merely  to 
authenticate  the  deed  itself  by  enrolment,  and  not  to  make  out 
copies  of  the  enrolment.''  So  an  entry  in  a  book  of  the  First 
^Fruits  Office,  of  the  collation  and  admission  of  a  parson  to  a  rec- 
tory, is  secondary  evidence  of  a  return  made  by  the  bishop  to  a 
writ  issued  by  the  Court  of  Exchequer  to  the  bishop  to  ascertain 
the  value  of  the  first  fruits  and  twentieths,  the  bishop  having  dis- 
charged a  public  duty  in  making  the  return,  and  faith  being  given 
that  he  would  perform  that  duty  correctly.'  The  indorsement  of 
the  date  of  enrolment*  is  conclusive  evidence  of  the  enrol- 
^   ment,  for  it  is  part  of  the  record.'' 

'  B.  N.  P.  229,  230 ;  Bl.  Com.  409,  b. ;  Com.  Dig.  Ev.  A.  (2) ;  Cheftle  v. 
Pound,  Trin.  Ass.  1700 ;  Bac.  Ab.  Ev.  P. ;  Doe  v.  Bluck,  6  Taunt.  486 ;  E.  0. 
L.  R.  1.  But  now,  by  11  &  12  Vict.  o.  70,  all  fines  are  to  be  conclusively  deemed 
to  have  been  levied  witb  proclamation,  unless  in  the  case  of  lands  held  at  the 
passing  of  the  Act  under  a  title  adverse  to,  or  inconsistent  with,  the  operation  of 
the  fine,  in  which  case  it  is  incumbent  on  the  party  alleging  the  fine  to  have  been 
levied  with  proclamations  to  prove  it. 

K  Bac.  Ab.  Ev.  P.;  B.  N.  P.  229. 

''  Bac.  Ab.  Bv.  P. ;  and  see  Appleton  v.  Lord  Braybrooke,  2  Stark.  C.  6  ;  B. 
0.  L.  R.  3  ;  and  Black  Y.  Lord  Braylrooke,  2  Stark.  C.  7  ;  B.  0.  L.  E.  3  ;  B.  N. 
P.  229. 

'  Irish  Society  v.  Bishop  of  Berry,  12  CI.  &  P.  641. 

^  The  King  in  aid  of  Reed  v.  Hopper,  3  Price,  495,  in  the  case  of  an  enrolment 
of  a  bargain  and  sale.  So  in  cases  of  the  enrolment  of  memorials  of  annuity 
deeds,  Garrick  v.  Williams,  3  Taunt.  340 ;  and  deeds  under  the  Mortmain  Acts  ; 
Doe  V.  Lloyd,  1  M.  &  G.  671 ;  B.  0.  L.  R.  39  ;  Rex  v.  Sewell,  8  Q.  B.  161 ;  B.  C. 
L.  R.  55.  And,  by  12  &  13  Vict.  c.  109,  s.  12,  a  certificate  of  enrolment  in  the 
Petty  Bag  Ofiice,  purporting  to  be  sealed  with  the  Chancery  Common  Law  seal, 
and  by  s.  18,  a  certificate  of  enrolment  in  the  Enrolment  Office,  purporting  or 

duced  to  show  that  the  court  is  composed  of  more  than  one  judge,  the  authentica- 
tion is  sufficient;  Central  Bank  of  Georgia  v.   Veasey,  14  Arkansas,  672. 

As  to  the  judgments  of  justices  of  the  peace  it  has  been  decided  that  they  are 
admissible  if  authenticated  in  the  same  manner  as  foreign  judgments  are  authen- 
ticated; Mahurinv.  Bickford, 6N.Tia.mp.  567;  Lawrences.  Gaultney,  ICheves, 
7  ;  Gay  v.  Lloyd,  1  Iowa,  78. 

An  exemplification  of  the  record  of  a  judgment  of  a  justice  of  the  peace  of  a 
sister  State,  certified  according  to  the  Act  of  Congress,  is  competent  evidence  in 
Kentucky ;  Scott  v.  Cleveland,  3  Monroe,  62. 


HOW    PROVED  —  OFFICE    COPT.  235 

Office  copies  of  judicial  proceedings,  otter  than  tliose  last  men- 
tioned, tliat  is,  copies  made  by  tte  known  officers  of  tlie  court, 
seem  to  be  admissible  for  particular  purposes  in  tlie  same,  but  not 
in  another  court.''  "Witb  respect  to  causes  depending  in  Chancery, 
it  is  said  that  office  copies  are  the  very  records  of  the  court,  and 
prove  themselves,  and  that  no  other  copy  can  be  produced  therein  ;i 
but  such  copies  are  not  admissible  in  other  courts." 

By  various  statutes  also  copies  of  records  and  other  judicial 
proceedings  are  rendered  admissible  in  evidence,  if  certified  by 
certain  officers,  and  sealed  -with  the  seal  of  the  *office  or  y.^^„„ 
Court.  The  first  and  principal  of  these  is  the  statute  '- 
relating  to  the  custody  of  the  public  records,  which,  after  direct- 
ing that  all  the  public  records,  including  among  others  those  of 
the  Courts  of  Chancery,  Exchequer,  Admiralty,  Queen's  Bench, 
Common  Pleas  and  Marshalsea,  shall  be  placed  under  the  care  of 
the  Master  of  the  EoUs  and  a  deputy  keeper  of  records,  provides 
that  copies  of  any  of  these  certified  by  the  deputy  keeper  of  the 
records,  or  one  of  the  assistant  record  keepers,  and  purporting 
to  be  sealed  or  stamped  with  the  seal  of  the  Eecord  Office,  shall 
be   admissible  in   evidence  without   further  proof."     The  recent 

appearing  to  be  sealed  with  tlie  seal  of  the  Chancery  Enrolment  Office,  shall  be 
admitted  in  evidence  without  further  proof.  These  certificates  are  by  those  sec- 
tions directed  to  be  made  on  the  instruments  and  to  state  the  day  of  enrolment,  of 
which  the  certificate  is  also  made  evidence.  A  memorandum  of  enrolment  of  a 
lease,  on  the  margin  of  the  lease,  signed  "A.  B.,  Auditor,"  is  sufficient  proof  that 
the  lease  has  been  enrolled  with  the  auditor  of  the  Duchy  of  Lancaster ;  Kinnersly 
V.  Orpe,  1  Doug.  56. 

'  In  general,  an  office  copy  is  admissible  in  evidence  in  the  same  court  and  in 
the  same  cause,  but  not  in  a  different  cause,  though  in  the  same  court ;  per  Lord 
Mansfield,  in  Denn  v.  Fulford,  Burr.  1177 ;  Pitcher  v.  King,  1  Oar.  &  K.  655 ; 
B.  0.  L.  R.  47.  Of  course,  when  a  writing  is  admitted  under  a  judge's  order  to 
be  a  true  copy,  it  is  admissible  without  further  proof;  Davies  v.  Davies,  9  Car.  & 
P.  252 ;  E.  C.  L.  E.  38. 

'  Denn  v.  Fulford,  Burr.  1177. 

■°  1  Bl.  289  ;  Black  v.  Lord  BrayhrooTce,  2  Stark.  0.  7-;  E.  C.  L.  R.  3  ;  and  it 
is  said  to  have  been  held  at  nisi  prius  that  upon  the  trial  of  an  issue  out  of 
Chancery,  office  copies  of  depositions  in  Chancery  in  the  same  cause  were  not 
receivable  ;  Burnand  v.  Nerot,  1  0.  &  P.  578 ;  E.  0.  L.  R.  12  ;  but  see  the 
opmion  of  Littledale,  J.,  in  Higlifield  v.  Peake,  M.  &  M.  109 ;  E.  0.  L.  R.  22  ; 
Vol.  II.  tit.  Office  Copy. 

"  1  &  2  Vict.  c.  94,  s.  13.  Though  all  the  records  then  existing  in  the  various 
courts  were  transferred  by  this  statute,  yet  the  future  were  not  at  once ;  but  a 
provision  is  contained  in  the  Act  (s.  3)  by  which  the  accumulating  records  of  the 
age  of  twenty  years  may  from  time  to  time  be  brought  under  the  custody  of  the 


236  DOCUMENTS    OF    A    PUBLIC    NATUEE. 

statute,^  likewise,  for  tlie  regulation  of  the  Petty  Bag  Oifice,  and 
the  practice  of  the  Common  Law  side  of  the  Court  of  Chancery, 
and  the  Enrolment  Office  in  Chancery  provides  that  a  copy  of 
^  any  document,  sealed  with  the  Common  *Law,P  or  Enrol- 

-'   menti  Office  Seal,   shall  be   deemed  a  true   copy,   and  be 

Master  of  the  Eolls.  The  statute  is  more  fully  referred  to,  ante,  p.  255,  where 
the  particular  records  mentioned  in  it  are  specified.  The  clauses  which  provide 
for  the  making  of  copies  are  ss.  12  and  13,  and  they  provide  (s.  12),  "That  the 
Master  of  the  Eolls  or  Deputy  Keeper  of  the  Eecords  may  allow  copies  to  be 
made  of  any  records  in  the  custody  of  the  Master  of  the  Eolls,  at  the  request  and 
cost  of  any  person  desirous  of  procuring  the  same  ;  and  any  copy  so  made  shall 
be  examined  and  certified  as  a  true  and  authentic  copy  by  the  Deputy  Keeper  of 
the  Eecords  or  one  of  the  Assistant  EecSrd  Keepers  aforesaid,  and  shall  be  sealed 
or  stamped  with  the  seal  of  the  Eeoord  Office,  and  delivered  to  the  party  for 
whose  use  it  was  made."  And  (s.  13)  "  that  every  copy  of  a  record  in  the  custody 
of  the  Master  of  the  Eolls,  certified  as  aforesaid,  and  purporting  to  be  sealed  or 
stamped  with  the  seal  of  the  Eeoord  Office  shall  be  received  as  evidence  in  all 
courts  of  justice,  and  before  all  legal  tribunals,  and  before  either  House  of  Parlia- 
ment, or  any  Committee  of  either  House,  without  any  further  or  other  proof 
thereof,  in  every  case  in  which  the  original  record  could  have  been  received  there 
as  evidence." 

°  12  &  13  Vict.  c.  109.  « 

■■  Sect.  11  having  directed  that  a  Chancery  Common  Law  seal,  of  which  all 
courts  are  to  take  judicial  notice,  shall  be  provided,  s.  13  enacts  that  every  office 
copy  issued  shall  be  sealed  with  the  said  Chancery  Common  Law  seal,  and  "That 
every  document  sealed  with  such  seal,  and  purporting  to  be  a  copy  of  any  record, 
or  other  document  of  any  description,  shall  be  deemed  to  be  a  true  copy  of  such 
record  or  other  document,  and  shall,  without  further  proof,  be  admissible  and 
admitted  and  received  in  evidence,  as  well  before  either  House  of  Parliament,  as 
also  before  any  committee  thereof,  and  also  by  and  before  all  Courts,  Tribunals 
Judges,  Justices,  Officers,  and  other  persons  whomsoever,  in  like  manner,  and  to 
the  same  extent  and  effect  as  the  original  record  or  other  document  would  or  might 
be  admissible,  or  admitted,  or  received,  if  tendered  in  evidence,  as  well  for  the  pur- 
pose of  proving  the  contents  of  such  record  or  other  document,  as  also  proving 
such  record  or  other  document  to  be  a  record  or  document  of,  or  belonging  to,  the 
said  Court  of  Chancery,  but  not  further  or  otherwise." 

1  Sect.  17  directs  a  seal  or  stamp  to  be  provided,  of  which  all  courts  shall  take 
judicial  notice;  sect.  19  enacts,  "that  every  document  or  wi'iting,  sealed  or 
stamped,  or  purporting  or  appearing  to  be  sealed  or  stamped  with  the  said  seal  of 
the  Chancery  Enrolment  Office,  and  purporting  to  be  a  copy  of  any  enrolment  or 
other  record,  or  of  any  other  document  or  writing  of  any  description  whatsoever, 
including  any  drawings,  maps,  or  plans  thereunto  annexed  or  endorsed  thereon, 
shall  be  deemed  to  be  a  true  copy  of  such  enrolment,  record,  document,  or  writing, 
and  of  such  drawing,  map,  or  plan  (if  any)  thereunto  annexed,  and  shall,  without 
further  proof,  be  admissible  and  admitted  evidence,  as  well  before  either  House  of 
Parliament,