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YEARLY LEGAL PEACTICES.

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THE YEARLY PRACTICE (SUPREME COURT).

The Judicature Acta and Rules, 1873—1907, and other Statutes and Orders
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BY SOME OF
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Editor of" Fisher on Mortgage."
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With the AwlsUnce nf the following CONSULTING EDITORS, who hare consented to give their
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fit J?

' P
 POWELL'S

principles ant) practice

OF THK

LAW OF EVIDENCE.

EIGHTH EDITION.

BY
JOHN CUTLER, M.A., K.C.,
0/ Lincoln's Inn, Professor of English Lmoarul Jurisprudence
at King's CoUftjes London,
And Editor of the Official JtriHirts of Patent Cases,
AND
CHARLES F. GAGNEY, B.A.,
Of Vie Middle Temple, Bttrritter-at-Law.

LONDON :
BUTTERWORTH & CO., 12, Bell Yabd, Temple Bar, W.C.
law publishers.
Dublin : Hodoes, Figgis & Co., Grafton Street.
Bombay : K. A. Sagoon. Madras : G. Pemberton.
Melbourne : G. 1'artridge.
1904.
 LONDON :
PRINTKD BY BUTTERWORTH AfsD CO., CRANK COURT, K.C.
 TO

THE RIGHT HONORABLE

LORD ALVERSTONE, G.C.M.a,

Lord Chief Justice ok England,

®his Edition

IS,

WITH HIS PERMISSION,

MOST RESPECTFULLY DEDICATED

By THE EDITORS.
 PJREFACE

TO THE EIGHTH EDITION.

TN preparing this Edition for the Press we

have not departed from the lines on which
the previous Editions were based. We have
considered all the cases upon the subjects dealt
with in this Book which have been reported
since the last Edition down to April, 1904, and
have incorporated such of them as we deemed of
sufficient importance in this Edition, and have
also incorporated a few cases reported since that
date. We have eliminated certain matters
mainly of historical interest, and have other
wise compressed the present Edition, so that
in spite of the very considerable amount of new
matter introduced into this Edition it will be
found to be shorter by several pages than the
previous Edition.

JOHN CUTLER,
CHARLES F. CAGNEY.
Lincoln'* Inn,
July, 1904.
 TABLE OF CONTENTS.

PAGE
Preface to the Eighth Edition vii
Table of Cases ... xiii
Table of Statutes ... lxi

PAET I.
CHAPTER
I.—General Principles of Evidence 1
II. —The Functions of Judge and Jury 9
III.—The Competency of Witnesses ... ... ... 20
IV.— The best Evidence must be given - Primary and
Secondary Evidence 46
V.— Presumptive Evidence ... ... ... ... ... 51
VI. —Evidence in Matters of Opinion 86
VII.—Privilege 94
VIII.— Hearsay or Second-hand Evidence 126
IX.—Hearsay in Matters of Public and General Interest... 137
X.—Evidence of Ancient Possession ... ... ... 149
XI.—Evidence in Questions of Pedigree 154
XII.—Dying Declarations ... ... ... ... ... 163
XIII. —Declarations against Interest ... ... ... ... 169
XIV.—Declarations made in the course of Business or Pro
fessional Duty ... ... ... 178
XV.—Statements by Deceased or Absent Witnesses .. 184
XVI.—Admissions 190
XVII.—Confessions ... ... ... ... ... ... 246
XVIII.—The Burden of Proof 266
XIX.—Judicial Notice and the Proof of Foreign Laws ... 268
X Table of Contents.

PART II.
WRITTEN EVIDENCE.
CHAPTER PAGE
I.—Introductory 275
II.—Public Judicial Documents 279
III.—Public Non-Judicial Writings 294
IV.—Secondary Evidence—Proof of Handwriting—Attest
ing Witnesses— Writings which refresh the Memory 311
V.—Matters which are required to be proved by writing—
The Statutes of Frauds and of Limitations—Pre
scription—Representations of Character 324
VI.—Inadmissibility of Extrinsic Evidence to contradict or
vary Written Evidence 358
VII.—Admissibility of Extrinsic Evidence to explain Written
Evidence 372

PART III.

I.—The Attendance of Witnesses 39 1

11.—The Examination, Cross-Examination, and Re-Exami
nation of Witnesses ... ... ... ... •■• 407
III.—The Substance of the Issue 426
IV.—Variances and Amendments ... ... ... ••• 431
V.—The Relevancy of Evidence 441
VI.—Depositions ... ... ... ... ■•• ••• 455
VII.—Discovery and Interrogatories 473
VIII.—Production and Inspection of Documents, and Notice
to Produce 483
IX.—Stamps 505
X.—Affidavits — New Trials — Appeals — Perpetuating
Testimony 512
 Table of Contents. xi

APPENDIX.
PAGE
8 & 9 Vict c. 113 (Documentary Evidence Act, 1845) ... 521
31 & 32 Vict. c. 37 (Documentary Evidence Act, 1868) ... 523
45 & 46 Vict. c. 9 (Documentary Evidence Act, 1882) ... 525
28 Vict. c. 18 (Evidence and Criminal Practice Act, 1865) ... 526
14 & 15 Vict. c. 99 (An Act to Amend the Law of Evidence)... 528
16 & 1 7 Vict. c. 83 (An Act to Amend an Act of the Fourteenth
and Fifteenth Victoria, Chapter Ninety-nine) ... ... 532
32 & 33 Vict. c. 68 (An Act for the Further Amendment of
the Law of Evidence) 533
6 & 7 Vict. c. 82 (Evidence by Commission Act) 534
42 Vict. c. 11 (Bankers' Books Evidence Act, 1879) 535
45 & 46 Vict. c. 72 (Revenue, Friendly Societies and National
Debt Act, 1882) 537
61 & 62 Vict. c. 36 (Criminal Evidence Act, 1898) 537
57 & 58 Vict. c. 60 (Merchant Shipping Act, 1894) 541
25 & 26 Vict. c. 89 (Companies Act, 1862) 543
40 & 41 Vict. c. 26 (Companies Act, 1877) ... 545
53 & 54 Vict. c. 63, s. 8 (Companies Winding-up Act, 1890) ... 546
46 & 47 Vict. c. 52 (Bankruptcy Act, 1883) '547
The Bankruptcy Rules, 1886 and 1890 550
34 & 35 Vict. c. 112 (Prevention of Crimes Act, 1871).. ... 552
33 & 34 Vict. c. 14 (Naturalization Act, 1870) 553
33 & 34 Vict. c. 52 (Extradition Act, 1870) 554
36 & 37 Vict. c. 60 (Extradition Act, 1873) 555
38 & 39 Vict. c. 60 (Friendly Societies Act, 1875) 555
56 & 57 Vict. c. 39 (Industrial and Provident Societies Act, 1893) 555
44 & 45 Vict. c. 69 (Fugitive Offenders Act, 1881) 556
53 & 54 Vict. c. 39 (Partnership Act, 1890) 556
54 & 55 Vict. c. 39 (Stamp Act, 1891) 557
55 Vict. c. 4 (Betting and Loans (Infants) Act, 1892) 559
65 Vict. c. 6 (Colonial Probates Act, 1892) 561
55 & 56 Vict c. 64 Witnesses (Public Inquiries) Protection
Act, 1892) 562
xii Table of Contents.
PAGE
Roles of the Supreme Court, 1883 :
Order XXX 563
Order XXXVII 563
Order XXXVIII 567
County Court Rules, 1903 :
Order XVI 571
Order XVIII 576
Order XIX 680
 TABLE OF CASES.

A.
PAGE
Abbey v. Lill, 2 M. k P. 534 ; 5 Bing. 299 296
Abbott r. Bates, 45 L. J. 1 17 ; 33 L. T. 491 ; 24 W. R. 101 ... 389
v. Morice, 3 Ves. 148 381
Abergavenny (Earl of) v. Powell, 1 Men. 434 518
Abinger (Lord) r. Ashton, L. R. 17 Eq. 373 ; 22 W. R. 582 ... 92
Abouloff v. Oppenheimer, 10 Q. B. I). 295 ; 52 L. J. Q. B. 1 ;
31 W. R. 57 : 47 L.T. 325 194, 204
Abrath r. North Eastern Rail. Co.. 11 App. Cas. 247 ; 55 L. J. Q. B.
457 ; 55 L. T. 63 ; 15 Cox C. 0. 354 260
Abrey r. Crux, L. R. 5 C. P. 37 ; 39 L. J. C. P. 9 ; 21 L. T. 327 ... 366
Accbal r. Levy, 10 Bing. 384 ; 4 M. & Sc. 217 348
Acerro r. Petroni, 1 Stark. 100 411
Adam r. Kerr, 1 Bos. k P. 360 65, 319
Airey, In re, 45 W. R. 286 ; [1897] 1 Ch. 164 : 66 L. J. Cb. 152 :
76 L. T. 151 64
r. Hall, 2 I)e G. k S. 489 489
Alban r. Pritchett," 6 T. R. 680 237
Albert r. Grosvenor Investment Co., L. R. 3 Q. B. 123 ; 37 L. J.
Q. B. 24 ; 8 B. & S. 664 369
Alderson v. Langdale, 3 B. k Ad. 660 339
Alexander r. Bonin, 4 Bing. N. C. 799... ... ... ... ... 428
r. North Eastern Rail. Co., 6 B. k S. 340 16
Alison r. Alison, 29 W. R. 732 ; 50 L. J. Ch. 574 481
Alivon r. Fnrnival, 1 C. M. k R. 277, 296 ; 3 L. J. Ex. 241 ; 4 Tyr.
751 313
Allcard r. Skinner, 36 Ch. D. 145 ; 36 W. R. 251 57, 261
Allan r. Morrison, [1900] A. C. 401 : 69 L. J. P. C. 141 66
Allen v. Allen, [1894] P. 248 ; 63 L. J. P. 120 ; 70 L. T. 783 ;
42 W. R. 549 ... 29
r. Dnndas, 3 T. R. 125 ; 1 R. R. 666 290
r. Yoxnll, 1 C. & Kir. 315 404
Alner r. George, 1 Camp. 392 229
Alston, In the goods of, [1892] P. 144 : 66 L. T. 591 77
Amos r. Hnghes, 1 M. & Rob. 4G4 257
Anderson, Er parte, 14 Q. B. D. 606 ; 54 L. J. Q. B. 383 ; 52 L. T.
786 2^2
r. Collinson, [1901] 2 K. B. 107 ; 70 L. J. K. B. 620 ;
49 W. R. 623 203
r. Hamilton, 8 Price, 244 ; 4 Moore, C. P. 593 n ; 2 Brod.
4c B. 156 n 120
Andrew r. Motley, 12 C. B. (X.8.) 526 ; 32 L. J. C. P. 128... 65, 293
Anglesca (Marquis of) r. Hatlicrton (Lord) 10 M. & \V. 218 ; 12 L. J.
Ex.57 445
xiv Table of Cases.
PAGE
Angus v. Dalton, 3 Q. B. D. 85 ; 6 App. Gas. 740 ; 50 L. J. Q. B.
689 ; 44 L. T. 844 ; 30 \V. R. 196 69
Annesley b. Anglesea (Lord), 17 How. St. Tr. 1430 421
Anon., 1 Vera. 60 124
, 1 Strange, 527 238
, Ambler, 252 322
Anstee r. Nelmes, 1 H. & N. 225 ; 4 W. R. 612 ; 26 L. J. Ex. 5 ;
27 L. T. 190 135, 381
Appleton v. Braybrooke, 6 M. & S. 34 ; 2 Stark. 6 284
Armory tr. Delamirie, 1 Smith. L. C. 385 ; 1 Strange, 505 73
Armour e. Bate, [1892] 2 Q. B. 233 ; 60 L. J. Q. B. 433 ; 39 W. R.
546 267
v. Walker, 25 Ch. 1). 673 ; 53 L. J. Ch. 413 ; 32 W. R.
214 466,468
Armstrong i>. Armstrong, [1892] P. 98 ; 61 L. J. P. 63 ; 66 L. T.
384 466
Arnold r. Poole (Mayor of), 4 M. & G. 860 ; 12 L. J. C. P. 97 ;
7 Jur. 653 ; 2 Dowl. (N.s.) 574 324
Amott, Re, 37 W. R. 223 ; 60 L. T. 109 ; 5 Morell, 286 102
r. Hayes, 3 Ch. D. 731 ; 36 VV. R. 246 ; 56 L. J. Ch. 844 ;
57 L. T. 299 118
Ashbury Railway Carriage Co. ». Kiche, L. R. 7 E.&. 1. 668 ; 44 L. J.
Ex.185; 24 W. R. 794 233
Ashforth v. Redford, L. R. 9 C. P. 20 ; 43 L. J. C. P. 57 ... 19, 388
Ashling v. Boon. [1891 J 1 Ch. 568 ; 39 W. R. 298 ; 60 L.J. Ch. 306 ;
64 L. T. 193 509
Astburv ,-. Astbury, [1898] 2 Ch. Ill ; 67 L. J. Ch. 471 ; 78 L. T.
494 ; 46 W. It. 536 355
Atchley r,. Sprigg, 33 L. J. Ch. 345 ; 10 L. T. 16 ; 12 W. R. 364 ;
10 Jur. (N.s.) 144 125
Atkins c. Tredgold, 2 B. & C. 23 ; 3 1). & R. 200 231
Atkinson v. Morris, [1897] P. 40 ; 66 L. J. P. 17 ; 7j5 L. T. 440 ;
45 W. R. 293 380
Atkyns r. Meredith, 4 Dowl. P. O. 658 501
Att.-Gen. r. Davison, M'Clcl. & Y. 260 184
o. Emerson, 10 Q. 15. D. 191 ; 48 L. T. 18 ; 31 W. R.191 ;
52 L. J. Q. B. 67 487
t. Eweime Hospital, 17 Beav. 366 ; 22 L. J. Ch. 846 ... 68
v. Gaskill, 22 Ch. D. 537 831, 476
r. Hitchcock, 1 Ex. 93 ; 16 L. J. Ex. 259 419,421
v. London (Corporation of), 2 Mac. & G. 247 ; 19 L. J. Ch.
314 ; 14 Jur. 205 477
v. Newcastle Corporation, [1897] 2 Q. B. 384 ; 66 L. J.
Q. B. 593 473
c. North Metropolitan Tramways, [1892] 3 Ch. 70 ... 484
n. Radloff, 10 Ex. 84 ; 23 L. J. Ex. 240 ; 10 Jur. 555 ;
2 C. L. R. 1116 34
v. Retford. 2 My. & K. 35 477
r. Stephens, 1 K. & J. 724 ; 6 De G. M. & G. 141 ; 25 L. J.
Ch. 888 209
r. Whitwood Local Board, 19 W. R. 1107 ; 40 L. J. Ch.
592 492
v. Winaiis 78
Att.-Gen. of Trinidad r. Erichc, [1893] A. C. 523 ; 63 L.J. P. C. 6 ;
69 L. T. 505 194
Attwood v. Emery, 1 C. B. (n.s.) 110 19
Auriol c. Smith, 18 Ves. 198 316
Austin r. Bethnal Green Guardians, L. R. 9 C. P. 91 ; 43 L. J. C. P.
100 ; 29 L. T. 807 : 22 W. R. 406 325
 Table op Cases. xv
PAGE
Australian Steam Navigation Co. v. Smith, 14 App. Oas. 318 ... 433
Aveson r. Kinnaird (Lord). 6 East. 188 ; 2 Smith, 286 ; 8 R. R. 455 : 133
Aylesford Peerage Case, 11 App. Can. 1 69, 125, 132

B.
Bacon, Kv parte, 17 Ch. D. 447 ; 29 W. R. 574 195
Badische Anilin, etc. r. Levinstein, 4 R. V. C. 470 268
Baerlein c. Chartered Mercantile Bank, [1895] 2 Ch. 488 ; 43 W. R.
692 ; 65 L. J. Ch. 54 8, 136, 563
Bahia Rail. Co.. In re, 37 L. J. O,. B. 176 ; L. K. 3 Q. B. 584 ;
9 B. k S. 844 ; 18 L. T. 467 ; 16 \V. R. 826 219
Bailey r. Sweeting, 30 L. J. C. P. 150; 9 C. B. (N.8.) 843;
9 W. R. 273 348
Bain r. Whitehaven Kail. Co., 3 H. L. Cas. 19 8
Bainbrigge r. Browne, 18 Ch. 1). 188 ; 50 L. J. Ch. 522 ; 44 L. T.
705 ; 29 W. B. 782 57
Baker r. Dewey, 1 B. k C. 704 ; 3 DowL ft B. 99 228
Baldney r. Ritchie, 1 Stark. 338 499
BalkiR Consolidated Co. r. Tomkinson, [1893] A. C. 396 ; 1 R. 178 ;
63 L. J. Q. B. 134 ; 69 L. T. 598 ; 42 W. R. 284 219
Ball r. Bridges, 22 W. R. 552 348
Balls v. Westwood, 2 Camp. 12 212
Banbury r. Banbury, 2 Beav. 177 109
Banbury Peerage Case. 1 S. & S. 155 261
Bandon (Earl of) r. Becher. 2 C. k P. 510 ... 201
Bank of Hindustan r. Alison, L. K. 6 C. P. 222 ; 40 L. J. C. P. 117 ;
19 W. R. 505 218
Bank of Ixiuuiiana r. Bank of New Orleans, 43 L. J. Ch. 269 ... 211
Bank of New Zealand r. Simpson, [1900] A. C. 182 ; 69 L. J. P. C.
22 ; 82 L. T. 102 ; 48 W. H. 591 376
Banks r. Cartwright, 15 W. R. 417 183
Bunque Franco-Egvptienne r. Lutscher, 28 W. R. 133 465
Barbat r. Allen. 7 Ex. 609 ; 21 L. J. Ex. 156 36
Barber r. Wood, 4 Ch. 1). 885 ; 46 L. J. Ch. 728 ; 36 L. T.
(N.8.) 373 403
Barksdale r. Morgan, 4 Mod. 186 384
Barnes, Ex parte, 16 Q. B. 1). 522 258
, Re parte, [1896] A. C. 146 ; 65 L. J. Ch. 394 ; 74 L. T. 163 ;
44 W. If. 433 ; 3 Manson, 63 400
Barnett r. Allen, 3 H. k N. 376 16, 87
Barnsdalc r. Lowe, 2 B. & M. 142 518
Barraclough r. (ireenhough, 36 L. J. Q. B. 26, 251 ; 7 B.& S. 170 ;
8 B. A: S. 623 ; L. B. 2 Q. B. 1 292, 502
r. Johnson, 8 A.&E. 99 ; 3 N.&P.238 ; 2 Jar. 839... 146
Barrow r. Dyster, 13 y. B. D. 635 ; 51 L. T. 573 ; 33 W. R. 199 ... 388
Barr's Trusts, In re, 4 K. k J. 236 4, 39
Barrs r. Jackson, 1 Phil. 582 ; 14 L. J. Ch. 433 ; 9 Jur. 609 ... 200
Barry r. Butlin, 2 Moore, P. C. 480 262
Bartholomew r. Menzies, [1902] 1 Ch. 680; 71 L. J. Ch. 343;
86 L. T. 561 ; 50 W. R. 294 42
r. Stephens, 8 C. & P. 728 504
Barton c. Dawes, 10 C. B. 261 ; 19 L. J. C. P. 302 370
Barwick r. English Joint Stock Bank, L. R. 2 Ex. 259 ; 36 L. J. Ex.
174 234
Ba«c-be r. Matthews, L. R. 2 C. P. 684; 36 L. J. M. C. 93;
15W.R.839 285
Basset r. Richards, 10 B. & C. 657 148
 xvi Table of Cases.

Bateman r. Faber, [1898] 1 Ch. 144 PAGE

20!)
Bassford r. Blakesley, 6 Bea. 131 490
Baudairs r. Jersey Banking Co.. 13 A. C. 832 187
Bauerman b. Rad'enius, 7 T. R. 663 136. 190
Baugh r. Cradocke, 1 M. & Hob. 182 115
Bauman r. .lames, L. R. 3 Ch. 508 ; 18 L. T. 424 ; 16 \V. H. 877 ... 336
Bayley r. Cass, 10 VV. R. 370 497
Baylis r. Lawrence, 3 P. & D.526 ; 11 A. & E. 926 ; 4 Jur. 652 ... 15
Beamish, In re, 9 W. R. 475 75
Beardsley B. Beardsley. [1S99] 1 Q. B. 746 ; 68 L. J. Q. B. 270 ;
80 L. T. 51 ; 47 W. R. 284 198
Beatson r. Skene, 5 H. &. N. 838 ; 29 L. J. Ex. 430 120, 121
Beattie v. Ebnry (Lord), L. R. 7 Ch. App. 777, 800; 41 L. J. Ch.
804 211
Beatty r. Cullingworth. 60 ,T. 1'. 740 133
Beaufort (Duke of) r. Crawshay, L. R. 1 C. P. 699 ; 35 L. J. C. P.
342 ; lH.it N. 638 464
r. Smith, 4 Ex. 450 ; 19 L. J. Ex. 97 144
Beavan c. McDonnell, 23 L. J. Ex. 326 ; 10 Ex. 184 129
Beckett c. Ramsdale. 31 Ch. D. 183 41. 42
Bell r. Balls, T1897J 2 Ch. 669 ; 66 L. J. Ch. 397 ; L. R. 1 Ch. 663 ;
76 L. T. 254 ; 45 W. R. 378 340
Bellerophon, The, 44 L. J. Adm. 5; 31 L. T. 756 ; 23 W. R. 248 ... 120
Bellhaven Peerage Case, 1 App. Cas. 279 6
Belmore r. Kent County Council. ri90l] 1 Ch.873 ; 70 L.J.Ch.501 ;
84 L. T. 523 : 49 W. K. 459 ; 65 J. P. 456 80
Belvin r. Skeats, 1 Sw. k Tr. 148 ; 27 L. J. (P. M. & A.) 56 ... 293
Bembridgc r. Osborne, 1 Stark. 374 ... ... ... ... ... 79
Benjamin, lir, [1902] 1 Ch. 723 ; 71 L. J. Ch. 319 ; 86 L. T. 387 ... 75
Bennett B. Bennett. 10 Ch. D. 474 ; 40 L. T. 378 ; 27 W. R. 573 ... 84
Bentinck r. London Joint Stock Bank, [1893] 2 Ch. 120 ; 62 L. J.
Ch. 358 ; 68 L. T. 315 ; 42 W. R. 140 ' 222
Bentley r. Mackay, 31 Beav. 155 ; 31 L. J. Ch. 697 363
Berdan r. Greenwood, 20 Ch. 1). 764 n. 463, 465
Berkeley Peerage Case, 4 Camp. 414 ; 14 R. R. 782 ... 127, 148, 157.
Berryman >•. Wise, 4 T. R. 366 159, 160 62
Berwick r. Horsfall, 27 L. J. C. P. 193 ; 4 C. B. (n.s.) 450 ; 4 Jur.
(N.S.) 615 17, ]<i
Bessela r. Stern, 2 C. P. D. 265 ; 46 L. J. C. P. 467 ; 37 L. T. 88 ;
25 W. R. 561 41
Betts r. Willmott, L. R. 6 Ch. 239 ; 14 W. R. 369 266
Bewley r. Atkinson, 13 Ch. 1). 283 ; 49 L. J. Ch. 6 ; 41 L. T. 603 ;
28 \V. R. 638 172
Bidder r. Bridges, 34 W. R. 514 ; 54 L. T. 529 ... 142, 152. 463
Biddle r. Bond, 6 B. & S. 225 ; 34 L. J. Q. B. 137 ; 12 L. T. 178 ;
13 W. R. 561 ; 11 Jur. (N.s.) 425 213
Biddulph r. Camoys (Lord), 20 Beav. 402 518
Birch r. Ridgway, 1 F. & F. 270 316
Birchall l>. Bnllough. [1896] 1 Q. B. 325; 66 L. J. Q. B. 252;
74 L. T. 27 ; 44 W. R. 300 509
Bird r. Harris, 43 L. T. 434 ; 29 \V. R. 45 42
Birkmyr Darnell, 1 Sm. L. C. 359 ; Salk. 27 342
Birt B. Barlow, 1 Doug. 171, 174 296, 297
Bishop r. Balkis. etc. Co., 25 Q. B. D. 512 ; 59 L. J. Q. B. 565 ;
39 W. R. 99 220. 357
r. Holt. [1900] 2 Ch. 620 : 69 L. J. Ch. 753 ; 83 L. T. 297 ;
49 W. R. 88 379
 Table of Cases. xvii
PAGE
Blackburn Building Society «. Cunliffe, 21 Ch. D. 72 ; 52 L. J. Ch.
97 ; 31 W. R. 100 225
Blackbnrn Guardians r. Brooks, 25 W. R. 57 514
Blackett v. Royal Exchange Assurance Co., 2 Tyr. 26G ; 2 C. & J.
244 385,388
Blair e. Bromlev, 11 Jur. 617 508
Blake v. Albion Life Assurance Society, 45 L. J. C. P. 663 ; 35 L. T.
269 ; 24 W. R. 677 ' 444
r. Blake, 51 L. J. P. D. k A. 36 ; 7 P. Div. 102 ; 46 L. T.
641 ; 30 W. B. 505 ... 349
Blanchet r. Llantivit Colliery Co., L. R. 9 Ex. 77 ; 43 L. J. Ex. 50 ;
22 W. R. 290 307
Blewitt r. Tritton, [18921 2 Q.B.327 ; 61 L..T.Q. 13. 773 : 67 L.T.
72 ; 41 W. R. 36 '. 511
Bloomenthal r. Ford, [1897] A. C. 156 ; 76 L. T. 205 ; 45 W. R. 449 ;
4 Manson. 156 219
Boddy t. Boddy, 30 L. J. P. M. & A. 23 447
Boehm, In the goods of, [1891] P. 247 ; 60 L. J. P. 80 ; 64 L. T.
806 ; 39 \V. R. 576 ... 364
Boileau r. Rutton, 2 Exch. 665 193
Bolckow r. Fisher, 10 Q. B. 1). 161 ; 52 L. J. Q. B. 12 ; 31 W. R.
235 478
Bold p. Hutchinson, 24 L. J. Ch. 285 ; 20 Beav. 250 ; 1 Jur. (N.s.)
365 ; 3 Eu.. Rep. 743 363
Boldron v. Widdows, 1 C. i P. 65 443
Bolton v. Liverpool Corporation, 1 My. & K. 94 : 1 L. J. Ch. 166 ... 102
Bonelli, In the goods of, 1 P. D. 69 ; 45 L. J. P. D. 4: A. 42 ; 34 L. T.
32 ; 24 W. R. 255 273
Bonnardet r. Taylor, 1 J. & H. 386 ■ 492
Bonnewell r. Jenkins, 8 Ch. D. 70 ; 47 L. J. Ch. 758 ; 38 L. T. 81 ;
26 W. R.294 337
Bootle r. Blnndell, 19 Ves. 494 ; 13 R. R. 254 292
Bosvile r. Att.-Gen., 12 P. D. 177 ; 56 L. J. P. 97 ; 57 L. T. 88 ;
36 W. R. 79 59
Bottomley r. Forbes, 6 Scott, 816 ; 5 Bing. N. C. 121 ; 1 Am. 481 ;
2 Jur. 1016 385
Bournemouth Commissioners c Watts, 14 Q. B. D. 87 ; 51 L. T. 823 ;
33 VV. R. 280 332
Bovill v. Cowan, L. R. 5 Ch. 495 ; IS W. H. 533 489
Bowes v. Foster, 2 H. k N. 779 ; 26 L. J. Ex. 262 229
Bowman r. Hodgson, L. R. 1 P. & I). 362 ; 36 L. J. P. 124 ; 16 L. T.
392 293
r. Nicholl, 5.T. R. 537 ; 1 Esp. 81 511
V. Taylor, 2 A. & E. 278, 279 ; 4 N. k M. 264 206
Boyd v. Bolton. 8 Ir. Eq. R. 113 224
v. Petrie, 19 W. R. 221 492
Boyle v. Wiseman, 11 Ex. 360 ; 24 L. J. Ex. 284 9, 96, 500
Bradficld v. Tupper, 7 Ex. 27 230
Bradford (Earl of) c. Itomney (Earl of), 30 Beav. 431 ; 31 L. J. Ch.
497 363
Bradlaugh r. De Bin, L. R. 3 C. P. 286; 37 L. J. C. P. 146;
16 W. R. 1128 66
Bradshaw r. Widdrington, T1902] 2 Ch. 430 ; 71 L. J. Ch. 627 ;
86 L. t. 726 ; 50 W. R.7.61 355
Brain r. Precce. 1 1 M. k W. 773 181
Bramwell r. Lucas, 2 B. ic C. 745 ; 4 Dowl. k R. 367 Ill
Bray r.Ford, [1896] A. C. 44 ; 65 L. J. Q. 15. 213 : 73 L. T. 609... 516
Bremner v. Hull, H. 4i R. 800 179
xviii Table of Cases.
PAGE
Brett v. Beales. 10 B. & C. 508 ; M. & M. 416 280
Bridport Old Brewery Co., 2 Ch. 1). 19+ 544
Brier v. Evison, 26 Ch. 1). 238 ; 33 W. K. 20 260
Bright v. Legcrton, 30 L. J. Ch. 338 ; 2 De G. & J. 421 ; 8 W. K.
678 180,181
Brindley e. Woodhouse, 1 Car. & Kir. 647 312
Brine r. Bazalgette, 3 Ex. 692 ; 18 L. J. Ex. 348 448
Brisco v. Lomax, 3 N. & P. 308 ; 8 A. & E. 198 ; 2 Jur. 682 ... 145
Bristol, etc. Bread Co. v. Maggs, 44 Ch. D. 616 ; 59 L. J. Ch. 472 ;
38 W. R. 393 ; 62 L. T. 416 337
Bristol (Mayor of) ». Cox, 26 Ch.D. 678; 53 L.J. Ch. 1144 ; 50 L.T.
719 ; 33 W. R. 255 114
Bristow b. Secquevillc, 6 Ex. 275 ; 3 C. & K. 64 ; 19 L.J. Ex. 289 ;
14 Jur. 674 273
r. Wright, 2 Doug. 666 ; 1T.K. 235 n 426
Britain v. Rossiter, 11 Q. B. D. 123 ; 48 L. J. Ex. 362 : 40 L. T.
240 : 27 W. R. 482 341, 344
British Mutual Bank r. Charnwood. 18 Q. B. D. 717 ; 56 L. J. Q. B.
449 ; 57 L. T. 833 ; 35 W. R. 590 234
Brittain r. Kinnaird, 1 Brod. & B. 432 198
Broad v. Pitt, 3 C. & P. 518 ; M. & M. 233 116
Brocas r. Lloyd, 23 Beav. 129 ; 26 L. J. Ch. 758 ; 4 W. R. 540 ;
2 Jur. (N.8.) 555 405
Brook r. Hook, L. R. 6 Ex. 89 ; 40 L. J. Ex. 50 ; 24 L. T. 34 ;
19 W. R. 508 215
Brooks v. Steele and Currie, 14 R. P. C. 73 91
Broomfield v. Williams, [1897] 1 Ch. 602 ; 66 L. J. Ch. 305 ; 76 L. T.
243 261
Brown r. Brown, L. R. 3 P. & 1). 198 29
r. Foster, 1 H. & N. 736 ; 26 L. J. Ex. 249 ; 3 Jur. (N.8.)
245 Ill
r. Hawked, [1891] 2 Q. B. 718 ; 65 L.T. 108; 55 J. P. 825... 13
v. Jenkins, 6 A. k E. 911 445
v. Newall, 2 M. & C. 576 202
e. Turner, 13 C. B. (N.s.) 485 55
V. Watkins, 16 Q. B. D. 126 ; 34 W. R. 293 ; 55 L. J. Q. B.
126 ; 53 L. T. 726 493
r. Woodman, 6 C. & P. 206 312
v. Wren Brothers, [1895] 1 Q. B. 390 ; 64 L. J. Q. B. 119 ;
72 L. T. 109 ; 43 W. R. 351 239
Browne v. Byrne, 3 E. & B. 703 387
»;. Dunn, 6 The Reports, 67 422
Bruce v. Garden, 17 W. R. 990 225
r. Nicolupolo, 11 Ex. 129 131
Bruner r. Moore, [1904] 1 Ch. 305 ; 73 L. J. Ch. 377 ; 89 L.T. 738 ;
52 W. R. 295- 71
Brunner, Re, 19 Q. B. D. 572 ; 56 L. J. Q. B. 606 ; 57 L. T. 418 ;
35 W. R. 719 ; 4 Morr. B. R. 255 100, 189
Brunsden r. Humphrey, 11 Q. B. D. 712 ; 52 L. J. Q. B. 756 ... 197
Brunt r. Midland Rail. Co. 2 H. & C. 889 17
Brunton's Case, L. R. 19 Eq. 302 ; 23 W. R. 286 221
Bryan r. Wagstaff, 8 Dowl. & R. 208 ; 5 B. 4: C. 314 ; R. & M. 329 ;
2 C. & P. 126 502
Bryant r. Quebec Bank, [1893] A. C. 179 ; 62 L. J. P. C. 68 ;
68 L. T. 546 ; 41 W. R. 400 234
Bucclench (Dnkc of) p. Metropolitan Board of Works, L. R. 5 H. L.
418; 41 L. J. Ex. 137 ; 27 L. T. 1 187
Buckle v. Knoop, L. R. 2 Ex. 333 ; 36 L. J. Ex. 49, 223 ; 16 L. T.
571 ; 15 W. R. 999 385
 Table of Cases. xix
PAGE
Budd p. Lucas, [1891] 1 Q. B. 408 450
Bulley v. Bullcy, L. R. 9 Ch. 739 ; 44 L. J. Ch. 79 ; 30 L. T. 848 ;
22 W. K. 779 208
Bnllivant r. Att.-Gen. for Victoria, [1901 J A. C. 196 ; 70 L.J. K.B.
645 ; 84 L. T. 737 ; 50 W. R. 1 112, 114
Bullock r. Corrie, 3 Q. B. D. 356 ; 47 L. .T. Q. B. 352 ; 38 L. T. 102 ;
26 VV. R. 330 124
Bnrchard r. Macfarlane, [1891] 2 Q. B. 241 ; 60 L. J. Q. B. 537 ;
65 L. T. 282 ; 39 VV. R. 614 ; 7 Asp. M. C. 93 471
Burchfield r. Moore, 3 E. & B. 683 ; 2 C. L. R. 1308 ; 22 L. J. Q. B.
261 ; 18 Jur. 727 389
Btirges c. Wickam, 3 B. & S. 669 387
Burgess v. Bennett. 20 W. R. 720 321
Burkinshaw r. Nicholls, L. R. 3 Anp. Cas. 1004 ; 48 L. J. Ch. 179 ;
26W.R. 819 219
Burling r. Pattison, 9 C. & P. 579 319
Bnrnaby i: Baillie, 42 Ch. 1). 282 ; 58 L. J. Ch. 842 ; 61 L. T. 634 ;
38 VV. R. 125 30, 125, 295
Burnand r. Rodocanachi, 7 App. Cas. 333 ; 51 L. J. Q. B. 548 ;
31 W. R. 277 370
Bursill r. Tanner, 16 Q. B. 1). 1 ; 55 L. J. Q. B. 53 ; 53 L. T. 445 ;
34 VV. R. 35 102, 106
Burton r. North Staffordshire Rail. Co., 35 W. R. 536 519
r. Plummer, 2 A. k E. 341 ; 4 N. k M. 315 322
Bnstros r. White, 2 Q. B. D. 423 488
Bute (Marquis of) t>. James, 33 Ch. D. 157 ; 55 L. J. Ch. 658 ... 519
Butler r. Butler, [1894] P. 25 ; 63 L. J. P. 1 ; 69 L. T. 545 ;
42 \V. R. 49 196
Buxton r. Cornish, 1 Dowl. & L. 585 ; 12 M. & W. 426 ;
13 L. J. Ex. 91 507
Bynoe r. Bank of England, [1902] 1 K. B. 470 ; 71 L. J. K. B. 208 ;
86 L. T. 140 ; 50 W. R. 359 285
Byrne r. Harvey, 2 M. & Rob. 89 501
Byrom v. Thompson, 11 A. & E. 31 ; 3 Jur. 1121 510

c.
Cadge, In the Goods of, 37 L. J. P. & M. 15 ; L. R. 1 P. & D. 543 ;
17 L. T. 484 ; 10 W. R. 406 67
Cakraft i\ Guest, [ 1898] 1 Q. B. 759 ; 46 W. R. 420 ; 67 L. J. Q. B.
505 ; 78 L. T. 283 114,124,314
Caldcr p. Dobell. L. R. 6 C. P. 486 ; 40 L. J. C. P. 224 ; 25 L. T.
129 ; 19 VV. R. 409, 978 371
Caldcr Navigation Co. v. Pilling, 14 M. & W. 76 ; 14 L. J. Ex.
223 307
Callev r. Richards, 19 Bcav. 401 109
Camp r. Coe, 31 Ch. 1). 460 ; 55 L. J. Ch. 368 ; 54 L. T. 150 ;
34 VV. R. 319 374
Campbell, £> part,; 15 Q. B. D. 213 ; 54 L. J. Q. B. 382 ; 53 L.T.
208 289
r. Att.-Gen., L. R. 2 Ch. 571 ; 36 L. J. Ch. 600 ; 15 VV. R.
915 470
v. Campbell, L. R. 1 Eq. 383 ; 35 L. J. Ch. 241 ; 13 L. T.
667 ; 14 VV. R. 327; 12 Jur. 118 59,73
r. Rickards, 5 B. & Ad. 840 ; 2 N. & M. 542 ... 89, 90
Capital and Counties Bank t. Henty, 7 App. Cas. 741 ; 52 L. J. Q. B.
232 ; 31 VV. R. 157 16
b2
XX Table of Cases.
PAGE
Carmarthen and Cardigan Kail. Co. r. Manchester and Milford Rail.
Co., L. R. 8 C. P. 685 ; 42 L. J. C. P. 262 444
Came r. Steer, 5 H. k N. 628 ; 29 L. J. Ex. 281 444
Carpenter v. Buller, 8 M. & W. 212 ; 10 L. J. Ex. 393 208
Carpue r. London and Brighton Rail. Co., L. R. 5 Q. B. 747 ... 77
Carr v. Eastabrooke, 3 Vex. 561 ... 83
v. London and North Western Rail. Co., L. R. 10 C. P. 307 ;
44 L. J. C. P. 109 ; 23 W. R. 747 ; 31 L. T. 785 210
Carrnthera r. Newen, [1903] 1 Ch. 812 ; 72 L. J. Ch. 356 ; 88 L. T.
264 ; 51 W. R. 297 236
Carter r. Boehm, 1 VV. Bl. 593 ; 3 Burr. 1905 87—90
v. Carter, 2 K. Jc J. 618 ; 4 Jur. (K.8.) 63 206
r. Ely (Dean of), 7 Sim. 211 361
Carter and Kenkerdine's Contract, [1897] 1 Ch. 776 ; 66 L. J. Ch.
408 ; 76 L. T. 476 58
Carter v. Pryke, Peake, 95 444
Cartwright r. Cartwright, 26 W. R. 684 272
v. Green, 8 Ves. 405 97
Castrique r. Imrie, L. R. 4 E. & I. 434 ; 39 L. J. C. P. 350 ; 23 L. T.
48; 19 W.R. 1 198,204
Catcs v. Hardacre, 3 Taunt. 424 97
Caton r. Caton, L. R. 2 H. L. 127 340
Catt p. Tourle, 19 W. R. 56 109
Cattell r. Ireson, E. B. & E. 91 ; 27 L. J. M. C. 167 ; 1 Jur. (N.s.)
560 36
Cattling r. King, 5 Ch. D. 660 ; 46 L. J. Ch. 10 : 26 W. R. 865 ... 338
Chadwick r. Bowman, 16 Q. B. D. 561 ; 54 L. T. 16 ... 105. 106
Challis's Case, 40 L. J. Ch. 431 ; 19 W. R. 453 ; L. R. 6 Ch. 266 :
218, 227
Chambers r. Bemasconi, 1 C. M. & K. 347 ; 4 Tyr. 531 ; 3 L. J. Ex.
373 181
Chandler Grieves, 2 H. Bl. 606 n. ; 6 T. R. 325 n 268
v. Home. 2 M. & Rob. 423 410
Chaplin r. Levy, 2 C. L. R. 556 ; 9 Ex. 531 ; 23 L. J. Ex. 117 ... 236
Chappell, In the Goods of, [1894] P. 98 ; 6 R. 576 ; 63 L. J. P. 98 ;
70 L. T. 245 382
r. Bray, 6 H. & N. 145 277
Charlton v. Coombes, 32 L. J. Ch. 284 ; 8 L. T. 81 ; 4 Giff. 372 ;
11 W. R. 504 ; 9 Jnr. 534 112
Charnock r. Marchant, [1900] 1 Q. B. 474 ; 82 L. T. 89 ; 69 L. J.
Q. B. 221 ; 48 \V. R. 339 ; 64 J. P. 183 S3, 539
Charter r. Charter, 2 P. 315 ; 41 L. J. P. 10 ; 20 W. R. 212 ... 382
Chateney r. Brazilian Telegraph Co., [1891] 1 Q. B. 79 ; 60 L. ,T.
Q. B. 295 ; 63 L. T. 739 ; 39 W. R. 65 377
Chatterton r. Secretary of State for India, [1895] 2 Q. B. 195;
64 L. J. Q. B. 676 ; 72 L. T. 858 ; 59 J. P. 596 121
Cherry v. Heming, 4 Ex. 19 ; 19 L. J. Ex. 63 344
Cbeslyn r. Dalby, 4 Y. & C. Jlx. R. 238, 307 351
Chesman !•. Count, 2 M. & G. 307 225
Chichester r. Donegal (Marquis of), 39 L. J. Ch. 694 ; L. R. 5 Ch.
497 ; 22 L. T. 458 ; 18 YV. R. 531 490
Chilton v. London and Croydon Rail. Co. 16 M. k W. 212;
16 L. J. Ex. 89 307
Chowdry Debi Persad r. Dowlut Sing, 3 Moo. I. A. 357 4
Christie r. Christie, L. R. 8 Ch. App. 503 ; 52 L. J. Ch. 544 ... 480
Church r. Imperial Gas Co., 6 A. 4c E. 846 ; 3 N. & P. 35 ; 1 W. W.
& H. 137 325
Churton r. Frewen, 2 Dr. & Sm. 390 ; 46 L. J. Ch. 660 ; 12 L. T.
105 ; 13 W. R. 490 492
 Table of Cases.
PAGE
Civil. Military, and Naval Outfitters, Re, [1899] 1 Ch.215 ; 5 Manson,
100 ; 80 L. T. 241 ; 47 \V. R. 233 ; 68 L. J. Ch. 104 400
Clark c. Adie, 2 App. Cas. 423 ; 46 L. J. Ch. 598 ; 37 L. T. 1 ;
26 W. R. 45 212, 213
U. Clark, 1 M. & Rob. 3 108
e. Molyneux, 14 Cox C. C. 10 ; 47 L. J. Q. B. 230 ; 8 Q. B. 1).
237 ; 37 L.T. 694 ; 26 W. R. 104 15, 260
Clarke, In the Goods of, [1896] P. 287 ; 66 L. J. 1*. 9 75
Clarkson r. Woodhouse, 3 Doug. 189 ; 6 T. R. 412 n 150
Clay r. Tbackrah, 9 C. k P. 47 244
Cleave r. Jones, 7 Ex. 421 ; 21 L. J. Ex. 105 110, 114
Clegg r. Edmondson, 22 Beav. 125 486
Cleraenti v. Golding, 1 1 East, 244 ; 2 Camp. 25 92
Clever v. Kirkman, 24 W. R. 159 372
Clifford r. Parker, 2 M. k Gr. 909 ; 3 Scott N. R. 233 ; 10 L. J. C. P.
227 389
Clifford v. Turrell. 1 Y. & C. C. C. 138 ; 9 Jar. 633 ; 14 U J. Ch.
390 367
Cliff's Trusts, 40 W. R. 439 : 66 L. T. 683 ; [ 1892] 2 Ch. 229 ... 290
Clinch r. Financial Corporation, L. R. 2 Eq. 271 ; 14 W. R. 685 ... 489
Clunnes r. Pezzey, 1 Camp. 8 14
Coatcs r. Bainbridge, 5 Bing. 58 ; 2M.iP. 142 232
Coch t. Allcock, 21 Q. B. D. 178 ; 57 L. J. <4. B. 489; 36 W. K.
747 466, 468
Cock r. Baker, 1 Str. 34 343
Cocks v. Nash, 6 C. k P. 154 496
Coggs v. Bernard, 2 Ld. Raym. 918 ; 1 Sm. L. C. 201 78
Cole c Manning, 2 Q. B. D. 611 ; 46 L. J. M. C. 175 ; 35 L. T. 941 : 41
v. Parkin, 12 East. 471 510
Coles v. Coles, L. R. 1 P. k 1). 70 ; 35 L. J. P. k M. 40 293
Colledgc v. Horn, 3 Bing. 119 ; 10 Moore (J. B.) 431 237
Collctte c. Good. 7 Ch. U. 842 ; 47 L. J. Ch. 370; 38 L. T. 504 ... 433
Collier r. Walters, L. R. 17 Eq. 252 ; 43 L. J. Ch. 216 ; 22 \V. R.
209 198
Colling r. Treweck, 6 B. & C. 398 502, 504
Collins ». Carnegie, 1 A. k E. 695, 703; 3 N. k M. 703 222
Collis i). Hector, L. R. 19 Eq. 334 ; 44 L. J. Ch. 267 ; 23 W. R.
485 206
Colonial Bank r. Cady, 15 App. Cas. 267; 63 L. T. 27;
39 W. R. 17 211
Combe r. London. Corporation of, 2 Y. k C. C. C. 631 486
Compagnie FinanciiSre du Pacifique v. Peruvian Guano Co.,
11 Q. B. D. 63 ; 52 L. J. O,. B. 185 ; 30 W. R. 395 488
Compagnol r. Martin, 2 W. Bl. 790 428
Concha r. Concha, 11 App. Cas. 541 ; 56 L. J. Ch. 257;
55 L. T. 522 ; 35 W. R. 477 201
v. Mnrietta, 40 Ch. 1). 543 ; 60 L. T. 798 273
Connor v. Fitzgerald. 11 Ir. L. R. 106 176
Conradi r. Conradi.L. R. 1 P. k D. 514 186,196
Contract Corporation, In re, 40 L. J. Ch. 351 ; L. R. 6 Ch. App.
146 465
Conybeare e. New Brunswick Co., 8 Jur. (N.s.) 375 326
Cooke r. Lamottc, 15 Beav. 234 ; 21 L. J. Ch. 371 57, 261
r. Soltau, 2 S. k S. 154 68
Coope r. Bockett, 4 Moo. P. C. 449 67
Cooper 1: Cooper, 18 App. Cas. 88 ; 59 L. T. 1 273
r. Gibbons, 3 Camp. 363 74
v. Lloyd, 6 C. B. (N.S.) 519 ... 38
v. Ward, 6 C. B. (N.s.) 50 145
xxii Table of Cases.
PAGE
Coorg (Rajah of) r. East India Co., 25 L. J. Ch. 345 121
Coote v. Ford, [1899] 2 Ch. 93 : 68 L. J. Ch. 508 ; 80 L. T. 697 ;
47 W. H. 489, 548 240
Copper Miners' Co. ». Fox, 16 Q. B. 229 ; 20 L. J. Q. B. 174 ;
15 J nr. 703 325
Coppock v. Bower, 1M.&W. 361 509
Cornwall r. Kichardson, Ry. & M. 305 447
Costa Rica (Republic of) r. Erlanger, 44 L. J. Ch. 281 ; L. R.
19 Eq. 33 490,492
Cotterill v. Hobby, 4 B. & C. 465 ; 6 D. & R. 551 48
Cotton r. Wood, 8 C. B. (N.S.) 568 14,257
Couchman r. Greener, 1 R. P. C. 197 214
Conlson v. Disborongh,[1894] 2 Q. B. 316 ; 70 L.T. 617 ; 42 W. R.
449 ; 9 R. 390 ; 58 J. P. 784 418
Coupland r. Arrowsmith, 18 L. T. (N.8.) 755 336
Coventry r. Chichester, 2 H. & M. 149 81
r. Great Eastern Rail. Co., 1 1 Q. B. D. 776 ; 52 L. .1. Q. B.
694 ; 49 L. T. 641 211
Cowling v. Ely, 2 Stark. R. 366 ; 20 R. R. 694 235
Cox r. Allingham. Jac. 514 290
— r. Lee, L. R. 4 Ex. 288 ; 38 L. J. Ex. 221 16
Crease v. Barrett, 1 CM. & R. 928 147, 174
Crisp r. Anderson, 1 Stark. R. 35 ; 18 R. R. 744 508
Croft v. Croft, 4 S. & T. 10 ; 34 L. J. P. & M. 44 ; 1 1 Jur. (N.S.)
183 ; 11 L. T. 781 : 13 W. R. 526 65
Cromack v. Heathcotc, 4 Moore (C. P.) 357 : 2 B. k li. 4 109
Crook r. Seaford (Corporation of), 6 Ch. 1). 551 ; 25 L. T. 1 ;
19W.R. 938 327
Crookwit v. Fletcher, 1 H. & N. 893 ; 26 L. J. Ex. 153 390
Cropper t>. Smith, 26 Ch. D. 710 ; 53 L. J. Ch. 891 ; 51 L. T. 733 ;
33 W. R. 60 ; 1 R. P. C. 96 206, 214
Crosbie v. Hetherington, 4 M. & G. 933 269
Cross v. Sprigg, 6 Hare, 552 365
Crossley v. Dixon, 10 H. L. Cas. 293 ; 32 L. J. Ch. 617 ; 9 Jur. (N.S.)
607 ; 8 L. T. 260; 11 W. R. 716 214
Crouch v. Hooper, 16 Beav. 182 154
Crowley, Ex parte, 24 L. T. 244 35
v. Page, 7 C. it P. 789 419
v. Vitty, 7 Ex. 319 ; 21 L. J. Ex. 135 227
Crowther v. Solomons, 6 C. B. 758 ; 18 L. J. C. P. 92 508
Croxton v. May, 9 Ch. D. 388 ; 39 L. T. 461 ; 27 \V. li. 327 ... 77
Cunningham, Ex parte, 13 Q. B. 1). 418; 53 L. J. Ch. 1067;
33 W. R. 22 258
Cunninghame v. Cunninghame, 2 Dowl. 507 59, 134
Curtis v. Williamson, L. R. 10 Q. B. 57 ; 44 L. J. Q. li. 27 ;
23 W. R. 236 223
Cusack r. Robinson, 1 B. & S. 299 ; 30 L. J. Q. B. 261 ; 7 Jur. (N.S.)
542 ; 4 L. T. 506 ; 9 W. R. 735 347
Cuthbert r. Cumming, 11 Ex. 405 ; 24 L. J. Ex. 310 ; 1 Jur. (N.S.)
686 387
Cutter r. Powell, 2 Smith, L. C. 1 388

D.
Dairies v. Hartley, 3 Ex. 200 87
Daintree, In re, ri893] 2 Q. B. 116 ; 62 L. J. Q. B. 511 ; 69 L. T.
267 ;"41 W. R. 590 ; 10 M.B. R. 158 242
r. Butcher, 13 P. D. 102 349
 Table of Cases. xxiii
PAGE
Dalton r. Angus, fi App. Cast. 740 ; 50 L. J. Q. B. 689 ; 30 W. R.
litl ; 44 L. T. 844 ; 46 J. P. 132 69
r. FitzC.crald, [1897] 2 Ch. 86 ; 66 L. J. Ch. 604 ; 76 L. T.
700 ; 45 W. K. 685 217
Daniel r. Wilkin, 7 Ex. 429 ; 21 L. J. Ex. 236 141
Darby r. Ouselcy, 1 H. & N. 1 ; 25 L. J. Ex. 227 ; 2 Jnr. (n.s.) 497 :
48, 92, 237, 276, 277, 278, 421
Dare v. Heathcote, 25 L. J. Ex. 245 12
Davey r. Shannon, 4 Ex. 1). 81 ; 48 L. J. Ex. 459 ; 40 L. T. 628 ;
27 W. R. 599 344
Davidson ». Cooper, 11 M. & W. 784 ; 13 M. k W. 343 ; 12 L. J. Ex.
467; 13 L. J. Ex. 276 390
Davies r. Humphreys, 6 M. k W. 153, 166 ; 9 L. J. Ex. 263 ... 172
r. Lowndes, 7 Scott, N. R 214 ; 6 M. 4: Gr. 527 ; 12 L. J.
C. P. 506 156,159
Davies r. Morgan, 1 C. k J. 587 175
Davis v. Jones, 17 C. B. 625 ; 25 L. J. C. 1". 91 372, 373
r. Whitehead, [1894] 2 Ch. 133 ; 63 L. J. Ch. 471 ; 70 L. T.
314 345
Daw r. Eley, L. R. 1 Eq. 38 ; 14 W. R. 48 449
Dawes, Er parte, 17 Q. B. 1). 286 ; 55 L. T. 114 ; 3 W. R. 752 ... 207
Dawkins r. Rokeby (lxml), L. R. 8 Q. B. 255 ; 42 L. J. Q. B. 63 ;
28 L. T. 134 ; 21 W. R 544 122, 424
Dean r. James, 4 B. k Ad. 546 427
De Bode's Case, 8 Q. B. 245 176
De Bussche r. Alt, 8 Ch. D. 286 ; 47 L. J. Ch. 381 225
Deeley's Patent, In re, 12 R. P. C. 199 ; [1895] 1 Ch. 687 197
De la Motte r. Lane, 9 C. P. 261 443
De la Rue r. Dickenson, 7 E. k B. 738 ; 3 Jur. (N.s.) 841 ... 18, 480
Delay r. Alcock, 4 E. & B. 660 507
Delta, Tin, 1 P. D. 393 195
Dendy «. Simpson, 18 C B. 831 ; 2 Jur. (N.S.) 642 446
Denn r. White, 7 T. R. 112 237
Denton r. Donner, 23 Bear. 290 56
De Lassalle r. (Juildford, [1901] 2 K. B. 215 ; 70 L. J. K. B. 533 ;
84 L. T. 549 ; 49 W. R. 467 359, 373
De Rosaz, In the Goods of, 46 L. J. P. k M. 6 ; 2 P. D. 56 ; 36 L. T.
263 ; 25. W. B. 352 374
Dc Rutzen r. Farr, 4 A. k E. 53 ; 5 N. k M. 617 ; 1 H. & N. 735 ... 175
De Sora r. Phillips, 10 II. L. Cas. 633 18, 377
De Thoren r. Att.-Gen., 1 App. Cas. 686 59, 63
Desborough r. Kawlins, 3 Myl. k Cr. 515 ; 7 L. J. Ch. 171 ; 2 Jur.
125 112
Devala Mining Co.. In re, 22 Ch. D. 593 ; 52 L. J. Ch. 434 ... 234
Devoy r. Devoy, 2 Sm. k G. 403 ; 3 Jur. (N.s.) 79 ; 26 L. J. Ch.
290 85
Dick r. Fraser, [1897] 2 Ch. 181 ; 66 L. J. Ch. 630 ; 76 L. T. 713 ;
45 W. R. 628 352
Dickinson r. Coward, 1 B. & Aid. 677 222
v. Valpy, 10 B. k C. 121 ; 5 M. A: R. 126 231
Dickson r. Wilton (Earl of), 1 F. k F. 425 121
Digby c. Steadman, 1 Esp. 328 183
Dixon v. Hammond, 2 B. k Aid. 310 214
Dodd v. Norris, 3 Camp. 520 : 14 K. R. 832 101
Doe r. Allen, 12 A. A: E. 455 ; 4 V.k I). 220 379
v. Barton, 2 M. k R. 28 155
v. Baytop, 2N.ii M. 837 ; A A. k E. 188 ; 1 H. k N. 270 ... 213
1. Calvert. 3 Camp. 1388 ; 11 R. R. 745 291
r. Catomore. 16 Q. B. 745 ; 20 L. J. y. B. 728 67
xxiv Table of Cases.

Doe v. Coombs, 3 Q. B. 687 50«, 508

r. Coulthard, 7 A. & E. 235 176
p. Davies, 10 Q. B. 325 ; 16 L. J. Q. B. 218 1-18, 15+, 159
v. Derby (Earl of), 1 A. & E. 790 186
r. Edwards, 5.A. k E. 95 ... 176
r. Fleming. 4 Bing. 266 134
r. Fowler, 19 L. J. Q. B. 15 ; 14 B. 700 297
v. Fratici*, 2 M. k Rob. 57 213
r. Griffin, 15 East, 293 ; 18 K. R. 474 156
r. Hawkins. 2 Q. B. 212 ; 1 G. & 1). 551 ; 6 Jur. 215 ; 10 L. J.
Q. B. 285 136
r. Hiscock, 5 M. k W. 369 ; 9 L. J. Ux. 27 379, 381
v. Hubbard, 2 C. M. k R. 316 ; 5 Tyr. 846 ; 1 Gale, 260 ;
4 Dowl. 437 :-. 381
v. .launcey, 8 C. & P. 101 109
v. Kemp, 2 Bing. N. C. 102 ; 2 Scott, 9 446
v. Lewis, 11 C. B. 1035 ; 1 C. & K. 122 811
v. Manifold, 1 M. k Scl. 294 293
f. Mason. 1 Esp. 53 ... ... ... ... ... ... ... 304
t. Mew, 7 A. & E. 240 290
v. Michael, 17 Q. B. 270 175
r. Mills, 2 A. & E. 17 ; 1 M. k Rob. 385* 212
r. Morris. 3 A. & E. 46 ; 4 N. & M. 598 311
r. Needs, 2 M. k W. 129 ; 6 L. J. Ex. 59 379
r. Palmer, 16 Q. B. 747 ; 20 L. J. Q. B. 367 ; 15 Jur. 836 ... 67
r. Parsingham, 2 C. & P. 444 185
r. Pembroke (Earl of), 1 1 East, 504 158
c. Perkins, 3 T. R. 754 321, 41 1
c. Phillips, 8 Q. B. 158 ; 16 L. J. Q. B. 269 152
c. Pulman, 3 Q. B. 622 ; 6 Jur. 1122 ; 11 L. J. Q. B. 319 ... 152
e. Randall, 2 M. k P. 20 155
r. Ridgway, 4 B.'& Aid. 53 155
-— r. Robson, 15 East, 32 ; 13 R. R. 361 170. 173
v. Roe, 5 Dowl. 420 496
v. Ross, 7 M. & VV. 102 ; 10 L. J. Ex. 201 812
r. Samples, 8 A. & E. 151 ; 1 W. W. & H. 228 ; 2 Jur. 841 ;
3 N. & P. 254 152
r. Seaton, 2 A. & E. 'l 71 150
c. Sleeman, 9 Q. B. 298 ; 15 L. J. Q. B. 338 ; 10 Jur. 568 ... 143
v. Snckermore, 5 A. & E. 703 ; 2 N. k P. 16 ; W. W. k D.
405 314
v. Sybonrn. 7 T. R. 2 ; 2 Esp. 499 ; 4 R. R. 363 282
r. Thomas, 9 B. k C. 288 80, 138
v. Turford, 3 B. k Ad. 890, 895 1 76, 1 79—181
v. Wainwright. 8 A. & E. 691 191
r. Walley, 8 B. & C. 22 64. 293
r. Watkins, 3 Bing. N. C. 421 ; 4 Scott, 155 115
r. Whitehead, 8 A. ic E. 571 ; 1 W. W. & H. 521 ; 2 Jnr.
493 257
Dolder r. Huntingfield, 11 Ves. 292 268
Doncaster (Mayor of) v. Day, 3 Tann. 262 ; 12 R. R. 650 185
Doorman r. Jenkins. 2 A. & E. 256, 260 ; 4 N. k M. 170 14
Dorin ». Dorin, L. R. 7 H. L. 577 382
Dorrctt r. Meux, 23 L. J. C. P. 221 ; 15 C. B. 142 236. 290, 294
Douglas, In re. 3 Q. B. 837 ; 12 L. J. (j. B. 49 ; 3 G. k D. 509 ;
7 Jur. 239 404
Dowdell c Australian Royal Mail Co., 3 E. k B. 902 ; 2 C. L. H.
1656 ; 23 L. J. Q. B. 369 ; 18 Jur. 579 405
 Table of Cases. xxv
PAGE
Dowden and Pook, Limited r. Pook, [1904] 1 K. B. 45 ; 52 \V. H. 97 ;
73 L. J. K. B. 38 ; 89 L. T. 688 ... 18
nu Boat v. Beresford, 2 Camp. 512 ; 11 R. R. 782 185
Dufferin's (Lord) Case, 4 CI. & Fin. 568 288
Dummer p. 1'ilchcr, 2 M. It K. 262 81
Duncombe r. Daniell, 1 W. W. & H. 101 ; 2 Jur. 32 ; 8 C. i P.
222 237
Dnnlop r. Higgins, 1 H. L. Cas. 381 ; 12 Jur. 295 71
Dunraven (Earl of) r. Llewellyn, 15 Q. B. 791 ; 19 L. J. Q. B.
388 138, 144
Dupuy r. Truman, 2 Y. &. C. Ch. 341 320
Dwyer r. Collins, 7 Ex. 639 ; 21 L. J. Ex. 225 ; 16 Jur. 569 : 107, 504
Dye c. Uye, 47 J. P. 520 345
Dytc r. St. Pancras Guardians, 27 L. T. (N.s.) 342 325

E.
Eade r. Jacobs, 3 Kx. 1). 335 ; 47 L. J. Kx. 74 ; 26 W. K. 159 : 106, 476
Eagleton r. Kingston, 8 Ves. 438 314
Karle r. Picken, 5 C. & P. 542 ... 255
East Stonehonsc Local Board v. Victoria Brewery Co., [1895] 2 Ch.
514 ; 43 W. R. 585 ; 73 L. T. 54 ; 64 L. J. Ch. 493 405
Eastern Counties Rail. Co. c. Brown, 6 Ex. 314 326
v. Hawkes. 5 H. L. Cas. 376 326
Eastwood r. Kenyon, 9 L. J. Q. B. 409 ; 4 Jur. 1081 ; 3 P. & D.276 ;
11 A. &K. 438 342
Kbrand r. Dancer, 1 Coll. 265 n. 84
Ecclesiastical Commissioners v. Freeman (1893), 1 Ch. 172 64
v. Merral, L. R. 4 Ex. 162 ; 38 L. J.
Ex.93 ; 17 W. R. 676 326
Eckroyd c Courthard, YV. N. (1897) 25 ; 66 L. J. Ch. 751 181
Etlelstein r. Schuler, [1902] 2 K. B. 144 ; 50 VV. R. 493 ; 87 L. T.
204 ; 71 L. J. K. B. 572 268
Eden r. Blake,
Weardale,
13 M.etc.& W.
Co.,61434 ; Ch.
14 L.D.J. 223;
Ex. 194
56 ; L.9 Jur.
J. Ch.
213 178;
... 369
55 L. T. 860 ; 35 W. R. 235 493
Edge r. Strafford, 1 Tyr. 293 ; ICS J. 391 335
Edmunds r. Bushell, L. R. 1 Q. B. 97 ; 35 L. J. Q. B. 20; 14 W. R. 1 : 232
r. Groves, 2 M. & W. 642 202
Edwards, t> parte, 14 Q. B. D. 415 169
r. Walters, [1896] 2 Ch. 168 ; 65 L. J. Ch. 557 ; 74 L. T.
396 ; 44 \V. R. 547 365
Ehrmann r. Ehrmann, [1896] 2 Ch. 826 ; 65 L. J. Ch. 745 ; 75 L. T.
37 ; 45 W. It. 149 467,485
Elder v. Carter, 25 Q. B. D. 194 ; 55 L. J. Q. B. 281 ; 62 L. T. 516 ;
38 W. R. 612; 54 J. P. 692 497
Ellice v. Ronpell, 11 \V. R. 579; 3 L. J. Ch. 563 ; 9 Jur. (N.8.)
533 518
Ellis r. Mcllenry, L. R. 6 C. P. 228 ; 40 L. J. C. P. 109 ; 19 \V. R.
503 205
Elmar r. Stone, 1 Taunt. 458 348
Elmer r. Creasey, 9 Ch. 69 ; 43 L. J. Ch. ICO ; 22 W. R. 141 ... 481
Elsam r. Fancett, 2 Esp. 563 447
Emmott r. Merchant, 3 Q. B. D. 558 ; 38 L. T. 508 ; 47 L. J. Q.. B.
436 ; 26 W. R. 032 309
f. Star Newspaper Co., 62 L. J. Q. B. 77 ; 67 L. T. 829 ;
57 J. P. 201 118
xxvi Table of Cases.
PAGE
Engall v. Bruce, 9 W. R. 536 501
England r. Slade, 4 T. R. 682 ; 2 R. R. 498 68, 212
Ennis r. Carrol, 17 W. R. 344 181
Esbenchunder Singh v. Shamachurn Bhutto, 11 Moo. Ind. App. 20 : 441
Evans t>. Beattie, 5 Esp. 26 239
r. Benyon, 37 Ch. D. 345 ; 58 L. T. 700 517
v. Botterell, 3 B. & S. 787 55
r. Evans, 1 Hagg. Cong. 105 52
-—- r. Hare, [l892] 1 Q. B. 593 ; 40 W. R. 443 ; 66 L. T. 345 ... 340
r. Maxwell, 50 L. T. (N.8.) 51 85
r. Merthyr Tydfil Urban Council, [1899] 1 Ch. 241 ; 68 L. J.
Ch. 175 ; 79 L.T. 578 144
v. Pratt, 3 M. it G. 759 377
v. Protheroe, 1 l)e G. M. 4c G. 572 509
v. Rees, 2 P. it D. 627 ; 10 A. & E. 151 146, 152, 397
v. Sweet, Ry. Ac M. 83 ; ICS P. 277 509
r. Taylor, 7 A. & E. 617 ; 3 Nevile Ac P. 174 141
Everett r. Grapes, 3 L. T. (N.8.) 669 307
Ewer r. Ambrose, 4 B. & C. 24 ; 6 Dowl. Ac R. 127 282
Exeter (Marquis of) r. Exeter, Marchioness of, 3 M. Ac C. 321 ... 363
Exeter (Mayor of) r. Warren, 5 Q. B. 801 ; 1). ic M. 524 ; 8 Jur.
441 176
Exmouth Dock Co., In re, L. R. 17 Eq. 181 ; 43 L. J. Ch. 110 :
22 W. R. 104 220

F.

Falcon r. Benn, 2 Q. B. 314 128

Falmouth (Earl of) r. Moss, 11 Price, 455 115
Farman r. Smith, 58 L. T. (K.B.) 12 ; 57 L. J. Ch. 637 42
Farquharson Bros. 4c Co. r. King, [1902] A. C. 325 ; 51 W. K. 94 ;
86 L. T. 810 ; 71 L. J. K. B. 667 234
Fan- r. Price, 1 East, 56 510
Fawcett r. Fowler, 7 B. i C. 397 285
Fellowes v. Williamson, M. Ac M. 306 133
Fenncll r. Tait, 1 C. M. 4c R. 584 ; 5 Tyr. 218 401
• Fenner and Lloyd, Be. [ 1897] 1 (J. B. 667 494
Fennessy e. Clark, 37 Cb. D. 187 ; 57 L. J. Ch. 398 ; 58 L. T.
289 480
Feret r. Hill, 15 C. B. 207 418
Fernside r. Flint, 22 Ch. 1). 579 ; 52 L. J. Ch. 479 ; 31 W. R. 218 : 354
Field r. Fleming, 7 C. 4c 1'. 619 ; 5 Dowl. 450 : 1 Jur. 24 244
r. Sowle, 4 Russ. 112 261
r. Woods, 7 A. 4c E. 114 : 2 N. Ac P. 117 511
Filby r. Hounsell, [1896] 2 Ch. 757 ; 65 L. .1. Ch. 852 ; 75 L. T.
270 ... ... 337-339
Finch r. Finch, 2 Ves. sen. 493 42
Fischer r. Sztaray, 27 L. J. Q. B. 239 ; E. B. 4c E. 321 ; 4 Jur. (N.8.)
632 ... 4«9
Fisher r. Boucher, 10 B. 4c C. 710 131
r. Clement. 10 B. Ac C. 475 61
r. Owen, 8 Ch. D. 645 ; 47 L. J. Ch. 081 ; 38 L. T. 577 ;
26 \V. R. 581 480
r. Ronalds, 12 C. B. 762 : 22 L. .1. C. P. 62 ; 17 Jur. 393 ;
20 L. T. (O.S.) 100 ; 1 W. R. 54 96
 Table of Cases. xxvii
PAGE
Fisher r. Samuda, 1 Camp. 93 313
Fitz v. Rabbits, 2 Moo. 4c K. 60 311
Fitzgerald r. Dressier, 29 L. J. C. P. 113 ; 7 C. B. (N.8.) 374 ; 5 Jur.
(N.s.) 598 342
Fitzgibbon r. Green, Ir. R. 9 C. 1.. 225 122
Fitzwalter Peerage Case, 10 C. 4c F. 193 315
Fleet r. Murton, 41 L. J. CJ. B. 49 ; L. R. 7 Q. B. 126 ; 6 L. T. 181 ;
20 W. R. 97 '. 445
v. Ferrins, 37 L. J. Q. B. 233 ; L. H. 3 Q. B. 536 ; 9 B. & S. 575 ;
19 L. T. 147 227
Fletcher v. London and North Western Kail. Co., [1892] 1 Q. B. 122 ;
61 L. J. Q. B. 24 ; 65 L. T. 605 ; 40 \V. R. 182 12
Follett r. Jeffereys, 1 Sim (N.s.) 17 ; 20 L.J. Ch. 65 ; 15 Jur. 118... 112
Foote r. Hayne, 1 C. & F. 545 ; Ry. 4c M. 165 108
Forbes' Case, 41 L. J. Ch. 467 ; 20 W. R. 585 ; 26 L. T. 680 ... 117
Foster r. Hale, 3 Vex. 787 345
r. Fointer, 9 C. 4c F. 718 502
v. Roberts, 29 Beav. 470 56
r. Venture Syndicate, [1900] 1 Ch. 811 ; 82 L. T. 253 ;
69 L. J. Ch.375 268
Fowkes v. Fascoe, 44 L. J. Ch. 367 ; L. R. 10 Ch. 343 ; 32 L. T. 545 ;
23 W. R. 538 85
Fox r. Bcarblock, 17 Ch. D. 429 ; 50 L. J. Ch. 489 ; 29 W. K. 661 :
58, 134
». Waters, 12 A. 4c E. 43 230
Frankenstein c. Gavin's Cycle Cleaning Co., [1897] 2 Q. B. 62 ;
66 L. J. Q. B. 668 ; 76 L. T. 747 ; 45 W. R. 547 487
Frederick v. Att.-Gen., L. R. 3 F. 4c 1). 196 ; 44 L. J. F. 4c M. 1 ;
22 W. R.416 162
Freeman r. Cooke, 3 Ex. 662 ; 6 l)owl.4c L. 189 ; 18 L. J. Ex. 114 : 209
r. Phillips, 4 M. 4c Sel. 486 ; 16 R. R. 524 148
r. Steggal, 14 Q. B. 202 ; 19 L. J. Q. B. 18 ; 13 Jur. 1030 : 244
Freston, Re, 11 Q. B. D. 545 ; 52 L. J. Q. B. 545 ; 49 L. T. 290 ;
31 W. R. 804 404
Frost r. Brook, 23 W. R. 260 479
Fryer p. Gathercole, 13 Jur. 542 88
r. Stmt, 16 C. B. 218 406
Fulwood r. Fulwood, 9 Ch. D. 176 ; 47 L. J. Ch. 459 ; 38 L. T. 380 ;
26 W. R. 435 226
Furness, Re, [1901] 2 Ch. 349 ; 70 L. J. Ch. 580 ; 84 L. T. 680 ... 83
v. Meek, 27 L. J. Ex. 34 Ill
Furniss v. Phear, 36 W. R. 521 374
Fynney r. Beasley, 17 Q. B. 86 462

G.

Gadd r. Mayor of Manchester, 9 R. P. C. 530 91

Gainsford r. Grammar, 2 Camp. 9 ; 11 R. R. 648 108.236
Gale r. Williamson, 8 M. 4c W. 408 ; 10 L. J. Ex. 446 367
Galloway r. Kenworth, 15 C. B. 228 406
Gandy r. Maculay, 31 Ch. D. 1 42
Garden t>. Cresswell, 2 M. 4c W. 319 ; 5 Dowl. 461 393
Gardner v. Irviu, 4 Ex. D. 53 ; 48 L. J. Ex. 224 ; 27 W. R. 443 ... 495
Garnctt, In the Goods of, [1894] F. 95 ; 6 R. 579 ; 63 L. J. P. 82 ;
70 L. T. 37 350
xxviii Table of Cases.
PAGE
Garth r. Howard, 8 Bine. 451 ; 5.C.&P.346; 1 Moo. & Sr. 628 ... 233
Gaskill r. Skene, 19 L. J. Q. B. 275 ; 14 Q. B. 664 ; 14 Jur. 597 ... 227
Gaze, Ex parte, 23 Q. B. D. 74 ; 58 L. J. Q. B. 373 ; 61 L. T. 54 ;
37 VV. R. 501 352
Gee v. Good, 29 L. T. 123 162
Geisel. Ex parte, 22 Oh. D. 436 ; 31 W. R. 264 ; 48 L. T. 405 .. 289
General Estates Co., In re, L. R. 3 Ch. 758 ; 16 W. R. 919 220
General Finance Discount Co. r. Liberator Building Society, 10 Ch. 1).
15 ; 27 VV. R. 210 207, 208
George r. Thompson, 4 Dowl. 656 ... ... ... ... ... 501
r. Thyer, [1904] 1 Ch. 456 ; 73 L. J. Ch. 401 ; 90 L. T. 249 : 59
Gery c. Redman, 1 Q. B. D. 161 ; 45 L. J. Q. B. 267 ; 24 VV. R. 270 : 177
Gething Keighlev, 9 Ch. I). 547 ; 47 L. J. Ch. 45 ; 27 \V. 11, 283 : 42S
Gibbon's Case, 17 How. St. Tr. 820 303
Gibbon r. Fetherstonhaugh, 1 Stark. R. 225 79
Giblin r. Macmullcn, L. R. 2 P. C. 317 ; 38 L.J. P. C. 25 ; 17 VV. R.
445 11
Gibson v. Holland, 35 L. J. C. P. 5 ; 1 H. &. N. 1 ; L. R. 1 C. P. 1 ;
11 Jur. (U.S.) 1022 ; 13 L. T. 293 ; 14 VV. R. 86 ... 349
v. Jeyes, 6 Ves. 277 57
Giles v. Giles, 32 L. J. P. M. & A. 209 27
Gill v. Shelley, 2 Phill. 373 383
Gillett c. Abbott, 7A.1 E. 783 207
Ginger v. Ginger, L. R. 1 P. & D. 37 ; 35 L. J. P. & M. 9 41
Girdlestone v. Brighton Aquarium, 27 W. R. 523 ; 4 Ex. D. 107 ;
40 L. T. 473 ; 48 L. J. Ex. 373 201
Gittens, Ex parte, [1892] 1 Q. B. 646 ; 66 L. T. 30 ; 40 W. R.
386 396
Glanuibanta, The, 1 P. D. 283 ; 34 L. T. 934 ; 24 W. R. 1033 ... 10
Gleadow t. Atkin, 1 C. & M. 410 169
Glendarroch, The, [1894] P. 226; 6 R. 686; 63 L. J. P. 89;
70 L. T. 344 258
Glenister i: Harding, 29 Ch. U. 9S5 ; 54 L. J. Ch. 1089 ; 53 L. T.
528 297
Glossop v. Heston Local Board, 47 L. J. Ch. 536 ; 26 VV. R. 433 ... 514
Goater, Ex parte, 22 VV. R. 935 61
Godard r. Gray, 40 L. J. Q. B. 62 ; L. R. 6 Q. B. 139 ; 24 L. T. 89 ;
13 W. R.348 204
Goddard's Case, 4 Co. Rep. 44 368
Godwin v. Francis, 39 L. J. C. P. 121 ; L. R. 5 C. P. 121 ; 22 L. T.
338 336
Goff v. Great Northern Rail. Co., 30 L. J. (j. B. 148 ; 3 E. & E.
672 ; 7 Jur. (N.s.) 286 ; 3 L. T. 850 326
(ioffin r. Donnelly, 6 Q. B. D. 307 ; 50 L. J. Q. B. 303 : 44 L. T.
141 ; 29 VV. K. 440 ; 45 J. P. 439 424
Goldshede v. Swan, 1 Ex. 154 ; 16 L. J. Ex. 284 376
(ioldstone r. Williams, Deacon & Co., [1899] 1 Ch. 47 ; 47 VV. R.
91 ; 79 L. T. 373 ; 68 L. J. Ch. 24 124
Goodercd r. Armorer, 3 Q. B. 956 ; 3 G. & D. 206 ; 12 L. J. Q. B.
56 503
Goodright r. Moss. 2 Cowp. 591... ... ... ... ... ... 159
Goodtitle r. Baldwin, 11 East, 488 68
v. Milburn, 2 M. & VV. 853 ; 6 L. J. Ex. 209 62
Goodwin c. Robarte, 1 App. Cas. 476 ; 45 L. J. Ex. 748 ; 35 L. T.
179 ; 24 W. R. 987 222
Gopi Kristo Gosain r. Gunga Persad, 6 Moore, I. A. 53 85
Gordon r. Gordon, L. R. 5 H. L. 254 382
(iorrissen r. Perrin, 27 L. J. C. P. 29 ; 2 C. B. (jf.s.) 681 ; 3 Jur.
(N.s.) 867 19
 Table of Cases. xxix
PAGE
Gosliug t. Birnie, 7 Bing. 346 ; 5 M. & P. 160 213
Goss c. Nugent (Lord), 5 B. & Ad. 61 ; 2 N. k M. 28 ; Wigr. Wills.
5 ; 2 Ph. Ev. 339 359, 362
Gould i: Lakes, 49 L. .T. P. & M. 59 ; 6 P. T). 1 379
Graham v. Glover, 25 L. J. Q. B. 10 ; 5 E. & B. 591 •, 2 Jur. (N.S.)
160 403
v. Sutton, [1897] 1 Ch. 761 ; 66 L. J. Ch. 320 ; 76 L. T.
369 492
Grant r. Grant, L. R. 5 C. P. 728 ; 39 L. J. C. P. 272 ; 22 L. T.
821; 18 YV. R. 951 376, 381
r. Maddox, 15 M. & W. 737 ; 16 L. J. Ex. 227 377
Graves v. Key, 3 B. & Ad. 313 79
(iray r. Haigh, 20 Beav. 219 74
Great Northern Salt, etc. Works, Be, 44 Ch. D. 472 545
Great Torrington Conservators r. Moore Stevens, [1904] 1 Ch. 347 ;
73 L. J. Oh. 124; 89 L. T. 667 ; 68 J. P. Ill 80
Great Western Colliery Co. v. Tucker, L. R. 9 Ch. 376 ; 43 L. J. Ch.
518 481
Great Western Rail. Co. v. Goodman, 12 C. B. 313 300
r.Rimmell, 18 C. B. 575 7
r. Willis, 34 I,. J. C. P. 195 ; 13 C. B.
(U.S.) 748 231
Greaves v. Ashlin, 3 Camp. 426 370
v. Greenwood, 46 L. J. Ex. 252 ; 2 Ex. D. 289 ; 36 L. T. 1 ;
25 W. R. 639 76
Green v. Gatewick, Bull, (N.S.) 243 185
r. Humphreys, 53 L. J. Ch. 625 ; 26 L. T. 474 ; 51 L. T. 42 : 351
Greenhough r. Gaskell, 1 My. & K. 100 109
Greenough r. Eccles, 5 C. B. (N.S.) 786 ; 28 L. J. C. P. 160 ; 5 Jur.
(N.S.) 766 412
Greenwood r. Rothwell, 7 Beav. 291 490
Gregory v. Mitchell, IS Ves. 328 216
r. Molesworth, 3 Atk. 626 199
r. Tavernor, 6 C. & P. 281 321
Greville v. Chapman, 5 Q. B. 731 ; D. & M. 553 90
v. Tvler, 7 Moore P. C. 327 67
Grey's Brewery Co., Be, 25 Ch. D. 400 399
Grierson r. Birmingham Hotel Co., 27 R. P. C. 758 234
Griffith r. Davies, 5 B. & Aid. 730 112
Grumbrecht v. Parry, 32 W. R. 558 477
Guild r. Conrad, [1894] 2 Q. B. 885 ; 63 L. J. Q. B. 721 ; 71 L. T.
140; 42 W. H. 642 .. 343
Gunter r. Halsey, 2 Amb. 586 341
Gwinnett r. Phillips, 2 T. R. 643 426
Gwyn r. Neath, L. R. 3 Ex. 209 ; 37 L. J. Ex. 122 ; 16 W. R.
1209 206

H.
Haddrick r. Heslop, 12 Q. B. 275 12
Hadley r. M'Dougall, L. R. 7 Ch. 312 ; 41 L. J. Ch. 504 ; 20 W. R.
393 490
Hagedon r. Hcid, 3 Camp. 379 ; 1 M. & S. 567 1711
Haig c. West, [1893] 2 Q. B. 19 ; 62 L. J. Q. B. 532 ; 69 L. T.
165 68
Haigh r. Belcher, 7 C. & P. 389 416
-v. Kaye, 41 L. J. Ch. 567 ; L. K. 7 Ch. 469 ; 26 L. T. 675 ;
20 W. H. 597 345
XXX Table of Cases.
PAGE
Haines v. Guthrie, 13 Q. B. D. 818 : 53 L. J. Q. B. 521 ; 51 L. T.
645 ; 33 W. E. !)9 ; 48 J. P. 75fi 161
Haire r. Wilson. 9 B. & C. 643 ; 4 M. & R. 605 61
Haldane v. Eckford, L. R. 8 Eq. 631 493
Hale r. Bates, E. B. & E. 595 406
Halhcad r. Young, 6 E. k B. 312 370
Hall, In re, 9 Hare, App. xvi 296
Hall r. Baiubridge, 12 y. B. 699 ; 17 L. J. Q. B. 317 66
r. Caz.cnove. 4 East, 477 ; 1 Smith, 272 ; 7 B. B. 611 369
r. Jansen, 4 E. & B. 500 ; 3 C. L. R. 737 ; 24 L. J. Q. B. 97 ;
1 Jur. (N.s.) 571 384
1. Truman, 29 Ch. 1). 307 ; 54 L. J. Ch. 717 ; 52 L. T. 586 ... 495
r. Warren, 9 Ves. 605 264
Halliday v. Phillips. 23 Q. B. D. 56 ; [1891] A. C. 236 69
Hambro r. Burnand, [1904] 2 K. B. 10 234
Hamilton c. Kerwan, 2 J. & L. 393 56
Hammond r. Bradstrcet. 23 L. J. Ex. 332 ; 10 Ex. 390 141
v. Schofield, [1891] 1 Q. B. 653 ; 60 L. J. Q. B. 539 ... 201
Hankey, Be, 25 W. R. 427 76
Hanley r. Pearson, 13 Ch. D. 545 ... ... ... ... ... 363
Harburg India Rubber Comb Co. r. Martin, [1902] 1 K. B. 778 ;
71 1.. J. K. B. 529 ; 86 L. T. 505 ; 50 W. R. 449 342
Harden r. Hcskcth, 4 H. & N. 175 226
Harding, lie. Times Newsp., May 28th. 1891 76
Hardy's Case, 24 How. St. Tr. 815 119
Hardy r. Vesey, L. R. 3 Ex. 107 ; 37 L. J. Ex. 76 117
Hargrave r. Hargrove, 2 C. & K. 701 132
Harnor r. Groves, 15 C. B. 667 ; 3 C. L. R. 406 370
Harris's Case, L. R. 7 Ch. 587 ; 41 L. J. Ch. 621 ; 20 W. R. 690 ... 71
Harris. In re, 44 L. J. Bkcy. 33 241
r. Barber, 25 L. J. Q. B. 98 402
r. Knight, 15 P. I). 170 ; 62 L. T. 507 .- 61, 313
Harrison r. Blades, 3 Camp. 458... ... ... ... ... ... 184
r. Bush, 5 E. k B. 344 15
r. Page. 1 Ld. Raym. 386 344
Harrod r. Harrod, 1 K. & J. 4 ; 18 Jur. 853 21
Hart r. Frontino Mining Co., L. R. 5 Ex. Ill ; 31 L. J. Ex. 93 ;
22 L T 30 219
r. Gumpach,*L. R. 4 P. C. 439 ; 42 L. J. C. P. 25 ; 21 W. R.
365 15
r. Hart, 1 Hare, 1 ; 5 Jur. 1007 ; 11 L. J. Ch. 9 ... 311, 508
Hartley r. Wharton, 11 A. & E. 934; 3 P. k 1). 529: 4 Jur.
576 264
Harvey r. Croydon Rural Sanitary Authority, 25 Ch. 1). 249 ; 53 L.J.
Ch. 707 ; 32 W. R. 389 237
e. Farnie, 5 P. I). 153 ; 49 L. J. P. 1). k A. 33 ; 8 App. Cas.
43 206
— f. Lovekin, 10 P. ]). 122 ; 54 L. J. P. 1 ; 33 W. R. 188 ... 482
v. Wilde, L. R. 14 Eq. 438 ; 41 L. J. Ch. 698 197
Harwood c. Goodright, 1 Cowp. 91, 92; 3 Wils. 497; 2 W. Bl.
937 74
Haslam r. Crow, 19 W. R. 969 159
Hatton r. Warren, 1 M. Jc W. 475 386
Hawes r. Draeger (1883), 23 Ch. D. 173 ; 52 L. J. Ch.449 ; 48 L. T.
518 ; 31 W. R. 576 59
Hawkins, Ex parte, 23 Q. B. 1). 226 ; 37 W. R. 700 ; 61 L. T. 584 ;
58 L. J. Q. B. 442 396
Hnyslep r. Gymer, 1 A. & E. 163 ; 3 N. & M. 479 224
Heane r. Rogers, 9 B. & C. 577 190
 Table of Cases. xxxi
PAGE
Heap r. Day, 34 W. R. 627 307
Hebblethwaitc v. Hebblethwaite, 39 L. J. P. & M. 16 ; L. H. 2 P. &
D. 29 29
Heffield r. Meadows, L. B. 4 C. P. 596 ; 20 L. T. 746 388
Hegarty r. Milne, 14 C. B. 627 507
Henderson r. Australian Steam Navigation Co., 5 E. & B. 409 ;
24 L. J. Q. B. 322 ; 1 .lur. (N.S.I 830 326
r. Henderson, 3 Hare. 115 199
Henessey r. Dompe, 19 B. P. C. 339 91
r. Wright, 36 W. B. 879 ; 57 L. J. Q. B. 594 ; 59 L. T.
795 477
Heulev v. Philips. 2 Atk. 48 319
Heuncll v. Davies, [1893] 1 Q. B. 367 ; 5 B. 209 ; 62 L. J. Q. 13.
220 ; 68 L. T. 220 : 41 W. B. 284 240
Hennessey r. Wright, 21 Q. B. I). 509 ; 24 Q. B. I). 445 121
H.nvy Coxm, The, 47 L. J. Adm. 83 ; 3 P. D. 156 ; 3 L. T. 819 :
180, 182
Henry v. Leigh, 3 Camp. 499 498
Henthorn c Fraser, [1892] 2 Ch. 27 71
Heslop v. Chapman, 12 Q. B. 928 9
Hetherington v. Hctherington, 12 P. D. 112 ; 56 L. J. P. 78 ;
57 L. T. 533 ; 36 W. B. 12 ; 51 J. P. 119 59
Hetley r. Hetley, [1902] 2 Ch. 866 ; 71 L. J. Ch. 769 ; 87 L. T.
265 379
Hengh v. Garrett, 44 L. J. Ch. 305 ; 32 L. T. 45 487
Hickman r. Haynes, L. R. 10 C. P. 598 ; 44 L. J. CP. 358 ; 32 L. T.
873 ; 23 W. B. 872 361
Hicks v. Beaufort (Duke of), 4 Bing. (N.s.) 229 ; 5 Scott, 598 ;
2 Jur. 255 224
Hickson r. Darlow, 23 Ch. D. 690 ; 52 L. J. Ch. 453 ; 31 W. It
417 308
Higgins v. Senior, 8 M. 4c W. 844 ; 11 L. J. Ex. 199 371
Iliggs c. North Assam Tea Co., L. B. 4 Ex. 87 ; 17 W. B. 1125 :
220, 221
Higham v. Bidgway, 10 East. 109 109, 172, 173
Hill v. Adams, 10 B. P. C. 102 449
v. Manchester Waterworks Co., 2 B. k. Ad. 552, 553 ; 2 N. &
M. 573 303
Hinchcliffe, In, re, [1895] 1 Ch. 117 ; 64 L.J. Ch. 16 ; 71 L. T. 532 ;
43 W. B. 82; 12 B. 33 114,495
Hobern r. Fowler, 62 L. J. Q. B. 49 404
Hodgkinson e. Willis, 3 Camp. 401 282
Hogg r. Skeen, 34 L. J. C. P. 153 ; 18 C. B. (n.s.) 426 ; 11 Jur.
(N.S.) 244 ; 12 L. T. 709 ; 13 W. B. 383 259
Holcombe ». Hewson, 2 Camp. 291 443
Holden c. Hearne, 1 Beav. 455 235
Holdfast r. Downing, 2 Sir. 1254 ; Bull. N. P. 264 318
Holdsworth v. Dimsdale, 19 W. B. 798 241
Holland r. Bennett, [1902] 1 K. B. 867 ; 50 W. B. 401 ; 86 L. T.
485 ; 71 L. J. K. B. 490 71
Holliday r. Sweeting, Bull. N. I'. 294 229
Hollingham c. Head, 27 L. J. C. P. 241 ; 4 C. B. (s.s.) 388 ; 4 Jur.
(K.8.) 379 417, 442
Hollingshead v. Webster, 37 Ch. 1). 651 ; 57 L. J. Ch. 400 ; 58 L.T.
758 ; 36 W. B. 660 352
Holmes t. Mitchell, 48 I,. J. C. P. 301 ; 7 C. B. (n.s.) 361 ; 6 Jnr.
(N.S.) 73 343, 390
Holt r. Collyer, 16 Ch. D. 718 ; 50 L. J. Ch. 311 ; 44 L. T. 214 ;
29 W. B. 502 • 377
xxxii Table op Cases.
PAGE
Homersham r. Wolverhampton Hail. Co., 6 Ex. 137 ; 6 Rail. Cas.
790 ... 325
Hope f. Beadon, 2 L, M. 4c P. 593 ; 17 Q. B. 509 ; 21 L. J. Q. B.
25 ; 16 Jur. 80 500
v. Brash, [1897] 2 Q. B. 188 ; 66 L. J. Q. B. 653 ; 76 L. T.
823 ; 45 W. R. 659 488
v. Hope, [1893] W. N. 21 181
—— r. Liddell, 24 L. J. Ch. 694 ; 7 De G. M. & G. 338 488
Hopkinson r. Burghley (Lord), L. H. 2 Ch. 447 ; 36 L. J. Ch. 605 ;
15 W. R. 543 491,496
Home v. Bentinck, 2 B. & B. 130 123, 314
v. Hough, L. R. 9 C. P. 135 ; 43 L. J. C. P. 70 ; 22 W. R.
412 479
v. Mackenzie, 6 CI. & Fin. 628 323
Houghton r. Kcenig, 18 C. B. 235 j 25 L. J. C. P. 218 206
Household Fire Insurance Co. r. Grant, 48 L. J. Ex. 577 : 4 Ex. I).
216 ; 41 L. T. 298 ; 27 W. R. 858 71
Houston i: Sligo, 29 Ch. 1). 448 ; 52 L. T. 96 195
Howard r. Beall. 23 Q. B. 1). 1 ; 58 L. J. Q. B. 384 ; 60 L. T. 637 ;
37 W. R. 555 118
v. Clarke, 20 Q. B. D. 558 ; 58 L. T. 401 ; 52 J. P. 310 ... 13
r. Malkin, 27 VV. R. 340 133
r. Sheward, 36 L. J. C. P. 42 ; L. R. 2 C. P. 148 ; 15 I,. T.
183 ; 15 W. R. 45 142
Howe r. Malkin, 27 W. R. 340 ; 40 L. T. 196 132
Howes v. Barter, 18 Q. B. 588 ; 21 L. J. Q. B. 254 ; 16 Jur. 614 ... 405
Howgate and Osborne's Contract, [1902] 1 Ch. 451 ; 71 L. J. Ch.
279 ; 86 L. T. 180 389
Hoyle r. Hoyle, [1893] 1 Ch. 84 ; 2 R. 145 ; 62 L. J. Ch. 182 ;
67 L. T. 674 ; 41 W. R. 81 343
Hubbard r. Lees. 35 L. J. Ex. 169 ; L. R. 1 Ex. 255 ; 4H.SC. 418 ;
12 Jnr. (N.s.) 435 ; 13 L. T. 367 ; 14 W. H. 694 ... 161, 156
Hudson v. Clementson. 18 C. B. 213 371
r. Owners of Swiftsure, 82 L. T. 389 173
Huggins r. Ward, 8 Q. B. I). 521 ; 29 L. T. 33 ; 21 W. R. 914 ... 269
Hughes r. Budd, 8 Dowl. 315 500
r. Cornelius, 2 Shower, 232 192
r. Dinorben (Lady), 32 L. T. 271 316
Hull r. Bollard, 1 H. & N. 134 449
Humble r. Hunter, 12 Q. 11. 310 ; 17 L. J. Q. B. 350 ; 12 Jur. 121 : 371
Humfrey r. Dale, 7 E. i: B. 266 : E. B. & E. 1004 388
Humphreys v. Green, 10 Q. B. I). 148 ; 52 L. J. Q. B. 140 ; 48 L. T.
60 : 47 J. P. 244 341
Hunt r. Goodlake, 43 L. J. C. P. 54 ; 29 L. T. 472 16
v. Massey, 3 B. & Ad. 502 ; 3 N. k M. 109 62
Hunter, Tin-. I Dodson, 480 74
Hunter r. Atkyns, 3 Mvl. & K. 113 ... 57
v. Stewart, 31 L. J. Ch. 346 ; 4 De G. F. k J. 168 196
r. Walters, L. R. 7 Ch. 75 ... 208
Hurst *. Beach, 5 Madd. 351 ... 83
tv Unbone, 18 C. B. 144 384
Hussey r. Home-Payne, 4 App. Cas. 311 ; 48 L. J. Ch. 846 :
47 L. J. Ch. 751 ; 8 Ch. 1). 670 336
Hutchinson r. Glover,
Bowker.455 L.
M. J.& Q.
W. B.535120; 9; L.
1 Q.
J. B.
Ex.I).24138 ; ...33 L. T.17, 377
605 ; 24 W. R. 185 488
Huxtable r. Crawford, [1902] 2 Ch. 793 ; 71 L.J. Ch.876 ; 87 L. T.
415 379
 Table of Cases. xxxiii
PAGE
Hydraulic Engineering Co. r. McHaftic, 4 Q. B. D. 670 ; 27 W. R.
221 lfl
Hyalop r. Chamberlain, [1894] 3 Ch. 522 ; 8 R. 680 ; 71 L. T. 373 ;
43 W. R. 6 365

I.
Imperial Continental Water Corporation. He, 33 Ch. D. 31 1 ... 398
Ingham r. Rayner, [1894] 2 Ch. 83 ; 7 R. 434 ; 63 L. J. Ch. 437 ;
70 L. T. 825 ; 42 W. R. 520 382
Ingilby r. Shafto, 32 U J. Ch. 807 ; 38 Bear. 31 486
Irving r. Motley, 7 Bing. 543 233

J.
Jackson, In the Goods of. 87 L. T. 475 ; [1892] P. 237 75
r. Thoinason, 31 L. J. Q. B. 11 ; 1 B. & S. 745 ; 8 Jnr.
(x.s.) 134 ; 6 L. T. 104 ; 10 W. R. 42 412
Jacob r. Lee, 2 M. k Rob. 33 509
Jacobs r. Richards, 18 Bear. 303 262
James r. Hatfield, I Str. .".48 233
Jardiue r. Payne, 1 B. & Ad. 670 506, 509
Jarrett r. Hunter, 34 Ch. I). 182 ; 5G L. J. Ch. 141 ; 5 Ch. 1). 660 ;
46 L. J. Ch. 10 ; 26 W. R. 865 338
Jay r. Johnstone. [1898] 1 Q. B. 189 ; 62 L. J. Q. B. 128 ; 68 L. T.
129 : 4 1 W. R. 161 : 57 J. P. 309 354
Jaynes r. Hughes, 10 Ex. 430 353
Jenkin r. King, L. R. 7 Q. B. 468 ; 41 L. J. M. C. 143 ; 20 W. R.
669 53
Jenkyns r. Bushby, 35 L. J. Ch. 400, 820 ; L. R. 2 Eq. 547 ; 14 W. R.
531 ; 34 L. T. 431 115
Jenks r. Dillon, 76 L. T. 591 403
Jenoure r. Delmege. [1891] A. C. 73; 60 L. J. P. C. 11 ; 39 W. R.
388 ; 63 L. T. 814 15,260
Jexsel r. Bath. L. It. 2 Ex. 267 ; 36 L. J. Ex. 149 ; 16 W. R. 1041 : 307
Jewsbury r. Newbold. 26 L. J. Ex. 247 12
Jewson r. Dyson, 9 M. k W. 540 ; 2 M. k R. 377 ; 11 L.J. Ex. 401: 68
Johnson r. Appleby. 43 L. J. C. P. 146 ; L. R. 9 C. P. 158 373
f. Barnes, L. R. 8 C. P. 527 ; 42 L. J. C. P. 259 ; 29 L. T.
65 69
r. Gallagher, 3 De G. F. k J. 521 261
r. Lawson, 2 Bing. 86 ; 9 Moore, 183 134
r. Lyford, 37 L. J. P. k M. 65 ; L. R. 1 P. k D. 546 ... 380
—— )■. Marlborough (Duke of). 2 Stark, 313 68
r. Mayor of Croydon, 16 Q. B. D. 708 ; 35 L. J. M. C. 117 ;
54 L. T. 295 307
Johnston /•. Bloomtield, Ir. R. 8 C. L. 68 80
Jolley r. Rees, 33 L. J. C. P. 177 ; 15 C. B. (X.s.) 628 238
Jolly t. Taylor, 1 Camp. 143 4'.i
Jones r. Frost, L. R. 7 Ch. 773 ; 42 L. J. Ch. 47 ; 27 L. T. 465 ;
20 W. R. 1025 209
r. Marshall. 2 C. B. (S.S.) 615 404
—- r. Monte Video Gas Co., 5 Q. B. D. 556 ; 49 L. J. Q. B. 627 ;
28 W. R. 758 495
r. Stroud, 2 C. k P. 196 322
-—- r. Tarlctou, 9 M. k W. 675 ; 1 Dowl. (N.8.) 625 ; 6 Jur. 348 : 504
I.. K.
 xxxiv Table of Cases.
PAGE
Jones r. Victoria Dock Graving Co.. 46 L. J. Q. B. 219 ; 2 Q. B. D.
314 339
Jorden c Money, 5 H. L. Cas. 185 211

K.
Kame v. Knightley, Skin. 54 368
Kearney r. London, Brighton and South Coast Rail. Co., L. K. 5 Q. B.
411 ; 39 L. J. Q. B. 200 ; 22 1.. T. 886 : 18 W. B. 1000 : L. R.
6 Q. B. 759 ; 40 L. J. Q. B. 2*5 ■ 24 L. T. 913 ; 20 W. R. 24 : 14
Kelner c. Baxter, L. R. 2 C. P. 174 : 15 W. R. 278 233
Kenvon c. Birks, [1900] 1 Ch. 417; 69 L.J. Ch. 124 ; 81 L. T.
741 383
Kettlewell r. Barstow, 41 L. J. Ch. 718 ; 7 Ch. 686 ; 27 L. T. 258 ;
20 W. R. 917 490, 491
Khajah llidayut Oollah v. Rai Jan Khanuin, 3 Moo. I. A. 295 ... 159
Kibble. Ex parte, L. R. 10 Ch. 873 ; 44 L. J. Bk. 63 ; 32 L. T. 138 ;
23 W. R. 433 195
Kidderminster (Mayor of) r. Hardwick, L. R. 9 Ex. 13 ; 43 L.J. Ex.
9 ; 29 L. T. 612 ; 22 W. R. 160 327
Kilpen r. Kilpen, 1 M. & K. 520 84
Kimpton ». London and North Western Rail. Co., 9 Ex. 766 ;
2 C. L. R. 1026 ; 23 L. J. Ex. 232 403
King r. Pippett, 1 T. R. 235 426
King of Two Sicilies r. Wilcox, 1 Sim. (x.s.) 331 95
Kingston's Case (Duchess of), 20 How. St. TV. 540 ; 2 Sin. L. C. 642:
115, 198, 204, 320
Kirchner r. Venus, 12 Moore P. C. C. 361 ; 7 W. R. 455 ; 6 Jur.
(N.S.) 732 389
Kirk !-. Eddowes, 3 Hare 82
Kissam r. Link, [1896] 1 Q. B. 574 ; 65 L. J. Q. B. 433 ; 74 L. T.
368 ; 44 W. R. 452 ; 12 Times R. 333 118
Klingeman, In the Goods of, 3 S. k T. 18 ; 32 L. J. P. M. & A. 16 : 273
Knight r. Martin, Gow. 103 499
Knox r. Whallev, 1 Esp. 159 225
Kops r. The Queen, [18941 A. C. 652 ; 70 L. T. 890 27, 24
Kronheim r. Johnson, 7 Ch. D. 60 ; 47 L. J. Ch. 132 ; 37 L. T. 751 ;
26 W. R. 142 345

L.
La Banque Jacques Carticr v. La Banque d'Epargne. etc., de Mont
real, 13 App. Cas. 118 ; 57 L. J. P. C. 42 225
Lacon r. Lacon, [1891] 2 Ch. 482 ; 39 W. R. 299 ; 60 L. J. Ch. 403 ;
64 L. T. 429 82
Lafone c. Falkland Islands Co., 27 L. J. Ch. 25 ; 4 K. & J. 34 ;
6 W. R. 4 108
Lainson r. Trcmere, 1 A. A: E. 792 ; 3 N. & M. 603 ... 208
* Laird r. Birkenhead Rail. Co., Johns. 500 327
r. Briggs, 19 Ch. D. 22 ; 45 L. T. 238 432
Lakeman r. Mountstephen, 39 L. J. Q. B. 275 ; L. R. 5 Q. B. 613 ;
41 L. J. Q. B. 67 ; L. R. 7 Q. B. 196 ; L. R. 7 H. L. 17 ;
22 W. R. 617 ; 43 L. J. Q. B. 188 ; 30 L. T. 437 343
Lambe's Case. 2 Lea. 554 ; 1 M'Nallv, Ev. 42 460
Lambert, Re, 35 L. J. P. & M. 64 ; L. R. 1 P. 4; D. 138 ; 14 L. T.
227 ; 14 W. R. 617 159
 Table of Cases. xxxv
PAGK
Lambert and Butler v. Goodbody, 19 B. P. C. 377 !)1
Lampon r. Corkc, 5 P. & Aid. 606 : 1 Dowl. & R. 211 367
Langen r. Tate, 2+ Oh. I). 522 ; 32 W. R. IS!) 466
Langford r. Selmes, 3 K. & J. 220 ; 3 Jur. (N.8.) 859 212
Langham r. Sandford, 19 Ves. 649 379
Langhorn r. Allnutt, 4 Taun. 511 ... ... ... ... ... 232
Lassence r. Tierney, 1 Mac. & G. 351 ; 2 II. & T. 115 ; 14 Jur. 182 : 344
Latch r. Kumner Rail. Co., 27 L. J. Ex. 155 77
La Tout-he r. Hatton, 9 Ir. R. Eq. 166 177
Livery r. Purcell, 39 Ch. I). 508 ; 57 L. J. Ch. 570 ; 58 L. T. 846 ;
37 W. R. 163 336
Uw v. Hunter. 1 Russ. 100 428
Liiwrence v. Campbell, 4 Drew. 485 ; 28 L. .T. Ch. 780 ; 7 W. R. 336 ;
5 Jur. (H.8.) 1071 109
r. Clark, 3 Dowl. & L. 87 ; 14 M. & W. 250 ; 15 L. J. Ex.
40 500
r. Maulc, 4 Drew. 472 ; 7 W. R. 314 188
Lawson r. Vacuum Brake Co., 27 Ch. D. 137; 54 L. .1. Ch. 16 ;
33 W. R. 186 467
Learmouth, Ex parte, 1 Madd. 113 186
Learoyd, Me parte, 10 Ch. 1). 3 ; 48 L. J. Bky. 17 ; 27 W. R. 277 ;
39 L. T. 525 289
Leather Cloth Co. r. Hirschfield, L. R. 11 Eq. 299 ; 14 W. R. 78 ... 266
Lee r. Angus, L. R. 2 Eq. 59 391
r. Birrell, 3 Camp. 337 ; 1 M. 4 Sel. 482 122
r. Hamerton, 12 VV. R. 975 115
c. Pain, 4 Hare. 201 ; 14 L. J. Ch. 346 ; 9 Jur. 127 381
Leeds and Comity Bank v. Walker, 11 Q. B. D. 84 ; 52 L. J. Q. B.
590 ; 47 J. P. 502 67
Leggc c Edmunds, 25 L. J. Ch. 125 ; 4 VV. R. 71 125, 222
Lcggott r. Great Northern Rail. Co.. 1 Q. B. D. 599 ; 45 L. J. Q. 15.
557 ; 35 L. T. 334 ; 24 \V. R. 784 198
Leidemann r. Schultz, 14 C. B. 48 ; 2 C. L. R.87 ; 23 L. J. Ch. 17 ;
18 Jur. 42 384
Leigh, In the Goods of, [1892] P. 82 ; 61 L. J. P. 124 ; 66 L. T.
379 313
Leigh r. Jack, 49 L. J. Ex. 220 ; 5 Ex. D. 264 ; 42 L. T. 463 ;
28 W. R. 452 ; 44 J. P. 488 80
Leighton r. Leighton, 43 L. J. Ch. 594 ; L. R. 18 Eq. 458 ; 22 W. R.
727 82
Lennox, Ex parte, 16 Q. B. D. 315 ; 55 L. J. Q. B. 45 ; 54 L. T.
452; 34 W. R. 51 195
Leslie r. Delatorre, 12 East, 583 ; 11 R. R. 578 368
Leveson v. Beales, [1891] 3 Ch. 422 ; 40 W. R. 90 ; 65 L. T. 406 ;
60 L. J. Ch. 793 365
Lewes' Trusts. In re, L. R. 1 1 Eq. 236 ; L. R. 6 Ch. App. 356 ;
40 L. J. Ch. 602 ; 24 L. T. 533 ; 19 \V. R. 195, 617 75
Lewis r. Pennington, 29 L. J. Ch. 670 ; 8 \V. R. 465 ; 6 Jur. (x.s.)
478 109
v. Powell, [1897] 1 Ch. 678 ; 66 L. J. Ch. 463; 76 L. T.
282 ; 45 W. R. 438 488
v. Smith, 1 M. & G. 417 102
Liebman r. Pooley, 1 Stark. 167 ; 18 W. R. 756 312
Liles v. Terry, [1895] 2 Q. B. 679 ; 65 L. J. Q. B. 34 ; 73 L. T. 428 : 57
Limehouse Board of Works, Ee parte, 24 Ch. D. 177 ; 52 L. J. Ch.
791 ; 48 L. T. 941 ; 32 W. R. 287 291
Limpus c London General Omnibus Co., 7 H. & C. 526 231
Lindley r. Lacey, 17 C. B. (.vs.) 578 ; 34 L. J. C. P. 7 ; 10 Jur.
(N.S.) 1103 ; 11 L. T. 273 ; 12 W. R. 80 373
c 2
xxxvi Table of Cases.
PAGE
Lindsay r. Gladstone, L. B. 9 Eq. 132 492
v. Wicklow (Earl of), Ir. R. 7 Eq. 192 80
Linsey r. Linsoy, 29 L. J. P. & M. 128 296
Lister v. Ferryman, L. R. 4 H. L. 521 ; 39 L. J. Ex. 177 ; 23 L. T.
(N.s.) 269 ; 19 W. It. 9 12
c. Smith, 32 L. J. P. & M. 29 ; 3 S. & T. 282 372
Little r. Kingswood Collieries Co., 20 Ch. D. 733 ; 51 L. J. Ch. 498 ;
31 W. B. 178 102
Llanover (Lady) r. Homfray, 19 Ch. 1). 224 ; 30 W. B. 557 ... 184
Llewellyn r. Washington, [1902] 2 Ch. 220 ; 50 W. It. 598 ; 86 L. T.
644 ; 71 L. J. Ch. 567 210, 330
Lloyd v. Mostyn, 10 M. & W. 481 ; 2 Dowl. (N.s.) 476 ; 12 L. J.
Ex. 1 501
Lobb r. Stanley, 5 Q. B. 574 ; 13 L. J. Q. B. 117 349
Lockhart r. Jelly, 19 L. T. (N.s.) 659 133
Login v. Princess of Cooz, 30 Beav. 632 274
London and Globe Corporation r. Kaufman, 69 L. J. Ch. 196 ;
48 W. K. 458 291
London and Northern Bank, Re, [1900] 1 Ch. 220 ; 69 L. J. Ch. 24 ;
81 L. T. 512 71
London Celluloid Co., Re, 39 Ch. D. 190 218
London Chartered Bank of Australia r. Lempriere, L. It. 4 1'. C.
572 261
r. White, 4 App. Cas. 422 ;
48 L. J. C. P. 75 269
London, Chatham and Dover Rail. Co. r. Ball, 47 L. T. (N.S.) 413... 226
London (City of) r. Perkins, 3 Bro. P. C. 602 188
London Gas Meter Co., Re, 41 L. J. Ch. 145 ; 20 W. It. 394 ... 399
London (Mayor of) r. Lynn, 2 H. Bl. 214 n 303
Long r. Millar, 4 C. P. D. 450; 48 L. J. C. P. 596 ; 41 L. T. 306 ;
27 W. B. 720 336, 348
Long Wellesley's Case, 2 Huss. & M. 639 404
Lord v. Colvin, 28 L. J. Ch. 361 ; 1 Drew. & Sm. 24 ; 29 L. J. Ch.
297 ; 8 W. R. 254 ; 6 .Tur. (N.S.) 189 274
Love v. Bell, 9 App. Cas. 286 ; 53 L. J. Q. B. 257 ; 32 W. R. 723... 258
Lovell r. Wallis, 53 L. J. Ch. 494 ; 49 L. T. 593 514
Lovesy v. Smith, 15 Ch. D. 655 ; 49 L. J. Ch. 809 ; 43 L. T. 240 ;
28 W. R. 979 363
Low c. Bouverie, [1891] 3 Ch. 82 ; 60 L. J. Ch. 594 ; 65 L. T. 533 ;
40 W. It. 50 192, 211
Low r. Routledge, 33 L. J. Ch. 717 : 12 W. R. 1069 301
Lowdeu v. Blakey, 23 Q. B. D. 332 ; 58 L. J. Q. B. 617 ; 38 W. It. 64 : 102
Lucas P. Bristow, 27 L. J. Q. B. 364 ; E. B. k E. 907 ; 5 Jur. (N.S.)
68 388
r. Cooke, 13 Ch. 1). 872 ; 42 L. T. 180 ; 28 W. R. 439 ... 300
r. Delacour, 1 M. & Sel. 249 ; 14 R. R. 426 230
e. Dixon, 22 Q. B. D. 357 ; 58 L. J. Q. B. 161 ; 37 W. R. 370 : 348
v. Williams, [1892] 2 Q. B. 113 ; 61 L. J. Q. B. 595 ; 66 L. T.
706 47,49
Lucy r. Mouflet, 5 H. & N. 229 ; 29 L. J. Ex. 110 227
Ludlow (Mayor of) r. Charlton, 9C.4 P. 242 325
Lnmley r. Gye, 3 E. & B. 114 ; 23 L. J. Q. B. 112 401
Lyell r. Kennedy, 27 Ch. 1). 1 ; 51 L. J. Ch. 937 ; 50 L. T. 730 ;
8 App. Cas. 217 ; 9 App. Cas. 81 ; 14 App. Cas. 437 : 102. 106,112,
158. 160.162,298,476,477
Lyle r. KUwood. 44 L. J. Ch. 164 ; L. R. 19 Eq. 98 ; 23 W. It. 157 : 134
Lyon.r. Heed, 13 M. i: W. 303 ; 13 L. j. Ex. 377 ; 8 Jur. 762 ... 209
 Table of Cases. xxxvii

M.
PAGE
M. c D., 10 P. D. 175 ; 54 L. J. P. 68 ; S3 W. K. 657 28
McCall r. Australian Meat Co., 1!) W. R. 188 13
McCormick v. Garnett, 23 L. J. Ch. 717 ; 5 l)e G. M. Si G. 278 ... 273
Macdonald v. Longbottom, 1 E. i, E. 977 ; 28 L. J. Q. B. 293 ;
29 L. J. Q. B. 256 377
Macdongall v. Knight, 25 Q. B. D. 1 ; 59 L. J. Q. B. 517 ; 63 L. T. 43 ;
38 W. R. 553 197
*. Purrier, 2 Dow. & CI. 135 68
Macgregor e. Keily, 3 Ex. 794 ; 18 L. .1. Ex. 391 ; 2 1). & L. 635 ... 72
Machell r. Ellis, 1 C. & K. 682 237
Mackalley's Case, 9 Rep. 676 429
M'Kenire e. Fraser, 9 Ves. 5 293
Mackenzie r. British Linen Co., 6 App. Cas. 82 209
Mackley r. Chillingworth, 46 L. J. C. P. 484 ; 2 C. P. 1). 273 ;
25 W. R. 650 406
McLeod c. Power, [1898] 2 Ch. 295 ; 67 L. J. Ch. 551 ; 47 W. R.
74 ; 79 L. T. 67 195 .
McQuire v. Western Morning News, [1903J 2 K. B. 100 ; 72 L. J.
K. B. 612 ; 88 L. T. 757 ; 51 W. R. 689 15, 16
Maddick t. Marshall, 18 C. B. (N.8.) 829 232
Maddison v. Alderson, 8 App. Cas. 473 ; 52 L. J. Q. B. 737 ;
49 L. T. 303 ; 31 W. R. 820 ; 47 J. P. 821 211
Magee, Ex parte, 15 Q. B. D. 332 ; 54 L. J. Q. B. 394 ; 33 W. R,
655 271
Magnay r. Knight, 2 Scott, N. R. 64 ; 1 M. & Gr. 944 ; 1 Drink. 13 ;
14 Jur. 1088 507
Mahoney r. National Widows' Life Insurance Fund, L. li. 6 C. P.
252 ; 40 L. J. C. P. 203 ; 24 L. T. 548 ; 19 W. R. 722 491
Mahood ». Mahood, L R. 8 Eq. 359 74
Makin F. Att.-Gen. for N. S. Wales, [1894] A. C. 57 ; 6 R. 373 ;
63 L. J. P. C. 41 ; 69 L. T. 778 ; 58 J. P. 148 ; 17 Cox C. C.
704 451, 452
Malcolmson v. O'Dea, 10 H. L. Cas. 593, 614, 616; 9 L. T. 93 ;
12 W. R. 178; 9 Jur. (N.B.) 1135 150,152
Malpas v. Clements, 19 L. J. Q. B. 435 62
v. London & South Western lia.il. Co., L. R. 1 C. P. 336 ;
35 L. J. C. P. 166; 13 L. T. 760 ; 14 W. R. 391 ; 1 H.&R.
227 ; 12 Jnr. (N.s.) 271 373
Manby c. Scott, 2 Smith's L. C. 466 ; 1 Lev. 4 238
Mander v. Ridgway, [1898] 1 Q. B. 501 ; 78 L. T. 118 ; 46 W. R.
366 ; 67 L. J. Q. B. 335 511
Manzoni p. Douglas, 6 Q. B. D. 145 ; 50 L. J. Q. B. 289 ; 29 W. R.
425 14
Marine Investment Co. v. Haviside, L. R. 5 II. L. 624 ; 42 L. J. Ch.
173 66,313.508
Marks v. Beyfus, 25 Q. B. D. 494 ; 59 L. J. Q. B. 479 ; 38 W. R.
705 ; 63 L. T. 733 122
Marriage v. Lawrence, 3 B. & Aid. 412 303
Marriott v. Chamberlain, 17 Q. B. I). 154 ; 55 L. J. Q. B. 448 ;
34 W. R. 783 ; 54 L. T. 714 477
Marsdcn v. Overbury, 18 C. B. 34 ; 25 L. J. C. P. 200 403
Marsh v. Home, 5 B. & C. 322 264
Marshall v. Cliff, 4 Camp. 133 236
». Green, 1 C. P. D. 35 ; 45 L. J. C. P. 153 348
Martin e. Andrews. 26 L. J. Q. B. 39 ; 7 E. & B. 1 ; 2 Jur. (N.s.)
1121 406
xxxviii Table of Cases.
PAGE
Martin v. Treacher, 16 Q. B. 1). 507 ; 55 L. J. Q. B. 20!t ; 54 L. T.
7 ; 34 W. R. 315 95
Massev r. Allen, 13 Ch. D. 558 ; 49 L. J. Ch. 76 ; 41 1.. T. 788;
28 W. R. 212 171,181
Master v. Miller, 1 Smith's L. C. 796 389, 510
Mather v. Maidstone (Lord). 26 L. J. C. P. 58 ; 1 C. B. (x.s.) 273 ;
3 Jur. (ha) 112 65
Matheson r. Boss, 2 H. L. Cas. 301 509
Matthews, In the Goods of, [1898] P. 17 ; 67L.J.P. 11; 77L.T.
630 7.-.
Maugham r. Hubbard, 8 B. & C. 14 ; 2 M. Sc R. 5 319, 320
Maunsell v. Ainsworth, 8 Dowl. 869 ; 1 H. & W. 5 403
May, In re, 54 L. J. Ch. 338 : 52 L. T.78 ; 28 Ch. 1). 516 ; 33 YV.K.
917 192
Maynard v. Consolidated Kent Collieries Corporation, [ 1903 ] 2 K. B.
121 ; 72 L. J. K. B. 681 ; 88 L. T. 676 ; 52 W. R. 117 ... 508
Meath (Bishop of) r. Winchester (Marquis of), 3 liing. N. C. 198 ... 151
Meekins v. Smith, 1 H. Bl. 637 404
Melbourne Bunking Corporation r. Brougham, 7 App. Cas. 307;
51 L. J. C. P. 65 ; 30 W. R. 925 207, 260, 327
Melissich r. Lloyds, 46 L. J. C. P. 404 ; 25 W. R. 353 260
Melliss r. Shirley Board of Health, 14 Q. B. I). 911 ; 54 L. J. Q. B.
408 332
Melville's (Lord) Case, 29 How. St. Tr. 707 235
Mercantile Bank of Sydney t. Taylor, [18931 A. C. 317 ; 57 J. P.
741 368
Mercantile Investment Co. r. River Plate Co., [1S94] 1 Ch. 578;
63 L. J. Ch. 366 ; 70 L. T. 131 ; 42 W. R. 365 196
Mercer r. Whall, 5 Q. B. 462 ; 14 L. J. Q. B. 267 ; 9 .lur. 576 ... 266
Meredith r. Footner, 11 M. & W. 202 ; 12 L. J. Ex. 188 238
Merivale c. Carson, 20 Q B. D. 280 ; 58 L. T. 331 ; 36 W. K. 231 :
52.1. P. 261 16
Messina r. Petrococchino, L. R. 4 P. C. 144 ; 8 Moo. P. C. C. (N.s.)
375 204
Metropolitan Rail. Co. v. Jackson, 3 App. Cas. 193 ; 47 L. J.
C. P. 303 ; 37 L. T. 679 ; 26 W. R. 175 14
Mcunier, In re, [1894] 2 Q. B. 415 : 63 L. J. M. C. 198 ; 71 L. T.
403 ; 42 W. R. 637 43
Mexborough r. Whitwood, etc., [1897] 2 Q. B. Ill ; 66 L. J. Q. B.
637 ; 76 L. T. 765 ; 45 W. R. 564 97
Micklethwait r. Newlay Bridge Co., 33 Ch. 1). 145 81
Middleton r. Melton, 10 B. & C. 322 : 5 M. & R. 264 ... 169, 1 75, 239
Mighell c. Sultan of Johore, [1894] 1 Q. B. 149 ; 63 L. J. Q. B. 593 :
70 L.T. 64 ; 58 J. P. 244 268
Millard r. Bailey, L. R. 1 Eq. 378; 35 L. J. Ch. 312 ; 13 L. T. 751 ;
14 W.R.385 378
Miller r. Dent, 10 Q. B. 846 509
Miller and Aldworth, Limited r. Sharp, [1899] 1 Ch. 622 : 80 L. T.
77 ; 68 L. J. Ch. 322 ; 47 W. R. 268 341
Millington r. Loring, 6 Q. B. D. 190 ; 50 L. J. Q. B. 214 ; 43 L. T.
657 : 29 W. R. 207 ; 45 .1. P. 268 442
Mills r. Barber, 1 M. & W. 427 ; 5 Dowl. P. C. 77 ; 2 Gale, 5 ... 257
Milne v. Leisler. 31 L. J. Ex. 257 ; 7 H. & N. 786; 5 L. T. 802 ;
10 W. R. 250 ; 8 Jur. (N.s.) 121 442
Milner r. Lord Harewood, 18 Ves. 274 208
Millner, Re, 14 Eq. 245 ; 42 L. J. Ex. 44 : 20 W. R. 823 ; 26 L. T.
825 77
Minet r. Morgan, L. R. 8 Ch. App. 361 ; 42 L. J.Ch. 627 ; 28 L. T.
(N.S.) 573 ; 21 W.R. 467 102, 486
 Table of Cases. xxxix
PAGE
Mir Asadulah r. Bibi Imaman, 5 Cal. N. R. P. C. 26 4
Moises r. Thornton, 8 T. R. 307 ; 3 Esp. 4 304
Mold r. Williams, 5 Q. B. 473 198
Monkton r. Att.-Gen., 2 Runs. k My. 161 148, 159, 161
Montague r. Harrison, 3 C. B. (K.8.) 292 ; 27 L. J. C. P. 24 ; 4 Jur.
(N.s.) 29 403
Moodie r. Bannister, 4 Drew. 432 352
Mookerjee v. Mookerjee, L. R. 21 I. A. 18 56
Moore v. Crofton, 3 J. & L. 438 362
e. Peachey, 2 Q. B. 707 494
Moore, Nettlefold k Co. r. Singer Co., 72 L. J. K. B. 577 ; [1903]
2 K. B. 168 ; 88 L. T. 739 ; 61 W. R. 699 56
Morewood r. Wood, 14 East, 327 n ; 12 R. R. 537 138
Morgan, Ex parte, 2 Ch. 1). 90 ; 45 L. J. Bk. 43 ; 24 W. R.
418 11, 12
, Re, 39 Ch. D. 316 ; 60 L. T. 71 ; 37 W. R. 243 479
v. Couchman, 14 C. B. 100 ; 2 C. L. R. 53 ; 23 L. J. C. P.
36 226
v. Nicholl, 36 L. J. C. P. 86 ; L. R. 2 C. P. 117 ; 15 L. T.
184 ; 15 W. R. 110 ; 12 Jur. (X.S.) 963 184
Moriarty v. London, Chatham and Dover Rail. Co.. L. R. 5 Q. B.
314 ; 39 L. J. Q. B. 109 ; 22 L. T. 163 ; 18 W. R. 625 ... 224
Morland c. Isaac, 20 Beav. 392 225
Morley r. Morley. 5 Dc G. M. k G. 610 ; 1 Jur. (N.8.) 1097 ; 25 L. J.
Ch. 1 79
Morris c. Bcthell, L. R. 5 C. P. 47 ; 38 L. J. C. P. 379 ; 17 W. R.
736 215
v. Davies, 3 C. k P. 215, 427 ; 5 CI. & Fin. 163 ; 1 M. k K.
271 n 58, 59
v. Edwards, 15 App. Cas. 309 ; 60 L. J. Q. B. 292 ;
63 L. T. 26 487, 495
r. Hanser, 2 M. & Rob. 392 ; Car. & M. 29 501
Morrison r. Lennard, 3 C. k P. 127 21
r. Moat, 9 Hare, 241 115
Mortimer v. Shortall, 2 Dr. & War. 363 362, SOS
Moseley r. Victoria Rubber Co., 55 L. T. 482 ; S R. P. C. 351 ... 115
Motteram r. Eastern Counties Rail. Co.. 29 L. J. M. C. 57 ; 7 C. B.
(U.S.") 58 : 6 Jur. (U.S.) 759 306
Moult v. Halliday. [1898] 1 Q. B. 129 ; 67 L. J. Q. B. 451 ; 77 L. T.
794 ; 47 W. B. 318 : 62 J. P. 8 269
Mowatt r. Castle Steel Co., 34 Ch. D. 58 221
Moxham, The, 1 P. D. 1 16 ; 24 W. R. 597 468
Muirhead r. Commercial Cable Co., 11 R. P. C. 317 214
Murray r. East India Co., 5 B. & A. 204 325
■ — r. Milner, 48 L. J. Ch. 775 ; 12 Ch. 1). 849 ; 41 L. T. 213 ;
27 W. R. 881 125
r. Parker, 19 Beav. 305 362, 36S
Musgrave r. Emerson, 10 Q. B. 326 : 16 L. J. Q. B. 174 176
Myers r. Sari, 3o L. J. CJ. B. 9 ; 3 E. k E. 306: 7 Jur. (s.s.)
97 385, 388

N.
Nadin v. Bassett, 25 Ch. D. 21 ; 53 L. J. Ch. 253 ; 49 L. T. 454 ;
32 W. R. 70 463
N'eaverson v. Peterborough Council, [1902] 1 Ch. 557 ; 71 L. J. Ch.
378 ; 86 L. T. 738 ; 50 W. R. 549 69
Neile v. Jakle. 2 C. k K. 709 235
xl Table of Cases.
PAGE
Neill !•. Devonshire (Dnke of), 2 L. R. Ir. 154 ; 8 App. Cat. 147 ... 68,
147, 224, 447
Neilson r. Betts, L. R. 5 E. & I. 1 ; 40 L. J. Ch. 317 ; lit W. K.
1121 260
r. Harford, 8 M. & W. 806, 818. 839 ; Webs. Pat. Kep. 295,
328 ; 11 L. J. Kx. 20 18
Nelson v. Bridport (Lord), 8 Beav. 547 : 10 Jur. 1043 273
r. Whittall, 1 B. k Aid. 19 318
Nepean ». Doe, 2 M. & W. 894 ; 2 Smith's L. C. 610, 629, 729 ... 64
Nesham r. Selbv, L. R. 13 Eq. 191 ; L. R. 7 Ch. 406 ; 41 L. J. Oh.
551 ; 26 L.'T. 145. 568 336
Ness v. Savage, 4 E. & B. 36 335
Nevil r. Johnson, 2 Vera. 447 184, 188
New London Credit Svndicate r.Neale, [1898] 2 Q.B.487 ; 78L.T.
283 ; 46 W. R. 420 : 67 I,. J. Q. B. 505 373
New l'rance and Garrard's Trustee r. Ilanbury, [1897] 2 Q. B. 19 ;
66 L. .1. Q. B. 554 j 76 L. T. 742 100
New Westminster Brewery Co. v. Hannah, 1 Ch. D. 278 ; 24 W. R.
137 514
Newbiggin Gas Co. r. Armstrong. 13 Ch. D. 310 ; 49 L. J. Ch.
231 ; 28 W. R. 217 ; 41 L. T. 637 486
Newburgh e. Newburgh, 3 Bro. P. C. 553 ... 364
Newby r. Sharpe, 8 Ch. D. 39 ; 47 L. J. Ch. 617 ; 38 L. T. 583 :
26 W. R. 685 432,433
Newcastle (Duke of) r. Broxtowe Hundred. 4 B. & Ad. 273 ... 140
Newell r. Radford, 37 L. J. CP. 1 ; L. R. 3 C. P. 52 ; 17 L, T.
118 ; 16 W. R. 97 349,382
Newton r. Chaplin, 10 C. B. 356; 19 L. J. C. P. 374; 14 Jur.
1121 106
r. Harland. 1 M. & Gr. 956; 1 Scott. N. R. 502 : 9 Dowl.
16 ; 1 R. P. C. 63 ; 4 Jur. 992 405, 406
i: Ricketts, 9 H. L. Cas. 262 ; 31 L. J. Ch. 247 316
Nichol r. Godts, 10 Ex. 191 ; 23 L. J. Ex. 314 370
r. Vaughan, 1 C. & F. 49 262
Nicholson, Ke parte, 14 Ch. D. 243 ; 49 L. J. Bk. 68 ; 43 L. T.
266 ; 28 W. R. 936 395
Xifa, The, [1892] P. 411 ; I. R. 540 ; 62 L. J. P. 12 ; 69 L. T.
56 384
Noble r. Kennaway, 2 Doug. 513 445
v. Ward. L. R. 2 Ex. 135 ; 15 W. R. 520 : 15 L. T. 672 ... 361
Noel r. Wells. 1 Lev. 235 290
Normanshaw r. Normanshaw, 69 L. T. (N.8.) 468 116
North r. Miles, 1 Camp. 389 136
North Assam Tea Co.,/« re, L. R. 10 Eq. 465 ; 18 W. R. 126 ... 220
North of England Ship Insurance Co. r. Armstrong. I/. R. 5 Q. B.
244 ; 39 L. J. Q. B. 81 ; 22 W. R. 520 • ... 370
North Eastern Rail. Co. r. Dalton Overseers, [1898] 2 Q. B. 66 ;
78 L. T. 524 ; 46 W. R. 582 ; 67 L. J.
Q. B. 66 ; 62 J. P. 484 195
r. Hastings. [1900] A. C. 260 ; 82 L. T.
429 ; 69 L. J. Ch. 516 375
Norwich Equitable, etc. Co., In. re, 27 Ch. D. 515 399
Nottingham Guardians r. Tomkinson. 4 C. P. D. 343 ; 48 L. J.
M. C. 171 ; 28 W. R. 151 29
Nouvion c. Freeman. 15 App. Cas. 1 ; 59 L. J. Ch. 337 ; 62 L. T.
189 ; 38 W. R. 581 204
Nye r. Macdonald, 39 L. J. P. C. 34 ; L. R. 3 P. C. 331 : 23 L. T.
220: 18 W. R. 1075 272
 Table op Cases. xli

0.
PAGE
O'Brien r. Speil, Ir. R. 7 Eq. 255 86
O'Connor r. Majoribanks, 4 M. & Gr. 435 ; 11 L. J. C. P. 267 ... 36
Ogilvie r. West Australian Mortgage Co., [1896] A. C. 257;
65 L. J. P. C. 46 ; 74 L. T. 201 209
Oliver r. Hunting, 44 Ch. D. 205 ; 59 L. J. Ch. 255 ; 62 L. T. 108 ;
38 W. K. 618 336, 348
Ongly r. Hill, \V. N. (1874), 157 465
Oppenheim r. Sheffield, [1893] 1 Q.TB. 5 ; 4 K. Ill ; 62 L. J. Q. B.
167 ; 67 L. T. 606 ; 41 \V. K. 65 475
Osborne c London Dock Co., 10 Ex. 698 ; 3 C L. R. 313 ; 24 L. J. Ex.
140 ; 1 Jur. (N.8J 93 96
O'Shea r. Wood, [1891] P. 286 ; 60 L. .1. P. 83 ; 65 L. T. 30 : 103, 4S9
Outram r. Hyde, 24 W. H. 268 79
r. Morewood, 3 East, 346 ; 5 T. R. 121 ; 7 K. K. 473 ... 153
Owen f. Moberley, 64 J. P. 88 41
r. Thomas, 3 M. & K. 357 244, 508
Oxford (Mayor of) v. Crow, [1893] 3 Ch. 535 ; 69 L. T. 228 ... 324

P.
Paddock e. Porrester, 2 Scott. N. H. 734 ; 3 M. & (Jr. 903 241
Page r. Morgan. 15 y. B. 1). 228 ; 54 L. .) . Q. B. 434 ; 53 L. T.
126; 33 W. R. 793 348
v. Norfolk, 70 L. T. 781 337
Papendick v. Bridgwater, 5 E. & B. 166 ; 24 L. .1. Q. B. 289 ;
1 Jur. (X.S.) 657 177, 191
Pares r. Pares, 33 L. J. Ch. 215 56
Pardy's Mozambique Syndicate r. Alexander. [1903] 1 Ch. 191 ;
76 L. J. Ch. 104 ; 88 L. T. 11 ; 51 W. R. 295 494
Parkin t. Moon, 7 C. k P. 408 415
Parnell r. Wood, [1892] P. 137 ; 66 L. T. 67U ; 40 W. R. 564 ... 118
Parrott r. Watts *' L. J. C. P. 79 ; 37 L. T. 755 132
Parry r. May, 1 M. A: Rob. 279 ; 5 Tyr. 685 499
Parsons v. Brown, 3 C. & K. 295 460
Partridge r. Coates, Ry. & M. 156 ; 1 C. 4: P. 534 499
Pattle r. Horaibrook, [1897] 1 Ch. 25 ; 66 L. J. Ch. 144 ; 75 L. T.
475 ; 45 W. R. 123 372
Pauling r. London and North Western Rail. Co., 8 Ex. 867 ;
23 L. J. Ex. 105 ; 7 Rail. Cas. 816 328
Paxton r. Douglas, 16 Ves. 242 96, 97
Payne r. Bennett, [1904] P. 738 ; 23 L. J. P. 33 ; 90 L. T. 170 ... 299
r. Hughes, 10 Ex. 430 369
r. lbbotson, 27 L. J. Ex. 341 321
Peacock r. Harper, 7 Ch. D. 648 ; 47 L. J. Ch. 238 ; 38 L. T. 143 ;
26 W. R. 109 241
r. Harris, 10 East, 104 222
r. Monk, 1 Ves. sen. 128 367
Pearce v. Gardner, [1897] 1 Q. B. 688 ; 66 L. .1. Q. 15. 457 ; 76 L. T.
441 ; 45 W. R. 518 336
Pears r. Laing, 40 L. J. Cb. 225 ; L. R. 12 Eq. 41 ; 24 L.T. 19 ;
19 W. R. 653 352
Pearson r. Beck, 4 Ex. 452 151
r. Isles, 2 Doug, 556 393
r. Lemaitre, 6 Scott, N. R. 607 ; 5 M. & Gr. 700 ;
12 L. J. Q. 253 ; 7 Jur. 748 448
xlii Table of Cases.
PAGE
Peek ,: Ray, [1894] 3 Ch. 282 ; 7 R. 259 ; 63 L. J. Ch. 647 ; 70 L. T.
769 ; 42 W. R. 498 230, 475
Pegler King, L. R. 9 C. P. 9 478
Pemberton r. Hughes, [1899] 1 Ch. 781 ; 68 L.J. Ch. 2S1 ; 80 L. T.
369 ; 47 W. R. 354 205, 206
Penn t. Jack (1866), L. R. 2 Eq. 314 ; 14 W\ R. 760 ; 14 L. T.
495 260
Penniman v. Hill, 24 W. R. 245 410
Percival v. Nanson, 7 Ex. 3 ; 21 L. J. Ex. 1 172—174, 181
Perkins v. Vaughan. 4 M. & Gr. 988 ; 5 Scott, N. H.881 ; 12 L. J.
C. P. 38 ; 6 Jur. 1114 130
Perring r. Hone, 4 Bing. 28 ; 12 Moore, C. P. 135 ; 2 C. & P. 401... 389
Petch r. Lyon, 9 Q. B. 147 ; 15 L. J. Q. B. 393 236
Petrie v. Nuttali, 11 Ex. 569 ; 25 L. J. Ex. 200 203, 446
Peyton r. St. Thomas's Hospital, 4 M. fc R. 625 n 233
Phelps r. Prew, 3 E. & B. 430 ; 2 C. L. R. 1422 ; 23 L. J. Q. B. 140 ;
18 Jur. 249 107
Phene's Trusts, In re, L. R. 5 Ch. App. 139 ; 39 L. J. Ch. 316 ;
22 L. T. Ill ; 18 W. R. 303 75
Philipson v. Chase, 2 Camp. Ill 503
Phillipps r. Briard, 25 L. J. Ex. 233 ; 1 H. & N. 21 387
Phillips v. Cole, 10 A. & E. 106 ; 2 P. jc 1). 289 ; 4 Jur. 83 174
e.Halliday, [1891] A. C. 361 ; 64 L. T. 745 ; 55 J. P.
741 68, 69
Phoenix Life Assurance Co., In re, 2 J. & H. 441 327
Pickard c. Sears, 6 A. k E. 474 209
Piers r. Piers, 2 H. L. Cas. 331 ; 13 Jur. 569 58, 59
Pike v. Nicholas, 17 W. R. 845 ; 38 L. J. Ch. 529 31
Pilkington r. Gray, [1899] A. C. 401 ; 68 L. J. P. C. 63 ... 66, 293
Pinney r. Pinney, 8 B. & C. 335 290
Pipe r. Pulcher, 2 L. J. Q. B. 12 ; 1 E. & E. 1 1 1 143
Pitt r. Pitt, 22 Beav. 294 79
Pitton v. Walker, 1 Str. 162 283
Plant v. Bourne, [1897] 2 Ch. 281 : 66 L. J. Ch. 643 ; 76 L. T. 820,
C. A. ; reversing 45 W. R. 498 338, 382
r. Taylor, 7 H. & N. 211 ; 31 L. J. Ex. 289 ; 8 Jur. (N.8.) 140 : 161
Plowes r. Bossey, 2 Dr. & Sm. 145; 31 L. J. Ch. 681 ; 10 \V. R.
332 ; 8 Jur. (N.S.) 352 264
Plunkett r. Cobbett, 5 Esp. 136 120
Pollock >: Garle, 46 W. R. 66; [189S] 1 Ch. 1 ; 77 L. T. 415:
66 L. J. Ch. 788 119
Poole r. IMcas, 1 Bing. (N.8.) 653 ; 2 L. J. C. P. 47 ; 1 Sc. 600 ... 180
v. Warren, 8A.jc E. 588 ; 3 N. & P. 693 318
Poolev tr. Goodwin, 4 A. & E. 94 ; 5 N. & M. 466 508
Potter r. Duflield, L. R. 18 Eq. 4 ; 43 L. J. Ch. 472 ; 22 W. R.
585 338
Poulctt Peerage. [1903] A. C. 395; 68 L. J. CI). 281 ; 80 L. T.
369 ; 47 W. R. 354 59,125
Powell v. Edmunds, 12 East, 6 : 13 R. R. 785 369
Powys r. Mansfield. 8 My. & Cr. 359 ; 7 1.. J. Ch. 9 84
Price r. Burva, 6 W. R. 40 225
v. Ilollis, 1 M. & Sel. 105 278
r. Ley, 4 Gift. 235 ; 32 L. J. Ch. 530 276
-— r. Manning, 42 Ch. 1). 372 ; 58 L.J. Ch. 649 ; 61 L. T. 537 ;
37 W. R. 785 410
r. Torrington, 1 Salk. 285 ; 2 Ld. Raym. 873 ; 1 Sm. L. C.
352 178
Priestman r. Thomas, 9 P. D. 70 ; 53 L. J. P. 1). & A. 58 ; 32 W. R.
842 199
 Table of Cases. xlii'i

Prince r. Samo, 7 A. & E. 630 ; 7 L. J. Q. B. 123 ; 3 N. & P. 139 ... 423

Printing, etc. Co. v. Drucker, [1894] 2 Q. B. 801 ; 64 L. J. Q. B. 58 ;
71 L. T. 172 ; 42 W. R. 674 189
Prioleau v. United States. L. R. 2 Eq. 659 ; 14 L. T. 700 473
Pritchard r. Bagshawe, 11 C. B. 459 ; 20 L. J. C. P. 161 226
r. Draper, 1 Ross. & My. 191 230
r. Powell, 10 Q. B. 589 140
Pritt v. Fairclough, 3 Camp. 305 178
Proctor v. Smiles, 55 L. J. Q. B. 467 102
Provincial Insurance Co. v. Ledoe, 22 W. R. 939 216
Prudential Assurance Co. r. Edmonds, 2 App. Cas. 487 75
Pryor c. Petre, [1894J 2 Ch. 11 ; 42 W. R. 435 ; 63 L. J. Ch. 531 ;
70 L. T. 331 80
Pugh r. Robinson, 1 T. R. 118 268
Piilsford v. Richards, 17 Beav. 87 ; 22 L. J. Ch. 559 217
Pye t. Bntterfield, 34 L. J. Q. B. 17 ; 5 B. & S. 829 97
Pym v. Campbell, 25 L. J. Q. B. 277 ; 6 E. Jc B. 370 ; 27 L. T. 122 ;
4 W. R. 528 ; 20 Jur. 641 372
r. Lockyer, 5 My. ic Cr. 29 ; 10 L. J. Ch. 153 82
Pvne, I>t re, 1 Dowl. & L. 703 ; 13 I.. J. Q. B. 37 403

Q.
Quartz Hill, etc. Co. r. Beall, 20 Ch. I). 501 ; 30 W. R. 583 ; 46 L.T.
746 ; 51 L. J. Ch. 874 515
Queen's Case, 2 B. & B. 287 25, 276, 423
Queen s Proctor r. Fry, 4 P. D. 230 ; 48 L. J. 1'. I). & A. 68 ... 299
Quick r. Quick, 33 L. J. P. & M. 146 ; 2 S. & T. 442 ; 12 W. R.
119 i 10 Jur. (N.8.) 682 379
Quilter v. Heatly, 23 Ch. D. 42 ; 31 W. R. 331 ; 48 L. T. 373 : 494, 495

R.
R. r. Abbott, 67 J. P. 151 165
— f. Aickles, 1 Lea. 294, 297 n., 300 n. ; 2 East, P. C. 968 503
— e. All Saints, Worcester, 6 Man. & S. 194 97
— v. Appleby, 3 Stark. R. 33 254, 460
— c. Austin, Dears. C. C. 612 ; 7 Cox C. C. 55 ; 25 L. J. M. C. 48 ;
2 Jur. (N.S.) 95 458
— c Avery, 8 C. ii P. 596 115
— t. Bailey, 6 Cox C. C. 29 438
— u. Baker, 2 M. & Rob. 53 168
— r. Baldry, 2 Den. C. C. 430 247, 251
— r. Barnslcy, 1 M. & Sel. 377 224
— r. Basingstoke, 14 Q. B. 611 277
— r. Bedfordshire, 4 E. k B. 542 146
— r. Bedingfield, 14 Cox, 341 132
— r. Beer, 62 J. P. 120 23
— r. Bcrgcr, [1894] 1 Q. B. 823 ; 63 L. J. Q. B. 529 ; 70 L. T. 807;
42 W. R. 541 ; 58 J. P. 416 137
— r. Bernadotti, 1 Moo. C. C. 97 166
— r. Birmingham, 31 L. J. M. C. 63 ; 1 B. & S. 763 171, 172
— *. Bird, 79 L. T. 359 ; 47 W. R. 112 ; 62 J. P. 760 558
— r. Blackburn, 6 Cox C. C. 339 ; 3 C. & K. 330 251
— r. Blake, 5 Q. B. 137 ; 13 L. J. M. C. 131 ; 8 Jur. 145 135
— r. Blick, 4 C. & P. 377 254
xliv Table of Cases.
PAGE
R. r. Boswell. C. & M. 584 ••• M>
— r. Braintree, 28 L. .1. M. C. 1 ; 1 E. & E. 51 127
— i: Brampton, 10 East. 202 64
— r. Brewer, 6 C. & P. 363 109
- r. Broadhempston. 28 L. J. M. C. 18 ; 1 E. & E. 154 ; 5 Jar.
(-N.S.) 267 62
— r. Bropham. 4 C. JS P. 392 420
— r. Brown. 36 L. J. M. C. 59 ; L. R. 1 C. C. 70 420
— r. Brownell. 1 A. tt E. 698 ; 8 L. J. M. C. 118 405
— r. Bulraer, L. & C. 476 430
— r. Burdett, Dears. C. C. 431 ; 6 Cox C.C.458 51,264,418
— e. Butcher. 64 J. P. 808 -156
— r. Carter (1884), 12 Q. B. I). 522 ; 53 L. J. M. C. 96 ; 50 L. T.
432, 596 ; 32 W. R. 663 ; 48 J. P. 456 ; 15 Cox C. C. 448 ... 453
— r. Cass, 1 Lea. 293 n 249
— c. Castle Morton, 3 B. & Aid. 590 48
— r. Chatham, 8 East, 498 224
— r. Christian. Car. & M. 388 282
— r. Christopher, 2 C. & K. 994 ; 1 Den. 536 ; 4 Cox C. C. 76 ... 7
— r. Coekburn, Dears. & Bell 203 ; 8 Cox C. C. 265 ; 19 L. J. M. C.
119 457
— r Cole, 1 Ph. Ev. 508 449
— r. Cook, 13 How. St. Tr. 348 406
— r. Cotton, 3 Camp. 344 147
— c. Court, 7 C. & P. 487 250
— r. Cox, 14 Q. B. D. 153; 54 L. J. M. C. 41 ; 52 L. T. 25;
33 W. R. 396 ; 49 J. P. 374: 15 Cox C. C. 611 113
— r. Cox, [18981 1 Q. B. 179 ; 67 L. J. Q. B. 293 ; 77 L. T. 534 ;
18 Cox 672 88.263
— r. Cresswell, 45 L. J. M. C. 77 ; 13 Cox C. C. 126 ; 1 (J.B. D.
446 ; 33 L. T. 760 ; 24 VV. R. 281 64
— r. Curgerven, 35 L. J. M. C. 58 ; L. R. 1 C. C. 1 ; 11 Jnr. (N.8.)
984 ; 13 L. T. 383 ; 14 W. R. 55 ; 10 Cox C. C. 152 54
— r. Day. 6 Cox C. C. 55 456,457
— r. Debenham, 2 B. & Aid. 185 1">3
— r. Denio, 7 B. & C. 620 311
— c. Dixon, M. & Sel. 15; 4 Camp. 12 ; 15 R. R. 381 60
—
— r.-•. Drew,
Drewry,8 C.18 &L.P..1. 140 247
M. C. 189 202
— r. East Mark, 11 Q. B. 887 ; 3 Cox C. C. 60 ; 17 L. J. Q. B. 887 ;
12 J nr. 332 68
— r. Edwards, R. & R. 497 430
— i: Edwinstowc, 8 B. & C. 671 224
— r. Ellicombe. 5 C. & P. 522 503
— ir. Ellis, 6 B. 4c C. 147 453
— P. Elworthy, L. R. 1 C. C. 103 ; 37 L. .1. M. C. 3 ; 17 L. T. 293 ;
16 W. R. 207 ; 10 Cox C. C. 579 49, 503
— P. England, 2 Leach 770 461
— r. Enoch, 5C.S P. 539 247
— r. Eidheim, [1896] 2 Q. B. 260 ; 65 L. J. M. C. 176 ; 74 L T.
734 ; 44 \V. R. 607 ; 3 Manson 142 100.399
— r. Eriswell, 3 T. R. (Darn. & K.) 707 138, 185, 456. 538
— r. Erith. 8 East, 539 160
— c. Exeter, L. R. 4 Q. B. 341 ; 38 L. .1. M. C. 127 ; 10 B. & S.
43* 172
— v. Fagent, 7 C. & P. 238 165
— b. Farrell. 43 L. J. M. C. 94 ; 12 Cox C. C. 605 ; L. R. 2 C. C.
116 ; 29 L. T. 404 ; 22 \V. R. 518 457
 Table of Cases. xlv
PAGE
r. Fennell, 7 Q. B. D. 147 ; 50 L. J. M. C. 12R : 44 L. T. 687 :
2'.) W. R. 742 ; 45 J. P. 666 ; 14 Cox C. C. 607 ... 247, 250
v. Foote, 26 L. J. M. C. 79 456
r. Fordingbridge, E. B. 4c E. 678, 685 ; 27 L. J. M. C. 290;
4 Jur. (N.S.) 951 68
r. Forster, Dears. 456 ... ... ... ... ... ... ... 43
r. Foster, 6 C. & P. 325 43, 131
r. Francis, 43 L. J. M. C. 97 ; L. K. 2 C. C. 12S ; 12 Cox C. C.
612 ; 30 L. T. 503 ; 22 W. R. 663 450, 451
r. Freston, 11 Q. B. D. 545 404
c. Frost, 1 Dears. C. C. 474 ; 6 Cox C. C. 526 j 3 C. L. K. 665 ;
24 L. J. M. C. 116 ; 1 Jur. (N.8.) 406 439
v. Fullarton, 6 Cox C. C. 194 437
r. Ganz, 9 Q. B. D. 93 ; 51 L. J. Q. B. 419 ; 46 L. T. 592 ... 472
C Garbett, 1 Den. C. C. 236 ; 2 C. & K. 474 95, 96
v. Gardner, [1899] 1 Q. B. 150 ; 68 L. J. Q. B. 42 ; 79 L. T. 358;
47 W. K. 77 ; 62 J. P. 743 ; 19 Cox 177 739
r. Garner, 1 Den. 329 ; 2 C. & K. 920 249
r. Gaunt, 36 L. J. M. C. 89 ; L. K. 2 Q. B. 466 ; 2 B. & S. 365... 203
r. Gazard, 8 C. 4c P. 595 186
r. Geering, 18 L. J. M. C. 215 451
r. George, C. & M. Ill ... - 44
r. Gibbons, 1 C. is P. 97 115, 249
r. Gibson, 18 y. B. D. 537 ; 56 L. J. M. C. 49 ; 56 L. T. 267 ;
35 W. K. 411 ; 51 J. P. 742 : 16 Cox C. C. 181 516
r. Gilles, 11 Cox 69 ; 14 \V. K. 845 24S
r. Girdwood, 1 Leach C. C. 142 19
r. Glvnne. L. R. 7 Q. B. 16 ; 41 L. J. M. C. 58 ; 26 L. T. 61 ;
20 \V. R. 94 203
r. Gould, 9 C. 4c P. 364 254
r. Green, 1 1). & B. 113 437
r. Gregory, 8 O.. B. 505 ; 15 L. J. M. C. 38 ; 10 Jur. 387 ... 461
r. Griffin, 6 Cox C. C. 219 11«
r. Griggs, T. Raym. 2 88
v. Gntch. M. 4c M. 433 255
r. Gutteridge, 9 C. 4c P. 471 458
v. Hadwen, [1902] 1 K. B. 886 ; 86 L. T. 601 ; 50 W. R. 589 ;
71 L. J. K. B. 581 ; 66 J. P. 456 44, 418, 539
r. Halworth. 4 C. 4c P. 254 503
r. Hardwickc, 11 East 585 135,230, 231
r. Hardy, 24 How. St. Tr. 704 135,254,321,413
r. Hartington, 4 K. 4c B. 780 207
r. Harvey, 23 L. T. 258 166
r. , 8 Cox C. C. 99 187, 438
r. Haughton, 1 K. 4c B. 512 ; 6 Cox C. C. 101 ; 22 L. J. M. C. 89 ;
17 Jur. 455 202
v. Hawkins. 10 East 211 ; 2 Dow. 124 501
v. Havwanl, 6 C. A: P. 157 166
r. Hicklin, L. R. 3 Q. B. 360 ; 37 L. J. M. C. 89 ; 16 W. R. 801 : 60
r. Hill, 2 Den. 254 10,22
r. Hincks, 1 Den. 84 :. 44
r. Hind, 29 L. J. M. C. 147 ; 8 Cox C. C. 300 168
r. Hodgkiuson, 64 J. P. 808 537
r. Hollowav. 65 J. P. 712 456
r. Holmes, 41 L. J. M. C. 12 ; 12 Cox C. C. 137 ; L. R. 1 C. C.
334 100
r. Holt, 30 L. J. M. C. 11 ; Bell C. C. 280 ; 8 Cox C. C. 411 ;
6 Jur. (N.S.) 114 ; 3 L. T. 310 ; 9 VV. R. 74 449
xlvi Table of Cases.
TAGE
R. v.Hook, Dears. & Bell G06 ; 8 Cox C. C. 5 40
— v. Hubbard. 14 Cox C. C. 565 167
— t. Hunt, 3 B. & AH. 574 130, 429, 454
— c. Hutchings, 5 Q. B. I). 353 ; 6 Q. B. D. 300 ; 49 L. J. M. C.
64 ; 42 L. T. 766 ; 28 W. R. 595 195, 200
— e. Hutchinson, 2 B. & C. 608 n 168
— r. Jacobs, 1 Lea. 309 460
— e. Jarvis, L. R. 1 C. C. R. 96 ; 37 L. J. M. C. 1 : 16 W. R.
Ill 247,251.451
— v. Jenkins, L. R. 1 C. C. R. 187 ; 38 L. J. M. C. 82 ; 17 W. R.
621 166,254
— r. John, 1 East P. C. 357 38
— v. Johnson, 7 East 65 ; 3 Smith 94 ; 20 How. St. Tr. 103 ; 8 R. R.
597 72
— v. Jones. 2 Camp. 131 43
— v. Kams, Times, April 28th, 1900 537
— v. Kenilworth, 2 Sess. Cas. 72 ; 7 Q. B. 652 ; 14 L. J. M. C. 160 ;
9 Jnr. 898 311
— r. King, [1897] 1 Q. B. 214 ; 66 L. J. Q. B. 87 ; 75 L. T. 377... 88
— v. Kingham, 66 J. P. 393 133
— r. Kingstou-upon-Hull, 7 B. & C. 611 48
— v. Kitson, 22 L. J. M. C. 118 ; Dears. C. C. 187 49
— r. Langhorn, 7 How. St. Tr. 446 421
— v. Leicester, 2 A. & E. 210 321
— c. Lillynian. [1896] 2 Q. B. 167 ; 65 L. J. M. C. 195 ; 74 L. T.
730 ; 44 W. R. 654 ; 60 J. P. 536 133
— r. Llantaethly, 2 E. & B. 940 285, 288, 313
— v. Llovd, C C. & P. 393 768, 392
— r. Lloyd, 19 Q. B. 1). 213 396
— r. Locker, 5 Asp. 107 36
— r. London, 8 T. R. 379 368
— v. London (Mayor of), 16 Q. B. 1). 772 38
— c. Long Buckley, 7 East 45 ; 3 Smith 92 66
— r. Luckhurst, 1 Dears. C. C. 245 ; 23 L. J. M. C. 18 248
— r. Luffe. 8 East 202 ; 9 R. R. 406 125
— r. Lumley, L. R. 1 C. C. 196 ; 38 L. J. M. C. 86 ; 11 Cox C. C.
274 ; 20 L. T. 454 ; 17 W. R. 685 ..; 54, 75
— r. McNaghtcn, 10 C. & F. 200 86
— v. Mainwaring, 1 D. Sc B. 139 ; 26 L. J. M. C. 10 ; 10 Cox C. C.
192 ; 2 Jur. (N.S.) 1236 63
— v. Mallory. 13 Q. B. D. 33 ; 53 L. J. M. C. 134 ; 50 L. T. 429 ;
32 W. R. 721 ; 48 J. P. 487 ; 15 Cox C. C. 456 235
— v. Marshall, C. & Marsh. 147 457
— v. , 63 J. P. 36 539
— n. Mayhew, 6 C. & P. 315 40
— r. Mead, 2 B. & C. 608 ; 4 Dowl. & R. 120 166, 168
— i: Moore, 2 Den. 522 ; 17 Cox 458 ; 61 L. J. M. C. 80 ; 40 W. R.
304 ; 66 L. T. 125 25,247.248
— r. Morton, 2 M. & Rob. 514 250
— r. Mozley, 1 Moo. C. C. 97 166
— r. Murphy, 8 C. & P. 307 410
— v. Neville, 6 Cox C. C. 69 438
— v. Newman, 2 Den. 390 ; 3 C. & K. 240 282
— r. Nicholas, 2 C. & K. 246 22
— v. Noakes, 5 C. & P. 326 42
— r. Oddv. 2 Den. C. C. 265 449
— r. Ollis", [1900] 2 Q. B. 758 ; 83 L. T. 251 ; 69 L. J. Q. B. 918 ;
49 W. R. 76 452
— r. Orion, 7 Q. B. 120 397
 Table of Cases. xlvii
PAGE
R. c Owen, 9 C. & P. 83 44
— e. Parker, L. & Cave. 42 ; 8 Cox C. C. 405 248, 458
— v. Parratt, 4 C. & P. 570 249
— v. Partridge, 7 C. & P. 551 250
— v. Patram, 2 East P. C. 782 43
— v. Payne, 41 L. J. M. C. 65 ; 12 Cox C. C. 118 ; L. li. 1 C. C.
349 • ...44.45
— c PenfoM, [1902] 1 K. B. 547 ; 71 L. J. K. B. 30« ; 8(5 L. T. 204 ;
- SOW. K. 671 ; 66 J. P. 248 453
— r. Peterborough, 18 L. J. M. C. 79 285
— v. Picton, 30 How. St. Tr. 536. 540, 864, 870 19
— v. Pike, [1902] 1 K. B. 552 ; 71 L. J. K. B. 287 j 50 W. H. 672 ;
86 L. T. 205 ; 9 Manson 121 98
— r. Quaker, 6 Cox C. C. 357 166
— c Rawdon, 8 B. & C. 710 ; 3 M. & R. 426 49
— v. Reany, Dears k Bell, 151 ; 26 L. J. M. C. 43 ; 7 Cox C. C.
209 167
— c Reeve, L. R 1 C. C. 362 ; 41 L. J. M. C. 92 ; 12 Cox C. C. 179 : 248
— c Reynolds (1893), 2 Q. B. 75 ; 62 L. J. M. C. 120 ; 42 W. R.
32 ; 69 L. T. 321 03
— r. Rhodes, 08 L.J. Q. B. 83 ; 62 J. P. 774 ; 79 L.T.360 ; 47 W.R.
121 ; [1899] 1 Q. B. 77 ; 19 Cox 182 34, 537, 538
— v. Richards, 5 C. & P. 318 250
— r. . I F. & F. 87 80
— r. Rilej-. 18 Q. B. D. 481 ; 56 L. J. M. C. 52 ; 56 L. T. 371 ;
35 W. R. 382 ; 16 Cox C. C. 191 101
— r. Rishworth, 2 Q. B. 487 ; 1 G. & 1). 597 ; 11 L. .1. M. C. 34 ... 160
— r. Roebuck, Dears. & Bell, 24 ; 7 Cox C. C. 120 ; 25 L. J. M. O.
101 ; 2 Jur.(N.S.) 597 449
— r. Rose, 78 L. T. 119 ; 07 L. J. Q. B. 289 ; 18 Cox C. C. 717 : 250, 252
— r. Rouse, [1904] 1 K. B. 184 ; 73 L. J. K. B. 00 ; 89 L. T. 077 ;
52 W. R. 236 539
— r. Howe, R. & R. 153 249
— r. Rowley, 1 Moo. C. C. Ill 188
— r. Rowton, 34 L. J. M. C. 57 ; L. k Cave, 520 ; 10 Cox C. C. 25 ;
11 L. T. 745 ; 13 W. R. 436 ; 11 Jur. O'.S.) 325 ... 87, 421
— r. Rvmers, 3 C. & K. 326 439
— v. St. Mary Magdalen, 2 E. & B. 809 ; 23 L. J. M. C. 1 ; 17 Jur.
1075 62
— t>. Sansome, 1 Den. 545 ... ... ... ... ... 254,460
— c. Scaife, 17 Q. B. 242 ; 2 Den. 281 ; 5 Cox C. C. 243 ; 20 L. J.
M. C. 229 j 15 Jur. 607 168, 185, 458
— v. Scammonden, 3 T. R. 475 ; 1 R. R. 752 367
— v. Sharman, [1898] 1 Q. B. 578 ; 67 L. J. Q. B. 460 ; 78 L. T.
320 ; 46 W. R. 367 ; 62 J. P. 296 26
— r. Shaw, L. & Cave, 590 ; 10 Cox C. C. 60 ; 34 L. J. M. C. 169 : 40, 252
— r. Shellard, 9 C. &. P. 279 459
— ». Silverlock, [1894] 2 Q. B. 706 ; 10 R. 431 ; 63 L. J. M. C. 233 ;
43 W. R. 14 ; 58 J. P. 788 314
— e. Sleeman, Dears. &. Bell, 249 248, 252
— v. Smith, L. & Cave, 607 ; 10 Cox C. C. 82 ; 34 L. J. M. C.
153 166
— v. , 8 B. & C. 341 282
— v. Sourton, 5 A. & E. 180 ; 6 N. k M. 575 ; 2 H. & W. 209 ... 124
— v. Spencer, 7 C. & P. 776 247
— t). Spilsbnry, 7 C. & P. 187 252
— e. Stamford (Mayor of), 6 Q. B. 433 62
— r. Stoke-upon-Trent, 5 Q. B. 308 ; D. & M. 357 ; 13 L. J. Q. B.
41 ; 8 Jur. 34 ! 368, 386
xlviii Table of Cases.
PAGE
K. i: Stonehouse, 10 Q. B. 234 6S
— v. Strand Board of Works, 4 B. & S. 526 ; 33 L. J. M. C. 33 ;
12 W. R. 82G SO
— r. Stripp, 7 Cox C. C. 97 ; Dears. C. C. 648 254
— r. Stuart, 2 L. T. 144 392
— v. Stubbs, 25 L. J. M. C. 16 ; Dears. C. C. 555 ; 1 Jur. (N.9.)
1115 43
— v. Sturge, 3 E. & B. 734 ; 23 L. J. M. C. 172 ; 18 Jur. 1052 ... 439
— r. Sullivan, 16 Cox 347 255
— v. Sutton, 8 Ad. k El. 516 140, 268, 278
— r. Swinnerton, C. k M. 593 254
— r. Taylor, 8 C. k 1". 733 249
— r. Tinkler, 1 East P. C. 351 DW
— r. Thanet (Earl of), 27 How. St. Tr. 845 186
— r. Thistlewood, 33 How. St. Tr. 691 499
— v. Thomas, 6 C. & P. 353 250
— r. Thompson, L. R. 1 C. C. K. 377 ; 41 L. .1. M. C. 112 ; 20 W. P..
728 36
— r. , [1893] 2 Q. B. 12 ; 62 L. J. M. C. 93 ; 69 L. T.
22 ; 41 W. B. 525 ; 57 J. P. 312 246. 24H
— r. Thornhill, 8 C. k P. 575 237
— r. Thornton, 1 Moo. C. C. 27 251
— v. Tinkler, 1 East P. C. 354 168
— r. Trowbridge, 7 B. & C. 252 224
— v. Turner, 5 M. ft S. 211 54, 264
— r. Twining, 2 B. & Aid. 386 ... 54
— r. Upchurch, B. k M. 465 250
_ r. Van Butchell, 3 C. k P. 631 165
— r. Vandercombe, 2 East P. C. 514 ; 2 Lea, 708 449
— v. Vantandillo, 4 M. & S. 73 80
— f. Verelst. 3 Cam. 432 ; 14 K. R. 775 62
— r. Vincent, 2 Den. C. C. 464 437
— r. Walkley, 6 C. & P. 175 250
— r. Warringham, 2 Den. C. C. 447 249
— r. Watson, 2 Stark. 128 411
— v. Watts. 33 L. J. M. C. 63 ; L. k Cave. 339 ; 9 Cox C. C. 395 ;
9 L. T. 453 ; 12 W. R. 112 456, 458
— r. Weaver, 43 L. J. M. C. 13 ; L. R. 2 C. C. 85 ; 12 Cox C. C. 527 : 297
— r. Weeks, 8 Cox C. C. 455 ; L. & C. 18 ; 30 L. J. M. C. 141 ;
7 Jur. f>\s.) 472 ; 4 L. T. 373 ; 9 W. R. 553 451
— v. Wellings, 3 Q. B. D. 426 ; 47 L. J. M. C. 100 ; 38 L. T. 652 ;
26 W. R. 592 457
— r. White, 4 F. k F. 383 3
— r. Whitehead, 35 L. J. M. C. 186 : L. R. 1 C. C. 33 ; 10 Cox C. C.
34 ; 13 L. T. 489 ; 14 W. R. 677 10, 21
— r. Whitmarsh, 62 J. P. 680 165
— r. Widdoo, 42 L. J. M. C. 9 ; L. R. 2 C. C. 3 ; 1 2 Cox C. C. 251 ;
27 L.'T. 693 ; 21 W. R. 176 395
— r. Wild. 1 Moo. C. C. 452 252
— r. Williams, 7 C. k P. 320 22
— r. Wood, 1 D. k B. 1 54
— r. Woodcock. 1 Leach, 504 164
— r. Worth, 4 Q. B. 132 ; 12 L. J. M. C. 47 ; 3 G. k D. 376 ... 183
— r. Wright, 2 F. k F. 320 439
— r. Wyatt, [1904] 1 K. B. 188 ; 73 L. .1. K. B. 15 ; 52 W. R. 285 ;
68 J. P. 31 451
Raffles r. Wk-helhaus, 2 H. k C. 906 382
Rambert r. Cohen, 4 Esp. 213 : 6 R. R. 854 510
Ramsbothnm v. Senior, L. R. 8 Eq. 575 ; 17 W. R. 1057 115
 Table op Cases. xlix
PAGE
Ramsden c. Dyson, L. R. 1 H. L. 129 ; 12 Jur. (N.S.) 506; 14 W. K.
926 215
Rancliff r. Perkins. 6 Dow. 202 293
Kami r. Hughes, 7 T. R. 750 n 341
Rapp r. Latham, 2 B. & A. 795 230
Rawlins r. Powel, 1 P. Wms. 299 83
r. Richards, 28 Beav. 370 181
r. Turner, 1 Ld. Raym. 736 334
Rawlinson i: Miller, L. R. 1 Eq. 52 76
r. Scholes. 79 L. T. 350 ; 89 L. T. 681 ; 52 W. R. 273 ... 42
Rawsoo r. Haigh, 2 Bing. 99 131
Raymond r. Tapson, 22 Ch. D. 430 ; 31 W. R. 394 391
Rayner r. Rayner, [1904] 1 Ch. 176 ; 73 L. J. Ch. Ill 378
Read c Bishop of Lincoln, [1892] A. C. 644 ; 62 L. J. P. C. 1 ;
67 L. T. 128 ; 56 J. P. 725 310
Reader v. Kingham, 13 C. B. (N.S.) 344 ; 32 L. J. C. P. 108 ; 9 Jur.
(N.S.) 797 ; 7 L. T. 789 ; 11 VV. R. 366 342
Reav's Estate, Re, 1 Jur. (N.S.) 222 317
Redfern r. Rcdfern, [1891] P. 139 ; 60 L. J. P. 9 30
Redgrave v. Hurd, 20 Ch. D. 21 ; 51 L. J. Ch. 113 ; 30 W. R. 251 ;
45 L. T. 485 217, 260
Rees, In the Goods of, 34 L. J. P. M. k A. 56 65
r. Williams, 1 l)e G. & Sm. 314 319
Reeve v. Whitmore, 2 Dr. & Sm. 446 229
Reffell e. Rcffell, L. R. 1 P. & D. 139 ; 35 L. J. P. & M. 121 ... 369
Reid r. Hoskins, 6 E. & B. 953 232
i\ Margison. 1 Camp. 469 282
r. Teakle, 13 C. B. 627 ; 23 L. T. 834 ; 19 W. R, 219 238
Reneaux r. Teakle, 8 Ex. 680 ; 22 L. J. Ex. 241 ; 17 Jur. 351 ... 238
Rcuss r. Picksley, L. R. 1 Ex. 342 ; 35 L. J. Ex. 218 ; 4 H. & C. 588 ;
15 L. T. 25 ; 14 W. R. 924 ; 12 Jur. (N.S.) 628 339
Reynolds. Ex parte, 20 Ch. 1). 294 ; 51 L. J. Ch. 756 ; 46 L. T.508 ;
30 W. R. 651 ; 46 J. P. 533 ... 96, 395
Rhodes r. Bate, L. R. 1 Ch. 258 ; 35 L. J. Ch. 267 ; 14 W. R.
292 57
, In re, 36 Ch. D. 586 75
Ricardo r. Garcias, 12 CI. & Fin. 368 ; 9 Jur. 1019 204
Rice, Re, 32 Ch. D. 35 ; 55 L. J. Ch. 799 ; 54 L. T. 589 ; 34 W. R.
747 317
Richards v. Gellatlv, L. R. 7 C. P. 127 ; 26 L. T. 435 ; 20 W. R. 630 : 227
r. Houg^ 51 L. J. Q. B. 361 ; 30 W. R. 676 468
r. Morgan, 4 B. & S. 641 226
c Murdoch, 10 B. & C. 527 90
Richardson v. Watson, 4 B. & Ad. 787 ; 1 N. &. M. 567 ; 2 L. J.
K. B. 134 377
Ricketts i'. Salway, 5 B. & Aid. 323 426
r. Turquand, 1 H. L. Can. 472 379
Rickmann r. Thierry, 14 R. P. C. 116 11
Rideoufs Trusts, Re, L. R. 10 Eq. 41 ; 39 L. J. Ch. 192 29
Ridgeway r. Wharton, 3 De G. M. & G. 677 ; 6 H. L. Cas. 233 ;
24 L. J. Ch. 46 336
Right v. Badinall, 2 B. & Ad. 278 207
Riley v. Hicks, 1 Str. 651 334
Kippiner r. Wright, 2 B. & Al. 478 313
River Steamer Co., In re, L. R. 6 Ch. 822 ; 25 L. T. 319 ; 19 W. R.
1130 241,351
Rivers v. Griffiths, 5 B. & Aid. 630 428
Roberts v. Brett, 6 C. B. (N.S.) 611 19
v. Oppenheim, 26 Ch. D. 724 ; 32 W. R. 390 ; 50 L. T. 729 : 494
l.e. d
1 Table of Cases.
PAGE
Roberts v. Security Co., [18971 1 Q. B. Ill ; 6fi L. J. Q. B. 119 ;
75 L. T. 531 ; 45 W. R. 214 208
Robinson r. Davies, 5 Q. B. D. 26 ; 49 L. J. Q. B. 218 ; 28 W. R.
255 47,468
r. Dhuleep Singh, 11 Ch. D. 798; 48 L. J. Ch. 758;
27 VV. R. 21 201
r. Lane, 1 S. & T. 362 27
r. Robinson, 1 S. & T. 362 ; 27 L. J. 1*. & M. 91 ; 5 Jur.
(N.S.)392 228
v. Rndkin, 26 L. J. Ex. 56 371
r. Vernon (Lord), 7 C. B. (ha) 235 ; 29 L. J. C. F. 310... 366.
511
Robson r. Kent, 5 Ksp. 552 108
Koddam r. Morley, 25 L. J. Ch. 329 ; 26 L. J. Ch. 438 ; 1 I)e G. k
J. 1 ; 3 Jur. (N.8.) 449 352
Roden r. London Small Arms Co., 46 L. J. Q. B. 213 ; 35 L. T. 505 ;
25 W. R. 269 383
Roe v. Mutual Loan Fund, 19 Q. B. D. 347 ; 56 L. J. Q. B. 541 :
35 W. R. 723 210
r. Rawlings, 7 East 291 ; 3 Smith 254 149, 160
Rogers v. Allen, 1 Camp. 309 ; 10 R. R. 689 150
r. Custance, 2 M. & Rob. 181 501
r. Hawken, 78 L. T. 655 ; 67 L. J. Q. B. 526 ; 62 J. P. 279 : 252
r. Lambert, 24 Q. B. D. 573 ; 59 L. J. Q. B. 259 ; 62 L. T.
694 ; 38 W. R. 542 213
r. Wood, 2 B. & Ad. 245 141
Romford Canal Co., In re, 24 Ch. D. 92 221
Ross r. Hunter, 4 T. R. 38 56
u. Woodford, [1894J 1 Ch. 38 ; 63 L. J. Ch. 191 ; 70 L. T. 22 :
42 W. R. 188 466
Rossiter r. Miller, 3 App. Cas. 1124 ; 26 W. K. 865 : 39 L. T. 173 :
48 L. J. Ch. 10 337. 33S
Rouch r. Great Western Rail. Co., 1 Q. B. 63 131
Rouchefoucald r.r. Boustead,, 65[1897]
L. J. 1Ch.Ch.794-205
; 74; 66
L. T.L. 783
J. Ch.
■ 74...; 103
75 L. T. 502 344, 346
Rousillon r. Housillon, 14 Ch. D. 351 ; 49 L. J. Ch. 339 ; 42 L. T.
679 : 28 W. R. 623 ; 44 J. P. 663 260
Routledgc r. Ramsay, 8 A. & E. 222 ; 3 N. & P. 319 ; 1 W. W. k U.
232 ; 2 Jur. 789 ; 7 L. J. Q. B. 156 18
Rowcliffe r. Leigh, 4 Ch. 1). 661 ; 46 L. J. Ch. 60 ; 25 W. K. 56 ... 493
Rowe r. Brenton, 8 B. & C. 737 445
Rowland r. Mitchell, 13 R. 1\ C. 457 226
Rowntree r. Jacob, 2 Taun. 141 ... .. ... ... ... ... 366
Ruben and Ijidenbnrgh v. Great Fingall Consolidated, [1904]
1 K. B. 650 ; 73 L. J. K. B. 299 ; 90 L. T. 163 ... ... 219. 233
RumUill r. Metropolitan Bank, 2 Q. B. D. 194 ; 46 L. J. Q. B. 346 ;
36 L. T. 240 ; 25 W. K. 366 222
Rushton's Case, 1 Leach C. C. 408 21
Russell ■<■. Jackson, 9 Hare, 392 ; 21 L. J. Ch. 146 ; 15 Jur. 117 ... 112
Ryan <\ King. 25 L. B. (Ir.) Ch. 184 182
Ryder r. Wombwell, L. R. 4 Ex. 42 ; 38 L. J. Ex. 8 ; 17 W. R.
167 11,17

s.
Sale r. Lambert, L. R. 18 Eq. 1 ; 43 L. J. Ch. 470 ; 22 W. R. 478 : 338
Saccharin Corporation r. Wild, 20 R. P. C. 243 ; [1903] 1 Ch. 410 ;
72 L. J. Ch. 270; 88 L. T. 101 517
 Table of Cases. li
1 PAGE
Sanders r. Sanders, 14 Cli. D. 381 ; 51 L. J. Ch. 279 ; 45 L. T. 637 ;
30 W. B. 281 516
Sanderson r. Graves, L. K. 10 Ex. 234 ; 44 L. J. Ex. 210 ; 33 L. T.
269 ; 11 L. J. C. P. 270 ; 33 W. R. 797 360
Sandilands r. Marsh, 2 B. & Aid. 673 136
Sands to Thompson, 22 Ch. D. 614 ; 52 L. J. Ch. 406 ; 31 W. R.
397 356
Saull r. Browne, L. R. 9 Ch. 364 ; 43 L. J. Ch. 568 ; 22 W. R.
427 481
Saunders v. St. Neot's Union, 8 Q. B. 810 .. 325,327
r. Wiel, [1892] 2 Q. B. 18 ; 9 R. P. C. 459 ; 40 W. R.
594 95
Sayer v. Glossop, 2 Ex. 409 ; 17 L. J. Ex. 300 297
v. Hughes, L. R. 5 Eq. 376 ; 37 L. J. Ch. 401 ; 16 W. R. 662 ;
18 1,. T. 347 84
Scaife v. Johnson, 3 B. Sc. C. 421 230
r. Kemp, [1892] 2 Q. B. 319 ; 61 L. J. Q. B. 515 ; 66 L. T.
589 479
Scarf r. Jardine, 7 App. Cas. 345 ; 51 L. J. Q. B. 711 ; 30 W. R.
893 223
Schneider r. Morris, 2 M. & Sel. 286 339
Schibsby r. Westenholz. L. R. 6 Q. B. 155 ; 40 L. J. Q. B. 73 ;
24 L. T. 93 ; 19 W. R. 587 205
Schofield r. Londesborough, [1896] A. C. 514 ; 65 L. J. Q. B. 593 ;
75 L. T. 254 ; 45 W. R. 124 215
, Ej- parte, 6 Ch. D. 230 ; 26 W. R. 9 ; 37 L. T. 281 ... 395
Scott r. Jones, 4 Taun. 865 503
r. London Dock Co., 34 L. J. Ex. 220 ; 2 H. & C. 596 ;
13 L. T. 148 14
v. Sampson, 8 Q. B. D. 491 ; 51 L. J. Q. B. 380 ; 46 L. T.
412 ; 30 W. R. 541 ; 46 J. P. 408 442, 448
Seaman v. Netherclift, 1 C. P. D. 540 ; 45 L. J. C. P. 798 ; 34 L. T.
878 : 24 YV. R. 884 424, 425
Seed r. Higgins, 8 H. L. Cas. 550 ; 30 L. J. Q. B. 314 ; 6 Jur. (K.8.)
1264 18,91
Semple r. Pink, 1 Ex. 74 342
Seton r. Lafone, 19 Q. B. D. 68 ; 56 L. J. Q. B. 415 ; 57 L. T.
547 210
Sewell's Case, L. K. 3 Ch. 131 ; 15 W. R. 1031 218
Sharman r. Brandt, L. R. 6 Q. B. 720 ; 40 L. J. K. B. 1 12 ; 19 W. R.
936 348
Sharp r. Foy, L. R. 2 Ch. 35 217
r. Lambe, 11 A. 4i E. 805 ; 3 P. & D. 454 ; 4 Jnr. 965 ... 243,
286, 498
Sharpe r. Macaulay, (1856), MS 87
Sharpies c Uickard, 2 H. & N. 57 511
Shaw v. Herefordshire County Council, [1899] 2 Q. B. 282 ; 81 L. T.
208 ; 63 J. P. 659 ; 68 L. J. Q. B. 857 194, 195
r. Port Philip Gold Co., 13 Q. B. 1). 103 ; 53 L. J. Q. B. 369 ;
50 L. T. 685 ; 82 W. R. 771 219, 233
Shaw and Ronaldson, In re, [1892] 1 Q. B. 91 ; 61 L. J. Q. B. 141 : 462
Sheddcn v. Att.-Gen., 30 L. J. P. 4: M. 217 ; 2 S. it T. 170 134
Sheen e. Bumpstead, 2 H. & C. 193 ; 32 L. J. Ex. 271 ; 8 L. T. 832 ;
11 W. R. 734 ; 10 Jur. (N.S.) 242 87
Sheers v. Thimbleby, 76 L. T. 709 336, 343
Sheffield Rail. Co. r. Woodcock, 7 M. & W. 574 ; 2 Rail. Cas. 522 ;
11 L. J. Ex. 26 218
Shepherd r. Shorthose, 1 Str. 412 290
Shields r. Boucher, 1 l)e G. & Sm. 51 160
d2
lii Table of Cases.
PAGE
Shires v. Glasscock, 2 Salk. 688 292
Shirley r. Ferrers (Earl), 3 P. Wms. 77 463
Shoe Machinery Co. r. Cntlan, 13 R. P. C. 141 ; 12 R. P. C. 530 ;
[1896] 1 Ch. 108 200
Shore r. Wilson, 9 CI. & Fin. 355, 525 376
Shrewsbury Peerage Case, 7 H. L. Cas. 1 155
Sichel v. Lambert, 15 C. B. (s.s.) 781 ; 33 L. J. C. P. 137 ; 10 Jur.
(s.s.) 617 ; 12 W. R. 312 63
Sillick c. Booth, 1 Y. & C. 117 77
Simm r. Anglo-American Telegraph Co., 5 Q. B. D. 188 ; 49 L. J.
Q. B. 392 ; 42 L. T. 37 ; 28 W. R. 290 ; 44 J. P. 280 220
Simpson r. Barnes, 33 Beav. 483 109
c. Fogo, 1 J. & H. 18 ; 1 H. & M. 195 ; 9 Jur. (s.s.) 403 ;
32 L. J. Ch. 249 ; 11 W. R. 418 ; 8 L. T. 61 204
r. Margitson, 11 Q. B. 23; 17 L. J. Q. B. 81 ; 12 Jur.
155 377. 385
Sims r. Landrav. [1894] 2 Ch. 318 ; 63 L. J. Ch. 535 ; 70 L. T. 530 ;
42 W. R. 621 340
Sinclair r. Stevenson, 1 C. &. P. 585 ; 2 Bing. 514 321
Singleton v. Barrett. 2 C. & J. 368 ; 2 Tyr. 409 ; 1 L. J. Ex. 134 ... 48
Slade r. Tucker, 14 Ch. D. 824 ; 49 L. J. Ch. 644 ; 43 L. T. 49 ;
28 W. R. 807 115
Slane Peerage Case, 5 CI. & Fin. 41 282
Slater r. Lawsou, 1 B. & Ad. 396 231
Slatterie c. Pooley, 6 M. & VV. 664 ; 10 L. J. Ex. 8 ; 1 H. & W. 16 ;
4 Jur. 1038 226, 277
Slinn. In the Goods of, 15 P. 1). 156 ; 59 L. J. P. 82 ; 63 L. T. 229 ;
39 W. R. 175 381
Sloane r. British S. S. Co., [1897] 1 Q. B. 185 ; 66 L. J. Q. B. 72 ;
75 L. T. 542 ; 45 W. R. 203 114, 495
Sly r. Dredge, 2 P. 1). 91 ; 16 L. J. P. I). & A. 63 ; 25 W. H. 463 : 177
Smethurst v. Taylor, 12 M. & W. 545 235
Smith r. Andrews, [1891] 2 Ch. 678 ; 65 L. T. 175 150
r. Barnes, L. R. 1 Eq. 165 490
r. Battams, 26 L. J. Ex. 232 366
v. Blakey, 8 B. & S. 164 ; L. R. 2 Q. B. 326 ; 36 L. J. Q. B.
156 ; 15 W. R. 492 171, 180
r. Brownlow (Earl), L. R. 9 Eq. 241 ; 21 L.T. 739 ; 18 W. R.
271 143
r. Camelford (Lord), 2 Ves. jun. 716 216
r. Daniell, L. R. 18 Eq. 649 ; 44 L. J. Ch. 189 ; 30 L. T.
752 109
r. Fell, 2 Curt. 667 109
r. Gold Coast, etc. Explorers, [1903] 1 K. B. 285 ; 72 L. J.
K. B. 235 ; 88 L. T. 442 ; 51 W. R. 373 344
r. Harris, 1 Roberts. 262 494
r. Henley, 1 PhiL 391 313
v. Hudson, 34 L. J. Q. B. 145 ; 6 B. & S. 431 ; 12 L. T. 377 ;
13 W. R. 683 ; 11 Jur. (N.8.) 622 347
r. Hnson, 1 Phillimore, 294 63
r. Jeffryes, 15 M. & W. 561 ; 15 L. J. Ex. 325 ... 370, 378
r. Kay, 7 H. L. Cas. 750 217
r. Lister, 64 L. J. (.vs.) Q. B. 154 ; 72 L. T. 20 143
p. iMatthews, 30 L. J. Ch. 445 j 7 Jur. (s.s.) 878 ; 4 L. T.
266 ; 9 W. R. 644 345
t. Neale, 2 C. B. (s.s.) 67 ; 26 L. J. C. P. 143 ; 3 Jur. (s.s.)
516 344
v. Thompson, 8 C. B. 44 ; 18 L. J. C. P. 314 383
 Table of Cases. liii
PAGE
Smith c Webster, 3 Ch. D. 49 ; 45 L. J. Ch. 528 ; 85 L. T. 44 ;
24 \V. R. 894 338
r. Wheatcroft, 9 Ch. D. 223 ; 47 L. J. Ch. 745 ; 26 W. R.
42 361
v. Whittingham, 6 C. k P. 78 239
v. Wilkins, 6 C.& P. 180 443
r. Wilson, 3 B. & Ad. 729 377, 384
v. Young, 1 Camp. 439 500
, Knight & Co., /« re, L. K. 8 Eq. 23 ; 17 W. K. 758 ... 465
Solicitor, In re A, 14 Ch. D. 152 100
Sonrdis r. Keyser, 18 T. L. R. 416 78
South African Republic r. Compagnie Franco Beige, [1898] 1 Ch.
190 ; 67 L. J. Ch. 92 j 77 L. T. 555 ; 46 W. R. 151 473
South American and Mexican Co., In re, [1895] 1 Ch. 37 ; 64 L. J.
Ch. 189 ; 71 L. T. 594 ; 43 W. R. 131 ; 12 R. 1 195
South of Ireland Colliery Co. r. Waddcll, L. R.4 C. P. 618 ; 38 L. J.
C. P. 338 325
South Staffordshire Tramways Co. r. Ebbsmith, [1895] 2 Q. B. 669 ;
65 L. J. Q. B. 96 ; 73 L. T. 495 118
Southey r. Nash, 7 C. &. P. 632 410
Southwark Water Co. r. Quick, 3 Q. B. D. 315 ; 47 L. J. 0.. B. 258 ;
26 W. R. 341 104
Soward r. Leggatt, 7 C. it P. 615 257
Spargo c. Brown, 9 B. & C. 935 127, 174
Spencer (Earl) r. Peek, L. R. 3 Eq. 415 : 15 W. R. 478 518
Spilsbury r. Burdett, 10 C. & F. 840 65
Spittle r. Walton, L. R. 11 Eq. 420 ; 40 L. J. Ch. 368 ; 24 L. T. 18 ;
19 W. R. 405 22
Spokes r. Grosvenor Hotel Co., [1897] 2 Q. B. 124 ; 66 L. J. Q. B.
598 ; 76 L. T. 677 ; 45 W. R. 545 95, 491
Squire, Ex jmrte, L. R. 4 Ch. 47 ; 17 W. R. 40 509
Stace c. Griffith, L. R. 2 P. C. 420 123, 314
Stafford (Mayor of) r. Till, 4 Bing. 75 ; 12 Moore, 260 ... 227, 326
Stanley r. Stanley, 2 J. k H. 491 ; 10 W. R. 857 379
Stannard r. Lee, L. R. 6 Ch. 346 ; 40 L. J. Ch. 489 ; 19 W. R.
615 300
Stannus r. Finlay, Ir. H. 8 C. L. 264 16
Stapleton «. Crofts, 18 Q. B. 367 ; 21 L. J, Q. B. 246 36
Stapylton r. Clough, 2 El. & Bl. 938 ; 2 C. L. R. 266 ; 23 L. J. U.. B. 5 ;
18 Jur. 60 182
Startup r. Macdonald, 2 M. & Gr. 395 ; 2 Sco. N. R. 485 ; 6 M. li
(ir. 619 ; 7 Sco. N. R. 269 ; 12 L. J. C. P. 477 13
Steamship Nordcn Co. r. Dempsey, 45 L. J. C. P. 764 ; 1 C. P. D.
654 ; 24 W. R. 984 385
Steele r. Savory, W. N. (1891), 195 391
Stephen r. Gwenap, 1 M. & Rob. 120 174
Stephenson r. River Tyne Commissioners, 17 W. R. 590 ... ... 91
Steuart v. Balkis Co., Az W. R. 676 : 53 L. J. Ch. 791 ; 50 L. T.
479 468
r. Gladstone, 7 Ch. I). 394 ; 47 L. J. Ch. 154 ; 37 L.T.575 ;
26 W. R. 277 190,465
Steward r. North Metropolitan Tramways Co., 16 Q. B. 1). 556 ;
55 L. J. Q. B. 157 s 54 L. T. 35 ; 34 W. R. 316 ; 50 J. P.
324 432
Stewart r. Eddowes, L. R. 9 C. P. 311 : 33 L. J. C. P. 204;
22 W. R. 534 360
Stobart r. Dryden, 1 M. & W. 615 ; 2 Gale, 146 : 1 Tvr. & G. 899 ;
5L.J. Ex. 218 164
liv Table of Cases.
PAGE
Stocken r. Collin, 7 M. & W. 515 ; 9 C. & P. 653 ; 10 L. J. Ex.
227 70
Stonehouse r. Evelyn, B P. Wms. 113 292
Storey r. Lord Lennox, 1 Keen, 341 477
Stott v. Fairlnmb, ->3 L. J. Q. li. 47 ; 49 L. T. 525 366
Stowe r. Jolliffe, L. K. 9 C. P. 734 ; 43 L. J. C. P. 265 j 22 W. R.
911 302
r. Querner, L. R. 5 Ex. 155 ; 39 L. J. Ex. 60 ; 22 L. T. 29 ;
IK W. K. 466 9,500
Stowell c. Robinson, 3 Bing. N. C. 928 ; 6 L. J. C. P. 326 ; 5 Scott,
196 369
Straehan, Be, [1895J 1 Ch. 445 ; 64 L. J. Ch. 321 ; 72 L. T. 175 ;
43 W. R. 369 ; 59 J. P. 102 ; 60 J. P. 36 ; 12 R. 148 ;
11 Times R. 215 123
Stracy r. Blake, 1 M. & W. 168 ; Tyr. & G. 528 237
Street r. Licensed Victuallers' Society, 22 W. H. 553 15
Strickland c. Ward, 7 T. H. 633 285
Stronghill r. Buck, 14 Q. B. 787 ; 14 Jur. 741 206
Stroud, la re, 8 C. B. 518 ; 16 L. J. C. P. 117 384
Studds r. Watson, 28 Ch. 1). 305 ; 54 L. J. Ch. 626 ; 52 L. T. 129 ;
33 W. R. 118 336
Sturge r. Buchanan, 2 P. & I). 573 ; 10 A. & E. 598 ; 2 M. & Rob.
90 502
Sturla r. Freccia. 5 App. Cas. 641 ; 50 L. J. Ch. 94 ; 29 W. R. 220 :
159, 162
Suffell r. Bank of England, 9 Q. B. 1). 555 ; 51 L. J. Q. B. 401 ;
47 L. T. 146 ; 30 W. K. 932 ; 46 J. P. 500 68, 389
Sngden r. St. Leonards (Lord). 45 L. J. P. 1). & A. 1 ; 1 P. D. 154 ;
34 L. T. 369 ; 24 W. R. 479 66, 313, 379, 380
Sumner, Re, 22 W. R. 639 ; 30 L. T. 377 77
Suse r. Pompe. 8 C. B. (x.s.) 538 ; 30 L. J. C. P. 75 ; 7 Jur. O'.s.)
166 ; 9 W. H. 16 388
Sussex Peerage Case, 11 CI. & Fin. 114, 117 ; 8 Jnr. 793 ... 158, 165,
171, 272, 273
Suter c. Bnrrell, 2 H. & N. 867 ; 27 L. J. Ex. 193 500
Sutton r. Sutton, 22 Ch. 1). 511 ; 52 L. J. Ch. 338 ; 48 L. T. 98 ;
31 W. R. 372 354
Swansea Rail. Co. r. Bndd, L. R. 2 Eq. 274 ; 35 L. J. Ch. 631 ;
14W.R. 663; 12 Jur. (N.8.) 561 492
Sweet, In the Goods of, [1891] P. 400 ; 61 L. J. P. & 1). 13 ... 319
r. Lee. 3 M. & Gr. 452 349
Swift r. Jewsbury, 43 L. J. Q. B. f>6 ; L. R. 9 Q. B. 301 ; 30 L. T.
31 ; 22 W. R. 319 357
Swinfen r. Swinfen, 25 L. J. C. P. 303 ; 26 L. J. C. P. 97 ; 1 C. B.
(N.8.) 364 ; 3 Jur. (U.S.) 85 237
Sykes r. Dunbar, 2 Selw. N. P. 1081 123
c. Haig, 44 L. T. (N.8.) 57 ' 420

T.
Talbot r. Hodson, 7 Taunt. 251 ; 2 Marsh, 527 319
Tanner r. Smart. 6 B. & C. 609 ; 9 1). & R. 549 361
Taplin r. Atty, 3 Bing. 164 ; 10 Moore, 564 499
Tate r. Williamson, L. R. 1 Eq. 528 ; 14 W. R. 449 56
Tatham r. Wright, 2 R. & M. 1 292
 Table of Cases. lv
PAGE
Taylor v. Forster, 2 C. & P. 195 108
P. Great Eastern Kail. Co., [1901] 1 Q. B. 774 ; 84 L. T. 770 ;
49 W. R. 431 ; 70 L. J. K. B. 499 347
c Hollard, [1902] 1 K. 1$. 670 ; 50 W. K. 558 ; 71 L. J. K. B.
278 ; 86 L. T. 228 355
r. Manners, L. It. 1 Ch. 56 ; 33 L. J. Cb. 128 ... ... 365
r. Parry, 1 M. & Gr. 604 ; 1 Sco. N. R. 576 446
r. Rundell, Cr. k Ph. 124 477, 489
r. Smith, [1893] 2 Q. B. 65 ; 61 L. J. Q. B. 331 ; 67 L. T.
39 ; 40 W. K. 486 336,348
r. Williams, 4 M. & P. 59 ; 2 B. & Aid. 845 236
r. Witham, 3 Ch. 1). 605 ; 45 L. J. Ch. 798 171
Teesdale r. Tcesdale, 1 Macn. Select Cases in Equity, 170 216
Temperley r. VVillett, 6 EL 4c Bl. 380 496
Tennant v. Hamilton, 7 CI. A: Fin. 122 ; Macl. & R. 821 417
Thomas, In the Goods of, 41 L. J. P. ic M. 32 ; 25 L. T. 509 ;
20 W. R. 14!) 65.170
r. Brown, 1 Q. B. 1). 714 ; 45 L. J. Q. B. 811 ; 35 L. T.
237 ; 24 W. R. 821 226
r. Hussell, 9 Ex. 764 444
r. Thomas, 2 Camp. 647 226
r. Williams, 14 Ch. D. 864 ; 49 L. J. Ch. 605 ; 28 W. H.
983 ; 43 L. T. 91 16
Thompson r. Dnnn, L. R. 5 Ch. 573 ; 18 W. K. 854 481
Thomson r. Simpson, 18 W. R. 1090 360
59, 63
Thornhill, Be, [1904] W. N. 112 • 76
Thynne v. Glengall (Earl of), 2 H. L. Cas. 131 81
Tildcsley v. Harper, 7 Ch. D. 403 ; 10 Ch. D. 393 ; 48 L. J. Ch. 495 ;
39 L. T. 552 ; 27 W. R. 249 432
Tilley, Ex parte, 20 O.. B. D. 518 ; 59 L. T. 188 ; 36 W. R. 388 : 394
Tipping t. Clarke, 2 Hare, 391 476
Tootal's Trusts, In re, 23 Ch. I). 532 ; 52 L. J . Ch. 664 ; 32 W. R.
653 291
Topham v. Macgregor, 1 C. & K. 320 323
Torret r. Cripps, 48 L. J. Ch. 567 ; 27 W. K. 706 339
Tovraend v. Toker, L. R. 1 Ch. 446 ; 35 L. J. Ch. 608 ; 14 W. R.
806 367
Trelawney r. Coleman, 2 Stark. 193 134
Trimleston (Lord) r. Kemmis, 9 CI. & Fin. 763 177, 240
Trinidad Asphalte Co. v. Coryat, [1896] A. C. 587 ; 75 L. T. 108 ;
65 L. J. P. C. 100 206
Trotter v. Maclean, 13 Ch. 1). 574 ; 49 L. J. Ch. 256; 42 L. T. 118 ;
28 W. R. 244 180
Trowel r. Castle, 1 Keb. 22 282
Trust, etc. Corporation of South Africa, In re, [1892] 3 Ch. 332 ;
2 R. 76 ; 62 L. J. Ch. 22 ; 67 L. T. 777 ; 40 W. R.689 400
Tnnnicliffe r. Tedd, 5 C. B. 553 ; 17 L. J. M. C. 67 287
Turner r. Collins, L. R. 7 Ch. 329 ; 41 L. J. Ch. 558 ; 25 L. T. 374 : 261
r. Ilcllard, 30 Ch. D. 390 ; 55 L. J. Ch. 799 ; 53 L. T. 799 ;
34 W. K. 420 290, 374
Turquand, £> parte, 14 O.. B. I). 636 ; 54 L. J. Q. B. 242 ; 53 L. T.
579 ; 33 W. R. 437 269
Tussaud r. Tussaud, 47 L. J. Ch. 849 ; 9 Ch. D. 363 ; 26 W. R. 874 ;
39 L. T. 113 , 81,364,379
Two Sicilies (King of) v. Wilcox, 1 Sim. (N.8.) 331 96
Tyrrell p. Painton, [1894] P. 151 ; 70 L. T. 453 ; 42 W. R. 343 ... 262
Ivi Table of Cases.

U.
PAGE
U. S. A. r. Macrae, h. R. 3 Ch. 79 ; 16 W. R. 377 ; 37 L. J. Ch.
129 ; 17 L. T. 428 9r>

V.
Vadala v. Dawes, 25 Q. B. D. 310 ; 63 L. T. 128 ; 38 W. R. 599 ... 205
Vagliano r. Bank of England, [1891] A. C. 107 ; 60 L. J. Q. B. 145 ;
64 L. T. 353 ; 39 W. R. 657 211
Vallance, In re, 24 Ch. 1). 177 ; 52 L. J. Ch. 791 ; 32 W. R. 387 ... 291
r. Blagden, 26 Ch. D. 353 : 32 W. R. 918 60
Vandenburgh r. Spooner, L. R. 1 Ex. 316 ; 35 L. J. Ex. 201 :
4 H. & C. 519 ; 14 W. R. 843 349
Van Der Donckt r. Thelluson, 8 C. B. 812 ; 19 L. J. C. P. 12 : 272, 273
Van Wart r. Woolley, Ry. & M. 4 237
Vane v. Whittington, 2 Dowl. (N.8.) 757 243
Vaughan v. Vanderstegen, 2 Drew. 363 217
Verminck r. Edwards. 29 VV. R. 189 493
Vezcy v. Rashleigh, [1904] 1 Ch. 632 ; 73 D. J. Ch. 422 ; 52 W. R.
442 361
Villcn i'. Beaumont, 2 Dyer, 146a ... ... ... ... ... 367
Vinnicombe r. Butler, 34 L. J. P. & M. 18 ; 3 S. & X. 580 ; 10 Jur.
1109 ; 19 W. R. 892 65
Vitoria, In re, [1894] 1 Q. B. 259 ; 63 L. J. Q. B. 161 ; 70 L. T.
141 ; 42 W. R. 529 195
Voinett v. Barrett, 55 L. J. Q. B. 39 ; 34 W. R. 161 204
Volent B. Soyer, 13 C. B. 231 ; 22 L. J. C. P. 83 107
Vowles r. Young, 13 Ves. 147 ... 155, 159

w.
Waddell, Em parte, 6 Ch. D. 328 ; 37 L. T. 345 ; 26 VV. R. 9 ... 395
Waddington v. Roberts, L. R. 3 Q. B. 579 ; 37 L. ,J. Q. B. 256 ;
16 W. R. 1040 62
Wagstaff v. Wilson, 4 B. & Ad. 339 ; 1 N. 4 M. 1 236
Waite r. Bingley, 21 Ch. D. 674 ; 51 L. J. Ch. 651 ; 30 W. R. 698 : 292
Wakefield (Mayor of) v. Cooke, [1904] A. C. 31 ; 73 L. J. K. B. 88 ;
89 L. T. 707 ; 52 W. R. 321 68 J. P. 225 193
Wakelin r. London and South Western Rail. Co., 12 App. Cas. 45 :
56 L. J. Q. B. 229 ; 55 L. T. 709 ; 35 W. R. 141 ; 51 J. P.
404 257. 259
Waldy v. Gray, L. R. 20 Eq. 238 ; 44 L. J. Ch. 394 ; 32 L. T. 531 ;
23W.R. 676 313
Walker, Re, 34 W. R. 95 ; 53 L. T. 660 30
v. Smith, 29 Bcav. 396 ... ..' 261
v. Wiltshire, 23 Q. B. D. 337 ; 58 L. J. Q. B. 501 ; 37 W. R.
723 241
Wallace r. Small, M. & M. 446 241
Wallis v. Littell, 31 L. J. C. P. 100 ; 11 C. B. (n.s.) 369 : 8 Jur.
(N.8.) 745 ; 10 W. R. 192 372
 Table of Cases. Ivii
PAGE
Walsh v. Lonsdale, 21 Ch. D. 9 ; 52 L. J. Ch. 1). 2 ; 31 W. R.
106 335
Walter r. Ashton, [1902] 2 Ch. 282 ; 71 L. J. Ch. 839 ; 87 L. T.
106 ; 51 W. K. 131 223
Want r. Moss, 70 L. T. 178 201
Ward v. Londesborough (Lord), 12 C. B. 252 71
r. Sinfield, 49 L. J. C. P. 696 ; 43 L. T. 252 419
Warner v. Mosses, 50 L. J. Ch. 28 ; 43 L. T. 401 ; 29 W . B. 201 :
463, 514
Warren v. Warren, 1 C. M. k R. 250 ; 4 Tyr. 850 70
Warwick t>. Queen's College, Oxford, L. R. 3 Eq. 683 ; 36 L. J. Ch.
505 145
Warrington r. Early, 2 E. k B. 763 ; 23 L. .1. Ex. 47 ; 18 Jur. 42 ... 389
Watkins v. Vince, 2 Stark, 368 234
Watts r. Ainsworth, 3 F. * F. 12 ; 1 H. & C. 83 ; 31 L. J. Ex. 448 ;
6 L. T. 452 348
r. Lyons, 6 M. & G. 1047 417
Waygood r. James, L. K. 4 C. P. 361 ; 38 L. J. C. P. 195 ; 17 W. R.
824 193
Weall v. Rice, 2 Huss. k Myl. 251 ; 9 L. J. Ch. 116 81
Weary c. Alderson, 2 M. & Rob. 127 234
Webb, Be, Ir. R. 5 Eq. 235 76
r. East, 5 Ex. D. 23 95
e. Herne Bay Commissioners, 39 L. J. Q. B. 221 ; L. R.
5 Q. B. 642 ; 22 L. T. 745 220
Webber, Ex parte, 41 L. J. Ch. 145 ; 26 L. T. 227 ; 20 W. R.
394 399
Weeks r. Birch, 69 L. T. 759 190, 213
r. Sparke, 1 M. k Sel. 686 ; 14 R. R. 546 138, 140
Welch v. Phillips, 1 Moo. P. C. R. 299, 302 66
Wells r. Wells, 43 L. J. Ch. 681 ; L. R. 18 Eq. 504 ; 31 L. T. 16 ;
22 W. K. 893 381
Wenman (Lady) r. Mackenzie, 5 E. k B. 447 ; 25 L. J. Q. B. 44 ;
1 Jur. (K.8.) 1015, 1049 n 146, 444
Wentworth r. Lloyd, 33 L. J. Ch. 688 ; 10 H. L. Cas. 589 ; 10 L. T.
767 ; 10 Jur. (N.8.) 961 73,114
West r. Baxendale, 9 C. B. 141 ; 19 L. J. C. P. 149 12
v. Lord Sackville, [1903] 2 Ch. 378 ; 72 L. J. Ch. 649; 88 L. T.
814 ; 51 W. ]{. 625 50
West London Commercial Bank r. Kitson, 53 L. J. Q. B. 218, 345 ;
13 Q. B. D. 360 ; 50 L. T. 656 ; 32 W. R. 757 211
Westinghouse r. Midland Rail. Co., 48 L. T. (N.s.) 462 105
Westmacot e. Westmacot, [1899] P. 183 ; 80 L. T. 632 ; 68 L. J. P.
63 298
Wey r. Galley, 6 Mod. 194 273
Wheeler, In the Goods of, 31 L. J. P. M. & A. 40 77
r. Le Marchant, 17 Ch. D. 675 ; 50 L. J. Ch. 793 ; 44 L. T.
632 : 30 W. R. 235 103, 105, 106, 116
Wheelton r. Hardisty, 8 E. & B. 279 2
Whitchurch (George) r. Cavanagh, [1902] A. C. 117 ; 50 W. R. 218 ;
85 L. T. 349 ; 71 L. J. K. B. 400 211, 220, 233
Whitcomb r. Whiting. 2 Doug. 652 ; 1 Sm. L. C. 555 230
White, Be, [1901] 1 Ch. 570 j 49 W. R. 429 ; 84 L. T. 199 : 70 L. J.
Ch. 300 77
v. Parker, 12 East, 383 368
C Spafford & Co., [1901] 2 K. B. 241 ; 70 L. J. K. B. 658 ;
84 L. T. 574 496
lviii Table of Cases.
PAGE
White r. White, 62 L. T. 663 228
White's Charities, Be, [1898] 1 Ch. 659 ; 46 W. R. 479 j 67 L. J.
Ch. 430 ; 78 L. T. 550 80
Whitelock r. Baker, 13 Ves. 511 ; 9 R. R. 216 154
Whiting and Loomes, In re, 17 Ch. I). 10 ; 50 L. J. Ch. 463 ;
29 W. R. 435 509
Whiting c. Turner. 89 L. T. 71 ... 65
Whitmarsh v. George, 8 B. & C. 556 239
Whitworth's Case, 19 Ch. I). 118 ; 30 W. R. 33 ; 51 L. J. Ch. 71 ;
45 L. T. 449 ... 399
Wiedeman r. Walpole, [1891] 2 Q. B. 534 ; 60 L. J. Q. B. 762 ;
40 W. R. 114 41,227
Wigglesworth c. Dallison, 1 Dong. 201 ; 1 Bligh, 287 ; 1 Sm. L. C.
539 388
Wilcox r. Gotfrey, 26 L. T. (N.s.) 328, 481 41
Wildes r. Dndlow. 44 L. J. Ch. 341 ; L. R. 19 Eq. 198 ; 23 W. R.
435 342
Wilkes v. Hopkins, 1 C. B. 737 ; 3 Dowl. & L. 184 ; 14 L. J. C. P.
225 244
Wilkinson i: Blades, [1896] 2 Ch. 788 ; 65 L. J. Ch. 846 ; 75 L. T.
175 ; 45 W. R. 27 196
e. Evans, 35 L. J. C. P. 224 ; L. R. 1 C. P. 407 ; 1 H. &
R. 522 ; 14 W. R. 963 ; 12 Jnr. (N.S.) 600 348
Williams r. Brisoo, 22 Ch. D. 441 ; 31 W. R. 908 336
r. Davies, 11 Q. B. D. 74 ; 47 J. P. 581 ; 52 L. J. M. C.
87 203
r. East India Co., 3 East, 192, 201 ; 6 R. R. 589 ; Bull.
N. P. 298 54, 257
r. Eyton, 4 H. & N. 357 ; 27 L. J. Ex. 176 62
B. Frere, [1891] 1 Ch. 323 ; 60 L. J. Ch. 328 ; 64 L. T.
253 497
p. Healea. L. R. 9 C. P. 171 ; 43 L. J. C. P. 80 ; 22 W. R.
317 212
B. Lake. 29 L. J. Q. B. 1 ; 2 E. k E. 349 ; 1 L. T. 56 ;
6 Jur. (N.8.) 45 336, 343
r. Preston, 20 Ch. D. 672 ; 47 L. T. 265 ; 30 W. R. 555 ;
51 L. J. Ch. 927 236
r. Prince of Wales Life Assurance Co., 23 Beav. 338 ... 496
<•. Quebrada Kail. Co., [1895] 2 Ch. 751 ; 65 L. .1. Ch. 68;
44 W. R. 76 ; 73 L. T. 397 113
r. Trve, 18 Beav. 366 101
r. Williams, 32 Beav. 370 85
v. , L. R. 1 P. & D. 29 228
Williamson v. Allison, 2 East, 446 427, 428
r. Rover Cycle Co., Ir. L. R. (1901), 2 Q. B. 1). 619 ... 73
v. Williamson, L. R. 7 Eq. 542 j 17 W. R. 607 ; 20 L. T.
389 ... 225
Willis t. Baddeley, [1892] 2 Q. B. 324 ; 61 L. J. Q. B. 769 ; 67 L. T.
206; 40 W. R. 577 478,489
r. Bernard, 8 Bing. 376 ; 1 L. J. C. P. 118 134
B. Jernegan, 2 Atk. 252 225
Wills' Trade Marks, In re, [1892] 3 Ch. 207 ; 67 L. T. 453 ; 9 R. P. C.
346 484
Wilmott r. Barber, 15 Ch. D. 105 ; 49 L. J. Ch. 793 ; 28 W. R.
913 216
Wilson r. Hodge, 3 East, 313 74
 Table of Cases. lix
PAGE
Wilson v. O'Leary, L. K. 7 Ch. 448 ; 1 L. J. Ch. 842 ; 19 W. H.
501 83,380
r. Rastall, 4 T. K. 759 101
r. Robinson, 7 Q. B. 68 ; 14 L. J. Q. B. 196 ; 9 Jur. 726 ... 448
Windsor r. K., 6B.iS. 143 ; 7 B. J; S. 360 44
Wing r. Angrave, 8 H. L. Cas. 183 ; 30 L. J. Ch. 65 77
Winn c. Bull. 7 Ch. 1). 29 ; 26 W. li. 230 ; 47 L. J. Ch. 139 ... 337
Wintle, In re, L. R. 9 Eq. 373 ; 21 L. T, 781 ; 18 W. R. 394 ... 297
Witt r. Klindworth, 3 S. & T. 143 ; 32 L. J. Mat. 179 ; 8 L. T. 175 ;
11 W. H. 154 ; 9 Jur. (N.8.) 207 133
Wood r. Boosey, L. R. 3 Q. B. 223 ; 37 L. J. Q. B. 84 ; 16 W. R.
485 301
r. Bradelech, 1 Taunt. 104 230
v. Cowper, 1 C. & K. 646 322
r. Leadbitter, 13 M. ic W. 843 ; 14 L. .1. Ex. 161 324
r. Mackinson, 2 M. & Rob. 273 417
Woodcraft r. Kinaston, 2 Atk. 317 288
Woods v. Dean, 32 L. J. Q. B. 1 ; 3 B. & 8. 101 ; 7L.T, 561 ;
11 W. R. 22 224
Woodward r. Buchanan, 39 L. J. Q. B. 71 ; L. H. 5 Q. B. 285 ;
22 L. T. 123 443
r. Cotton, 1 C. M. & R. 44 ; 6 C. & P. 489 ; 4 Tyr.
689 280
v. Gonlstone, 1 1 App. Cas. 469 ; 55 L. T. 790 ; 35 W. R.
337 ; 55 L. J. P. 1). 241 380
r. London and North Western Rail. Co., 26 W. R.
354 17
Woolway v. Howe, 1 A. & E. 114 ; 3 N. tc M. 849 ; 3 L. J. K. B.
121 177
Worthington r. Moore, 64 L. T. 338 317
Wright r. Carter, [1903 J 1 Ch. 27; 51 W. R. 196; 72 L. J. Ch.
138 57
r. Doe. 7 A. & E. 313 128, 138
r. Rogers. 38 L. J. P. & M. 67 ; L. R. 1 P. ic D. 678 ;
21 L. T. 156 ; 17 W. R. 833 65, 293
r. Sanderson, 9 P. 1). 149 ; 53 L. J. P. D. & A. 1 j 32 W. R.
560 65
r. Tatham, 1 A. & E. 3 186
r. Vernon, 22 L. J. Ch. 447 105
Wyatt r. Gore, Holt N. P. 299 121
r. Palmer, [1899] 2 Q. B. 109 ; 80 L. T. 639 ; 68 L. J. Q. B.
709 ; 47 W. R. 549 193
Wvnne r. Middleton, Doug. 593 288
— r. Tyrwhitt, 4 B. k Ad. 376 175

Y.
Yearwood's Trusts, Re, 5 Ch. D. 545 ; 46 L. J. Ch. 478 ; 25 W. R.
461 30
Ycomans r. Williams, L. R. 1 Eq. 184 ; 35 L. J. Ch. 283 365
Yorke v. Smith, 21 L. J. Q. B. 53 ; 16 Jur. 63 49
Yorkshire Laundries r. Pickles. [1901] W. N. 28 187
Young, £x parte, L. R. 17 Ch. 668 ; 60 L. J. Ch. 824 ; 45 L. T. 90 :
198,514
lx Table of Cases.
PAGE
Young v. Grote, 4 Bing. 253 215
r. Holloway, 12 P. D. 167 ; 56 L. J. P. 81 ; 57 L. T. 515 ;
35 W. B. 751 106
■ v. Leamington (Mayor of), 8 App. Cas. 517 ; 52 L. J. Q. B.
713 ; 31 W. R. 925 331
v. Scbuler, 11 Q. B. D. 651 ; 49 L. T. 546 131, 371,373
v. Wright, 1 Camp. 159 236
v. Yonng Manufacturing Co., [1900] 2 Ch. 753 ; 69 L. J.
Ch. 868 ; 49 W. B. 115 ; 83 L. T. 418 515
Ystalfera Iron Co. v. Neath and Brecon Kail. Co., 43 L. J. Ch. 476 ;
L. R. 17 Eq. 142 ; 29 L. T. 662 ; 22 W. B. 149 39
 TABLE OF STATUTES.

PAGE
5 Eliz. c. 9. (An Act for the Punishment of Perjury),
s. 6 392, 104
29 Car. 2, c. S. (Statute of Frauds)—
ss. 1, 2 331
s. 3 335
s. 1 335,311,313,311
8. 5 319
g. 7 311
g 8 345
32 Geo. 3, c. 60. (Fox's Act)—(The libel Act, i 792) ... ... 15
11 Geo. 3, c. 90. (Crown Debts Act, 1801), s. 9 279
15 Geo. 3, c. 92. (Writ of Subpoena Act, 1805), s. 3 105
52 Geo. 3, c. 116. (Parochial Registers Act, 1812), s. 7 297
9 Geo. 4, c. 14. (Lord Tcntcrden's Act)—(The Statute of Frauds
Amendment Act, 1828)—
s. 1 350
s. 6 356
1 4c 2 Will. 1, c. 32. (Game Act, 1831), s. 12 265
2 & 3 Will. l,c. 71. (Prescription Act, 1831), ss. 1, 2, 3 356
3 & 1 Will. 1, c. 27. (Heal Property Limitation Act, 1833), s. 11 ... 353
s. 12 355
c. 12. (Civil Procedure Act. 1833). s. 5 352
6 & 7 Will. 1, c. 86. (Births and Deaths Registration Act, 1836),
s. 38 297
7 WiU.lt 1 Vict.c.2f>. (Wills Act, 1837), s. 21 390
I & 2 Vict. c. 91. (Public Record Office Act, 1838), ss. 12, 13 ... 280
c. 105. (Oaths Act, 1838) 25
3 & 1 Vict. c. 92. (Non-parochial Registers Act, 1810), ss. 9, 11,
12, 17 298
5 & 6 Vict. c. 15. (Copyright Act, 1812), ss. 11, 21 300
6 & 7 Vict. c. 18. (Parliamentary Voters Registration Act, 1813),
s. 79 302
c. 82. (Evidence by Commission Act, 1813), s. 5 ... 171
c. 85. (Lord Dcnman's Act)—(Evidence Act, 1813),
26, 31
7 & 8 Viet. c. 101. (Poor Law Amendment Act, 1811), s. 2 ... 203
8 & 9 Vict. c. 16. (Companies Clauses Consolidation Act, 1815)—
s. 11 330
ss. 97, 98 328
ss. 121, 127 305
c. 106. (Real Property Act, 1815), s. 3 335
c. 113. (Evidence Act, 1815)-
s. 1 270, 295
B. 2 270
s. 3 279
II & 12 Vict. c. 12. (Indictable Offences Act, 1818)—
8. 17 155
s. 18 253
lxii Table op Statutes.
PAGE
14 t: 15 Vict. c. 99. (Evidence Act, 1851)—
s. 2 26
8. 3 32, 36, 95
s. 7 283
s. 10 271
8. 13 283
8.14 290,294,296,303,459
I. 37 287
c. 100. (Criminal Procedure Act, 1851)—
ss. 1, 2 435
s. 9 439
8. 14 290
8. 22 283, 287
16 & 17 Vict. c. 83. (Evidence (Purther Amendment) Act, 1853) : 36, 37
17 & 18 Vict. c. 34. (Attendance of Witnesses Act, 1854), 8. 1 ... 402
18 & 19 Vict. c. 111. (Bills of Lading Act, 1855), ss. 1, 2 307
c. 126. (Criminal Justice Act, 1855), s. 12 287
19 & 20 Vict. c. 97. (Mercantile Law Amendment Act, 1856),
s. 14 231, 351
20 & 21 Vict. c. 85. (Matrimonial Causes (Divorce Act), 1857),
s. 43 27
c. 77. (Court of Probate Act, 1857), s. 24 319
22 Vict. c. 20. (Evidence by Commission Act, 1859), 8. 1 ... 469
22 & 23 Vict. c. 63. (British Law Ascertainment Act, 1859),
as. 1, 3 274
23 & 24 Vict. c. 38. (Law of Property Amendment Act, 1860),
s. 13 355
24 & 25 Vict. c. 96. (Larceny Act, 1861)—
s. 1 434
s. 112 285
s. 116 286
c. 99. (Coinage Offences Act. 1861)—
8. 24 263
s. 37 287
c. 100. (Offences Against the Person Act, 1855),
ss. 44, 45 287
25 & 26 Vict. c. 89. (Companies Act, 1862)—
8. 22 330
s. 47 329
s. 63 70
s. 115 117,398
s. 125 271
c. 114. (Poaching Prevention Act, 1862), s. 2 ... 54
28 & 29 Vict. c. 18. (Criminal Procedure Act, 1865)—
ss. 3, 4 412,419
8.5 421
B. 6 418
s.7 317
8. 8 316
c. 104. (Crown Suits Act, 1865), 8. 34 35
30 4c 31 Vict. c. 35. (Criminal Law Amendment Act, 1867)—
8. 3 393, 460
8. 6 458
c. 131. (Companies Act, 1867), s. 37 329
31 & 32 Vict. c. 4. (Sales of Inversions Act, 1868), 8. 1 56
c. 37. (Documentary Evidence Act, 1868) 269
c. 125. (Parliamentary Elections Act, 1868) 193
ss. 31, 32, 34 401
 Table of Statutes. lxiii
PAGE
32 & 33 Vict. c. 62. (Debtors Act, 1869), g. 24 333
c. 68. (Evidence (Further Amendment) Act, 1869),
s. 2 27
33 Jc 34 Vict. c. 52. (Extradition Act, 1870), s. 14 471
c. 75. (Elementary Education Act, 1870) 26.%
c. 90. (Foreign Enlistment Act, 1870) 26:.
34 & 35 Vict. c. 112. (Prevention of Crimes Act, 1871), ss. 7, 19 ... 493
35 & 36 Vict. c. 65. (Bastardy Act. 1872) 40, 203
c. 93. (Pawnbrokers Act, 1872) 13
c. 94. (Licensing Act, 1872) 265
r. 42 26
36 It 37 Vict. c. 60. (Extradition Act, 1873), s. 4 472
c. 66. (Judicature Act, 1873), s. 61 271
c. 71. (Salmon Fishery Act, 1873), s. 45 S06
c. 86. (Elementary Education Act, 1873), s. 24 ... 265
37 & 38 Vict. c. 49. (Licensing Act, 1874) 265
c. 57. (Real Property Limitation Act, 1874)—
s. 7 ... ... ... ... ... ... 353
8. 8 354
b. 10 355
c. 88. (Births and Deaths Registration Act, 1874),
s. 38 298
38 it 39 Vict. c. 55. (Public Health Act. 1875), s. 174 331
c. 77. (Judicature Act, 1875), s. 20 512
39 k 40 Vict. c. 75. (Rivers Pollution Prevention Act. 1876), s. 2... 449
41 k 42 Vict. c. 31. (Bills of Sale Act, 1878). m. 8, 16 308
42 k 43 Vict. c. 11. (Bankers' Books Evidence Act, 1879), ss. 3, 7... 117
44 Jc 45 Vict. c. 41. (Conveyancing Act. 1881)—
3.16(1) 490
s. 55 228
c. 60. (Newspaper Libel and Registration Act, 1881),
8. 15 301
c. 69. (Fugitive Offenders Act, 1881), s. 29 472
45 & 46 Vict. c. 9. (Documentary Evidence Act, 1882),
e. 2 269, 280
s. 4 270
c. 43. (Bills of Sale Act, 1882), ss. 8, 16 308
c. 72. (Revenue Friendly Societies and National Debt
Act, 1882), s. 11 118
c. 50. (Municipal Corporations Act, 1882)—
8. 22 (5), (6) 303
s. 24 306
c. 61. (Bills of Exchange Act, 1882)—
8. 30 259
as. 44, 55 214
b. 64 67
46 & 47 Vict. c. 3. (Explosives Substances Act, 1883), s. 6 (2) ... 99
c. 51. (Wild Birds Protection Act, 1883), s. 59 ... 401
c. 52. (Bankruptcy Act, 1883)—
s. 17 99
s. 27 394
b. 28 289
8. 47 58
8. 182 289
8. 136 189
s. 142 70
lxiv Table of Statutes.
PAGE
46 & 47 Vict. c. 57. (Patents, Designs, and Trade Marks Act,
1883)—
B. 23 299
s. 26 267
s. 29 448, 449
s. 76 299
s. 84 271, 299
s. 89 299
s. 96 299
47 $c 48 Vict. c. 14. (Married Women's Property Act, 1884) ... 38
c. 61. (Judicature Act. 1884), s. 16 402
48 & 49 Vict. c. 69. (Criminal Law Amendment Act, 1885), s. 4 ...22, 42
c. 74. (Evidence by Commission Act, 1885), s. 2 ... 470
49 & 50 Vict. c. 33. (International Copyright Act, 1886), ss. 7, 8 (2) : 301
50 & 51 Vict. c. 28. (Merchandise Marks Act, 1887)—
s. 2 263
s. 19 98
51 & 52 Vict. c. 46. (Oaths Act, 1888) 24
8. 5 25
c. 43. (County Courts Act, 1888)—
ss. 110, 111, 112 396
s. 180 281
52 & 53 Vict. c. 10. (Commissioners for Oaths Act, 1889), s. 6 ... 271
c. 63. (Interpretation Act, 1889)—
s. 9 279
s.26 71
53 & 54 Vict. c. 5. (Lunacy Act. 1890), s. 329 69, 72
c. 63. (Companies (Winding-up) Act, 1890). s. S ... 399
c. 71. (Bankruptcy Act, 1890), s. 27 98
54 & 55 Vict. c. 17. (Charitable Trusts Heeovery Act, 1891), s. 5... 304
c. 39. (Stamp Act, 1891)—
s. 10 510
s. 12 506
s. 14 505
s. 15 (1) 506
55 & 56 Vict. c. 4. (Betting and Loans (Infants) Act, 1892)—
s. 1 55
s. 3 205
c. 37. (Merchant Shipping Act, 1892), s. 1 55
c. 57. (Private Street Works Act, 1892), s. 57 ... 192
c. 64. (Witnesses (Public Inquiries) Protection Act,
1892), ss. 1, 2 424
56 & 57 Vict. c. 71. (Sale of Goods Act, 1893) 13
s. 4 346
57 & 58 Vict c. 16. (Judicature Act, 1894), 8. 3 8,136
c. 41. (Prevention of Cruelty to Children Act, 1894)—
ss. 13, 14 461
B. 15 23.42
s. 17 263
c. 60. (Merchant Shipping Act. 1894)—
8. 24 331
s. 697 267
58 & 59 Vict. c. 9. (Documentary Evidence Act, 1895) 270
61 & 62 Vict. c. 36. (Criminal Evidence Act, 1898) 33, 37
s. 1 (e) 99
c. 41. (Prisons Act, 1898), s. 11 403
 CORRIGENDA.

Page 15, note (i), for " McQuin " read " McQuire " ; and for " 111 " read
" 100."
lJage 16, note (/), for " McQuin" read " Mc Quire."
Page 42, note (j), for " Farmer " read " Farman."
Page 47, note («), for " Williamson, L. R. " read " Williami Sf Sons,
[1892]."
Page 56, note (f), for " Paris " read " Pares."
„ note (y), Moore, Nettlefold Co. v. Singer on appeal is now
reported [1904] 1 K. B. 820 ; 73 L. J. K. B. 457 ; 90 L. T. 469 ;
52 W. R. 385.
Page 78, note (_d), Attorney-General v. Winans in the House of Lords is
now reported [1901] A. C. 287 ; 73 L. J. K. B. 613. The
decision of the Court of Appeal was reversed on the ground
that the Crown had not proved a fixed and settled intention of
the testator to abandon his domicil of origin and to finally
settle in Kngland.
Page 87, note (<■), for " Baines" read " Daines."
Page 107, note (?), for !' 243 " read " 143."
Page 145, note (z), for " 6 Ch. 716 " read " 3 Eq. 683."
Page 152, note (7(), for " Sampler " read " Samples."
Page 177, note (}), for " Toucke " read " Tovehe."
Page 182, note (m)i for " Price " read " Preece."
Page 203, note (J), for "Collins" read " Gollinson."
Page 209, note (*). for "Squire" read "Ogilrie."
Page 359, note («), for " 1902 " read " 1901."
Page 389. Words which have been deleted on a written contract by the
intention of all the parties cannot be regarded as bearing upon
the construction of the contract (Inglis v. Buttery, 3 App. Cas.
552). Nor can words removed from the specification of a
patent by amendment be regarded in construing the specification
(Hattersley v. Hodgson, 21 R. P. C. 517).
Page 517. The House of Lords, when sitting as the court of final appeal,
can anil will hear witnesses.

[ To /nor page 1.
 THE

Jpqjles and practice

OF THE

LAW OF EVIDENCE.

PAET I.

CHAPTEE I.

GENERAL PRINCIPLES OF EVIDENCE.

Evidence plays such an important part in the practical

administration of justice, that a knowledge of the law
of evidence is obviously of the greatest importance.
As preliminary to treating of the rules of law applicable
to evidence, the question must be propounded, and, as
far as possible, answered —"What is evidence '?
Since demonstrative certainty is unattainable in any
of the affairs of daily life, Courts of Justice, like
individuals, are compelled to be satisfied with that
inferior kind of certainty which is called moral. All
moral science, of which law is the practical expression,
consists intrinsically of inquiry and investigation,
which are infinite by nature, but finite by necessity ;
and, in the administration of justice, the exigencies of
public and private business require that this limit
should be neither recondite nor fanciful, but well
2 Law of Evidence.

defined and according with the maxims and experience

of common sense. Therefore moral probability, or, as
it is somewhat erroneously termed, moral certainty,
is the utmost to which the science of legal evidence
aspires. In this respect, the analogy between ethics,
or moral philosophy, and the English Law of Evidence,
is complete. As in ethics, and in all purely transcen
dental inquiries which seek for knowledge beyond the
limits of the senses, the logical result is seldom more
than a slight elevation or depression of one of two
or more sets of competitive probabilities (a) : so moral
philosophy, when applied to the daily business of life,
and made a standard and a test of the existence or
non-existence of uncertain and disputable facts, gives,
as the result, only a greater or less amount of veri
similitude, or probability. The region of evidence lies,
therefore, between moral certainty on the one hand,
as its most perfect extreme, and moral possibility on
the other, as its most imperfect extreme. It does
not look for more than the first, and it will not act on
less than the last. Its whole object is to produce those
convictions which spring spontaneously from the
suggestions of the intuition, as embodied in the con
clusions of the reasoning or comparative faculty of
the mind : and in every case the last conclusion of
the speculative intellect rightly suggests and governs
the first outward operation of the practical mind (b).
From such a speculative conclusion there may spring
also ulterior inferences, connected strictly in a chain
of cause and effect : for if a strong probability be raised
by express evidence, unless the probable consequence
may be inferred, the business of life could not be
conducted, and justice could not be administered (c).
Although it is true that civil cases may be decided on

(a) Cicero de Officii* : Butler's Analogy of Religion.

(*) Aristotle, Eth. Xic. lib. 6.
(r) P r Lord Campbell : Wheelton v. Hardifty, 8 E. & B. 27P.
 General Principles. 3

a preponderance of probability in criminal cases there j

must exist no reasonable doubt (d) .
Evidence of eye-witnesses.—It is often stated that
the English Law of Evidence may be regarded as
primarily always striving after the testimony of eye
witnesses. Yet the statements of eye-witnesses,
although always valuable, are so far from being, as
is sometimes supposed, of a demonstrative character,
that they are often intrinsically less satisfactory than
many other grades of presumptive evidence, which are
nominally inferior. Ignorance, passion, prejudice, and I
other constitutional infirmities of a witness,' which |
are far beyond the sight or conjecture of either a judge
or a jury, may, and constantly do, without the con
sciousness of the deponent, distort his evidence so far
as to render it absolutely worthless ; although it may
be delivered with perfect calmness and consistency,
and even remain unshaken by the most searching cross-
examination. As a general rule, however, a rigid
cross-examination, coupled with a careful observation
of the demeanour of the witness, will throw con
siderable light upon his credibility. Simplicity,
minuteness, and ease are the characteristics of truth ; !l
evasion, exaggeration, over-zeal for either party, too f
great readiness in answering, are indications of insin- l!
cerity, if not of falsehood. A still more alarming
ground for distrust lies in the possibility that a witness
may be committing deliberate perjury ; and the experi
ence of the profession adds weight to this deplorable
hypothesis.
Reliance placed upon statements of others. —The
reliance placed upon the statements of others arises
from an instinctive tendency to confide in their veracity,
and from our faith in human testimony being on the
whole sanctioned by experience. This reliance is
00 R. t. White, 4 F. k F. 383.
b2
4 Law of Evidence.

increased by corroboration. In spite of the maxim

testimonia ponderanda sunt non numeranda, the
evidence of three witnesses carries more weight than
that of two, i.e., where the three witnesses are indepen
dent, and the weight of their evidence has not been
lessened by cross-examination or otherwise. It should
also be noted, that in estimating the value of evidence
more weight should be given in matters of observation
to the testimony of an educated than to that of an
uneducated man ; and that the testimony of a man who
swears positively that a certain conversation took place
is of more value than that of one who says that it did
not, because the evidence of the latter may be explained
by supposing that his attention was not drawn to the
latter at the time (e). Another ground for reliance on
human testimony is its probability, i.e., its accord
ance with facts previously known and believed. But
although probability is useful as an aid to considering
the true value of direct evidence, it can seldom with
safety be had recourse to alone for the purpose of
entirely invalidating direct evidence. As connected
with this subject the remarks of Lord Wensleydale
may be quoted, that—
" There is no better criterion of the truth, no safer rule for
investigating cases of conflicting evidence, where perjury and
fraud must exist on the one side or the other, than to consider
what facts are beyond dispute, and to examine which of the two
cases best accords with those facts, according to the ordinary course
of human affairs and the usual habits of life " (/).

Another valuable maxim is that when any inconsis

tency is apparent between the testimony of a witness
and his previous conduct, the court should look rather
to the acts of the witness than to his statements when
called as a witness (g).

(«) Chotcdry Debi Permd v. Dowlut Sing, 3 Moo. I. A. 357.

(Y ) Mir Amdulak v. Bibi Imamaii, 5 Cal. W. H., P. C. 26.
(J) See Be Barrs Tnittt, i K. &. J. 236.
 General Principles. 5

The best evidence is required by Courts.—It is uni

versally the object of courts to obtain the best evidence.
Hence secondary or second-hand evidence is generally
inadmissible ; and it is an inflexible rule, that secondary
evidence is always inadmissible until the absence of
primary evidence has been explained to the satisfaction
of the court. Thus, in a dispute on a contract under
seal, the deed is primary evidence, and should be pro
duced to show the tenns of the contract. As long as
it exists, and can be obtained by reasonable diligence,
no other written or oral evidence of its contents will be
received ; but if it be destroyed, or if it cannot be found
after proper search, or if an adverse party, holding it,
refuses to produce it after due notice, then either
written or oral evidence may be given by anyone who
is acquainted with the contents of the deed. The rule
is the same in the case of written contracts, not under
seal. As long as the writing exists, it must be pro
duced, if possible ; but if it be impossible to produce it,
the court will allow the contract to be proved by
secondary evidence.
Indirect evidence. —Where direct evidence is not
obtainable, and in many cases where it is, the law
permits facts to be proved by indirect evidence, which
is usually called presumptive or circumstantial, but is
better described as inferential. Even direct evidence,
when analysed, is found to be to a certain extent pre
sumptive, as it depends for its weight on a number of
circumstantial peculiarities which affect the credibility
of the witness or other proof : while it has been asserted
that what is termed circumstantial evidence is of a
nature identical with direct evidence (h). It is, how
ever, desirable to treat it as differing. Presumptive
or circumstantial evidence, as distinct from direct
evidence, consists of inferences drawn from established

(A) Wills on Circumstantial Evidence, p. 23.

6 Law of Evidence.

facts, i.e., certain collateral facts being established or

assumed, the court either presumes or is asked to
presume from these the factum probandum. To give
two simple illustrations : If a man be stabbed in a
house, and another man be seen running from the house
immediately after, with a blood-stained sword in his
hand, the flight, the weapon, and the blood raise, in
legal language, a violent presumption that the second
man murdered the first (i). Similarly, in larceny,
where goods have been stolen by a person unknown,
and they have been found shortly after in the possession
of the prisoner, juries are always told by judges that
on this evidence alone they are bound to convict, unless
they are satisfied with the prisoner's explanation of
the manner in which he obtained the goods. In deal
ing with this class of evidence it is necessary to
consider the weight which is to be given to the united
force of all the circumstances put together (fc) , or, as
has been remarked by a learned writer (I) (and the
remark is universally applicable to all presumptive
evidence), it must be admitted that, like every other
rule of human institution, it will sometimes fail to
guide rightly. Lord Hale mentions a case, which
he says was tried before a very learned and wary judge,
where a man was condemned and executed for horse
stealing, upon proof of his having been apprehended
with the horse shortly after it was stolen ; and after
wards it came out that the real thief, being closely
pursued, had overtaken the man upon the read, and
asked him to hold the horse for him for a few minutes.
The thief escaped, and the innocent man was appre
hended with the horse (m). In such cases, and
generally, it is well to bear in mind, that where it is
sought to establish a theory by circumstantial evidence,
all the facts proved must be consistent with the theory;
(«) Co. Litt. 6, b.
(*) Per Lord Caikns : Belharen Peerage Case, 1 App. Cas. 279.
(Z) Russell on Crimes, by Greaves ; note by editor.
O) 2 Hale. P. C. 289.
 General Principles. 7

but there must also be some one substantial credible

fact inconsistent with the contrary (n) . Hence it has
been decided, that since there can be no larceny of
goods unless there be a felonious intention in the
taker's mind at the time of the taking, a mere fraudulent
conversion of goods by the taker after the taking is
no evidence that he had a felonious intention at the
time of taking, because such a mis-appropriation is
consistent with the theory that he had no felonious
intention at the time of the taking, but that he conceived
the intention subsequently (o).

What, then, is meant by the term evidence ? —In

the first place it must be borne in mind that there
is a wide distinction between evidence and proof,
which is the effect of evidence. When the result of
evidence is undoubting assent to the certainty of the
event or proposition which is the subject-matter of the
inquiry, such event or proposition is said to be
proved (p) . Evidence, then, includes all legal means,
exclusive of mere argument, which tend to prove or
disprove any matter of fact, the truth of which is sub
mitted to judicial investigation (q). There are several
divisions of evidence, of which the most important
are the divisions into (1) primary and secondary,
(2) sufficient and satisfactory, (3) direct and inferen
tial, (4) original and second-hand, (5) oral, documentary
and real. The first four divisions will be discussed
elsewhere. The fifth, which is a threefold division,
explains itself ; but an illustration may convey a
clearer notice of real evidence to the student : When
a knife, covered with blood, is found close to the body
of a murdered man, the production of the knife in
court is offering real evidence.

(») Per WlLLES, J. : Great Western Ilail. Co. v. Rimmell, 18 C. B.

575.
00 R. v. C/irUtopker, Bell, 27.
(]>) Whately's Logic, book iv. ch. iii. s. i.
(q) Taylor on Evidence, s. 1.
8 • Law of Evidence.

The law of evidence applicable in every case is

that of the lex fori. To quote the words of Lord
Brougham :
" The law of evidence is the lex fori which governs the courts.
Whether a witness is competent or not, whether a certain matter
requires to be proved by writing or not, whether certain evidence
proves a certain fact or not ; that is to be determined by the law
of the country where the question arises, where the remedy is
sought to be enforced, and where the court sits to enforce it " (r).

The technical rules of evidence can (when all parties

are competent) be dispensed with by consent (s) . But
this does not apply in criminal proceedings, and it may
be doubted whether it applies to actions in rem.
By s. 3 of the Judicature Act, 1894 (57 & 58 Vict. c. 16) ,
power was given to the Rule Committee to make Rules
for regulating the means by which particular facts may
be proved, and the mode in which evidence thereof
may be given (a) on applications in matters relating
to the distribution of any fund or property, and (b) on
any application upon summons for directions pursuant
to the Bules. The only Rule which has been made
under this power is Rule 7 of Order XXX., which is
that on the hearing of a summons for directions : " The
court or a judge may order that evidence of any
particular fact, to be specified in the Order, shall be
given by statement on oath of information and belief,
or by production of documents or entries in books,
or by copies of documents or entries, or otherwise as
the court or judge may direct."
This Rule, which applies to the Chancery Division
as well as to the King's Bench Division, embodies the
only existing power enabling judges of the High Court
to dispense with the technical rules of evidence other
wise than by consent (s).
(r) Bain v. Whitehaven Rail. Co., 3 H. L. Cas. 1.
(*) Baerlein v. Chartered Mercantile Bank, [18H5] 2 Oh. p. 492.
 ( 9 )

CHAPTER II.

THE FUNCTIONS OF JUDGE AND JUEY.

Questions of law (other than foreign law) are

for the judge ; questions of fact are (subject
to what is hereinafter mentioned) for the
jury.

It is for the judge to explain the law to a jury ; and

the jury is bound to take the law to be that which the
judge tells them that it is. It is for the judge to tell
them how the law is applicable to the issues of fact, and
to distinguish for them questions of law from those of
fact ; and to decide on the competency of witnesses.
So also it is the function of the judge to determine
whether a witness be sane or insane; whether dying
declarations, in cases of homicide, are admissible evi
dence as having been made by the deceased in the
expectation of immediate death ; whether secondary
evidence may be substituted for primary evidence (a) ;
whether a document comes from proper custody, or is
properly stamped ; and generally on all conditions
precedent to the reception of evidence. But when the
existence or non-existence of a document is a sub
stantial issue in an action, that question is for the
jury. In such a case, if a copy is tendered as secondary
evidence, the judge will admit it, but the question of
the existence or non-existence of the original must
ultimately be left to the jury (6). When the judge has
once admitted evidence, his function is complete (c) :
though if, after admitting a witness to give evidence, he

(</) Doyle v. Witeman, 10 Ex. 647.

(J) Stowe v. Querner, I,. R. 5 Kx. 155.
(r) Hetlop v. Chapman, 12 Q. B. 92*.
10 Law of Evidence.

is convinced by proof of subsequent facts, and by

observation of the witness's demeanour, that the latter
is not competent, he may withdraw such evidence from
the jury (d). He_hasjiothing whatever to do with the
credibility of evidence, which is a consideration solely
foFthe jury. Of course where the judge discharges at
once nis own peculiar functions and also those of the
jury, then it is his duty to estimate the credibility as
well as the admissibility of evidence : and in such cases
where the testimony being conflicting, a judge of first
instance has based his decision on the credibility of the
witnesses, a Court of Appeal will not, except in cases of
extreme pressure, reverse his decision. When, however,
the decision does not depend on the credibility of the
witnesses, but is based on inferences drawn from the
evidence, it may, even without such pressure, be re
versed by the Court of Appeal (e). This has been
sometimes pressed so far as to say that a Court of
Appeal cannot, or perhaps rather ought not to, interfere
with the finding of a judge of first instance on a question
of fact, but this is not so. The hearing upon an appeal
is a rehearing, and there is no presumption that the
judgment in the court below is right. Of course when
the judge of first instance has heard the witnesses, and
has had an opportunity of testing their credit by their
demeanour under examination, which the appellate
tribunal does not possess, great weight should be
attached to the finding of fact at which a judge of
first instance has arrived : and where a jury has found
a fact, an appeal is not a rehearing of such a fact,
because the constitution has placed in the hands of the
jury the jurisdiction to find the fact, and in such a case
the appellate court can only disturb the verdict where,
in their judgment, the jury have not done their duty :
but upon appeal from a judge, where both fact and law
(rf) R. v. Whitehead, L. R. 1 C. C. R. 33. See also R. v. TIM, 2 Den. 254.
O) The Glannibanta, 1 P. D. 283.
 The Functions of Judge and Jury. 11

are open to appeal, the appellate tribunal is bound to

pronounce such judgment as in their view ought to
have been pronounced by the court from which the
appeal proceeds (/).
It is also the duty of the judge to instrnctthe jury in_
the rules of law, by which evidence in particular cases
has to be weighed ; but in summing up a case to a jury
the judge will, in his discretion, comment, or decline to
comment, on the weight of evidence. It would appear
that the latter course is his strict duty ; and that he
may be regarded as functus officio when he has laid the
real issues, with the evidence that bears on them, before
the jury, and stated the rules of law applicable to the
evidence, and the general principles applicable to the
case. 'Practically, however, this rule is not observed
inflexibly ; and in many cases, which consist in equal
and inseparable parts of law and fact, it is found to be
impossible to declare the former without revealing
opinions as to the latter. Subject to the above, the
effect of the evidence in proving or disproving a question
of fact is for the jury. BuLiefore a question of fact
fallgjor. .thfi ..decision of the jury, the judge must first
decide whether there is any sufficient evidence to be
left to the jury.
The ancient rule is, however, exploded, by which a
judge was bound to leave a case to a jury if there was
any evidence for their consideration. Where there is
merely a scintilla of evidence a judge ought not to
leave it to a jury (g) ; and the test whether any evidence
only amounts to a scintilla is to assume that there is
no evidence to contradict such evidence, and then to
inquire whether there would be evidence which would
justify a jury in finding a verdict {h). It is of course a
(/) See per Lord Halsbury,L.C, in Rickmann v. Thierry, 14 H. P. C.
116.
(</) Oiblla. v. .VcMulleii, L. K. 2 P. C. 335 ; Ryder v. Wombtcell,
L. K. 4 Ex. 32.
(A) Per MELL1SH, L.J. : Ex parte. Morgan, 2 Ch. I). 90.
12 Law of Evidence.

very delicate function for a judge to withdraw a case

from a jury on the ground either that there is no
evidence, or merely a scintilla; and it seems that,
when there is any sort of prima facie presumption in
a case (i) , or a condition of facts which does not clearly
negative the supposition that there is some evidence,
the decision is for the jury, and not for the judge (j),
and the evidence has never been held to amount to
a scintilla only in a case where a witness has positively
sworn to something having taken place within his own
knowledge, by which, if it did take place, the case was
proved (k). A judge at a trial cannot nonsuit a plaintiff
upon the opening of his counsel without that counsel's
consent when he desires to call his witnesses (I).

Reasonable and probable cause is generally for

the jury, although in actions for malicious
prosecution and false imprisonment the
question is one for the judge. But in all
these cases the jury find the facts, and the
inferences from facts, on which the theory
of reasonableness or probability is founded.
In an action for false imprisonment the judge is to
say whether the facts, as found by the jury, disclose
reasonable and probable cause for arresting (m), and
in an action for malicious prosecution, what circum
stances would show that the defendant was actuated
by malice (n). Malice is always a question for the
jury, and it is noticeable that the absence of reasonable
and probable cause is some evidence from which malice
may be inferred, but only in conjunction with the
other facts of the case which go to establish the exist-

(*) Dare v. Ueatheote, 25 L. J. Ex. 245.

(,/') Jruxbvry v. Xewbold, 20 L. J. Ex. 247.
(*) A'-r parte Morgan, 2 Oh. I). "JO.
(0 Fletcher v. London and North Western Had fo.,[1892]I Q. B. 122.
(mi) Litter v. Ferryman, L. \i. 4 E. i: I. 521 : ef. TlV.v< v. Bairendale,
9 0. B. 141.
(«) Haddrick v. Hexluji, 12 Q. B. 275.
 The Functions of Judge and Jury. 13

ence of malice (o). In an action for false imprison

ment, where the defendant relied on the Pawnbrokers
Act, 1872, it was held that the question whether the
defendant reasonably suspected that a certain article
had been stolen was for the judge (p).

What is a reasonable time for the performance

of an act ?
This question is generally governed by fixed legal
rules, as in cases of notices to terminate service or
employment. In other cases, what is a reasonable
time is for the jury. But there are a few exceptional
cases in which the question is considered to be for the
judge, as what is a reasonable time for an executor to
remove goods from the testator's mansion. Formerly
what was a reasonable time for delivering goods was
treated as a question for the judge (q), but now all
questions of reasonable time in regard to the sale of
goods are questions of fact under the Sale of Goods
Act, 1893 (56 & 57 Vict. c. 71).

Contracts in restraint of trade.

The question whether a contract in restraint of trade
is reasonable is for the judge, although there may be
matters of fact forming elements in the determination
of the question, which, if undisputed, may have to be
ascertained through the medium of the jury (r).

Seasonable skill, due diligence, and negligence,

are questions for a jury.
Whether a surgeon has treated his patient with
reasonable skill, and whether an agent is fitted to
perform his duties (s), are examples of this rule.

(o) See Brown v. Ilawlten, [18!)1] 2 Q. B. 718.

( p) Ilotmrd r. Clarke, 20 Q. B. D. 558.
((/) Startup v. Macdonald, (i M. & 6. 593.
(»•) Dewdra and Puolt Limited v. Pooh. [1904] 1 K. B. 45.
(*) MeCall v. Australian Meat Co., 19 \V. B. 189.
14 Law of Evidence.

It was laid down by the House of Lords in Metro- 'i

politan Rail. Co. v. Jackson (t) that in actions for
negligence it is for the judge to say whether from any
given state of facts negligence can legitimately be 1
inferred, and it is for the jury to say whether it
ought to be inferred. In such actions it has been held
that there are some accidents which imply negligence
from the very nature of the circumstances (u), as ,
where the plaintiff was struck by a brick which un- ■
expectedly fell from a railway viaduct immediately
after a train had passed, though when there is no such
presumption, the plaintiff must, of course, give affirma
tive evidence of negligence (x) ; and where the evidence
for the plaintiff is equally consistent with the existence
or absence of negligence, the case must be withdrawn
from the jur)' (y).
The rule applies equally where gross negligence is
charged. In Doorman v. Jenkins (z), Taunton, J.,
said :
" A great deal has been said on the question whether gross
negligence is a question of law or fact. Such a question will
always depend on circumstances. There may be cases where the
question of gross negligence is matter of law more than of fact,
and others where it is matter of fact more than of law. An action
brought against an attorney for negligence turns upon matter of
law rather than fact. It charges the attorney with having under
taken to perform the business properly ; and alleges, that from his
failure to do so, such and such injuries resulted to the plaintiff.
Now, in nineteen cases out of twenty, unless the court told the jury
that the injurious consequences did, in point of lav, follow from
the misconduct of the defendant, they would be utterly unable to
form a judgment on the matter. Yet even there the jury have to
determine whether in point of fact the defendant has been guilty
of that particular misconduct. On the other hand, take the case
of an action against a surgeon for negligence in the treatment of
his patient. What law can there possibly be in the question
whether such and such conduct amounts to negligence ? That
must be determined entirely by the jury."
*(0 3 App. Cas. 193.
(«) Scott v. London Dork Co.. 3 H. k C. 596 : Kearney v. London.
Brighton and South Coast lioil. Co.. L. H. 6 Q. B. 759.
(./■) Mnnzoni v. Doualax, I! Q. B. 1). 145.
(y) Cotton v. Wood, 8 C. B. (K.s.) 568. (j) 2 Ail. k E. 261.
 The Functions of Judge and Jury. 15

Malice, bona fides, actual knowledge, and real

intention, are questions for a jury.
In actions for defamation it is matter of law for the
judges to determine whether the occasion of writing or
speaking defamatory language, which would be other
wise actionable, repels the inference of malice, and
constitutes what is called a privileged communication.
If, however, there is any evidence of malice it should
be left to the jury (a) ; although, if there is no evidence
of malice, the judge must direct a verdict for the defen
dant. As to a statement in the nature of a criticism
on any public matter (whether it be the conduct of
public men or the proceedings in courts of justice or in
Parliament, or the publication of a scheme or a literary
work), it is for the judge to decide whether there is
any evidence on which a rational verdict for the plaintiff
can be founded (b), e.g., in the case of a document,
whether it is capable of being reasonably interpreted
as travelling beyond the limits of fair criticism ; subject
to this, it is for the jury to decide whether the state
ment goes beyond the limits of fair comment (c) . The
question whether a report of legal proceedings is a fair
one is also for the jury (d).
The question, libel or no libel, is, since Fox's Act
(32 Geo. 3, c. 60), for the jury, subject to the direction
of the judge in criminal cases : and it was formerly
held that the practice in civil cases should be the same
as in criminal cases (e). A judge, however, can and
ought to withdraw the case from the jury when the
words are in his opinion not reasonably capable of
(«) Harrison v. Busk, 5 E. & B. 344. As to the way in which sucli
cases should be left to the jury, see Hart v. Gumpach, L. R. 4 1'. C. 434 :
Clark v. Molyneux, 3 Q. B. D. 237; and Jenoure v. Delmeae, f 1 8 :> 1 1
A. C. 73.
(b) MeQuin v. Western Morning New*, [1903] 2 K. B. 111.
(<■) See Merirale v. Carson, 20 Q. B. D., at p. 280.
id) Street v. Licensed Victualler* Society, 22 W. R. 553.
(e) Bayli* v. Lawrence, 11 A. i: E. 920.
1(5 Law of Evidence.

defamatory meaning (/), although it is only when the

judge is satisfied that the publication cannot be a libel,
and that, if it is found by the jury to be such, their
verdict will be set aside, that he is justified in with
drawing the question from their cognizance (g). But
where the plaintiffs complained of a circular published
by the defendants, to which the plaintiffs, by innuendo,
attached a particular meaning, namely that it imputed
to them insolvency in their business, but at the trial
gave no evidence in support of such innuendo, it was
held by the House of Lords that the case might be
dealt with as if there was no innuendo, and that there
was no case to go to a jury (7i). In Thomas v.
Williams (i), where the plaintiff sought an injunction
from a judge of the Chancery Division to restrain the
publication of a libel injurious to his trade, it was
objected by the defendants that, since Fox's Act, no relief
could be given by any court upon a libel unless the libel
had been in the first place submitted to the decision of
a jury. But Fry, J., granted the injunction, and said
that the objection was untenable, that Fox's Act has
nothing to do with civil actions based on libel, and that
under the Judicature Act an action for libel can be
tried in the same way as any other action.
It is for the judge to say whether words in ordinary
use have a defamatory meaning ; but for the jury to
say whether words of a cant or slang character have
acquired such a meaning (k), or what meaning and
construction would render the publication of the words
complained of libellous per se (Z) ; and the substantial
truth of an alleged libel will also be for the jury (to) .

(/) Hunt v. Ooodlake, 43 L. J. C. P. 54 ; ef. McQuin v. U'entern

Morning New*, ubi mpra.
(#) Cox v. Lee, L. R. 4 Ex. 288.
(A) Capital and Conntte» Hunk v. Jfentij, 7 App. Cas. 741.
(0 14 Ch. D. 864.
(A) Harnett v. Allen, 3 H. k N. 376.
(0 Stanaut v. Finlay, It. K. 8 C. L. 264.
Alexander v. North Eaitern Bail. Co., 6 B. & S. 340.
 The Functions of Judge and Jury. 17

What are " necessaries " in the case of infants.

In an action for goods sold and delivered, where the
plea is infancy, and the replication that the goods are
necessaries, the jury will pronounce them to be neces
saries or not necessaries according to the condition of
the infant. But it was laid down by the Exchequer
Chamber, that before they do so the judge must decide,
first, whether the case is such as to throw on the
plaintiff the onus of proving that the articles are
necessaries, and, secondly, whether there is any
evidence to go to the jury to satisfy that onus (n).

The construction of written documents is for the

judge ; but the construction of peculiar or
technical phrases is for the jury.
Thus the judge will instruct the jury as to the mean
ing of Acts of Parliament, records, deeds, wills, and
written contracts generally, even where the evidence is
secondary (o) ; and the jury is bound to follow his
construction. But it seems that the question, whether
an article is of a certain description mentioned in an
Act of Parliament, is for the jury (p). In Hutchin
son v. Bowker (q), Parke, B., said :
" The law I take to be this : that it is the duty of the court to
construe all written instruments ; if there are peculiar expressions
used in it which have, in particular places or trades, a known
meaning attached to them, it is for the jury to say what the
meaning of those expression* was, but for the court to decide what
the meaning of the contract was."

In that case, it was attempted to prove a contract for

the sale of barley, by letters, one of which offered good
barley, and the other accepted the offer, " expecting
(») Ryder v. Wombwll, L. R. 4 Ex. 42.
(») Uerwick v. Honfall, i C. B. (K.8.) 4o0.
(/>) Brunt v. Midland Rail. Co., 2 H. & C. 889 ; Woodward v.
London and North Wcxtern Rail. Co.. 26 W. U. 354.
(?) 5 M. * W. 542.
L.E. V
18 Law of Evidence.

you will give us fine barley and good weight " ; and the
court held that, though the jury might be asked as to
the mercantile meaning of the words " good " and
"fine," yet, after having found a distinction between
them, they could not further decide that the parties
did not misunderstand each other, but were bound to
take the interpretation of the contract as a matter of
law from the judge.
Foreign contracts.—The rules by which an English
court ought to be governed in construing a foreign con
tract were thus laid down by Lord Cranwobth (r) :
" When a written contract is made in a foreign country and in a |
foreign language, the court, in order to interpret it, must first
obtain a translation of the instrument ; secondly, an explanation of
the terms of art (if it contains any) ; thirdly, evidence of any
foreign law applicable to the case ; and fourthly, evidence of any
peculiar rules of construction (if any such rules exist) by the foreign
law. With this assistance the court must interpret the contract
itself on ordinary principles of construction."
The question whether a writing constitutes a
sufficient acknowledgment within the meaning of the
Statutes of Limitation is for the judge, unless there is
extrinsic evidence affecting the construction, when it
is a question for the jury (s).
In patent cases it is for the judge to construe the
specification after the jury have ascertained the meaning
of the technical terms (if any) (t). Novelty and
infringement, when they depend merely on the con
struction of the specification, are, of course, questions
for the judge, but they are generally mixed questions of
law and fact (u).
Meaning of words (.r).—The court has also directed
juries that the words "as soon as possible," in a
contract, mean without unreasonable delay according
(r) De Sora v. Phillips, 10 H. L. Cas. 633.
(*) Rowtledge v. Ramsay, 6 A. & E. 231.
(0 Neilton v. Harford, 1 Web. Tat. Cas. 370.
(?/) Delarue v. Dickenson, 7 E. & B. 738 ; Seed v. Higgins, 8 H. h.
Cas. 550.
(*) See, too, ante, p. 17.
 The Functions op Judge and Juby. 19

to the circumstances (y) ; that " forthwith " has

a similar meaning (z) ; but the signification of
words, according to the custom of particular trades,
such as " bales," is for a jury (a) ; and where on a sale
of goods the invoice provided that they should be paid
for " in from six to eight weeks," this was held to be
a phrase for the jury to interpret (b).
Under this rule also is contained the general principle
that, whenever facts have to be proved by oral evidence
or extrinsic circumstances, the jury pronounce the
inference : but when the evidence assumes a written
form this function belongs to the judge. Thus when
the question is whether a contract has been executed
as an escrow, or not, if the question depends on facts
the jury decides : if on the construction of writings it
belongs to the judge (c). But when secondary oral
evidence of writings is admitted it has been decided
that the judge and not the jury construes the evidence,
because the issue is substantially one on the construc
tion of a writing (d) .
In cases of indictable tort, where guilt or innocence
is to be inferred from the contents and meaning of a
writing, the construction is for the jury. Thus, on an
indictment for writing a menacing letter, the jury will
say whether the language amounts to a menace (e).
Foreign law.— It is for the jury to determine the
meaning of foreign law on the testimony of skilled
witnesses ; but for the judge to decide on the com
petency of such witnesses, and the applicability of the
foreign law to the matter in issue (/).
Attwood v. Emery, 1 C. B. (N.s.) 110; Hydraulic E/n/hieeriiig
Co. v. Me//a/He, 4 Q. B. D. 670.
(c) Roberts v. Brett, 6 C. B. (N.8.) 61 1.
(h) Gorri**en v. Perrin, 2 C. li. (N.8.) 631.
(&) Ashwortlt v. Retford, L. li. » C. P. 20.
(<•) Furneti v. Meek, 27 L. .1. Ex. 34.
{d) Reriviek v. Hors/all, i C. B. (N.8.) 450.
(r) R. v. Girdwood, A East, 1'. C. 1120.
(/) R. v. Pieton, 30 How. St. Tr. 536—540, 804—870.

c2
 ( 20 )

CHAPTEE III.
THE COMPETENCY OF WITNESSES.
It has already been stated (/) that all objections to the
competency of witnesses are for the decision of the
judge, who will, if there appear to be any doubt on
the subject, examine into the competency or incom
petency of the proposed witness before allowing him
to be sworn. This preliminary examination is called
the examination on the voir dire, i.e., vrai dire, and
witnesses may be called for the purposes thereof, to
establish the competency or incompetency of the person
tendered as a witness. Under this head it may be
considered to be the general and established principle
of evidence that—

All persons of sound and adult mind, provided

they take an oath, or make a solemn affirma
tion to speak the truth (including the parties
to civil proceedings, but not, as a general
rule, a prisoner or defendant, on a criminal
charge), are competent, and, in general,
compellable, witnesses in every court of
justice concerning the matters in issue.
Under this rule the first consideration will be—

Sect. 1. — The Incompetency from defect of Understand

ing in Witnesses.
Persons who have not the use of reason are,
from their infirmity, utterly incapable
of giving evidence, and are therefore
excluded as incompetent witnesses.
This description of incompetency may be either con
stitutional or accidental : and in the latter case it may
(/) Supra, p. 9.
 The Competency of Witnesses. 21

be either temporary or permanent. It may also arise

from imperfect development. Hence we have threi
classes of persons as to whom it may (subject to the
qualifications hereinafter mentioned) be said that they
are incompetent witnesses :
(1) Idiots.
(2) Lunatic^.
(3) Children of immature intelligence^
(1) An idiot is one that hath had no understanding
from his nativity, and therefore is by law presumed
never likely to attain any ; and such a person is incap
able of giving evidence. Deaf and dumb persons were
formerly regarded as idiots, and therefore incompetent
to testify, but the modern doctrine is that if they are of
sufficient understanding, and know the nature of an
oath, they may give evidence (g) either by signs, or
through an interpreter, or in writing. It has been laid
down that the presumption is always in favour of
sanity, and there is no exception to this rule in the case
oFaTaeaf and dumb person, but the onus of proving the
unsoundness of mind of such a person must rest on
those who dispute the sanity (h). When a deaf and
dumb witness has been pronounced competent to testify,
but it appears in the course of taking his evidence that
he is incompetent, his evidence may be withdrawn from
the jury (i).
(2) AJunatic, or mom compos mentis, is one who hath
had understanding, but by disease, grief, or other
accident, has lost the use of his reason (k).
As long as the suspension of the intelligence con
tinues, the lunatic is an incompetent witness : but his
competency is restored during a lucid interval (I). Nor
will the disability extend to cases of mere monomania,
(<7) 1 Hale P. C. 34 ; Rnthtoris Cam; 1 Leach C. C. 408 ; Morrison v.
Leunard, 3 Car. 4c P. 127.
(A) Per Lord HATHERLEY : Harrod v. Ifarrod, 4 K. Sc. J. 9.
(/) J?, v. Whitehead, L. R. 1 C. C. R. 33.
(i) 1 HI. Com. 304. (Q Com. Dig. Testim. (A. 1).
22 Law of Evidence.

nor where the hallucination permits the witness to

understand the nature of the duty which is expected
from him (m). But where a person is tendered as a
witness who is believed to be suffering from mono
mania, a preliminary inquiry as to his capacity to give
evidence must be instituted and he himself must be
examined (w).
(3) Infants.—There is no period of legal discretion
under which an infant is an incompetent witness. The
rule by which an infant under seven years of age can
not commit a felony, because the law presumes him
conclusively not to have sufficient intelligence for the
act, has no analogy in the evidence (o). Age is
immaterial ; and the question is entirely one of
intelligence, which, whenever a doubt arises, the court
will ascertain to its own satisfaction, by examining the
infant on his knowledge of the obligation of an oath,
and, if necessary, of the obligation of a solemn affirma
tion under the Oaths Act, 1888 (p). Although tender
age is no objection to the infant's competency, he can
not, when wholly destitute of religious education, be
made competent by being superficially instructed just
before a trial, with a view to qualify him (q). A judge
may, however, in his discretion, postpone a trial, in
order that the witness may be instructed in the nature
of an oath, but the inclination of judges is against this
practice.
Upon the hearing of a charge under s. 4 of the j
Criminal Law Amendment Act, 1885 (r), the evidence
of a child of tender years is admissible though not
given on oath, if the court is of opinion that the child
is possessed of sufficient intelligence and understands

O) jR. v. Hill, 2 Den. 254.

(») Spittle v. Walton, L. R. 11 Eq. 420.
(<0 Per PATTESON, J. : R. v. Williams, 7 0. & P. 320.
(j>) 51 & 52 Vict. c. 46.
(q) 1 Leach, 430 n. ; B. v. Nicholas, 2 C. & K. 246.
(/•) 48 ic 49 Vict. c. 69.
 The Competency of Witnesses. 23

the duty of speaking the truth ; but corroboration of j

such evidence is necessary for a conviction. Similar
provisions are contained in the Prevention of Cruelty to
Children Act, 1894 (s), in respect of offences under that
Act, including those mentioned in the schedule
thereto (t).

Sect. 2. —On Incompetency from Defect of Religious

Principle.
The principle on this head formerly was that no
person was a competent witness unless he believed in
a Supreme Being who would punish him, either in the
present or a future life, for perjury. Under the law as
it now stands, the evidence of Atheists is admissible,
subject to any observations as to its credibility.^
So, too, it was formerly the established principle of
English law, that no witnesses were to be believed
unless they delivered their evidence on oath. Excep
tions to this rule were granted by the legislature to
satisfy the conscientious scruples of Quakers, Moravians,
and Separatists ; members of which sects were allowed
to give evidence on affirmation instead of oath. This
principle was further encroached upon from time to
time by various Acts of Parliament, and in particular
by s. JLoL-tha Evidence Further Amendment Act,
1869 (w), which provided that if any person called to
give evidence in any cour^ of justice, objected to take an
oath, or was jabjected to as incompetent to take an oath,
such personj^ould, if the presiding judge were satisfied
that the taking of an oath Would have no binding effect
on his conscience, make the promise and declaration
set forth in the section.
\
(*) 57 k 58 Vict. c. 41, s. 15.
(f) A charge of an unnatural offence or attempt thereat, or indecent
assault, although bodily injury in charged as incidental, is not within the
Act (J?, y. lierr. 62 J. P. 120).
(m) 32 & 33 Vict. c. 68.
 <24 Law of Evidence.

Ultimately in 1888 was passed the Oaths Act,

1888 (x), which repealed the previous statutory pro
visions on the subject, and enacted :
" 1. Every person upon objecting to being sworn, and stating,
as the ground of such objection, either that he has no religious
belief, or that the taking of an oath is contrary to his religious
belief, shall be permitted to make his solemn affirmation instead
of taking an oath in all places and for all purposes where an oath
is or shall be required by law, which affirmation shall be of the
same force and effect as if he had taken the oath ; and if any
person making such affirmation shall wilfully, falsely, and cor
ruptly affirm any matter or thing which, if deposed on oath,
would have amounted to wilful and corrupt perjury, he shall be
liable to prosecution, indictment, sentence, and punishment in all
respects as if he had committed wilful and corrupt perjury.
" 2. Every such affirmation shall be as follows : ' I, A.B., do
solemnly, sincerely, and truly declare and affirm,' and then proceed
with the words of the oath prescribed by law, omitting any words
of imprecation or calling to witness.
" 3. Where an oath has been duly administered and taken, the
fact that the person to whom the same was administered had, at
the time of taking such oath, no religious belief, shall not for any
purpose affect the validity of such oath.
" 4. Every affirmation in writing shall commence, ' I, ,
of , do solemnly and sincerely affirm,' and the form in lieu
of jurat shall be ' Affirmed at , this day of ,
18 . Before me.'"

This Act applies to all cases in which oaths are

administered in or out of court in any part of the
United Kingdom.
It is noticeable that it is only an objection to take
the oath emanating from the deponent that enables an
affirmation to be substituted for an oath. A deponent
cannot now, as he could under the Act of 1869, be
objected to as incompetent to take an oath. It is also
noticeable that the ground of the objection must be
stated, and such ground must be one of the two men
tioned in the Act, viz., / absence of religious belief,
j or that the taking of an oath is contrary to deponent's
religious belief. An objection based on any other
ground, or an objection based on no stated ground,
(a:) 51 & 52 Vict. c. 46.
 The Competency of Witnesses. 25

will be insufficient. The judge on a trial in court must

satisfy himself that a witness is entitled to affirm before
he can be allowed to give evidence on affirmation;
and an objection to evidence as inadmissible underl
this statute can be taken after verdict (y) .

The mode of administering an oath is regulated

by the 1 & 2 Vict. c. 105, which enacts that :
" In all cases in which an oath may lawfully be and shall
have been administered to any person, either as a juryman or 1
a witness, or a deponent in any proceeding, civil or criminal, in
any court of law or equity in the United Kingdom, or on appoint
ment to any office or employment, or on any occasion whatever,
such person is bound by the oath administered, provided the same
shall have been administered in such form and with such cere
monies as such person may declare to be binding ; and every such
person, in case of wilful false swearing, may be convicted of the
crime of perjury in the same manner as if the oath had been
administered in the form and with the ceremonies most commonly
adopted."

If there is any doubt as to the proper form to be

adopted in administering the oath to any particular
witness, such witness should be asked what form he
considers binding on his conscience. If a witness is
sworn in the usual way as a Christian, the objection
may be subsequently taken that he has been informally
sworn ; but if he states that the oath as adminis
tered is binding on his conscience, his answer is
conclusive (z).
Section 5 of the Oaths Act, 1888 (a), provides that :
" If any person to whom an oath is administered desires to
swear with uplifted hand, in the form and manner in which an
oath is usually administered in Scotland, he shall be permitted so
to do, and the oath shall be administered to him in such form and
manner without further question."

As a witness can claim to be sworn in this manner

as a matter of right, " kissing the Book" is optional.

(!/) See H. v. Moore, 17 Cox C. C. 458.

(--) The Queen'* Cane, 2B.iB. 2S4. (a) 51 & 52 Vict. c. 4G.
26 ■ Law op Evidence.

It may be remarked that the justices in licensing

sessions may hear evidence not upon oath if they think
fit when dealing with new licenses or transfers (b).
But in cases of renewal of licenses the evidence must
be given on oath because of the provisions of the
Licensing Act, 1872 (35 & 36 Vict. c. 94), s. 42.

Sect. 3. — The Competency of Parties to Civil

Proceedings.
It is no objection to the competency of a witness
that he is of infamous character ; or that
he is a party to the record, or otherwise
interested in the result of the issue.
Formerly, following the principle of the Roman
law (c), a witness might be objected to as being of
infamous character, or a party to the record, or other
wise interested in the result of the issue. The first
important inroad on this principle was made by the
6 & 7 Vict. c. 85 (usually called Lord Lenman's Act),
which enacted (by s. 1) that no person offered as
a witness should thereafter be excluded by reason
of incapacity, from crime or interest, from giving
evidence.
r* This Act, however, left the actual parties to the
record incompetent witnesses. This disability was
removed by s. 2 of the Law of Evidence Amend
ment Act, 1851 (d), which enacted that :
" On the trial of any issue joined, or of any matter or question,
or on any inquiry arising in 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 person in whose behalf any such suit,
action, or other proceeding may be brought or defended, shall,

(A) II. v. Shannon, [1898] 1 Q. B. 578.

(c) Hattigan's Hoinan Law of Persons, p. 83.
<7i) 14 & 15 Vict. c. 99.
 The Competency of Witnesses. 27

except as hereinafter excepted, be competent anjLcflmpellable (e) to

give evidence, either viva voce or by deposition, according to the
practice of the court, on behalf of either or any of the parties to
y~ the said suit, action, or other proceeding." - ./ / f /. tt/C-

But it was by s. 4 of this Act provided, that nothing !

therein contained should apply to proceedings instituted
in consequence of adultery, or to actions for breach of (>
promise of marriage. Section 43 of the Divorce Act (/) 4( A"f # ^J
however, enacted that, on a petition for a divorce, the •'"
petitioner may be examined by order of the court, but
is not compellable to answer questions which tend < ' jjr'
to show that he or she has committed adultery, nor, as g t\
was held (g), open to cross-examination by the respon- f fc1
dent. Respondents and co-respondents were not
compellable or competent witnesses under this Act (h). . y'-
The Law of Evidence Further Amendment Act, Al
1869 (i), abolished the two exceptions retained by the ,..
Law of Evidence Amendment Act, 1851. After repeal- I
ing s. 4 of the last-mentioned Act, the Act of 1869 \
renders (s. 2) the parties to actions for breach of
promise of marriage competent witnesses. The un
corroborated testimony of the plaintiff is, however, not
to be sufficient proof of a promise to marry to entitle
the jury to give a verdict for the plaintiff ; his or her
testimony must be corroborated by some vmterial
evidence in support of the alleged promise. Section 3
of this Act renders the parties to proceedings instituted
in consequence of adultery, and the husbands and
wives of such parties, competent witnesses ; with the
proviso that no witness in any proceeding, whether
a party or not, is to be liable to be asked or bound
to answer any question tending to show that he or she
has been guilty of adultery, unless such witness has
(«) " Compellable " means " compellable by process of law " (A'op* v.
The tfveen, [1894] A. C, p. 652.
(/) 20 & 21 Vict. c. 85.
(y) Gile* v. Gilei, 32 L. J., P. M. & A. 209.
(A) ttobinivn v. Lane, 1 S. T. 362. (i) 32 & 33 Vict. c. 68.
•28 Law of Evidence.

already given evidence in the same proceeding in

disproof of such adultery. The great aim of the legisla
ture would seem to have been to enable persons charged
with adultery in the Divorce Court to deny the charge
on oath. This is effected by making such persons
competent witnesses. In the measure, as originally
brought into the House of Commons, the parties were
to be compellable as well as competent. To this two
objections were raised—first, that it would induce
parties to introduce proceedings on very slender grounds
in the expectation of being able to elicit something in
cross-examination of the respondent or co-respondent
to establish their case ; second, that an adulteress or
adulterer would be very much tempted to commit
perjury to screen the partner in guilt. In deference to
these objections the above-mentioned proviso was added
to the third section.
One question presents itself upon these two sections
—are the parties to an action for breach of promise of
marriage and to proceedings instituted in consequence
of adultery, compellable as well as competent witnesses?
Prima facie every witness who is competent is also
compellable unless some privilege intervenes, and there
fore the proper construction to be placed upon these
sections is, that the parties mentioned are compellable
as well as competent except so far as they can claim
the protection of the proviso to s. 3. No doubt would
present itself but for the language of s. 2 of the Law
of Evidence Amendment Act, 1851, which enacts,
that the parties to any action (except as thereinafter
excepted) shall " be competent and compellable to give
evidence."
The proviso above referred to (which has been held
only to be operative in suits instituted in consequence
of adultery (k) ) does not protect a person, coming

(*) M. v. 10 P. 1). 176.

 The Competency of Witnesses. 29

forward as a witness to disprove an act of adultery,

from being cross-examined as to other acts of adultery,
provided they are charged in the pleadings either
specifically or generally (J). The protection of the
proviso is the protection of the witness, and can be
claimed by the witness only (m), and if not claimed
the evidence is admissible. In short, subject to the
proviso, the competency of parties to proceedings
instituted in consequence of adultery is absolute, and
in respect of examination and cross-examination they
are on the same footing as other witnesses. This
the Court of Appeal were disposed to hold, but did
not hold, in a case which involved the question
whether, in a divorce case, the judge was right in
refusing to allow the co-respondent to cross-examine
the respondent, and yet in his summing-up contrasting
the evidence given by the one with the evidence given
by the other. As they held the judge wrong in the
latter matter, they thought it unnecessary to " express
a concluded opinion " on the former, which is to be
regretted («).
It was held by two judges of the Common Pleas
• Division, in Guardians of Nottingham v. Tomkinson (o),
that in proceedings by the guardians of the union
against a husband to compel him to maintain a child
of his wife born in wedlock, which he refused to
maintain on the ground that he was not its father, the
evidence of the husband was inadmissible to prove
non-access to his wife, as the proceedings were not
"proceedings instituted in consequence of adultery"
within the meaning of s. 3 of the Act. In Re Hideout's
Trusts (p), which was a petition for the payment out
of a fund in court to a father and five children, the

(0 Brown v. Brown. L. K. :t P. ic D. 198.

O) Hebblethwaite v. Ilebblethwaite, U K. 2 P. & D. 29.
(«) Allen v. Allen, [1894] P. 248.
(«) i C. P. I). 313. Q>) L. R. 10 Eq. 11.
30 Law of Evidence.

evidence of the father was tendered before James, V.-C,

to prove non-access to his wife so as to bastardize
the respondent, a child of hers, on the ground that
the proceedings were " instituted in consequence of
adultery " within the meaning of the Act. The Vice-
Chancellor said that he must have other evidence.
But it is not clear from the Reports whether he
intended to exclude the evidence of the father or not.
Hall, V.-C, in the similar case of Re Yearwood's
Trusts (q), considered that the Vice-Chancellor in
tended not to exclude the evidence, and therefore he
(Hall, V.-C.) admitted the evidence of the father in
the case before him. The judges of the Common Pleas
Division, however, were of opinion that James, V.-C,
intended to exclude the evidence, and that the case of
Re Rideout's Trusts was therefore in favour of the
decision which they came to, and that the decision
in Re Yearwood's Trusts was founded upon a mistaken
view of Re Rideout's Trusts. In Re Walker (?■), which
was an application by an infant for maintenance,
resisted on the ground that the infant was illegitimate,
Kay, J., and in Burnaby v. Baillie (s), which was an
action by a husband, who had been divorced from his
wife, for a declaration that there was no legitimate
child of the marriage, North, J., followed Guardians of
Nottingham v. Tomkiuson ; the ratio decidendi in both
the last-cited cases being that the proceedings were
not "instituted in consequence of adultery" within
the meaning of the Act of 1869.
Of course a witness is protected by the proviso from
answering questions put by interrogatory, as well as
oral examination. But further than this, in the
Divorce Court, no discovery either by interrogatory or
affidavit of documents will be allowed which is addressed
solely to the issue of adultery (t).

(?) 5 Ch. D. 545. (0 42 Ch. D. 282.

(r) 34 W. R. 95. CO Bed/em v. Redfcrn, [1891] P. 139.
 The Competency of Witnesses. 31

Any discussion as to the testimony of interested

witnesses cannot be more appropriately closed than
by quoting the remarks of James, L.J., when Vice-
Chancellor (u) '•
" It has been pressed on me that I cannot decide against the
positive oath of the respondent without convicting him of wilful
and corrupt perjury. I have had occasion more than once to say
that this is not a criminal court, that I am trying no one for any
crime. I am here bound by my own judicial oath to well and
truly try the issue joined between the parties, and a true verdict
give according to the evidence, that is to say, according as I,
weighing all the evidence, by all the lights I can get, and as best
I may, find the testimony credible or incredible, trustworthy or
the reverse. The law which admitted the testimony of the parties
and of interested persons was passed in full reliance on the judges
and on juries that they would carefully scrutinize such testimony
and give it such weight as it deserved, and no more, or no weight
at all."

Sect. 4.— As to the Competency of Parties to Criminal

Proceedings.

It has long been held that a prosecutor, in a criminal

proceeding, is a competent witness against a prisoner ;
and, although there were formerly exceptions to the
rule, they have all been removed by Lord Denman's
Act and other statutes.
Lord Denman's Act («), by rendering all persons
competent as witnesses notwithstanding they may
have an interest in the matter in question, or the event
of the trial, removed all doubt as to the admissibility
of informers and accomplices as witnesses. All such
persons are competent witnesses ; but the objections to
their credibility remain as before (x) .
At Common Law, a defendant in a criminal charge,
so far from being bound or competent to give evidence
against himself, was never bound even to answer the
questions put to him upon his examination before a

(w) Pikf v. Nicholai, 17 W. K. 845.

(r) 6 & 7 Vict. c. 85. (*) Vide, p. 43.
32 Law of Evidence.

magistrate. Section 3 of the Evidence Amendment

Act, 1851 (14 & 15 Vict. c. 99), confirms this state of
the law ; and enacts that—
" Nothing herein contained shall render any person who in any
criminal proceeding is charged with the commission of any indict
able 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."

It might, perhaps, have been inferred from the

language of this section that a defendant in a criminal
proceeding cannot, in any case, be convicted on his
own evidence. But this is not the construction which
has been put on this part of the Act, although it might,
perhaps, be contended that, according to the letter, the
Common Law principle that no man is bound to
criminate or betray himself (nemo tenetur seipsum
prodere) is enlarged to the extent of an absolute and
universal prohibition. Prisoners are, however, daily
not merely suffered to plead guilty, and so become con
victed in the eye of the law on their own evidence, but
their statements before magistrates, after the statutory
caution of the 11 & 12 Vict. c. 42, s. 18, and their
subsequent confessions, are always received as evidence
on which alone a jury may convict.
Legislative inroads were from time to time made on
the principles embodied in s. 3 of the Evidence Amend
ment Act of 1851. By a great number of Statutes
creating offences passed since its date the persons
charged with such offences, and their husbands and
wives, have been made competent witnesses. Most of
these Statutes will be found mentioned in the last edition
of this book ; but as their provisions in respect of the
matter under consideration have been, with one excep
tion, superseded by the Criminal Evidence Act, 1898,
 The Competency of Witnesses. 33

hereinafter mentioned, it is unnecessary to set out any

such provisions other than the first section of the
Evidence Act, 1877 (40 & 41 Vict. c. 14), which is
as follows :
" On the trial of any indictment or other proceeding for the
non-repair of any public highway or bridge, or for a nuisance to
any public highway, river, or bridge, and of any other indictment
or proceeding instituted for the purpose of trying or enforcing a
civil right only, every defendant to such indictment or proceeding,
and the wife or husband of any such defendant shall be admissible
witnesses and compellable to give evidence."

This enactment remains unaffected by the Act

of 1898.
Several attempts have been made to get an Act passed
rendering the defendants in all criminal proceedings
competent to give evidence on oath, but without
success until 1898, when, in spite of much opposition i
in and out of Parliament, the Criminal Evidence Act, )
1898 (s), wasjassed. This Act, which is henceforth to
apply to all criminal proceedings, notwithstanding any
enactment in force at the commencement of the
Act (t), makes every person charged with an offence
a competent witness for the defence at every stage
of the proceedings, but he cannot be called except
on his own application. He is, of course, liable to
cross-examination and cannot refuse to answer any
question on the ground that it would criminate him as
to the offence charged, but his cross-examination as
to other offences and as to character is governed by the
provisions of s. 1 (f) of the Act (for which, see Appendix).
Counsel for the prosecution may comment upon any
evidence given under the Act by a person charged, but
he must not comment upon the failure of any such
person, or of the wife or husband of such person, to

(*) 61 & 62 Vict. c. 36, for which, together with some of the leading
decisions thereon, see Appendix.
(<) Clianmck v. Marehant, [1900] 1 Q. B. 474. Consequently the
provisions as to cross-examination in the Act of 1898 now govern all
criminal proceedings.
34 Law of Evidence.

give evidence (u). The presiding judge may of course

comment upon such failure (x). But certainly there
are many cases in which it would not be expedient or
calculated to further the ends of justice so to do (y).
No general rule can be laid down, and the matter must
be left to the discretion of the judge in the particular
case, but such a comment would appear to be, to say
the least, undesirable, except under special circum
stances. Now that it has become . generally known
that an accused person can give evidence if he chooses,
even without such comment, the jury would be naturally
inclined to draw an adverse inference from a person
charged abstaining to give evidence, so that although
he is not legally compellable to give evidence, he would
seem to be practically compellable. But the jury ought
to be cautioned that it is for the prosecution to make
out their case, and if not made out independently of a
prisoner's evidence, his failure to offer himself as a
witness cannot legally turn the scale against him.
What is a criminal proceeding, and what is a civil pro
ceeding? This question arose in Attorney-General v.
Radloff (z), which was an information for penalties under
the repealed Prevention of Smuggling Act, 1845 (8 &
9 Vict. c. 87) ; the defendant offered himself as a wit
ness, and the court was divided as to his competency.
It was held by Pollock, C.B., and Parke, B., that he
was not a competent witness, because it was a criminal
proceeding punishable on summary conviction ; but
Platt, B., and Martin, B., held it to be not of a
criminal nature, and that the defendant was a com
petent witness. The view of Platt, B., appears to
contain the true solution of all such difficulties :
" What is a civil proceeding as contradistinguished from a
criminal proceeding ? It strikes me that the true test is to see if
(«) 61 & 62 Vict. c. 36, s. 1 (6).
(x) R. v. Rhodex, [1899] 1 Q. H. 77.
(y) Kop* v. The Queen. [1894] A. C. 65:1. (2) 10 Ex. 84.
 The Competency of Witnesses. 35

the subject-matter be of a personal character ; that is, if the

proceeding relates to goods or property -which it is sought to
recover by legal proceedings, that is a civil proceeding ; but if it
is one which may at once affect the defendant personally, by the
imprisonment of his body in the event of a verdict of guilty
being pronounced against him as a public offender, that is what I
consider a criminal proceeding. . . . Now, although informa-
tFons of this kind by the Attorney-General may by some be con
sidered criminal proceedings, I rather deem them in the nature
of civil proceedings, and like the old actions to recover penalties
under the Game Laws, which we all remember were civil proceed
ings. . . . Here the object is to recover money—to recover
that which, by the law, is made a debt."

Now the Crown Suits Act, 1865 (a), s. 34, has

removed all doubt as to proceedings on the revenue side
of the Court of Exchequer by making the 14 & 15 Vict,
c. 99, ss. 2, 3, and the 16 & 17 Vict. c. 83, applicable to
such proceedings, which, for the purpose of these
enactments, are not to be deemed criminal proceedings.
Similar doubts were raised in bastardy cases as to
the competency of the putative father to be sworn as
a witness on his own behalf ; but Erle, J., held him
to be competent, on the ground that the proceedings or
an affiliation order are of a civil, and not of a criminal
nature (b). This view is confirmed by the language of
Lord Campbell in another case (c), in which the
proceedings against the defendant were for a breach of
the Game Laws, viz., for using snares for game without
having a certificate. The inclination of the court
in this case was, to hold all proceedings to Tie of !
a criminal nature when the judgment assumes the form
of a fine, which may be enforced by imprisonment.
The test, according to Lord Campbell, in such cases
seems to be to consider whether it is sought to recover
a sum of money in the nature of a debt from a person,
as in bastardy cases ; or to inflict punishment of an
exemplary and public nature.
(a) 28 & 29 Vict. c. 104.
(A) Re parii- Crowln/, 24 L. T. 244.
(O Cattell v. IretoH, E. B. Ic'K. 91.
D >
36 Law of Evidence.

Sect. 5. —As to the Competency of Husbands and Wives

as Wittiesses for or against each other.
In civil cases, previously to the Evidence Further
Amendment Act, 1853 (d), husbands and wives were
not competent to give evidence for or against each
other (e). But that Act rendered husbands and wives
competent and compellable, in all civil cases, to give
evidence " on behalf of any or either of the parties
to the said suit, action, or proceeding." But neither
husband nor wife is made compellable to disclose any
communication whatsoever made to him or her by '
the other during marriage (/). These provisions were,
by the Act, not to apply in criminal cases, nor in pro- <
ceedings instituted in consequence of adultery ; but, as
stated above, the Evidence Further Amendment Act,
1869, made the husbands and wives of parties to '
proceedings instituted in consequence of adultery com
petent witnesses (g).
In criminal cases the old rule was that husbands and
wives were not competent to give evidence for or
against each other (h), and this rule prevented such
witnesses from being examined either as to circum- i
stances that happened before marriage, or as to the (
fact of marriage. Nor could a wife or husband be a
witness for or against any person who was indicted
jointly with the husband or wife (i) ; nor, on an indict
ment for a conspiracy, could formerly the wife of one of
the conspirators give evidence in favour of the others ;
because their acquittal must enure to the benefit of the
husband (k). This rule was preserved by s. 3 of the
14 & 15 Vict. c. 99, which provided that nothing con
tained in that Act should on any criminal proceeding,
(i) 16 & 17 Vict. c. 83.
(e) Barbat v. Allen, 7 Ex. B09 ; Staplettm v. Croft*, 18 Q. B. 3G7.
(/) After the death of either husband or wife the privilege enures for
the benefit of the survivor. Sec O'Connor v. Mnrjoribiinkn, 4 M. <!c
G. 435.
(g) See ante, p. 27. (i) B. v. Thompson, L. R. 1 C. C. R. 377.
(A) Co. Litt 6 b. (*) B. v. Looker, 5 Esp. 107.
 The Competency of Witnesses. 37

render any husband competent or compellable to give

evidence for or against his wife, or any wife com
petent, or compellable to give evidence for or against
her husband, and by the Evidence Amendment Act,
1853 (16 & 17 Vict. c. 83), which provided that
nothing therein should render any husband com
petent or compellable to give evidence for or against his
wife, or any wife competent or compellable to give
evidence for or against her husband in any criminal pro
ceeding, or in any proceeding instituted in consequence
of adultery. But, as appears from what has been said
in connection with the competency of persons charged
in criminal cases, legislative inroads have also been
made on this rule ; and under various Statutes the
husband or wife of a person charged with an offence
under such Statutes was made a competent and in some
cases a compellable witness. Now, by the Criminal
Evidence Act, 1898 (I), the wife or husband of a person
charged with an offence is made a competent witness
for the defence at every stage of the proceedings; but
such a witness cannot be called except on the applica
tion of the person charged, unless the offence is under
one of the six enactments mentioned in the schedule to
the Act (m) , or in cases where at common law the wife
or husband of a person charged can be called without
the consent of such person (see below). Communica-
tions between husband and wife during marriage are
expressly protected from compulsory disclosure by the
Act (»).
In all cases where the husband is charged with a
personal injury to the wife, or the wife with a personal
injury to her husband, the injured party is at common
(I) 61 & 62 Vict. c. 36 ; see Appendix.
I.e., the Vagrancy Act, 1824 ; the Poor Law (Scotland) Act, 1845 ;
the Offences Against the Person Act. 1861 ; the Married Women's Property
Act, 1882 ; the Criminal Law Amendment Act, 1885 ; and the Prevention
of Cruelty to Children Act, 1894. When a person is charged with an
offence under any of these enactments the wife or husl»nd may be called
as a witness for the prosecution or defence without the consent of the
person charged (s. 4 (1) ).
(«) Section 1 (d).
38 Law of Evidence.

law a competent witness against the other. This is

confined to cases of personal injuries effected by violence
or coercion, and does not extend to defamatory libels (o)
nor to injuries to the children of the marriage. The
dying declarations of a wife who has been murdered by
her husband, if not otherwise inadmissible, are evidence
against him (p). In high treason it is doubtful
whether a wife may or may not be made a witness
against her husband (q).
It should be observed that the Married Women's
Property Act, 1884 (r), enacts that in any such criminal
proceeding against a husband or a wife as is authorised
by the Married Women's Property Act, 1882, the
husband and wife respectively shall be competent and
admissible witnesses, and except when defendant, com
pellable to give evidence.
In an action against a husband for necessaries
supplied to his wife when living apart from her, the
defence being the wife's adultery, she is admissible to
prove the adultery (s) ; though such evidence would |
be, of course, open to suspicion.

Sect. 6.—Matters not proveable by a single Witness.

As a general rule, the testimony of a single witness,
or any documentary evidence, however slight, provided
it be admissible, is sufficient evidence to establish any
fact, but it does not follow that it is satisfactory
evidence for that purpose.
Sufficient evidence, it may be stated, is the
minimum which will satisfy the requirements of the
law ; satisfactory evidence is that which satisfies
or convinces the court on any given point.

(/>) R. v. Lord Mayor of London, 16 Q. 13. 1). 772.

(/O R. v. John, 1 East P. C. 357.
(//) R. v. (frii/qt, T. Kiiym. 2.
(;•) 47 & 48 Viet. c. 14.
(*) Cooper v. Lloyd, 6 C. B. (N.S.) 51!).
 The Competency of Witnesses. 39

It should be observed, that where an Act of Parlia

ment enacts what shall be "sufficient " evidence of any
fact, the question arises whether sufficient means primd
facie or conclusive evidence. This was discussed by
Jessel, M.K., in Ystalyfera Iron Co. v. Neath and
Brecon Rail. Co. (t). He expressed an opinion that no
general rule could be laid down, but held that in the statu
tory enactment affecting that case (ss. 16 and 17 of the
Lands Clauses Act), " sufficient " means " conclusive "
evidence, except in the event of fraud being proved.
By the general rule, stated in the heading to this
section, a jury are quite justified, if they think proper, in
finding a verdict on the uncorroborated statements of a
single witness, as that would be sufficient evidence.
But where there is but one witness, if he gives his
testimony in an unsatisfactory way, or, a fortiori, if he
is manifestly unworthy of credit, his evidence will not
satisfy the jury, and they will not found a verdict upon
it (u) . Even where the only evidence consists of the
directly opposite statements of adverse witnesses, the
jury may believe which they like (x). So also where
any question of fact depends on the testimony of a
single witness, and any inconsistency is apparent be
tween such testimony and the previous conduct of the
witness, the court should look at the acts done by him
at the time rather than to his statements when called
as a witness (y).
Exceptions to the above-mentioned general rule :
First. —In charges of treason no person can be convicted
but upon the oaths and testimony of two lawful wit
nesses, either both to the same overt act or one to one,
and the other to another overt act of the same treason,
unless the accused shall willingly and without violence
in open court confess the same ; and if two or more
(0 L. B. 17 Kq. 150.
(m) Vide *vpra, p. 3. (*) Vidr tupra, p. 4.
(y) Per Lord Hathebley, in Barr't Trust*, 4 K. & J. 236.
40 Law of Evidence.

distinct treasons of divers heads or kinds shall be

alleged in one indictment, one witness produced to
prove one of these treasons, and another another, shall
not be deemed to be two witnesses to the same
treason (z). Secondly. —In order to convict a defen
dant of perjury it is necessary that there should be
something more than the evidence of one witness to
prove the falsehood : for this reason, that if there be
the oath of one person only against that of the defen
dant, it may be considered doubtful which of the two is
true ; but it is never necessary that there should be two
independent witnesses to contradict the defendant on
any one particular point, and it is sufficient that there
should be two pieces of evidence, proved by separate
witnesses, in direct contradiction to the statement of
the accused on which the perjury is alleged (a). It was
formerly considered that to prove a charge of perjury
there must be at least two witnesses, but it is now
deemed sufficient if there is some other evidence
rtrongly corroborating a single witness. Thus, a letter
written by the defendant contradicting his statement
upon oath has been held to render it unnecessary to
call a second witness (&). The prosecution must turn
the scale by corroborating the witness, but the degree
of corroboration which is necessary is not definable (c) .
Thirdly. —In cases of bastardy an affiliation order on a
putative father cannot, under 35 & 30 Vict. c. 05, be
made unless the evidence of the mother is corroborated
by other evidence in some material particular. Evi
dence of acts of familiarity between the mother and the
defendant, although before the time when the child
would have been begotten, are corroborative evidence
within the meaning of the Statute, although, of course,

00 7 Will. 3, c. 3, sr. 2, 4.
00 Per WlOHTMAK, J. : R. v. Hook, I). & B. 607.
(ft") Per Lord DENMAN : R. v. Mayhem, f> Car. & P. 315.
0>) Per Erle. C.J. : R. v. Shaw, I., tt O. 5»0.
 The Competency of Witnesses. 41

the weight to be attached thereto is a matter for the

court (d) . Fourthly.—The evidence of a plaintiff in an
action for breach of promise of marriage does not entitle
him or her to a verdict unless corroborated by some
other material evidence in support of such promise (e).
The conduct and letters of the defendant may afford
the necessary corroborative evidence. It may also be
observed that the corroborative evidence must be in
support of the promise, and it will not be sufficient to
corroborate the testimony of the plaintiff on other
points, if it is uncorroborated in respect of the alleged
promise: but the corroborative evidence need not be
such as would alone establish the promise if it supports
it (/). It has been held, that the corroborative evi
dence may relate to matters anterior to the date of the
alleged promise (g). The corroborative evidence must
not be that of the plaintiff (h). The fact of the defen
dant in the action not answering letters written by the
plaintiff, in which she stated he had promised to marry
her, is not corroborative evidence (i). But the fact o£jp
the defendant not answering when charged orally by
the plaintiff with having promised to marry her is
corroborative evidence (k). Fifthly. —In divorce cases;
a decree will not be pronounced upon the uncorroborated
evidence of a woman of loose character (I). Sixthly.—
The courts do not generally consider a claim against
the estate of a deceased person established by the un
corroborated testimony of the claimant ; but this is a
rule of practice, not a rule of law (to), and if a jury
were to find a claim against the estate of a deceased

(</) Cvle v. Manning, 2 Q. B. D. 611. —'

(e) 32 & 88 Vict. c. 68, «. 2.
(/) Hernia v. Stern, 2 C. P. I). 265.
WUeox v. Gotfrey, 26 L. T. (N.S.) 328, 481.
(/<) Owen v. Moberley, 64 J. P. 88.
(0 Wiedeman v. Walpnle, [1891] 2 Q. B. 534.
(A) Jtesiela v. Stern, ubi supra.
(0 Ginger v. Ginger, \.. R. 1 P. Jc D. 37.
(>w) See Beckett v. Ramstlale, 31 Ch. 1)., p. 183.
4-2 Law of Evidence.

person established by the uncorroborated evidence of

the claimant, the verdict would not be interfered with (») .
It is the duty of the judge to direct the jury not to act
upon such evidence unless they are convinced of its
truth. It should be examined with care, even with
suspicion (o). In one case, a release to a trustee was
set aside after the death of the trustee, on the evidence
of the plaintiff corroborated by the tenor of the deed (p).
A donatio mortis causa has been considered established
by the uncorroborated evidence of the donee (q) : it
should, however, be observed that the donee was not
cross-examined in this case (r). Seventhly. -An un
written retainer, if denied on oath by the client, is not
proved by the uncorroborated oath of the solicitor (s) .
Eighthly.—Although the evidence of children of tender
years, not upon oath, is admissible under the Criminal
Law Amendment Act, 1885, s. 4, and also under the
Prevention of Cruelty to Children Act, 1894, s. 15, .
such evidence is not sufficient for a conviction without
corroboration (t).
Ninthly, there is the well-known rule that—

A prisoner ought not to be convicted upon the

evidence of any number of accomplices, if
unconfirmed or uncorroborated by other
testimony (it)
The reasonableness of this rule is obvious from the
suspicious character which is inseparable from this kind
of evidence. The legislature has held that this quality
is not sufficient of itself to justify the exclusion of
such evidence from a jury ; or the laying down of any

(*) Per Jessel, M.K. : Finch v. Finch, 23 Ch. I). 271. See also
Beckett v. Ramsdale, 81 Ch. D. 177.
(») Rawlinwn v. Seholet, 79 L. T. 350.
(/>) (fundi/ v. yfaeauhiy, 81 Ch. D. 1.
(//) Farmer v. Smith, 58 L. T. (N.S.) 12.
(;) t)r in Bartholomew v. Menziet, [1902] 1 Ch. 680.
0) Bird v. Ilarrit, 29 W. K. 45.
(0 See ante, p. 23. (») R. v. Xoake*, 5 C. & V. 236.
 The Competency of Witnesses. 43

principle by which it shall be denied all the elements of

credibility. It may be tendered from motives of con
scientious penitence ; but ordinary experience, and
knowledge of human nature, must convince every one
that it is still more likely to be tendered from motives
of interested treachery or revenge ; and in every such
case the amount of credibility sinks to a minimum.
Extent of corroboration. —It is therefore held that
the evidence of accomplices ought not merely to be
corroborated, and that in the absence of corroboration
a prisoner ought to be acquitted, but that the corrobo
ration of an accomplice's evidence ought to go to
the identity of the prisoner : i.e., it should satisfy a jury
that the prisoner is the person who committed the
crime with which he is charged by the accomplice (x) .
Where several prisoners are indicted together, and the
evidence of an accomplice is only corroborated as to
some of them, the jury ought to acquit the others (y).
The jury may convict on the uncorroborated evi
dence of an accomplice (z) ; and it is only a rule of
practice, and not of law, for a judge to tell a jury that
they ought not to convict on the uncorroborated evi
dence of an accomplice (y) . In B. v. Jones (a), Lord
Ellenborough, in dealing with the subject now under
consideration, said :
" No one can seriously doubt that a conviction is strictly legal,
though it proceed upon the evidence of an accomplice only.
Judges, in their discretion, will advise a jury not to believe an
accomplice, unless he is confirmed ; but if he is believed, his
testimony is unquestionably sufficient to establish the facts to
which he deposes."
On an indictment for receiving stolen goods the
principal thief is a competent witness (b). The

O) H. v. Fonter, 8 0. & P. 107.

\y) II. v.Stubbs, Dear*. 555.
(;) In re Meunier, [18U4] 2 Q. B. 415.
(«■) 2 Camp. 133.
44 Law of Evidence.

ordinary common law rule was and (subject to what

is hereinafter stated) is, that the evidence of one defen
dant in a criminal trial cannot be received as
evidence either for or against another defendant (c).
But the Criminal Evidence Act, 1898, which makes
a person charged with an offence a competent witness
for the defence, whether charged solely or jointly with
any other person, has created an exception to the rule.
When two persons are jointly charged, if one of them
applies to be called as a witness (he cannot otherwise be
called), then if the evidence which he gives inculpates
the other it is evidence against that other, who has an
unrestricted right to cross-examine him (d). If the
evidence which he gives exculpates the other, is it
evidence for that other ? It appears that it is ; because
a prisoner who elects to give evidence is, subject to the
qualifications contained in the Act, in the same position
as any other witness for the defence (e) . Where several
persons are indicted, the prosecutor may, by leave of
the court, take a verdict of acquittal as to one or more,
and call them as witnesses against the remaining
prisoners (/). It appears also that an accomplice,
who is himself charged on a separate indictment, is
a competent witness for a prisoner (g) ; and a prisoner,
who has pleaded guilty, may be called for or against
his co-defendants (h). So where the evidence against
one of several prisoners is slight, the judge may direct
an acquittal in order to enable the others to call him as
a witness ; and it seems that this may be done without
taking a verdict against the prisoner who is called as a
witness (t) ; though it would, as a general rule, be

0) R. v. Payne, L. R. 1 C. 0. K. 349.
(rf) R. v. Hadwen, [1902] 1 K. B. 882.
(c) Of. R. v. Hadwen, vbi mipra.
( / ) R. v. Oicen, 9 O. & P. »Z.
Cv) 2 Hale. P. C. 280.
(It) R. v. George, C. ft M. Ill ; S. v. Ifinch, 1 Den. 84.
CO WinOtor v. R., 7 B. k S. 360.
 The Competency of Witnesses. 45

judicious, where the accomplice is indicted with the

prisoner, to dispose of the indictment by acquitting or
convicting the prisoner, before he is called as a witness,
so that the temptation to strain the truth should be
as slight as possible (k).

(*) See R. v. Payne, h. R. 1 C. C. R., at p. 354.

 ( 46 )

CHAPTEE IV.

THE RULE THAT THE BEST EVIDENCE MUST BE

GIVEN : PRIMARY AND SECONDARY EVIDENCE.

It is an inflexible rule that—

The best evidence must be given.

This rule may also be stated thus :

The law requires that evidence which is the best

attainable of its class.
Meaning of rule.— The meaning of this rule is that
no such evidence shall be brought, as ex naturd rei
supposes still greater evidence behind in the parties'
own possession or power (a). The rule is founded on
the presumption that if inferior evidence is offered,
when evidence of a better and more original nature
is attainable, the substitution of the former for the
latter arises either from fraud, or from gross negligence,
which is tantamount to fraud. Thus, if a copy of a
deed or will be tendered, while the original exists and
is producible, it is reasonable to assume that the person
who might have produced the original, but who omits
to produce it, has some interested motive for tendering
a copy in its place. Here the deed or will itself is the
best and primary evidence of its contents. The copy
is secondary, and however indisputably it may be
authenticated, it is inadmissible in evidence as long as
the original can be produced, unless its production is
dispensed with. Where secondary evidence of a docu
ment is admitted at any stage of an action without

(«) Gilbert on Evidence, p. 6.

 Primary and Secondary Evidence. 47

objection by the party against whom it is tendered,

it is too late for such party to object to it at any later
stage (b).
What is primary and what is secondary evidence?
— "Primary evidence" is evidence which the law
requires to be given first (because it is the best evi
dence) ; " secondary evidence " is evidence which may
be given, in the absence of the better evidence which
the law requires to be given first, when a proper ex
planation can be given of the absence of that better
evidence (c).
In the case of written contracts. —It is a rule that
when a contract has been reduced to writing, the writing,
as long as it exists, is the best and only evidence of the
terms of the contract. Oral evidence is admissible to
explain, but not to contradict it. But if the writing
be destroyed ; or if it cannot be found after diligent
search ; or if an adverse party, in whose hands it is,
refuses to produce it, after having received due notice ;
then it is considered fair and reasonable, that any
competent witness who is acquainted with the terms
of the contract should be allowed to give oral evidence
of it, or that a copy of it should be admitted.
Depositions of witnesses in criminal cases.—So, too,
if a prisoner has been committed for trial on the oral
depositions of witnesses, it would be manifestly unfair
to admit their depositions, even when reduced to
writing and certified by the committing magistrate,
to be given in evidence against the prisoner, as long
as the original witnesses can be produced before a
jury, confronted with the prisoner, and subjected to
the cross-examination of the latter, or his counsel ;
and therefore such depositions are secondary evidence

(i) Rubiimtm v. Darks, 5 Q. B. I). 2fi.

(r) Per Lord ESHKR, M.K., in Lveat v. Wdliamum, L. K. 2 B. 116.
48 Law of Evidence.

which is admissible only in certain cases where the

original deponents cannot be produced. This subject
will be more fully discussed in a later chapter.

There may be distinct sources of evidence, one of

which may be oral, and another contained in writing.
In such a case both will be primary, and therefore
either will be admissible. Thus, a written receipt is
primd facie evidence of payment ; but it is not the only
evidence, because a written acknowledgment by a
creditor that he has been paid is not necessarily better
evidence than the oral evidence of a debtor who swears
that he has paid the money. Accordingly, the payment
may be proved either by producing the creditor's receipt
and proving his signature, or by the oral testimony of
the debtor. So, too, what a debtor says in admission
of a debt may be proved, although there be a written
promise to pay (d) . Again, although there may be a
written instrument between a landlord and tenant,
denning the terms of the "tenancy, the fact of tenancy
may be proved by oral evidence (e). But the terms of
the tenancy, and the amount of rent payable under, and
the parties to a written agreement for, a tenancy, can
only be proved by the written document (/).
The exceptions to the general rule can be maintained
only where the fact, of which oral evidence is admitted,
is something extrinsic and collateral to the written con
tract (g). If it be in any degree of the essence and
substance of the contract, then the writing must be
produced; e.g., on a question of title to land (A). The
fact of the existence of a writing or of its execution
may be proved without producing the writing ; but not
any part of its contents (i). In the case of Yorke v.
(VZ) Singleton v. Barrett, 2 C. iz J. 369.
(c) R. v. Kingnton-upon-Hull, 7 B. k C. (ill.
(_t)It. v. Kini/stun-MjiiiH./Ml, 7 B. & C. till.
(#) It. v. Cuttle Morton, 3 B. & Aid. .",90.
(/<) CotteriU v. Hobby, i B. & 0. 465.
(i) Darby v. Orneley, 1 H. & N. 1.
 Primary and Secondary Evidence. 49

Smith (k) , where a bill of sale was inadmissible for want

of a stamp, it was held that oral evidence of the fact
that there had been a sale was wrongly admitted. But
if a contract be established by oral evidence, it is for
the adverse party to prove that it was in writing. In
R. v. Bawdon (I), Bayley, J., said:
" There can be no doubt that a party may, by keeping out of
view a written instrument, make out by parol testimony a prima
facie case of tenancy, and that it then lies on the opposite party to
rebut the prima facie case so made out."

In a" an.tinn to recover a written document, oral evi- -

dence of its contents may be given, without previous
notice to produce it (m). Where a prisoner was
indicted for arson with intent to defraud a fire office, it
was held that secondary evidence of the policy was
inadmissible, as due notice had not been given to
produce it (n). V*
The subject of Secondary Evidence in the case of
documents will be further investigated in a later portion
of this work (o) .
When it is necessary to prove the handwriting of a
document in any case, civil or criminal, the most satis
factory (though, of course, not the only) evidence is that
of the person who wrote or signed. But other evidence
is equally admissible. In an action for infringement of
copyright of a picture, it was held unnecessary to pro
duce the original picture to establish that the alleged
copy was an infringement (p).
On account of the physical impossibility or difficulty
of producing the originals in court, inscriptions on
tombstones, escutcheons, and walls, may be proved by
witnesses or examined copies.

(*) 2] L. J. Q. B. 53.
CO 8 B. & C. 710.
C«/) Jolly v. Taylor, 1 Camp. 143.
(«) It. v. Kition, Dears. 187 ; cf. II. v. Elworthy, L. R. 1 C. C. K. 103.
(p) Vide Part II., Ch. I. and IV.
(y) Luetu v. Williams, f 1892] 2 Q. B. 113.
I..K.
50 Law of Evidence.

The fullest proof of a fact need not be given.—It is

held that this rule relates not to the measure and
quantity of evidence, but to the quality. It is not
necessary to give the fullest proof of which a fact may
admit. Thus, in the cases where there are several
attesting witnesses, it is sufficient to call one only where
one only is required by law to the validity of the instru
ment ; or, in the event of the death of all the witnesses,
it is sufficient to prove the handwriting of any one ; and
if attestation is not made necessary to the validity of
the instrument by statute or otherwise, the witness
need not be called (q).
So, too, there are no degrees in secondary evidence.
The oral testimony of a witness is as sufficient
secondary evidence of the contents of a written instru
ment as a copy of such instrument would be, although
the latter may be more satisfactory.

(Vy) 28 Vict.c. 18, r. 7.

 ( 51 )

CHAPTER V.

PRESUMPTIVE EVIDENCE.

Where no direct evidence is offered or obtainable,

disputed facts are sometimes inferred from other facts
which are proved or known. In such cases, the infer
ence is called a presumption.
In B. v. Burdett (a), Abbott, C.J., said:
" A presumption of any fact is properly an inference of that fact
from other facts that are known ; it is an act of reasoning : and
much of human knowledge on all subjects is derived from this
source. A fact must not be inferred without premises that will
warrant the inference ; but if no fact could thus be ascertained by
inference in a court of law, very few offenders could be brought to
punishment. In a great portion of trials, as they occur in practice,
no direct proof that the party accused actually committed the crime
is or can be given : the man who is charged with theft is rarely
seen to break the house or take the goods ; and in cases of murder,
it rarely happens that the eye of any witness sees the fatal blow
struck, or the poisonous ingredients poured into the cup. In draw
ing an inference or conclusion from facts proved, regard must
always be had to the nature of the particular case, and the facility
that appears to be afforded either of explanation or contradiction.
No person is to be required to explain or contradict, until enough
has been proved to warrant a reasonable and just conclusion
against him, in the absence of explanation or contradiction : but
when such proof has been given, and the nature of the case is such
as to admit of explanation or contradiction ; if the conclusion to
which the proof tends be untrue, and the accused offers no explana
tion or contradiction, can human reason do otherwise than adopt
the conclusion to which the proof tends ? The premises may lead
more or less strongly to the conclusion, and care must be taken not
to draw the conclusion hastily."

In the same case his lordship recognised a principle

which, although laid down by Lord Hale (6)„and
correct to a large extent, does not appear, according to
other cases, to be true universally. The rule is—Never

(<0 4 B. A; AM. 161. (*) llale'.n Picas of the Crown, 290.

52 Law of Evidence.

to convict where the corpus delicti (the substantial

crime or act of guilt) is not established.
In Evans v. Evans (c) , Lord Stowell said :
" It has been asked, and very properly asked, Do not courts of
justice admit presumptive proof ? Do you expect ocular proof in
all cases ? I take the rule to be this—If you have a criminal
fact ascertained, you may then take presumptive proof to show
who did it—to fix the criminal—having then an actual corpus
delicti."
But the same learned judge, in a later case (d), stated
the evidence which is required in cases of adultery ; and
his judgment there contains a more comprehensive
statement of this rule. He said :
" It is a fundamental rule that it is not necessary to prove the
direct fact of adultery, because, if it were otherwise, there is not
one case in a hundred in which that proof would be attainable ; it
is very rarely indeed that parties are surprised in the direct act of
adultery. In every case almost, the fact is inferred from circum
stances that lead to it by a fair and necessary conclusion ; and
unless this were the case, and unless this were so held, no protec
tion whatever could be given to marital rights. What are the
circumstances which lead to such a conclusion cannot be laid down
universally . . . because they may be infinitely diversified by
the situation and character of the parties, by the state of general
manners, and by many other incidental circumstances, apparently
slight and delicate in themselves, but which may have most impor
tant bearings in decisions upon the particular case. The only
general rule that can be laid down upon the subject is, that the
circumstances must be such as would lead the guarded discretion of
a reasonable and just man to the conclusion ; for it is not to lead a
rash and intemperate judgment, moving upon appearances that are
equally capable of two interpretations ; neither is it to be a matter
of artificial reasoning, judging upon such things differently from
what would strike the careful and cautious consideration of a
discreet man. The facts are not of a technical nature : they are
facts determinable upon common grounds of reason ; and courts of
justice would wander very much from their proper office of giving
protection to the rights of mankind, if they let themselves loose to
subtleties and remote and artificial reasonings upon such subjects.
Upon such subjects the rational and the legal interpretation must
be the same."
Presumptions of law and of fact.—Presumptions
of fact (termed by the civilians prwsumptiones hominis)
(<?) 1 Hagg. Cons. 105.
(d) 2 Hagg. Cons. 2.
 Presumptive Evidence. 53

are rebuttable, and, even if not rebutted, are not conclu

sive. Presumptions of law are divided into those which
are rebuttable, but, if not rebutted, are conclusive
(prcesumptiones juris), and those which are irrebuttable,
and therefore conclusive (prcesumptiones juris et de
jure). There are also mixed presumptions, or presump
tions of mixed law and fact.

Conflicting presumptions.—In connexion with the

maxim of the law, " stabitur prcesumptioni donee in '
contrarium probetur" (e), comes the doctrine of con
flicting presumptions, which is not in a satisfactory
state. That when two presumptions conflict, the
stronger of the two prevails is certain, but how to
ascertain which of two presumptions is the stronger in
all cases is a difficult matter. Mr. Best (/) lays down
four rules, which are useful, so far as they go :
(i) Special presumptions take precedence of general ;
(ii) Presumptions derived from the course of nature are
stronger than casual presumptions ; (iii) Presumptions
are favoured which give validity to acts ; (iv) The
presumption of innocence is favoured in law.

The law presumes innocence. —It is a prcesumptio

juris running through the whole law, that no person
shall in the absence of proof be supposed to have done
any act, which amounts to a violation of the criminal
law, or which would subject him to any species of
punishment, or would involve any penalty or forfeiture ;
and this is so, even where the act charged is only one
of omission, and whether the guilt of the party comes
in question directly or collaterally. Where any act is
required to be done, so that the party neglecting
to do it Would be guilty of a criminal neglect
of duty in not having done it, the law presumes the

(c) A presumption holda good until the contrary is established.

(/) Best on Evidence, 6th ed., p. 444.
54 Law of Evidence.

affirmative, and throws the burden of proving the

negative on the other side. Thus, where the plaintiff
declared that the defendant, who had chartered his
ship, put on board a combustible article by which loss
was occasioned, without due notice to the captain,
it was held that the plaintiff must prove his negative
averment, because the law will not presume negligence
which amounts to a criminal neglect of duty (g) .
In bigamy the prosecution must prove that the first
husband or wife was alive at the date of the second
marriage (h). When the prisoner and her or his
husband or wife have been living apart for seven years,
the prosecution must prove the prisoner's knowledge
of the existence of such husband or wife (i), and
whether such husband or wife was alive at any
time during the seven years is a question for the
jury (k).
The rule under discussion also is subject to the
qualification that if a negative averment be made
by one party which is peculiarly within the knowledge
of the other, the party within whose knowledge it lies,
and who asserts the affirmative, is to prove it, and not
he who avers the negative (I). Thus, on an indictment
for night poaching, it is unnecessary to prove want of
leave and license ; and it is enough to show that
the prisoner was on the land ; for the circumstances
raise a presumption of illegality/and the jury may infer
the want of license on the absence of proof thereof (m).
So under the Poaching Act, 1862 (n), proof that the
defendants were found on the highway at six a.m. with
a bag full of hares and rabbits, and with nets and
stakes, or with nets that were wet, has been held to be
(17) Per Lord Ellexborough : William* v. }!a*t India Co., 3 East,
199.
(A) R. v. Twining, 2 B. & Aid. 386.
(»') R. v. Curgerren, L. R. 1 C. C. B. 1.
(4) R. v. Lumley, L. B. 1 C. C. R. 196.
(0 Per BAYLEY, .1. : R. v. Turner, 5 M. & S. 211.
(»») R. v. Wood, 1 1). & B. 1. O) 25 k 26 Vict. c. 114, 8. 2.
 Presumptive Evidence. 55

sufficient for magistrates to convict them of having

obtained the game by unlawfully being upon land
in pursuit of game, or having used the nets for unlaw
fully taking game, without actual proof of the defen
dants being upon the land or using the nets (o) ; there
being under the circumstances a reasonable presump
tion against the men, unless they could give some
explanation of the appearances against them.
Under the first section of the Betting and Loans
(Infants) Act, 1892 (p), if a circular or other specified
document names or refers to a person as therein men
tioned, such person is to be deemed to have sent
or caused to be sent such document unless he proves
innocence thereof. Section 2 contains a provision of
an analogous character.
Section 1 of the Merchant Shipping Act, 1892 (q),
goes further, and raises an irrebuttable presumption by
enacting that, every ship so loaded as to submerge in
salt water the centre of the disc placed thereon in pur
suance of the Merchant Shipping Acts, 1876 to 1890,
and the regulations made thereunder, shall be deemed
to be " unsafe " within the meaning of the Merchant
Shipping Act, 1876, and such submersion shall be
reasonable and probable cause for the detention of
the ship.

Odiosa et infwnesta non sunt in lege prcesumenda.

Fraud is not in general presumed.—As a general
rule the law will not presume fraud, which must be
both pleaded and proved, or, at least, some prima facie
evidence of it given, when it will lie on the opposite
party to disprove the allegation (r) ; and this doctrine

(«) Brown v. Turner, 13 C. B. (n.s.) 485 ; Eeant v. Botterell, 3 B. &

S. 787 ; Jenkin v. King, L. R. 7 Q. B. 468.
p~) 55 Vict. c. 4. See Appendix.
q) 55 fc 56 Vict. c. 37.
(r) Mather v. Lord Maidduiu; 1 C. B. (N.S.) 273.
5(5 Law of Evidence.

holds good even in the case of third parties, whose con

duct comes in question collaterally (s). So equity will
never presume a fraud upon a power of appointment (<) .
Equity, however, in deciding upon the validity of
certain dispositions of property, will sometimes presume
fraud. It is on this ground that when a person is
trustee for sale, and sells the estate to himself, the
transaction is absolutely and ipso facto void («) ; as
also it is if he sells to a person who is a trustee for him f
and a person who employs the trustee to purchase the
estate for him stands in no better position than the
trustee himself (x). A landlord cannot himself become
the purchaser of goods sold by him under a distress (y): i
So, also, when a reversionary interest is purchased,
it was formerly incumbent on the purchaser to show
that he gave a full and sufficient price for it, and if he
failed to do so, the transaction would be set aside (z)~r~ *
but now, by 31 Vict. c. 4, s. 1, no bond fide purchase of
a reversion, whether of real or personal estate, is to be /
reopened or set aside merely on the ground of under-'
value. Although, however, a trustee for sale cannot
purchase the trust property from himself, he may pur
chase from his cestui que trust; but a transaction of
this kind is one of great nicety, for Equity will presume
that the transaction was tainted with fraud, and throw
upon the purchaser the onus of proving that he took no (
undue advantage of his position as trustee. This rule A
applies equally to solicitors, confidential agents (a), \ /
guardians, and all others invested with a fiduciary

O) Rom v. Hunter, i T. R. 38.

(<) Hamilton, v. Kerwan, 2 J. & L. 393; Pans v. Pant, 33 L. J. Ch.
215.
(«.) Per Lord Romilly : Benton v. Dormer, 23 Beav. 290.
(x) Mookerjee v. Mookerjee, L. R 2 I. A. 18.
(jf) Moore, Nettlefold Co. v. Singer Manufacturing Co., 72 L. J.
K. B. 577. This decision has been affirmed on appeal,
(s) Fatter v. Robert*, 29 Beav. 470.
(«) Tate v. Williamson, L. K. 1 Eq. 528.
 Presumptive Evidence. 57

character. In Hunter v. Atkyns (b), Lord Brougham j

said : '
" There are certain relations known to the law as attorney,
guardian, trustee ; if a person standing in these relations to client,
ward, or cestui que trust, takes a gift or makes a bargain, the
proof lies upon him that he has dealt with the other party, the
client, ward, etc., exactly as a stranger would have done, taking
no advantage of his influence or knowledge, putting the other
party on his guard, bringing everything to his knowledge which
he himself knew. In short, the rule rightly considered is that
the person standing in such relation must, before he can take
& gift or even enter into a transaction, place himself in exactly the
same position as a stranger would have been in, so that he may
gain no advantage whatever from his relation to the other party,
beyond what may be the natural and unavoidable consequence of
kindness arising out of that relation."

The rule extends to cases of parent, solicitor, spiritual

adviser and medical attendant, and, indeed, to every
case in which two persons are so situated that one may
obtain considerable influence over the other (c). When
the fiduciary relation is once established, the presump
tion continues as long as the relation continues, or until
it can be clearly inferred that the influence had come to
an end (d). A gift to the wife of a solicitor by a client
is on the same footing as a gift to the solicitor
himself (e). Where a deed conferring a benefit on
a father is executed by a child who is not emancipated
from his father's control, the onus is on the father
to show that the child had independent advice and exe-K
cuted the deed with a full knowledge of its contents (/).^
In the case of Rhodes v. Bate (g), Turner, L.J.,
expressed an opinion that in cases of trifling benefits- ' '

(i) 3 M. 4c K. 135 ; cf. Oibmn v. Jeye», 6 Ves. 277.

(c) C»ok v. Lamotte, 15 Beav. 239 ; ef. Allcard v. Skinner, 36 Ch. I).
14f>, and particularly the judgment of Lindley, L.J. ; and Wright v.
Carter, vbi infra.
Per VAUGHAN WILLIAMS, L.J. : Wright v. Carter, [1903]
1 Ch. 27.
(e) Lilet v. Terry and Wife, [1895] 2 Q. B. 679.
if) Bainbrigge v. Browne, 18 Ch. 1). 188.
(g) L. U. 1 Ch. 258.
58 Law of Evidence.

the court would not interfere to set them aside upon

the mere proof of influence derived from the existence
of a confidential relationship, but would require proof
of mala fides, or of undue or unfair exercise of the
influence.
Presumption of intention to defraud creditors. —
Neither at Common Law nor under the Statute of
Elizabeth could an intention to defraud creditors be
presumed ; but recent legislation with regard to bank
ruptcy proceeds on the basis that such a presumption
exists in certain cases. The Bankruptcy Act, 1883 (h),
s. 47, enacts that any settlement of property, not being
an ante-nuptial settlement made in good faith for valu
able consideration, or one made on or for the wife
or children of the settlor of property accruing to the
settlor jure mariti, is void if the settlor becomes
bankrupt within two years of its date : and if the
settlor becomes bankrupt within ten years of its date,
such a settlement is void unless those claiming under
it can show that he was at the time of making it able
to pay all his debts without the property comprised
therein. This provision only comes into operation if
and when the bankruptcy takes place, and bona fide
sales for value of the settled property anterior to that
date hold good and cannot be avoided (i).
Presumptions in favour of marriage.—The law
presumes strongly in favour of marriage (k) ; the
maxim being " semper preesumitur pro matrimonio,"
and, as was said by Lord Lyndhurst in Morris v.
Davies (l), and approved by Lord Cottenham in
Piers v. Piers (to), this presumption of law is not
lightly to be repelled, and the evidence for repelling it
must be strong, distinct, satisfactory and conclusive.

(A) 46 & 47 Vict. c. 52.

(»") Be Carter and Kenderdine'* Contract, [1897] 1 Ch. 776.
(*") Fox v. BiarhWk, 17 Ch. I). 499.
(0 5 CI. & Fin. 163. («) 2 H. L. Civs. 362.
 Presumptive Evidence. 59

It is not to be broken in upon or shaken by a mere

balance of probability. Long-continued cohabitation
as man and wife is therefore presumptive evidence
of marriage, except in the case of a prosecution for
bigamy. Lord Eldon held that in cases of cohabita
tion the presumption is in favour of its legality (n) , and
this is particularly so after a long interval of time (o),
and even where it commenced with a ceremony which
was known by both parties to be invalid (p ).
Presumptions as to legitimacy.—The law also pre
sumes strongly in favour of the legitimacy of children .
A child born after marriage, of which the wife was
pregnant at the time of the marriage, is presumed to
be the child of the husband, and so every child born
subsequent to the marriage will be presumed to be the
child of the husband ; but these presumptions can be
repelled by evidence, and also by the conduct of the
parties, taking the whole of the res gestce, raising a
strong and irresistible conclusion that the child born
was not the child of the husband, but the child of
another (q). The evidence to repel the presumption
must be strong, distinct, satisfactory and conclusive (r),
for the presumption is one which is not lightly to be
repelled (s). It is sometimes repelled by evidence from
which non-access is inferred, and non-access will be
presumed after the date of a divorce or of a decree for
judicial separation, or of an order authorising cohabita
tion (t) . Neither husband nor wife can give evidence of

(«) Cunnitigh-ame v. Cunningkame, 2 Dowl. 507 ; Piers v. Piers,

1 H. L. Cas. 337 ; De Tlwren v. Attorney- General, 1 App. Can. 686.
(«) Campbell v. Campbell, L. R. 1 Sc. App. 182.
(/;) See De Thoren. v. Attorney-General, ubi supra ; and see George v.
Tkyer, [1904] 1 Ch. 456.
(g) Per Lord Blackburn, in The Aylesford Peerage, 11 App.
Cas. 1.
(r) Per Lord Lyndhubst, in Morris v. Davies, 5 C!. Ac F. 163.
(») For cases in which the presumption was repelled, see llawes v.
Draeger, 23 Ch. U. 173 ; Bosvile v. Attorney- General, 12 P. 1). 177 ; and
The Poulett Peerage, [1903] A. C. 395.
10 Hetherington. v. Hetheriitgtou, 12 P. D. 112.
60 Law of Evidence.

non-access during marriage for the purpose of bastar

dising a child («).
If a bond be given by a man to a woman with whom
he is cohabiting at the time, there is no presumption
that it is given in consideration of future- cohabi
tation (v).

The law presumes that every person intends the

probable consequences of his acts.

Thus, in homicide, when the death is proved, malice

is presumed ; and it is for the prisoner to prove the
extenuating circumstances which may reduce the act
from murder to manslaughter, or to justifiable or
excusable homicide (.r) ; and where the death of
another person is caused by a wanton act of the
prisoner, he is guilty of murder, as if he purposely
drove a carriage furiously amongst a number of
people, or discharged a loaded gun in the middle of a
crowd (y).
So a person carrying a child suffering from an in
fectious disease along a public highway, so as to
endanger the health of passengers, was held to be
guilty of a misdemeanour, without proof of an intent
that any person should catch the disease (z) ; and,
again, where a person had published a pamphlet with
an indecent tendency, it was held to be no defence
that he had done so with the bond fide purpose of
exposing the errors of the Eomish Church (a) . Where
a debtor knew that his departure from England would
have the natural and necessary effect of defeating and
delaying his creditors, he was held to have departed

(u) Sec as to evidence of non-access. p»*t, ch. vii. rule 7.

(i) ValUtnoe v. JHagdcn, 26 Ch. D. 853.
(x) Prr Lord Kllenbobough : if. v. Dixon, 3 M.lc S. IB.
(y) 1 Hale P. C. 47r>.
0) R. v. VantandiUo. i M. k S. 73.
(«) S. v. Hirklhi. L. U. 3 Q. B. MM.
 Presumptive Evidence. (31

with that intent, and to have committed an act of

bankruptcy (6).
In an action for libel, it was held that a judge was
wrong in leaving it to a jury to say whether the
defendant intended to injure the plaintiff, inasmuch
as if the tendency of the libel was ' injurious to the
plaintiff, the defendant must be taken to have intended
the consequence of his own act (c).

Omnia prtesumuntur rite esse acta.

This maxim is an expression in a short form of a
reasonable probability, and of the propriety in point of
law of acting on such probability. The maxim expresses
an inference which may reasonably be drawn when an
intention to do some formal" act is established ; when
the evidence is consistent with that intention having
been carried into effect in a proper way ; but when the
actual observance of all due formalities can only be
inferred as a matter of probability. The maxim is not
wanted" where such observance is proved, nor has it
any place where such observance is disproved. The
maxim only comes into question where there is no
proof one way or the other ; but where it is more
probable that what was intended to be done was done
as it ought to have been done to render it valid,
rather than that it was done in some other manner
which would defeat the intention proved to exist, and
would render what is proved to have been done of no
effect (d).
As to persons acting in public capacity.— It is a
general presumption of law that a person acting in
a public capacity is duly authorised so to do, and there

(i) Ex parte Goater, 22 W. K. 935.

(c) Haire v. Wilton, 9 B. & C. 643. See also Fither v. Clement,
10 B. & C. 472.
(d) Per Lindley, L.J., in Harrit v. Knight, 15 P. I). 179.
G2 Law of Evidence.

is a similar presumption that a public officer acting in

execution of a public trust will do his duty (e) ; and
therefore it is presumed that all who act as justices of
the peace, or as constables, have been duly appointed (/).
On an indictment for having committed perjury before
a surrogate of the Ecclesiastical Court, proof that the
person who administered the oath acted as surrogate
has been held sufficient primd facie evidence that he
had been duly appointed, and had authority to admini
ster the oath (g). This presumption has been adopted
by the legislature in the case of excise (h) and custom
house officers (i). The rule does not apply to private
appointments, such as tithe collectors, or a town
clerk (A), and in these cases the appointments must be
proved!

Private documents, such as a deed, bill of exchange,

or promissory note, are presumed to have been written
at the time when they bear date (I), and this extends
even to letters (m). Where indentures of a pauper's
apprenticeship would have been invalid, if not executed
in conformity with the rules of the Poor Law Commis
sioners, and there was no evidence to show that their
regulations had been observed, it was held that, in the
absence of contradictory evidence, it must be presumed
that the regulations had been observed (w). So,
generally, the orders of justices will be presumed to
have been made according to all statutory formalities (o) .
Thus, when to prove a parish apprenticeship secondary

(<■) Per Lord Ellenbouough : R. v. Vereltt,3 Camp. 433 ; And per

Blackbhiix, ,!. : Wadilhiatini v. Huberts, L. R. 3 Q. 15. 579.
(/) Uerryman v. Wite, 4 T. K, 366.
(jr) lit*, Vereltt, 3 Camp. 432.
(h) 7 & 8 Geo. 4, c. 53, s. 17. (i) 16 & 17 Vict. c. 107, s. 307.
(k) It. v. Mayor of Stamford, C, Q. B. 433.
(7) Maipan v. Clement*, 19 J. Q. B. 435.
(m) Goadtitle v. Milbnrn, 2 M. & W. 853; Hunt v. Maisey,a B. &
Ad. 992.
(») R. v. St. Mary Magdalen, 2 E. Jc B. 809.
(/>) Wllliamt v. t'yton, 4 H. k N. 357.
 Presumptive Evidence. 63

evidence of a lost indenture was admitted, it was pre

sumed that the indenture had been executed according
to all the requisites of 56 Geo. 3, c. 139, because there
was evidence that an arrangement for the apprentice
ship had been made before magistrates, and that an
apprenticeship had subsequently existed (p) ; but it
seems that it would be otherwise where there is no
such evidence (q). The rule in similar cases has been
extended to the principle that that may be presumed
which accounts reasonably for an existing state of
things ; and therefore the fact that a person served
an apprenticeship raises a presumption that he was
duly bound an apprentice, so as, the indenture having
been sought for in vain, to create a settlement by
apprenticeship (r). When a rate has been made, it
will be presumed to have been duly made (s) .
As to the fact of marriage.—The fact of a marriage
having taken place before a registrar in a chapel raises
the presumption that the chapel was properly regis
tered, and the marriage legal (t) ; and, in support of a
plea of coverture, a certificate of the defendant's marriage
in a Eoman Catholic chapel according to the rites oi<
that Church, with evidence of subsequent cohabitation,,
was held to be prima facie proof of a valid marriage
under 6 & 7 Will. 4, c. 85, the same presumption''
arising as in the previous case (w). In short, wherever
a marriage has been solemnized, the law strongly pre
sumes that all legal requisites have been complied
with (x) ; and the fact of the ceremony of marriage
having been performed by a clergyman in a place
where Divine Service has been performed raises the
(/>) R. v. Broadhempiton, 1 K. & B. 104.
(g) R. v. Stonehimte, 10 Q. B. 234.
(») R. v. Fordingbridye, E. B. & E. 678.
(*) if. T. Reynolds. [1893] 2 Q. B. 75.
(0 R. v. Manwaring, 1 D. A: B. 139.
(«) Sieltel v. Lambert, 15 C. B. (s.8.) 781 ; cf. Be Thoren v. Attorney-
Genera), 1 App. Cas. 686.
(.r) Smith v. Ihiami, 1 Phill. 294.
64 Law of Evidence.

presumption that the place was duly licensed for

marriages (y). A foreign marriage is presumed tojiave
been celebrated with the due solemnities required by
the law of the place where celebrated (z).
"Tt will be seen from these cases that the rule has
been extended from the acts of public servants to the
purport of public and even some private instruments.
Thus, public records are evidence of their own authen
ticity, and may now generally be proved by exempli
fications or examined copies (a). It would also appear
that it is from a restricted application of the same rule
that deeds and wills are presumed to have been duly
executed where thirty years have elapsed from the
time of their execution (b), and they are produced from
an unsuspected custody.
Valid livery of seisin will be presumed where neces
sary (c). When a deed more than thirty years old,
which purported to exercise a power of appointment,
was executed by attorney by the appointors, it was held
that it could not be presumed that the attorney was
properly appointed ad hoc (d). But this decision was
based on the rule as to delegating discretionary powers,
and is therefore, not one of general application.
The Statutes of Limitation, according to which
simple contract debts cannot be recovered after six
years ; specialty debts after twenty years ; and land
after an undisturbed possession of twelve years (e) ; are
all founded on the same legal presumption, that an
omission to prosecute a legal claim for a certain
number of years, amounts to an admission that no
adverse claim exists, and must be treated as such by

(y) R. v. Cretswell, 1 Q. B. D. 446.

(z) 11. v. Bramphm, 10 East, 202.
(a) 14 & 15 Vict. c. 99, s. 14.
(ft) Doe v. Walley, 8 B. & C. 22.
(f) EccUHastical Cvmmittwiurrt v. Treemer, [1893] 1 Ch. 172.
(d) In re Airey, 45 W. K. 286.
(c) Nepean v. Doe, 2 Sm. L. C. 396, notes.
 Presumptive Evidence. 65

the community. It is, therefore, presumed, under

such circumstances, that the debts have been paid and
the land duly conveyed : and no evidence of a different
state of facts will be received.

Execution of deeds and wills.—The maxim Omnia

prcesumuntur rite esse acta is applied by the courts to
the execution both of deeds and of wills. Where all
the witnesses are dead, and the handwriting of one of
them is proved, the statement in the attestation clause
will be presumed to be correct (/). A court of Pro
bate goes further than this, and presumes that all
formalities have been complied with in respect of a will
when the attestation clause is in the usual form {g).
When there is no attestation clause, or when it is not in
the usual form, courts of law will, it seems, nevertheless
presume compliance with all formalities in respect of a
will (h), and the tendency of a court of Probate will be
to give effect to the testator's intentions (i). Of course
the evidence of the attesting witnesses may rebut the
presumption of due execution (k) ; but when a will
appears on the face of it to have been duly attested, and
surrounding circumstances imply that this was so, the
contrary evidence of one attesting witness will not
rebut the presumption of due execution (l). Where
the recollection of the attesting witnesses is imperfect,
but the undisputed facts, the probabilities of the case,
and the evidentia rei, are in favour of due execution,
such execution will be presumed (m). Where probate
of a will had been granted on the oaths of the two

(/) Adam v. Kerr, 1 B. & P. 360; Andrews v. Mottley, 12 C. B.

O.S.) 526.
(?) Vinnicombe v. Butler, 3 Sw. & Tr. 580.
(/i) SpiUbury v. Burdett, 10 C. & F. 840.
(i) In the Goods of Rees, 3\ L. J. P. M. & A. 56.
(A) Croft v. Croft, 34 L. J. P. M. & A. 44.
(!) Wright v. Rogers, 17 W. R. 833; ef. In the Goods ofJane Thomas.
1 Sw. k Tr. 255.
(im) Wright v. Sanderson, 9 P. D. 149 ; Whiting v. Turner,
89 L. T. 71.
L.E.
6(5 Law of Evidence.

attesting witnesses, the probate was confirmed not

withstanding the evidence against it of one witness
which was held incredible, and in the absence of
evidence by the other witness, which absence was
satisfactorily explained (n). It may here be remarked
that when a will is traced to the custody of the testator
and is not forthcoming, then, in the absence of other
evidence, it will be presumed that the testator des
troyed it animo revocandi (o). This presumption may
be rebutted by the facts, and will be more or less strong
according to the character of the custody which the
testator had over the will (p) . But the court must be
morally satisfied that it was not destroyed by the
testator animo revocandi (q). Again, where signing
and sealing are proved, the courts will presume the
delivery of a deed (r). So it will be presumed that an
instrument lost or not produced after notice was duly
stamped (s) ; unless there is evidence that it remained
without a stamp for some time after the execution, in
which case the onus is shifted, and lies upon the party
who relies on the document (t). If an instrument is
produced bearing adhesive stamps, properly cancelled,
it will be presumed they were affixed at the proper
time (m).
Alterations in documents. —With regard to altera
tions in documents, the general rule is, that the party
producing an altered document in evidence must
explain the alteration ; but in the case of deeds and all
documents, which it is an offence to alter after com
pletion, there is a presumption that alterations, if any,
(») Pilkington v. Gray, [1899] A. C. 401.
00 Welch v. Phillip*, 1 Moo. P.C. 199.
( v) Per COCKBURN, O.J. : Sugden v. Lord St. Leonards, 1 P. I). 218
In that case the presumption was rebutted.
Of) Allan v. Morrison, [1900] A. C. 604.
(r) Hall v. liainbridgc, 12 Q. B. 699.
00 R. v. Long Buckley, 7 East, 45.
0) .Marine Insurance Co. v. JIariside, L. R. 5 E. & I. 624.
O) Bradlaugh v. De Bin, L. K. 3 C. P. 286.
 Presumptive Evidence. 67

were made before execution in the one case, and before

completion in the other (.!•). In the case of a will the
presumption is that an alteration was made after
execution (y) ; but Lord Penzance has stated that
there is a marked distinction between interlineations
and alterations, and in a case of interlineations {z) he
held that, having regard to the internal evidence of the
document itself, he was not bound to presume they
were made after execution. There is no presumption
that blanks filled up in different ink were so filled up
after executioa.^o). In the case of bills of exchange
and promissory notes, s. 64 of the Bills of Exchange
Act, 1882 (b), enacts as follows :
" (1) Where a bill or acceptance is materially altered without
the assent of all parties liable on the bill, the bill is avoided except
as against a party who has himself made, authorised, or assented
to the alteration, and subsequent indorsers. Provided that, where
a bill has been materially altered, but the alteration is not apparent,
and the bill is in the hands of a holder in due course, such holder
may avail himself of the bill as if it had not been altered, and may
enforce payment of it according to its original tenour. (2) In
particular the following alterations are material, namely, any
alteration of the date, the sum payable, the time of payment, the
place of payment, and, where a bill has been accepted generally,
the addition of a place of payment without the acceptor's assent."

This section includes promissory notes ; the word .

" apparent " in the section has been held (c) not to be
limited to that which is apparent to all mankind, but
includes those cases in which the party sought to be
bound can at once discern, from some incongruity on
the face of the bill or note, and point out to the holder,
that it is not what it was, i.e., that it has been
materially altered. The onus of proving the time
when an alteration was made lies on a person suing on

(z) Doe v. Catomore, 16 Q. P.. 745.

(y) Cooper v. Boekett, 4 Moo. P. C. 419 ; Doe v. Palmer, 16 Q. B.747.
(;) In the Goods of Cadge. L. U. 1 P. A: I). 546.
(a) See Greeille v. Tylee, 7 Moo. P. C. 327.
(*) 45 & 46 Vict. c. 61.
(c) Leeds Bank v. Walker, 11 Q. B. D. 84.
f2
68 Law of Evidence.

a bill of exchange where the time of alteration is

material (d). An alteration in the number on a Bank
of England note avoids the note (e).
Long possession.— In favour of a person who has
been in long and peaceable possession, conveyances (/),
royal grants (g), and Acts of Parliament will be pre
sumed ; but this rule in the case of Acts of Parliament
appears to be restricted to private Acts, and not to
apply against the Crown (h). Even against the Crown,
however, the uninterrupted user of a road by the public
for forty or fifty years raises a presumption of dedication
as a highway (i). The enrolment of a tithe award has
been presumed where the usage of paying tithes has
been shown (k). It is a well-settled principle of
English law that when there has been long-continued
possession or assertion of a right, the right should be
presumed to have had a legal origin, if such a legal
origin was possible, and that the courts will presume
that those acts were done and those circumstances
existed which were necessary to the creation of a valid
title (I). Therefore, on proof of long enjoyment of a
pew, coupled with acts which would have been illegal
unless there had been a faculty, a faculty was pre
sumed (?«). So, too, possession and user of a fishery
as several, if continued for a sufficient period, justifies
the presumption that it had its origin legally and not
illegally, and at a period at which the law permitted it
rightfully to originate (n).
(<Z) Joh nson v. Duke of Marlborough, 2 Stark.^13.
(O Suffell v. Bank of England, 9 Q. B. D. 955.
(/) England v. Slade, 4 T. K. 682 ; Cooke v. Saltan, 2 S. & S. 154.
fa) Goodtitle v. Baldwin, 11 East, 4S8.
(A) Attorney- General v. Ewelme Hospital, 17Beav. 366. See dicta of
Lord Abinger in Jewson v. Dyson, 9 M. &. W. 555 ; and of Lord
W'YNFORD in Macdougall v. Purrier, 2 Dow. & CI. 170.
(0 R. v. East Mark, 11 Q. B. 877.
(A) Macdougall v. Purrier, 2 Dow. & CI. 135.
(0 Per Lord Herschbll, in Phillips v. Halliday, [1891] A. C. at
p. 231. See also Haig v. West, [1893J 2 Q. B. 19.
(m)
(m) Phillips
See Areillv.v.Halliday, [1891 J A. C.
Duke of Deronshire, 228. Ca9. 158.
8 App.
 Presumptive Evidence. 69

Where there is evidence of a long exclusive enjoy

ment of property, and of an exercise of a distinct right
referable to a legal origin, the court will presume such
an origin, and also (in the absence of proof to the
contrary) that it commenced before legal memory (o) .
Even where long and undisputed enjoyment is shown
to have had de facto an invalid or illegal or insufficient
origin, still the court will presume, if it can, that the
illegality has been altered by something which has
occurred in the course of time, and so clothe the enjoy
ment with legal right (p), unless, of course, the subse
quent enjoyment is shown to be consistent with the
right invalidly acquired rather than consistent with its
having been made a legal right (q). Since the fusion
of law and equity, the possibility of an equitable
origin must be negatived as well as that of a legal
origin (r).
The presumption of a lost grant is a presumption of
fact, and therefore rebuttable. Where a case involving
this presumption is tried by a judge without a jury, the
judge ought to find the existence or non-existence of
the lost grant as a fact ; if it is tried with a jury, it is
for the jury to find the fact ; and evidence is, of course,
admissible to prove that there was never in fact such a
grant (s) . A lost grant will not be presumed in con
travention of an Act of Parliament (r) .
It may be observed, while dealing with this head of
presumptions, that by the Lunacy Act, 1890 («), s. 329,
it is enacted that when a question arises in proceedings
under the Act whether a house is or is not a licensed
house, or a registered hospital, it is to be presumed not

(o) Johnson v. Barnes, L. R. 8 C. P. 527.

ip) Per FBY, L.J. : I/aINday v. Phillips, 23 Q. B. D. 56.
(?) See judgment of Lord Hebschell in Halliday v. Phillips, [1891]
A. C. 236.
(r) Per Bowen, J. : Dalton v. Angus, 6 App. Cas. at p. 783.
(*) Per BBETT, L.J. : Angus v. Dalton, 4 Q. B. I). 201.
(f) Xratersvn v. Peterborough, etc. Council, [1902] 1 Ch. 557.
(k) 53 & 54 Vict. c. 5.
70 Law of Evidence.

to be so licensed or registered unless the licence or

certificate of registration is produced, or sufficient
evidence is given that a licence or certificate of regis
tration is in force.

Post Letters.

Post letters.—The following presumptions as to post

letters also illustrate the maxim under consideration :
First.—If a letter be found to have been correctly
addressed, posted, and not returned, it will be presumed
to have arrived at its destination unless evidence is
given sufficient to rebut the presumption (x). This
presumption has been adopted by the legislature in
many Acts of Parliament, but with this difference, that
no rebutting evidence is admissible, and therefore the
presumption is conclusive. Thus the 63rd section of
the Companies Act, 1862, says :
" Any document to be served by post on the company shall be
posted in such time as to admit of its being delivered in the due
course of delivery within the period (if any) prescribed for the
service thereof ; and in proving service of such document it
shall be sufficient to prove that such document was properly
directed, and that it was put as a prepaid letter into the post
office."
So by s. 142 of the Bankruptcy Act, 1883 :
" All notices and other documents for the service of which
no special mode is directed may be sent by prepaid post letter
to the last-known address of the person to be served there
with."

Secondly.—A letter is presumed to have arrived at

its destination at the time at which it would be delivered
in the ordinary course of postal business, and the sender
is never held answerable for any delay which occurs in
its transmission through the post (//) ; so that, where

(*) Warren v. Warren, 1 C. M. 4: R. 250.

(y) Stoeken v. Collin, 7 M. & W. 515.
 -

Presumptive Evidence. 71

any notice has to be given on a particular day, it is

sufficient to post it so that it would in the ordinary
course arrive at its destination on that day, and if it is
delayed in the post the sender is not responsible for the
delay (z) . This is important in reference to notices to
quit and notices of dishonour. Here may be alluded
to the rule laid down by the House of Lords in
Dunlop v. Higginsia), that a contract to buy goods
entered into by letter is complete when the letter of
acceptance is posted ; and the rule was held to be the
same, in the case of a contract to take shares, by
the Court of Appeal in Chancery in Harris's Case (b).
It makes no difference if the letter is never received by
the person to whom it is addressed, the contract being
complete as soon as the letter of acceptance is delivered
to the post office (c). Delivery to the post office is
complete when a letter is deposited in the post office
letter box or handed to an agent of the post office who
is authorised to accept letters for the post, but not
when handed to a person not so authorised (d) , even
though in the employment of the post office. These
rules only apply when the circumstances of the case
are such that it must have been within the contem
plation of the parties that, according to the ordinary
usages of mankind, the post might be used as a
means of communicating the acceptance (e). When
a letter constitutes a breach of contract the breach
is complete when the letter is posted, and this is so
even when the letter is posted abroad (/). By s. 26

0) Ward v. Lord Londenborough, 12 C. B. 252.

(a) 1 H. L. Cas. 381.
(ft) L. R. 7 Ch. 587.
(c) Household Fire Insurance Co. v. Grant, 4 Ex. D. 216 ; cf.
Bruner v. Moore, [1904] 1 Ch. 305. But a letter withdrawing an offer U
not operative until it reaches the addressee (Henthorn v. Franer, [1892]
2 Ch. 27).
(rf) He London and Northern Bank, [1900] 1 Ch.220.
(e) Henthorn v. Frtuer, [1892] 2 Ch. 27.
(/) Holland v. Bennett, [1902] 1 K. B. 867.
72 Law of Evidence.

of the Interpretation Act, 1889 ig), it is enacted as

follows :
"Where an Act passed after the commencement of this Act
authorises or requires any document to be served by post,
whether the expression ' serve,' or the expression ' give ' or ' send,'
or any other expression is used, then, unless the contrary intention
appears, the service shall be deemed to be effected by properly
addressing, prepaying, and posting a letter containing the docu
ment and unless the contrary is proved to have been effected
at the time at which the letter would be delivered in the ordinary
course of post."
Thirdly.—Where it is necessary to prove posting, it
is in general sufficient to prove that the letter was
delivered to the clerk whose duty it was, in the
ordinary course of business in the office, to carry letters
to the post ; but this is not a conclusive presumption
like the second, nor is it so strong as the first.
Fourthly. —Whenever a letter, whether sent by post
or by hand, is proved to have been correctly addressed
and delivered to the clerk or servant of the person to
whom it was addressed, it will be presumed that it
came into his hands, although this presumption can
be rebutted (h).
Fifthly. —The post-mark on a letter, if decipherable,
raises a presumption that the letter was in the post at
the time and place specified in such post-mark ; but
this again is a rebuttable presumption (i).
It may be observed that by s. 329 of the Lunacy
Act, 1890 (k), it is provided that :
" Where any person is proceeded against under this Act on a
charge of omitting to transmit or send any copy, list, notice,
statement, report or other document required to be transmitted
or sent by such person, the burden of proof that the same was
transmitted or sent within the time required shall lie upon such
person ; but if he proves by the testimony of one witness upon
oath that the copy, list, notice, statement, report or document in

(g) 52 & 53 Vict. c. 63.

(A) Macgregor v. Keily, 3 Ex. 794.
(i) M. v. Johnson, 7 East, 65.
(4) 63 It 5i Vict. c. 5.
 Peesumptive Evidence. 73

respect of which the proceeding is taken was properly addressed

and put into the post in due time, or (in case of documents
required to be sent to the commissioners or a clerk of the
peace or a clerk to guardians) left at the office of the com
missioners or of the clerk of the peace or clerk to guardians,
such proof shall be a bar to all further proceedings in respect of
such charge."

Omnia prcesumuntur contra spoliatorvm.

If a man, by his own wrongful act, withhold evidence
by which the facts of the case would be manifested,
every presumption to his disadvantage consistent with
the facts admitted or proved will be adopted (1). So,
too, Courts of Justice look with the utmost suspicion
on the conduct of parties who intentionally keep secret
•is^matters at a time when they might be explained, and
\ *A divulge them when lapse of years may have made con-
\j vtradiction or explanation impossible (to). In Armory v.
Thiamine (n), the plaintiff, a boy, had found a jewel,
^ \ Vhich he gave for inspection to the defendant, a
^Jeweller; and in trover for it, it was held, that unless
-*1 . ' the defendant produced it, the jury must presume it
(| '< to be of the first water, and make the value of the best
jewel that would fit the socket the measure of their
damages. But this presumption only arises where there
is a suspicion of fraud : so that where a person refused
to allow his former solicitor to give evidence of matters
connected with the professional relation, it was held
that there was no adverse presumption against him,
Lord St. Leonards saying that there was no analogy
to the case of Armory v. Delamirie (o). Where the
deficiency of evidence arises from negligence, the party
who is accountable for it cannot be benefited by it.
Thus, where a liquor merchant sued for goods sold and
delivered, and the only evidence was that some hampers

(0 William*™ v. Roter Cycle Co., Irish L. R. (1901), 2 Q. U. D. 619.

(»») Cf. Campbell v. Campbell, L. R. 1 Sc. App. 182.
(ft) 1 Sm. L. C. 153.
(o) Wentworth v. Lloyd, 10 H. L. Cas. 589.
74 Law of Evidence.

of full bottles had been delivered to the defendant, but

there was no evidence of the contents of the bottles,
Lord Ellenborough told the jury to presume that the
bottles were filled with the cheapest liquor in which
the plaintiff dealt (p). If a devisee under a first will
destroys a subsequent will, it will be presumed as
against him that the first will has been revoked (q).
On this principle, in admitting evidence of a will proved
to have been destroyed by the heir-at-law, the judge
of the Irish Court of Probate said that he should be
satisfied with evidence much less cogent than in the
case of a lost will (r). The refusal, however, to produce
documents on notice, is not ground for any inference
as to their contents (s). Again, if an accounting party
parts with or destroys his books, the strongest presump
tions consistent with the rest of the case will be made
against him (t). The principle of presuming against
a spoliator is adopted in International Law when papers
have been spoliated by a captured party («).

Continuance of existing state of things.—Where

there is proof of the existence of a state of things, and
no evidence of the cessation of that state of things, the
presumption is that the existing state of things
continues ; and therefore, where the question is as
to the life or death of a person who has been once
shown to be living, the proof of the fact lies on
the party who asserts the death, and it was once
considered that there was a presumption that a person
continues alive until the contrary be shown (x) ; but it
is now considered that whether a person is alive at
a given date is a question for the jury, and that his

(p) Clunne* v. Pezzey. 1 Camp. 8.

(t{) Harwood v. Goodright, Cjwp. 86.
(r) Mahood v. Malwod, It. R. 8 Eq. 359.
(*) Cooper v. Gibbon*, 3 Camp. 363.
(t) Gray v. Haig, 20 Beav. 231.
(k) The Hunter, 1 Dodson, 480.
(*) Wihon v. Hodge, 2 East, 313.
 Presumptive Evidence. 75

existence at an antecedent period may or may not

afford a reasonable inference that he was living at
a subsequent date (?/).

Presumption of death. —Where it is proved that

a person has not been heard of for seven years, a pre
sumption arises that he is dead. But to raise this
presumption there should have been an inquiry
and search made for the man among those who, if
he was alive, would be likely to hear ©f him {z) . This
presumption will not necessarily be made between
vendor and purchaser (a). This presumption relates
only to the fact_o_f_4eath ; and the time of death, when
ever it is material, must be a subject of distinct proof
by the party interested in fixing the time ; for there is
no presumption as to when, during the seven years, ,
the person in question died (b). The fact of letters
of administration having been granted is not sufficient
proof of death (c). In the Probate Division of the
High Court death is not presumed in the case of
disappearance, but the applicant for a grant has to
obtain leave "to swear the death" (d), which leave
will be given provided a proper case is made out.
The applicant has to swear to his belief of the death,
and to prove that he has made proper and ample
inquiries (e). Death has been allowed to be sworn
after three years' disappearance (/).

Death without issue.—It has been stated that the

presumption is that an unmarried man who has not
(y) Per GlFFARD, L.J. : In re Phene's Trusts, L. R. 5 Ch. 189 ; cf.
R. v. Zumley, L. R. 1 C. C. R. 196 ; and In re Rhodes, 36 Ch. D. 586.
(«) Per Lord BLACKBURN, in Prudential Assurance Co. v. Edmonds,
2 App. Cas. 509.
(a) Dart's Law of Vendors and Purchasers, 6th ed., p. 385.
(&) In re Pltene's Trusts, ubi supra; In re Lewes's Trusts, L. R.
6 Ch. 357. See also Re Benjamin, [1902] 1 Ch. 723.
(c) In re Beamish, 9 W. R. 475.
00 In the Goods of Jackson, 87 L. T. 475.
(e) In the Goods of Clarke, [1896J P. 287.
(/) In the Goods of Matthews, [1898] P. 17.
76 Law of Evidence.

been heard of for seven years died without issue (g) ;

and North, J., is believed to have decided an unre
ported {h) case of Re Harding, in 1891, on such a
presumption. But, on the other hand, it was laid
down by Cockbuhn, C.J., in Greaves v. Greenwood (i),
that if it is proved that a man died many years ago,
and there is nothing to show that he had or had not
issue, there is no presumption that either he had or
had not had issue. This statement of the learned
Chief Justice may be, and probably is, accurate if taken
literally, but the true view of the matter under con
sideration seems to be that where the question of the
failure of issue of a given person arises for the decision
of a court all that can be done is to prove facts which
raise ja presumption of want of issue (k), and then ask
the court to presume such failure; and it has been
presumed in cases where the given person had not been
heard of for a considerable number of years—twenty-
five years in two cases (i), and seventeen in another (m),
and inquiries had been made which had failed to elicit
any information.

Capacity for child-bearing.—There is no fixed time at

which a woman, whether a spinster or a widow, will
be presumed to be past child-bearing. It depends on
the particular circumstances of each case whether the
presumption arises or not. As a general rule it is,
in the absence of special circumstances (»), considered
as not arising until a woman is at least fifty-six years of

(g) Seton on Decrees, 5th ed., p. 1391.

(A) Sec Times Newspaper of May 28th, 1891. . .
(0 2 Ex. D. 289.
(4) See Hubback on Evidence of Succession, 203.
CO Be Uankey, 25 W. R. 427 ; and Be Webb, Ir. H. 5 Eq. 235.
(wi) Bawlinton v. Miller, L. R. 1 Eq. 52.
(») The circumstances to be considered arc—whether a spinster or
married : if married, how leng, whether husband alive or dead, whether
children or not, and when last child was born. Sec In re Thornhill,
[1904] W. N. 112, and the cases referred to at the top of the next
page.
 Presumptive Evidence. 77

age. But in Be Sumner (o), and also in Be Millner (p),

a woman under fifty was, under the circumstances, pre
sumed to be past child-bearing. In Croxton v. May (q),
the presumption was held not to arise in the case of
a woman just over fifty-four, but who had only been
married three years. One of the latest cases in which the
presumption was held to arise is Be White (r), where a
woman was just over fifty-six. No analogous presump
tion of incapacity arises in the case of a man of any age.
Survivorship.—Where several persons have perished
in the same calamity, the presumption was once said
to be in favour of the survival of the stronger party (s) ;
but in a case where it appeared that a husband, a wife,
and their two children, were washed off from the deck
of a ship by the same wave and drowned, the House of
Lords held, that in the absence of further evidence
it must be presumed that all died at the same
moment (t). This rule was applied by the Court of
Probate when husband and wife were both killed in a
railway accident, and the bodies were found two hours
afterwards (u), and administration was granted to the
next of kin of each ; so, also, where husband and wife
were proved to have been on board a vessel which was
a total loss at sea (x).
Bailees.—Where goods have been lost or damaged
while in the custody of a bailee or his servants, it is
presumed that the loss or damage arises from his
negligence (y). This presumption appears to arise as
much in the case of a gratuitous bailee as in that of
a bailee for valuable consideration ; but the liability

0) 22 W. B. 039. (?) 9 Ch. D. 388.

O) L. R. 14 Eq. 245. (»•) [1901] 1 Ch. 570.
O) Sillick v. Booth, 1 Y. & C. 117.
(0 Wing v. Augrare, 8 H. L.Cas. 183.
(«) In the Goods of Wheeler, 31 L. .). P. M. & A. 40.
O) In, the Goods of Alston, [1892] P. 144.
(y) Carpue v. London and Brighton Rail. Co., 5 Q. 15. 747 ; Latch v.
Burnner Bail. Co., 27 L.J. Ex. 155.
 78 Law of Evidence.

will be limited by the rules laid down in Coggs v.

Bernard (2).

Partners.—A partner prima facie has authority to

bind the firm by any acts done in carrying on in the
usual way business of the kind carried on by the firm.
But this presumption may be rebutted by showing that
such partner has not, in fact, authority in the particular
matter, and the person with whom he is dealing either
knows that he has no authority or does not know or
believe him to be a partner (a). A partner may be
specially authorised to pledge the credit of the firm
outside the firm's ordinary course of business (b).

Domicil.—Every person acquires a domicil of origin

at birth, which is that of the father at that date in the
case of a legitimate child, and that of the mother in
the case of an illegitimate child ; this domicil con
tinues until it is abandoned and a new one chosen.
The presumption is in favour of the continuance of the
domicil of origin, and the burden of proof is on those
who allege the acquisition of a new one. Mere
residence, however long, in a country which is not that
of the domicil of origin does not prove the abandon
ment of the old domicil and the acquisition of a new one,
but it is an element to be taken into consideration (c).
But long and continuous residence, coupled with other
circumstances, may raise a strong presumption of an
intention to renounce the domicil of origin and acquire
a new one in a particular country (rf) . The question in
all these cases is, had the person whose domicil is in
dispute at the time of his death formed a deliberate and

(1) 2 Lord Kaym. 918.

(a) See s. 5 of the Partnership Act, 1890 (53 k 54 Vict. c. 39), in the
Appendix.
(4) Sect. 7.
(c) Per Collins, M.R. : Stmrdh v. Keyser, 18 T. L. B. 416.
(d) See Attorney- General v. Winam, 85 L. T. 508; reversed by the
House o£ Lords on the facts, see Times, May 11th, 1904.
 Presumptive Evidence. 79

final intention of abandoning his domicil of origin and

settling in another country.

Payment of incumbrances by persons having partial

interests.—In Equity, if a person having a partial
interest in a settled estate pays off an incumbrance, the
presumption is that he intends to keep the charge alive
for his own benefit (e). This presumption may be
rebutted ; and whenever there is any indication of
intention, be it small or great, the court must decide
whether a tenant for life intended to clear the
inheritance or not (/ ) . Where a husband pays off an
incumbrance on his wife's separate estate he is, in the
absence of evidence of an intention to clear the wife's
estate, entitled to the benefit of the charge as against
the estate (<?).

Receipts.—It is a presumption that, if a tenant shows

a receipt for rent, all previous rent has been paid by
him to the landlord (A), and this presumption is one
which requires strong evidence to rebut it. A similar
presumption would doubtless apply to all cases of
periodical payments. No receipt (except a receipt
under seal), is, however, conclusive evidence against
the maker, except in favour of any person who may
have been induced by it to alter his condition (i) .

Possession of documents.—The possession of a bill

of exchange by the drawer (k), or of a note by the
maker (l), is prima facie evidence of payment ; but the
possession of a lease by the lessor with the seals

(e) Morlcy y. Morley, 5 De G. M. k G. 610.

(/) Lindsay v. Earl of Wicklow, Ir. B. 7 Eq. 205 ; cf. Pitt v. Pitt,
22 Beav. 294.
(17) Outran, v. Hyde, 24 W. R. 268.
(A) Tbis presumption has been adopted by the legislature in s. 3 (4), (5)
of the Conveyancing Act, 1881.
(i) Graves v. Key, 3 li. & A. 318.
(A) Gibbon v. Featherttonhaugh, 1 Stark. 225.
(0 Bembridge v. Oiborne, 1 Stark. 374.
80 Law of Evidence.

cut off is no evidence of a surrender by written instru

ment according to the Statute of Frauds (m).

Boundaries.—When two parishes or properties are

separated by a highway, the presumption is that the
medium filum vice is the actual boundary (n) ; when
they are separated by a river the medium filum aqwe
is presumed to be the actual boundary. But when
there is an island in a river, so that the river is
divided thereby into two streams, there is no presump
tion that the medium filum runs through the island (o) .
The soil of a public highway is presumed to belong to
the owners of the adjacent lands usque ad medium
filum via> (p), and this applies to the case of a street in
a town (q). It does not, however, apply in the case of
ground which is intended to be used as a highway but
has not been dedicated to the public (r). By Inter
national Law, where two states are bounded by a
navigable river, the middle of the channel or Thalweg
is presumed to be the boundary, with a common right
of navigation to both ; but when it can be proved that
one bank of the river was occupied before the other,
it will be presumed that the first occupant has an
exclusive title to the river. The presumption, how
ever, that the bed and soil of a stream belong to the
riparian owners does not apply to a large non-tidal
and navigable lake (s). Where there is a metalled road
bordered by unmetalled margins, there is no pre
sumption that the highway extends up to the
fences (t).

(m) Doe v. Thonms, 9 B. & C. 288.

(«) 11. v. Strand Board of Works, 4 B. & S. 526.
(o) 'Great Torringtun Common* Conservator* v. Moore Stephen*,
11904] 1 Ch. 347.
(/)) For a case in which the presumption was rebutted, see Pryor v.
Petrie, [1894] 2 Ch. 11.
Oy) Be, White's Charities, [1898] 1 Ch. 659.
(r) Leigh v. Jack, 5 Ex. I). 264.
(*) Johnston v. Bloomfield, Ir. K. 8 C. L. 68.
(() Belmore v. Kejit County Council, [1901] 1 Ch. 873.
 Presumptive Evidence. 81

On the subject of boundaries, the words of an eminent

judge may be quoted :
" The rule of construction is now well settled, that where there
is a conveyance of land, even although it is described by reference
to a plan, and by colour, and by quantity, if it is said to be
bounded on one side either by a river or by a public thoroughfare,
then, on the true construction of the instrument, half the bed of
the river or half of the road passes, unless there is enough in the
circumstances, or enough in the expressions of the instrument, to
show that that is not the intention of the parties " (u).

Certain equitable presumptions.

Presumption against double portions.—Where a
person, having contracted by his marriage settlement
to provide for his wife or children, gives a legacy to
her or them by will, then (x) if the legacy be of a sum
as great as or greater than the portion or provision ; if it
be ejusdem generis ; if it be equally certain with the
latter and subject to no contingency not applicable to
both ; and if it be shown that it is not given for a
different purpose ; then it will be deemed a complete
satisfaction. If the legacy be less in amount than the
portion or provision, or if it be payable at a different
period or periods, then, although there is some diversity
of opinion upon the subject, the weight of authority is,
that it may be or will be deemed a satisfaction pro tanto,
or in full, according to the circumstances (y) ; the reason
of these rules being that Equity presumes that the
testator did not intend a double portion (2). This pre
sumption may be repelled or fortified by intrinsic
evidence derived from the nature of the two provisions,
or by extrinsic evidence (2).

(«) Per Cotton, L.J. : Micklethwait v. Newlay Bridge Co., 33 Ch. D.

at p. 145.
(«) Story's Eq. Jar. 1109.
(y) Thyrine v. Earl of Olengall, 2 H. L. Cas. 131 ; led cf. Corentry v.
Chieheiter, 2 Hem. & M. 149.
(;) Weall v. Rice, 2 R. & M. 267 ; Tuitaud v. Tuitaud, 19 Ch. U.363.
82 Law of Evidence.

Presumption of ademption.—When a parent (a), or

other person in loco parentis, bequeaths a legacy to a
child or grandchild, and afterwards in his lifetime gives
a portion to, or makes a provision for, such child or
grandchild, without expressing it to be in lieu of the
legacy, in such a case, if the portion so received or the
provision so made be equal to or exceed the amount of
the legacy, if it be certain and not merely contingent,
if no other distinct object be pointed out, and if it be
ejusdem generis, then an intention will be presumed
to adeem the legacy ; if the portion or provision be
less than the amount of the legacy, an ademption pro
tanto will be at all events presumed (b). To raise such
a presumption it has been said (c) , that it is not incum
bent on the person who alleges a satisfaction to show any
thing more than that the testator, having given a legacy
of a certain amount, afterwards in his lifetime gave the
legatee a sum of money, the nature of the two gifts not
being so different as to rebut the presumption. In
Lacon v. Lacon (d), which was a case where a testator
in his lifetime gave two shares in a parternership business
to one of his youngest sons, and by his will gave his
shares in the same business to his three sons equally,
it was held that the presumption of ademption was
rebutted by the circumstances under which the two
shares were given to the youngest son. Evidence
may be gone into to rebut the presumption by showing
that it was not in accordance with a testator's intentions,
and counter evidence is also admissible (e). It has
been held that if a legacy appears upon the face of a
will to be bequeathed even to a stranger for a particular
purpose, and a subsequent gift be made by the testator

(«)
(*■) Story'sv. Eq.
Pijm Jur. 1111.
Lorlnjer, 5 M. k C. 29.
(c) Per HALL, V.-C. : Ltigldon v. Lrighton, L. R. 18 Eq. 468.
(rf) [1891] 2 Ch. 482.
(«) Kirk v. Edduaet, 3 Hare, 517.
 i

Presumptive Evidence. 83

for the very same purpose, a presumption is raised that

the gift is an ademption (/).
Presumptions in case of legacies to creditors. —It is
an established rule in Equity, that where a debtor
bequeaths to his creditor a legacy equal to or exceeding
the amount of his debt, it shall be presumed in the
absence of any intimation of a contrary intention that
the legacy was meant by the testator as a satisfaction
of the debt. If2JioweverJjttie_.debt is upon a negotiable
security (g), or upon a current account (h), there is no
such presumption.
Cumulation of legacies.—Another class of presump
tions in Equity is with respect to the cumulation of
legacies. In Hurst v. Beach (i), Leach, M.R., said :
" Where a testator leaves two testamentary instruments, and in
both has given a legacy simpliciter to the same person, the court,
considering that he^ who jias twice given must prima facie be
intended to mean two gifts, awards to the legatee both legacies ;
and it is indifferent whether the second legacy is of the same
amount, or less, or larger than the first ; but if in such two instru
ments the legacies are not given simjtlidler, but the motive of the
gift is expressed, and in both instruments the same motive is
expressed, and the same sum is given, the court considers these
two coincidences as raising a presumption that a testator did not
by the second instrument mean a second gift, but meant only a
repetition of the former gift."
The doctrine of resulting trusts arises from another
presumption adopted in Equity. When a transfer is
made of property without any consideration, express or
implied, or any distinct trust stated, the transferee will
be presumed to be intended to hold the property in
trust for the transferor ; and where a person purchases
property with his own money in the name of another,
it will be presumed that the property so bought is
intended to be held in trust for him who pays the
(.0 In re Fvnteaa, [1901] 2 Oh. 34!».
(j) Carr v. Eaatubrmike, 3 Vcs. iitjl.
(A) Rawlin* v. Pnwtl, 1 IJ. Wins. 299.
(i) 5 Mad. 3r>8. Bat see Wilton v. O'Leary, L. R. 7 Ch. 448.
a 2
84 Law of Evidence.

purchase-money. But where one person stands in

such relation to another that there is an obligation
on that person to make a provision for the other,
and a purchase or investment is made in the name
of that other, or in the joint names of both, a
presumption arises of an intention to discharge the
obligation, and the purchase or investment in the
absence of evidence to the contrary, is held to be a
gift. Hence when a husband transfers stock into the
joint names of himself and his wife, the stock is the
absolute property of the wife if she is the survivor (k) .
So where a father purchases property in, or transfers
property into, the name of a child, a gift is presumed (I),
and the same rule has been applied in the case of an
illegitimate child when there has been recognition and
filial treatment (m), and of a grandchild whose father
was dead (n). It is, in fact, applicable to alKcases
where the person purchasing or transferring stands in
loco parentis (o) to the other, on account of the moral
obligation of the former to make a provision for the
latter. It was held by Stuakt, V.-C, in Sayer V.
Hughes (p), that in the case of a widowed mother there
was the same presumption as in the case of a father ;
but Jessel, M.E., in Bennet v. Bennet (q), held that
no presumption of gift arises in the case of a mother
purchasing or investing in the name of a child, on the
ground that there is no obligation on a mother to
provide for her child such as a Court of Equity
recognises. This decision, however, seems to be-
erroneous, seeing that the legislature has by s. 21
of the Married Women's Property Act, 1882, not
only recognised an obligation on the part of the
(i) Diunmtr v. Pitcher, 2 M. & K. 262.
(0 See Lewin on Trusts, 10th ed., p. 182.
(hi) Kilpen v. Kilpen, 1 M. A: K. 520.
(ti) Ebrand v. Dancer. 1 Coll. C. C. 265 n.
(<>) As to what constitutes standing in loco parenti*. see Lord Cotten-
HAM's judgment in Powyt v. Mansjield, 2 M. & C. 366.
(p) L. R. 5 Eq. 376. (?) 10 Ch. D. 474.
 Presumptive Evidence. 85

mother to maintain her children, but rendered it com

pulsory on her, under certain circumstances, so to do.
In one case (r), Kay, J., held that certain small advances
made by a widowed mother to her son, of which she
did not in her lifetime claim repayment, were gifts on
the ground that the mother had placed herself in loco
parentis. The learned judge referred in his judgment
to both Sayer v. Hughes and Bennet v. Bennet. Where
a Hindu purchases property in India in the name of a
child, the presumption is that it is the property of the
father (s). J
The declarations of the parent at the time of the
transfer or purchase are admissible to rebut the pre
sumption of advancement, but not his subsequent
declarations (t). Stuart, V.-C, once admitted the
evidence of the transferor to rebut the presumption of
advancement, by showing that he made the transfer
under a mistake as to its legal consequences (w) . When
there is evidence to rebut the presumption of advance
ment, the court is in the same position as a jury
would be (x).

(r) Etan* v. Maxwell, 50 L. T. (N.8.) 51.

(«) Gov't Kririo Gomin v. Gungu Pentad, 6 Moore, I. A. 53.
(t) WUliamt v. Williavti, 32 Beav. 370 ; followed in O'Brien v. Speil,
It. R. 7 Eq. 255, the judgment in which see.
(it) Decoy v. Deroy, A ism. & G. 403.
GO Fowket v. Pascoe, 23 W. R. 538.
 ( 86 )

CHAPTEE VI.

EVIDENCE IN MATTERS OF OPINION.

Since it is the province of either the judge or of the

jury to draw all inferences from facts, it follows, as a
general rule, to which, however, there are several
exceptions, that—

A witness must only state facts : and his mere

personal opinion is not evidence.
The object of this rule is to keep the witness, as
much as possible, from trespassing on the functions of
either judge or jury ; and it is relaxed as often as the
opinion of a witness can be regarded in the nature of a
presumptive fact. .Thus, in cases where the insanity
of a person is in issue, a medical witness, whose know
ledge of that person is derived solely from hearing the
evidence in the case, cannot be asked whether he con
siders that the patient was insane, for that is the issue
for the court and jury ; but he may be asked whether
certain symptoms are indications of insanity, and his
answers are evidence for the guidance of the court and
jury (a). Where, however, a medical witness has
examined or attended such a person, he may give his
opinion as to the state of mind of the person (6).
Where the sanity of a testator was in issue, a letter
purporting to be from the testator was proposed to be
shown to a medical witness, and such witness asked
whether the writer of such a letter could be of sound
mind; Maktin, B., held that this could not be done,

(a) R. v. M'Naghten, 10 CI. & F. 200.

(*) R. v. Richards, 1 F. & F. 87.
 Evidence in Matters of Opinion. 87

but that when the letter had been proved to be in the

testator's writing, the witness might be asked if it was
a rational letter (c).
In the case of R. v. Bowton (d), which established
that, in reply to evidence of a prisoner's good character,
the prosecution may call witnesses to prove that his
general character is bad ; it was held, by the majority
of the judges, that witnesses to character can only
speak as to the prisoner's reputation, having reference
to the nature of the charge, and may not give their
own epinien on the subject.
In actions of slander, where it is important to prove
an innuendo and that the obvious and natural meaning
of a word was not that which the speaker intended to
convey to the witness, the witness cannot be asked
what he understood by the language ; for the answer
to such a question would be in the nature of an
inference and a mere personal opinion ; but questions
may be put to him which tend to elicit all the
surrounding facts and circumstances which led him
to understand the words in a slanderous sense, and he
may be asked whether there was irony in the speaker's
tone at the time, and generally whether there was
anything to prevent him from understanding the words
in their ordinary sense (e). It has, however, been held
that in an action for fraudulently representing a third
person to be trustworthy, the defendant may call
witnesses to give their opinion as to such person's
trustworthiness (/).
In the leading case of Carter v. Boehm (g), it was a
question whether a policy of insurance was vitiated by
the concealment of facts which had not been communi
cated to the underwriters. A broker gave evidence of
(<•) Sluirpe v. Macaulay, Western Circuit, 1856, MS.
(<i) L. it C. 520.
(e) Baiiies v. Hartley, 3 Exch. 200 ; Baniett v. Allen, 3 H. & N.376.
(J) Sheen v. Bumpntead, 2 H. k C. 193.
(y) 3 Burr. 1905.
88 Law op Evidence.

the materiality of the facts, and stated his opinion, that

if they had been disclosed the policy would not have
been underwritten ; but the court held his statement
to be inadmissible. Lord Mansfield said :
" Great stress was laid upon the opinion of the broker ; but we
all think the jury ought not to pay the least regard to it. It is
mere opinion, which is not evidence ; it is opinion after an event ;
it is opinion without the least foundation from any previous pre
cedent or usage ; it is an opinion which, if rightly formed, could
be drawn only from the same premises from which the court and
jury were to determine the cause, and therefore it is improper and
irrelevant in the mouth of a witness."

This judgment of Lord Mansfield contains the

principles on which mere opinion is not received as
evidence ; but it is right to state that his view of the
law, as to this particular case, has been much contro
verted and that it has been considered by other learned
authorities (h) to come within the fourth exception to
the general rule.
The general rule stated above is subject to the
following exceptions :

1st Exception. —On questions of identification a

witness is allowed to speak as to his opinion
or belief (i).
This applies to any species of identification, whether
of persons or of things, and especially to the identifica
tion of handwriting, as to which see post, Part II.,
Chap. IV.

2nd Exception. —A witness's opinion is receiv

able in evidence to prove the apparent
condition or state of a person or thing.
Thus a witness may state that a person appeared to
him confused or agitated, rich or poor, young or old, or

(A) See note to Carter v. Boehm, 1 Sm. L. C. 504.

(i) Fryer v. Qathcrcole, 13 Jur. 542.
 Evidence in Mattebs of Opinion. 89

that a building appeared decayed or stable, or that a

document appeared to be in good or bad condition ;
and a witness may give his opinion as to the age of a
child (*).

3rd Exception.—On the trial of an indictment

for obtaining goods by false pretences the
prosecutor may be asked what inference he
drew from a document received from the
defendant (Z).
This evidence is admissible to prove the belief of the
prosecutor that the false pretence was true, but not to
prove that expressions in the document bore a particular
meaning, or whether it was so meant by the prisoner.

4th Exception.—The opinions of skilled witnesses

are admissible evidence on scientific, profes
sional and trade matters on which they have
special knowledge.
It must be noted that it is for the judge in all cases to
decide upon the competency of an expert witness before
his evidence can be admitted.
In Campbell v. Richards (to), Lord Denman said,
that witnesses conversant in a particular trade were
allowed to speak to a prevailing practice in that trade ;
scientific persons might give their opinions on matters
of science ; but witnesses were not receivable to state
their views on matters of legal or moral obligation, nor
on the manner in which others would probably be
influenced if the parties had acted in one way rather
than another. In the case of Carter v. Boehm, a
broker, who was called as a witness for the plaintiff,
stated on cross-examination, that in his opinion certain
letters ought to have been disclosed, and that if they

(*) H. v. Cox, [1898] 1 Q. B. 179.

CO R. v. King, [1897] 1 Q. B. 214. (m) 5 B. is. Ad. 846.
90 Law op Evidence.

had, the policy would not have been underwritten. The

jury, however, found, against the witness's opinion, a
verdict for the plaintiff. When his opinion was pressed
as a ground for a new trial, Lord Mansfield, in the
name of the whole court, declared that the jury ought
not to pay the least regard to it, because it was mere
opinion and not evidence. The same doctrine was laid
down in a case of Durrell v. Bederley, by Gibbs, C.J.,
though he received the evidence on great pressure.
He said :
" The opinion of the underwriters on the materiality of facts
and the effect they would have had upon the premium is not
admissible in evidence. Lord Mansfield and Lord Kenyon dis
countenanced this evidence of opinion, and I think it ought not to
be received. It is the province of a jury and not of individual
underwriters to decide that facts ought to be communicated. It is
not a question of science, in which scientific men will mostly think
alike, but a question of opinion, liable to be governed by fancy,
and in which the diversity might be endless. Such evidence leads
to nothing satisfactory, and ought to be rejected."

It will appear from this judgment that the principles,

as stated above, are generally recognised and acted on,
and that the only practical difficulty in applying them
exists in the question as to what is and what is not a
subject of scientific inquiry. The inclination of modern
authorities appears to be to enlarge the definition ; and
it is probable that if Carter v. Boehm, and Campbell v.
Richards, were to be decided again, it would be held that
the nature of mercantile transactions, and the principles
of insurance in particular, are sufficiently recondite to
entitle them to the privilege which was disallowed in
those cases («). In Greville v. Chapman (o), which
was an action for libel arising out of a racehorse trans
action, it was held by Lord Denman, that a member of
the Jockey Club might be asked as a witness, whether
he did not consider a certain course of conduct to be

(n) 1 Sm. L. C. 286 a ; Ricbirds v. Murdoch, 10 B. & C. 527.

f<i) 5 Q. B. 731.
 Evidence in Matters of Opinion. 91

dishonourable. A skilled witness may not only say

that he formed an opinion, but that he acted on that
opinion, and his acting upon it is a strong corroboration
of the truth (p).

Patent cases.—The evidence of experts is more fre

quently resorted to in patent cases than in any other
class of cases, and is undoubtedly of great value and
assistance to the court therein, but the courts now
protest against expert evidence being given on
matters which are for the court and not for any witness,
e.g., whether defendant's article is an infringement (q)
and what is the construction to be placed on a Specifi
cation. On this Smith, L.J., said (r) :
" I say that this evidence of experts as to the construction of the
Specification is inadmissible, and that, except as to the meaning of
scientific terms when they occur, or as to the working of mechanical
appliances, or as to what such working will bring about, expert
evidence should not be admitted. It is the practice of admitting
this evidence which gives rise to much of the excessive length to
which patent cases run."

Probability of deception. —In trade mark and " pass

ing-off" cases it used to be a common practice for
trade witnesses to state whether or not in their opinion
what the defendant was doing was calculated to deceive,
but it is now settled that such evidence is not admissible
as usurping the functions of the court (s) . Of course a
witness maybe asked if he would himself be deceived.

The evidence of experts must be received with

caution, because they are apt to make themselves
partisans, and thus diminish the value of their testi
mony. Lord Campbell, indeed, once said of experts,

(p) Stephenson v. Hirer Tyne Commissioners, 17 W. B. 590.

(o) Per Lord Russell, C.J., in Brooks v. Steele and Currie,
U ft. P. C. 73 ; ef. Seed v. Higgins, 8 H. L. Cas. 527.
(r) In Oadd v. Mayor of Manchester, 9 K. P. C. 530.
(*) Henessey v. Domp'e, 19 R. P. C. 339; Lambert and Butler v.
Goodbody, 19 K. P. C. 377.
92 Law op Evidence.

that they came with such a bias on their minds to

support the cause in which they were embarked, that
hardly any weight should be given to their evidence (t).
It is also deserving of remark, that there is no English
qase in which a witness has been indicted for perjury
in a mere matter of opinion ; nor does if seem that an
indictment would lie, unless the opinion given amounts
to the assertion of a fact that is untrue, or suggests an
inference that is obviously false.
Books, and, in particular, dictionaries (it), are admis
sible to show the sense in which words are used ; and,
especially in cases of libel, defendants have been per
mitted to refer largely to previous publications, and to
read them as part of their defence, in order to show
that certain forms of expression were not meant as
matter of reproach or ridicule ; and to explain whether
they had been used in a metaphorical or literal sense.
Books also may be used to show the opinions of their
writers on their subjects ; but such opinions cannot be
made evidence of specific facts. But it is not compe
tent in an action for not farming according to covenant,
to refer to books for the purpose of showing what is the
best way of farming ; nor in an action on the warranty
of a horse would it be allowable to refer to works of a
veterinary surgeon to show what is unsoundness (x).
So in an action for a libel charging the plaintiff with
being a rebel and traitor, "because he was a Roman
Catholic," the defendant was not allowed to justify by
citing books of authority among Koman Catholics,
which seemed to show that their doctrines were
inimical to loyalty (y). In all such cases, as also in the
proof of foreign law, the evidence is matter of science,

(<) 10 C. & F. 191. See also the views of Jessel, M.R., as to expert
evidence, in Lord Abinger v. Athton, L. H. 17 Eq. 373.
(m) dementi v. Golding, 2 Camp. 25.
Per Pollock, C.B. : Darby v. Owelty, 1 H. & N. at p. 12.
(y) Darby v. Ouseley, lH.tS.l.
 Evidence in Matters of Opinion. 93

which must be given by experts or scientific witnesses

in court. As to the use which can be made of foreign
law books, see post, Chap. XIX.
Books are often only hearsay, of the most vague, in
consistent, and remote character. They are statements
made by absent, perhaps anonymous, witnesses, who
write without being under the fear of the spiritual or
secular penalties of an oath, and without being subject
to cross-examination. It is plain, therefore, on the
first principles of evidence, that they are without any
of the elements of legal credibility.
The general rule will not be construed to exclude
from the consideration of a jury anything which would
assist them in making up their minds upon the facts in
dispute, but is intended simply to prevent the functions
of the jury being usurped by the witness, which would
be done were he allowed to lead their opinion by his
own.
 ( 94 )

CHAPTER VII.

PRIVILEGE.

Except when some positive rule intervenes, a witness

is compellable to answer any question that may be put
to him (except questions tending to show that he has
been guilty of adultery) ; but there are many questions
which he will not be compellable, and some which he
will not be permitted, i.e., is not competent, to answer.
So in documentary evidence every writing is admissible,
except when it is excluded by some rule of law.
Wherever a witness is not compellable or not com
petent to answer any question, it is because some
privilege intervenes, which privilege is sometimes that
of the witness himself, sometimes that of another person,
and sometimes that of the State, which asserts the
right of excluding certain kinds of evidence on grounds
of public policy. Where the privilege is that of the
witness himself, he may waive it and answer the ques
tion ; where the privilege is that of another person,
such person may waive it and permit the witness to
answer, but the waiver cannot proceed from the witness
himself. Where, in reliance on privilege, a witness
refuses to answer, or is not allowed to answer a
question, no presumption arises that the evidence so
withheld is unfavourable to any person.
The different kinds of privilege will be gathered from
the following rules, viz. :
Eule 1.
A witness is not compellable to answer any ques
tion or to produce any document tending to
criminate him.
On the principle nemo tenetur seipsum prodere, a
witness, whether a party to a suit or not, cannot be
 Privilege. 95

compelled to answer any question, whether put vivd

voce or in the form of a written interrogatory (a), the
answer to which may expose, or tend to expose,
him to a criminal charge, penalty (6), or forfeiture
of any kind. This rule is recognised and expressed
by the Law of Evidence Amendment Act, 1851,
which, after making the parties to civil actions and
suits competent and compellable witnesses on behalf
of either party, enacts that nothing in the Act shall
render any person compellable to answer any question
tending to criminate himself or herself (c). This rule
of protection is not confined to what may tend to
subject a witness to penalties by the laws of Eng
land (d). On similar grounds the production of docu
ments may be refused.
The protection must always be claimed on oath, i.e.,
the party claiming it must pledge his oath that the
answer to a question or the production of a document
would tend to criminate him (e). Where discovery of
documents is applied for the protection must be claimed
in the affidavit, in compliance with the Order, and not
on the application itself (/).
In B. v. Garbett (g), it was held that a witness is not
compellable to answer a question if the court be of
opinion that the answer might tend to criminate him.
It was also held in the same case that the court may
compel a witness to answer any such question ; but
that if the answer be subsequently used against the
witness in a criminal proceeding, and a conviction
obtained, judgment will be respited and the conviction

(a) Martin r. Treacher, 16 Q. B. D. 507.

(i) A« to what ia an action for a penalty, see Saunders v. Wiel, [1892]
2 y. B. 321.
0) 14 & 15 Vict. c. 99, 8. 3.
(<2) U. S. A . v. Macrae. L. R. 3 Oh. 79. But see King of Two Sicilies v.
Wilcox, 1 Sim. (JJ.8.) 381.
(*) Webb v. East. 5 Ex. I). 108 ; and Spokes v. Grosrenvr Hotel Co.,
[1897] 2 Q. B. 124.
(/) Spokes v. Orosvenor Hotel Co., nbi supra.
(^) 1 Den. 236.
9(5 Law of Evidence.

reversed. In B. v. Boijes (h), Cockburn, C.J., in

delivering the judgment of the court, said :
" To entitle a party called as a witness to the privilege of silence
the court must see, from the circumstances of the case and the
nature of the evidence which the witness is called to give, that
there is reasonable ground to apprehend danger to the witness
from his being compelled to answer. We indeed quite agree that
if the fact of the witness being in danger be once made to appear,
great latitude should be allowed to him in judging for himself of
the effect of any particular question ; there being no doubt, as
observed by Baron Aldkrson in Osborne v. London Dock Co. (i),
that a question which might appear at first sight a very innocent
one might, by affording a link in a chain of evidence, become the
means of bringing home an offence to the party answering. Sub
ject to this reservation a judge is, in our opinion, bound to insist
on a witness answering, unless he is satisfied that the answer will
tend to place the witness in peril."

This statement of the law was approved and adopted

by the Court of Appeal in the case of Ex parte
Reynolds (k).
When and how the privilege is claimed.—It is settled
that a witness cannot refuse to go into the box on the
ground that a question will criminate him, and that he
will refuse to answer it. The privilege can be claimed
only by the witness himself after he has been sworn
and the objectionable question put to him (I) ; and the
witness must pledge his oath that he believes the
answer will tend to criminate him. If he assigns a
reason for not answering, which in the opinion of the
court is insufficient, he will be compellable to answer.
He can claim his privilege at any time, and does not
waive it altogether by omitting to claim it at an earlier
opportunity (m) . A judge ought to caution a witness,
where a privilege exists, that he is not bound to
answer (n).

(A) 1B.&S. 311.

(0 10 Ex. 6!)8. (i) 20 Ch. D. 294.
(J) Boyle v. Wiseman, 10 Ex. 647.
(hi) R. v. Garbett, 1 Den. 258.
(») Per Maule. J. : Fisher v. Ronalds, 12 C. B. 762 ; ef. Paxton v.
Douglas, 16 Ves. 242.
 Privilege. 97

As to a wife criminating her husband.—In B. v. All

Saints, Worcester (o) , Lord Ellenborough held that a
wife was competent to answer questions criminating
her husband, and that the answers were not excluded
on the ground of public policy; but Bayley, J., was
of opinion that a wife who threw herself upon the pro
tection of the court would not be compelled to answer.
There is no doubt that a wife cannot be compelled to
answer any question which may expose her husband to
a charge of felony ip).
Waiver by witness.—If the privilege is that of
the witness he may waive it and answer at his
peril (q).
Extent of privilege.—The privilege extends to cases
in which an answer might subject the witness to
penalties or forfeitures (r) ; but he cannot refuse to
answer any question, relevant to the issue, on the
ground that his answer would show that he owed a
debt, or would otherwise expose him to a civil action (s).
Some difficulties arise in the application of the
general rule in consequence of the special limitations
that have been put on it by several statutes, which
have enacted expressly that a witness cannot refuse to
answer matters to which they refer, on the ground that
the answers would criminate him ; but that such
answers shall not be used against him in a criminal
proceeding arising out of the same transaction. By
the Larceny Act, 1861 (t), s. 85, nothing in the pre
vious provisions therein affecting fraudulent agents,

(«) 6 Man. & S. 194.

lp) Cartwright v. Green, 8 Vcs. 410.
(j) Paxton v. Douglas, 16 Ves. 242.
(/•) Cates v. Hardacre, 3 Taunt. 424 ; cf. Pye v. Butterjield, 5 B.& S.
829; and Hexborough (Earl of) v. Whitwood Urban District Council,
r 1894] 2 Q. B. Ill, where, in an action to enforce a forfeiture of n lease,
ft was held that the plaintiff coitld not obtain discovery oil the issue
relating to forfeiture.
(*) 46 Geo. 3, c. 37. (0 24 & 25 Vict. c. 96.
I.. K. II
98 Law of Evidence.

factors, bankers, attorneys, trustees, officers of com

panies, etc., is to entitle any such person to refuse to
answer a bill in equity, or questions or interrogatories
in any civil proceeding or bankruptcy investigation ;
and the Bankruptcy Act, 1890 («), s. 27, provides that
a statement or admission made by any person in any
compulsory examination or deposition before any court
on the hearing of any matter in bankruptcy shall not
be admissible as evidence against that person in any
proceeding in respect of any of the misdemeanors
referred to in s. 85 of the Larceny Act. But a state
ment of affairs prepared by a debtor under s. 16 of the
Bankruptcy Act, 1883 (x), is not within s. 27 of the
Act of 1890, and can be used in evidence against him
on subsequent criminal proceedings (y). By the Mer
chandise Marks Act, 1887 (z), s. 19 (2), nothing in the
Act is to entitle any person to refuse to make a
complete discovery or to answer any question or
interrogatory in any action, but such discovery or
answer is not to be admissible in evidence against
such person in any prosecution for an offence against
the Act. Again, by the Corrupt and Illegal Practices
Prevention Act, 1883(a), s. 59, no person called as a
witness respecting an election before any election court
is to be excused from answering questions relating to
any offence at or connected with such election, on the
ground that the answer might criminate or tend to
criminate himself, or on the ground of privilege, pro
vided that a witness who answers truly all questions
which he is required to answer is to be entitled to a
certificate of indemnity stating that he has so answered,
and an answer to questions put by or before an election
court is not to be admissible against the witness in

00 53 & 54 Vict. c. 71. O) -16 & 47 Vict. c. 52.

(y) R. v. Pike, [1902] 1 K. B. 552.
(r) 50 & 51 Vict. c. 28. (a) 46 & 47 Vict. c. 51.
 Privilege. 99

any civil or criminal proceeding, except for perjury in

respect of such evidence. This provision applies also
to the examination of witnesses before election com
missioners. An analogous provision is contained in
the Explosive Substances Act, 1883 (b), s. 6 (2).
A person charged with an offence and electing to
give evidence for the defence under the Criminal
Evidence Act, 1898 (c), by s. 1 (e) thereof "may
be asked," and is, of course, compellable to answer,
" any question in cross-examination notwithstanding
that it would tend to criminate him as to the offence
charged."
Under previous (as well as the present) Bankruptcy
Acts a bankrupt was liable to be examined touching his
trade, dealings, and estate, and questions arose how far
his answers, if incriminatory, could be used against
him in proceedings outside the bankruptcy proceedings.
The chief cases in which these questions arose were cited
in the fifth edition of this book, but it is now deemed
sufficient to give the present law and practice on the
subject. The Bankruptcy Act of 1883 (d) provides
by s. 17 :
"(1) Where the court makes a receiving order it shall hold a
public sitting, on a day to be appointed by the court, for the exami
nation of the debtor, and the debtor shall attend thereat, and shall
be examined as to his conduct, dealings, and property. . . . (7) The
court may put such questions to the debtor as it may think
expedient. (8) The debtor shall be examined upon oath, and it
shall be his duty to answer all such questions as the court may
put or allow to be put to him. Such notes of the examination as
the court thinks proper shall be taken down in writing, and shall
be read over to and signed by the debtor, and may thereafter be
used in evidence against him ; they shall also be open to the
inspection of any creditor at all reasonable times."
The statements made by a debtor upon such exami
nation are of course not admissible in evidence against

(ft) 46 & 47 Vict. c. 3.

(<•) 61 & 62 Vict. c. 36. (</) 46 & 47 Vict. c. 52.
it 2
100 Law of Evidence.

anyone except himself (e) ; but they are admissible

against him. even if incriminatory, in any subsequent
proceedings, whether under the Bankruptcy Acts or
not (/), with the limitation enacted by s. 27 of the
Bankruptcy Act, 1890 (g). The statements can be
proved not only by the transcript of the notes of the
examination, but by the parol evidence of anyone
present at the examination, even though they have
not been read over to or signed by the debtor (h).
As the debtor cannot refuse to answer any questions
which the court may put or allow to be put to him, it
is obviously the duty of the court to be careful not to
allow questions to be put the answers to which might
be incriminatory, unless such questions fairly relate to
the " conduct, dealings, or property " of the debtor.

Degrading questions. —When the question is merely

degrading to the witness, and its object is to discredit
his testimony by showing him to be of a disreputable
character, the authorities are conflicting as to the
privilege of the witness in refusing to answer. Generally,
it appears to be clear that such a question may be
asTceclTTjut that where it is not material to the issue,
and its object is merely to degrade the character of the
witness, he is not compellable to answer it. Thus, on
a charge of rape, or indecent assault, the prosecutrix
cannot be compelled to say whether she has had con
nection with other men, or particular persons ; nor can
evidence of such connection be received, for if she has
once denied it her answer is final (i). But she can be
asked if she has had previous connection with the
accused, and if she denies it her answer is not final,

(r) Be Briimier, 19 Q. B. T). 572 ; New Prance and Garrard's

Trustee v. Hunting, [1897] 2 Q. B. 19.
(/) In re a Solicitor, 38 W. If. 507 ; see 11. v. Erdheim, [1896]
2 Q. B. 260.
(g) See ante, p. 98.
(//) A', v. Erdheim. ubi snjira.
(i) if. v. Helmet, L. K. 1 C. C. K. 334.
 Privilege. 101

and witnesses can be called to prove such previous '

connection (k). So, in an action of seduction, the
•woman is not compellable to say whether she has had
connection with other men previous to the alleged
seduction ; but the defendant may prove such previous
connection in reduction of damages (I).
Equity has carried the general rule further than \
common law, for not only is a witness not compelled to
answer any question which would subject him to a
criminal charge, or to any pains or penalties, but he is
not compelled to answer any question which would sub
ject him to ecclesiastical censure, or to a forfeiture of
interest ; and the protection is said to be extended even
to cases where the answer would prove the witness
guilty of great moral turpitude, subjecting him to penal
consequences (m).
Of course, when a person incurs no penalties, the
alleged illegality of a transaction is no excuse (rc).

Rule 2.
Counsel, solicitors, and their clerks are not per
mitted to disclose corninunications which
have been made to them in professional
confidence by their clients, without the con
sent of such clients ; nor can a man be
compelled to disclose any communication
which he has made in professional con
fidence to his solicitor or his counsel.
When the relation of solicitor and client, or of counsel
and client, has been established, then this rule operates,
and neither the solicitor nor counsel can be compelled
or will be permitted (o), without the consent of the

(A) R. v. Riley, 18 Q. B. I). 481.

(0 Dodd v. jforrii, 3 Camp. 519.
(»t) Wigrani on Discovery, 81 ; Mitford on Pleading, 194.
(it) William* v. Trye. 18 Beav. 366.
(y) WiUim v. Rattall, 4 T. B. 759.
102 Law of Evidence.

client, to make any disclosure or admission which may

be fairly presumed to have been communicated by the
client, with reference to the matter in issue, under an
implied promise of secrecy. This rule applies indepen
dently of the question whether there is. litigation
impending or existing or not. Although a solicitor
cannot refuse to divulge the name of his client (p), he
can refuse to divulge his client's address when com
municated to him confidentially (</). The privilege
does not terminate with the relationship, so when a
solicitor has ceased to act for a client he will be
restrained by injunction from divulging what he has
learnt from his old client to any new one (r) ; and when I
a solicitor is personally defendant in an action he can-/
not be compelled to answer interrogatories so as to
disclose facts and information which came to his know
ledge as solicitor for a client in another action (s) .
In the absence of the above-mentioned rule, no man
would dare to consult a professional adviser with a
view to his defence, or the enforcement of his rights (t).
There is no doubt now that a client can withhold com
munications made to his solicitor, and that the privilege
applies to any communications between solicitor and
client, whether made before or during litigation, or
without reference to any litigation, provided they are
professional communications passing in a professional
capacity (m). Where two persons are engaged in a
joint adventure, communications made during its

(//) Burtill v. Tanner, 16 Q. B. D. 1.

(?) Be Arnott, 5 Morrell, 286.
(r) Lewis v. Smith, 1 M. & G. 417 ; see Little v. Kim/swood CMierie*
Co., 20 Ch. 1). 733.
(*) Procter v. Smiles, 55 L. J. Q. B. 467.
(t) Per Lord BBOUGHAM : Bolton v. Corporation of Liverpool,
1 M. & K. 94.
(«) Minet v. Morgan, L. R. 8 Ch. 361. See also Lowden v. Jilakey,
23 Q. B. D. 332, where an advertisement submitted to counsel was held
privileged.
 Privilege. 103

continuance by one to the solicitor of the other are

privileged (x).
Letters containing mere statements of fact are not
privileged unless they are of a professional and con
fidential character (y). Although a person cannot
protect himself from disclosing what he knows about
a matter by saying that he has told what he knows or
has heard to his solicitor, a person cannot be compelled
to divulge his knowledge, information, and belief on
any matter of fact as to which he has no personal
knowledge, but only a knowledge or information derived
from privileged communications made to him by his
solicitors or their agents (2). If, however, a person
having obtained information from his solicitor verifies
it for himself—as if being told by his solicitor that
there is a tombstone in a particular place, he goes and
looks at it—then his knowledge is no longer privileged ;
nor can a man claim privilege for a deed simply on the
ground that his solicitor obtained it from him in the
course of litigation (a) .
The law on the subject now under consideration
was thus stated by Jessel, M.R., in Wheeler v. Le
Marcliant (b) :
" The actual communication to the solicitor by the client is of
course protected, and it is equally protected whether it is made
by the client in person or is made by an agent on behalf of the
client, and whether it is made to the solicitor in person or to a
clerk^or subordinate of the solicitor who acts in his place and
under his direction. Again, the evidence obtained by the solicitor
or by bis direction or at his instance, even if obtained by the
client, is protected, if obtained after litigation has been com
menced or threatened, or with a view to the defence or prosecution
of such litigation. So, again, a communication with a solicitor for
the purpose of obtaining legal advice is protected, though it relates

(as) Jlouche/oucald v. Bouttead, 74 L. T. 783.

(y) Per Kay, L.J., in O'Shea v. Wood, [1891] P. 286.
(r) Lyell v. Kennedy, 9 App. Cas. 81.
(a) Per Lord BLACKBURN : Lyell v. Kennedy, ubi supra.
(A) 17 Ch. I). 682.
104 Law. of Evidence.

to a dealing which is not the subject of litigation, provided it be

a communication made to the solicitor in that character and for
that purpose."

The passage just cited bears also upon the following

further rules :

Eule 3.
All documents which come into existence for the
purpose of being communicated to a solicitor
with the object of obtaining his advice, or
of enabling him to prosecute or defend some
contemplated or threatened litigation, are
privileged ; and it is immaterial whether
they are actually laid before the solicitor or
not.
Therefore in an action (c) by a company against
their former engineer to recover various sums of
money alleged to have been wrongly debited against
them, the following documents were held to be privi
leged : (1) A transcript of shorthand writer's notes of
a conversation between a chimney sweep employed by
the company and the company's engineer for the
purpose of such engineer's obtaining information and
reporting the same to the board of directors, to be
furnished to the company's solicitor for his advice in
relation to the intended action. N.B.—This transcript
was not submitted to the solicitor. (2) Transcripts of
shorthand writer's notes of interviews between the
chairman of the company and the engineer and certain
inspectors of the company, obtained with a view of
submitting the same to their company's solicitor for
advice in relation to the intended action. N.B.—These
transcripts were afterwards handed to the solicitor.
(3) A statement of facts drawn up by the chairman
of the company to be submitted to the company's

(<0 Sottthwark Water Co. v. Quick, 3 Q. B. D. 316.

 Privilege. 105

solicitor for advice in relation to the intended action.

N.B.—This statement was afterwards submitted to
the solicitor.
If a copy of a document, which document would
have been admissible in evidence against a litigant, is
procured by him for the purpose of being laid
before a solicitor, such copy will not ordinarily be
privileged (d).

Kule 4.
The litigation which is contemplated or
threatened must be some specific litiga
tion, and not litigation generally (e). But
it need not be litigation with the particular
adversary against whom the privilege is
raised, and a document which is privileged
in one action will be privileged in any sub
sequent action, whether the parties and
issues are the same or not.
documentary and other information obtained from
third persons by a solicitor to enable him to advise his
client, but not with reference to any litigation contem
plated or anticipated, is not privileged. Thus where a
Solicitor, having been consulted in a matter as to which
no dispute had arisen, and being desirous of knowing
some further facts before giving his advice, applied to
a surveyor to tell him what was the state of a given
property, it was held that the information was not
privileged (/).

Kule 5.
All evidence and information obtained by a
solicitor or by his direction, even if obtained

(<i) Cf. Chadwiek v. Bowman, 16 Q. B. D. 561 ; Wright v. Vernon,

32 L. .J. Ch. 447.
O) See Westinghouse v. Midland Sail. Co.. 48 L. T. (N.8.) 462.
(/) Wheeler v. Le Marchant, 17 Cb. D. 675.
106 Law of Evidence.

by the client, is privileged, if obtained after

litigation commenced or contemplated, and
with a view to such litigation (g).
This proposition may also be put thus—no litigant
has a right to see that which comes into existence as
materials for his adversary's brief. But although a
party is not entitled to see his opponent's evidence, he
is entitled to know the facts on which he relies to
establish his case (A). A copy of a document, which,
if in the possession of a litigant, would not be privileged
from production, is not privileged merely because it
has been obtained by his solicitor for the purposes of
defence to an action ; but a collection of documents so
obtained will be privileged, especially if the production
would give a clue to the solicitor's opinion and advice
to his client (i). Where in an action four anonymous
letters had been received, two by the plaintiff and one
each by her counsel and solicitor, the last two were
held privileged (k) ; the ground being that they were
information received by the counsel and solicitor for
promoting their client's case, and that the letters were
sent to them in compliance with a request implied by
their position. Nothing turned on the letters being
anonymous.
When a solicitor holds a document for his client he
cannot, against the will of the client, be compelled to
produce it by a person who has an equal interest in it
with his client (I). But a solicitor cannot refuse to
produce a document if the client himself could not
refuse to do so (m). A solicitor may be asked whether
he has papers of his client in court ; and if by his

(g~) Wheeler v. Le Mai-chant, 17 Ch. 1). 675 ; and cf. judgment of

Cotton, L.J. : Lyell v. Kennedy, 23 Ch. I). 404.
(/i) Cf. Bade v. Jacob*, 3 Ex. 1). 335.
(*) Chadwich v. Bmcmati, 16 Q.B.D. 561 : Lyell v. Kennedy, 27 Ch. D. 1.
(*) Yonnt) v. Holloway, 12 P. 1). 167.
(0 Newton v. Chaplin, 10 C. B. 356.
(»0 Burtill v. Tanner, 16 Q. B. I). 1.
 Privilege. 107

answer, which is compulsory, he admits the fact,

secondary evidence of their contents may be given if
the originals are not produced (n). If a solicitor be
subpoenaed to produce a document which he holds for
a client, he may, in his discretion, refuse to produce it,
and to answer any question as to its contents ; and the
judge ought not to examine it to ascertain whether it
ought to be withheld (o).
Where an attorney had been subpoenaed to produce
a deed which, at the trial, he refused to produce by the
express instruction of his client (p), the party by whom
he was subpoenaed then called another witness to give
secondary evidence of the deed, by means of a copy.
The second witness stated that he had a copy of a deed,
but that he did not know whether it was a copy of the
deed in question unless he was suffered to look at the
deed. It was then suggested that he should be allowed
to look at the names of the parcels and the parties to
the deed, in order to identify it. The first witness still
objected, and it was also contended on the opposite
side, that the first witness's client ought to have been
called to show that he had given the prohibition, and
that all sources of primary evidence had been exhausted.
The judge, however, ordered that the second witness
should be allowed to look at the indorsement of the
deed ; and when the latter had thus identified it, the
judge received the copy as secondary evidence. An
application for a new trial was made, on the ground
that this evidence was improperly admitted ; but the
court upheld the ruling of the judge on both points.
Coleridge, J., said (q) :
" The second objection is, that the judge improperly overruled
the privilege in the next step in the cause. There being some
doubt, when the next witness was called, whether the draft which
the witness was speaking of was a draft of the deed in question,
(?») JJwyer v. Collint, 7 Ex. 639.
<«) Voleat v. Soyer, 13 C. B. 231.
lp) Phelps v. Prew, 3 E. & B. 430. (?) 23 L. J. Q. B. 243.
108 Law of Evidence.

the judge, in order to ascertain that, compelled the attorney to

produce the document for the purpose of identification. It was
contended that it was a breach of privilege to produce the deed in
evidence for any purpose whatever ; but whether it is a breach of
the privilege or not must depend upon the circumstances of each
case. I quite agree that sometimes, as in Brand v. Akerman, the
process of identification will require a disclosure of the contents of
the deed ; and, if so, I think the inquiry must stop. But here I
do not see that anything was done that had the effect of disclosing
the contents of the deed, or violating any of the secrets which the
attorney had intrusted to him by his client. The indorsement
might disclose that the deed was an assignment ; but of what
property, and whether it was of the legal or equitable estate,
it would not disclose. I think, therefore, the learned judge
was right."

A solicitor who was a witness to a deed is bound to

disclose what takes place at the time of its execution (?•).
The rule of professional confidence is held to extend
to all cases in which the solicitor or counsel has been
confided in as such, but not to cases where the confi
dence was given before the relation was formed ; or
after it has ceased. In Gainsford v. Grammar (s) , Lord
Ellenborough said :
" I fully accede to the doctrine laid down in Cobden v. Keitdrirk,
and Wilson v. Rastall, which is no more than this, that a communi
cation by the party to the witness, whether prior or subsequent to
the relation of client and attorney subsisting between them, is not
privileged. But this relation may be formed before the commence
ment of any action. The solicitor may be retained and confided
in as such in contemplation of an action ; and shall it be said that
he is bound to disclose whatever has been revealed to him previous
to the suing out of, or the service of, the writ ? " (<).

The privilege is also held to extend to the clerks of

solicitors and barristers to whom communications have
been made as such (u) ; and to an unprofessional agent
employed by a solicitor's advice to obtain information
for a client (x) ; but not to cases where the communi-

(r) Rnb*on v. Kent, 5 Esp. 552.

O) 2 Gamp. 10.
(O Cf. Clark v. Clark, 1 M. & R. 3.
(«) Taylor v. Fvrtter, 2 C. & P. 105 ; FboU v. Hayne.U. k M. 165.
La/one v. Falkland Itlamls Co., i K. k J. 39.
 Privilege. 109

cation has been made to the solicitor (y) , or his clerk (z) ,
while they have not been acting in their professional
character. It extends to communications to a solicitor
who ultimately refuses a retainer (a) , and to com
munications made to a solicitor under the mistaken
impression that he had agreed to act in the matter (b) .
A person who is not a solicitor, in whom confidence
has been placed under a mistaken idea that he is a
solicitor, will not be compelled to disclose the com
munication (c) ; but a written opinion given by an '
ex-Lord Chancellor to a friend has been held not to be
privileged (d).
Extent of the privilege. —The privilege has been
extended to communications between a client in Scot
land and a Scotch solicitor practising in London (e) ;
and the opinion of a Dutch lawyer, obtained by the
defendants in an action with reference to their defence,
has been held privileged (/). The privilege extends
to all knowledge obtained by the solicitor which he
would not have obtained if he had not been consulted
professionally by his client (g) ; but if a solicitor was
aware of the fact from any other source before it was
communicated to him by his client his knowledge is
not privileged (h). It has been held, that when a
solicitor writes letters to a third party for the purposes
of a suit the answers are privileged (i) ; and letters
passing between a country solicitor and his town agent
are privileged (k). In an action by the payee of a

(y) It. v. Brewer, 6 C. & P. 363.

(;) Doe v. Jauncy, 8 C. & P. 99.
(a) Cromack v. Heathcote, 2 Brod. & B. 4.
(ft) Smith v. Fell, 2 Curteis, 667.
(f) Calley v. Richard*, 19 Beav. 401.
(a!) Smith v. Daniell, L. R. 18 Eq. 649.
(e) Lawrence v. Campbell, 4 Drewry, 48").
(/) Banbury v. Banbury, 2 Beav. 177.
07) Q-reenhough v. Gatkell, 9 Myl. & K. 101.
(A) Cf. Lewi* v. Pennington, 29 L. J. Ch. 670.
(/) Simpson v. Barnes, 33 Beav. 483.
(i) Catt v. Tourle, 19 W. R. 56.
110 Law of Evidence.

promissory note against the maker, it appeared that

the plaintiff had acted as attorney to the defendant,
and while holding that capacity had obtained docu
mentary evidence from the defendant, which he stated
was wanted to assist her in preparing a case for counsel ;
and on this he relied to take the note out of the Statute
of Limitations. It was held that the evidence was
inadmissible for the plaintiff, Platt, B., observing that
it would never have been in the hands of the attorney
except for the purpose of his preparing a case for
counsel; and Martin, B., added :
" The client might be in error in thinking the communication
necessary to be laid before counsel, but if she communicated it
hondfide, considering it necessary, the communication was privileged
and could not be divulged " (I).

Restrictions on the doctrine.—A remarkable case,

partially restricting this doctrine, was decided some
years since. In an action for false imprisonment and
malicious prosecution on a charge of felony, it became
a material question whether an entry in a book, by
which the plaintiff acknowledged the receipt of money
which the defendant had charged him with embezzling,
existed at the time when the plaintiff was examined
before the magistrates, or had been made, as the
defendant alleged, by the plaintiff between the exami
nation and before the trial. The counsel who had
been concerned for the plaintiff before the magistrates,
but who was not concerned for him on the trial,
happened to be in court on the latter occasion ; and
at the suggestion of Jervis, C.J., after consulting
Cresswell, J., he was called for the defendant, and
asked whether the entry was in the book at the time
of the examination before the magistrate. He gave
evidence that it was not ; and a verdict passed for the
defendant. On a rule for a new trial on the ground

(0 Cleace v. Jonet, 6 Ex. 573.

 Privilege. Ill

that this evidence was improperly admitted, the court

held that it was properly admitted, because the witness
was required only to disclose something which he had
seen in court and not what he had been told in his
position as counsel (m) .
Where a communication between a solicitor and his I
client appears to be of an irrelevant or unprofessional
character, the solicitor will be compelled to disclose it ; ,i
and"th"eref6re a solicitor will be compelled to state what j
his client has said to him on the matter in which the
latter was not asking for legal advice, but only for
information as to a matter of fact, even though that
fact involved a question of law. Thus, in Bramwell v.
Lucas (n), an action by assignees to prove an act of
bankruptcy, it was held that the solicitor to the bank
rupt was not privileged from saying whether his client
had asked his opinion, whether he (the client) could
attend a meeting of his creditors without danger of
being arrested. The court held that the communica
tion was not privileged, and Lord Tenterden said :
" A question for legal advice may come within the description '
of a confidential communication, because it is part of the attorney's
duty, as attorney, to give legal advice ; but a question for infor
mation as to matter of fact, as to a communication the attorney
has made to others, where the communication might have been
made by any other person as well as the attorney, and where the
character or office of attorney has not been called into action, has
never been held within the protection, and is not within the
principle upon which the privilege is founded. Was, then, this
a question for legal advice put to Mr. Scott in his character of
attorney ? or was it not a question for information as to matter
of fact, in which the professional character of Mr. Scott as
attorney was not considered ? It can hardly be supposed that
a man could ask, as a matter of law, whether he would bo free
from arrest while attending a voluntary meeting of creditors, but
he might well ask, as a matter of fact, whether any arrangement
had been made with the creditors to prevent an arrest."

It will be observed that this case shows a tendency

to confine the rule of privileged communication within a

Brown v. Fitter, 1 H.& N. 736. («) 2 B. & C. 74<>.

112 Law of Evidence.

strict limit ; as, with great deference to the learned

judge, it may be submitted that the question put by
the bankrupt to his attorney seems to be rather one of
law than of fact, and is precisely that sort of legal
question which ignorant clients put constantly to their
solicitors ; but as the case was between third parties,
perhaps a greater latitude may be presumed to have
been allowed on that account (o). When a statement
has been made by either plaintiff or defendant, in the
presence of the solicitor of the opposite party, the
solicitor may be called to prove it (p). No communi
cation made to a solicitor by or on behalf of the other
side can be confidential (q).

When a solicitor is a party with his client to a fraud,

no privilege attaches to the communications with him
upon the subject (r). This is because the rule pro
tecting communications between solicitor and client
does not apply to all such communications, but only
those which pass in professional confidence, and the
contriving of fraud forms no part of the professional occu
pation of a solicitor (s) . This principle is not apparently
restricted to fraud, but extends to any illegal purpose (f).
But to displace the prima facie privilege there must be a
definite charge of some sufficient illegality established to
the satisfaction of the court («). It was once thought
that both the client and solicitor must be parties to
the illegal transaction for the principle to apply (z>),
but this is apparently not so. If the client's purpose

(") O/.jier Lord Cottenham : Desborovgh v. Rawlins, 3 Myl. & Cr.

615.
(p) Griffith v. Davie*, 5 B. & Ad. 502 ; Desborovgh v. Rawlins, vbi
supra.
\q) Per CoTTOX, L.J. : Lyell v. Kennedy, 23 Ch. D. 405.
(c) Ru*teU v. Jackson, 9 Hiire, 392.
(*) Per Lord Cranworth : Follett v. Jefferys, 1 Sim. (N.s.) 17.
(<) Russell t. Jackson, ubi snpra : per TURNER, V.-C. ; cited in the
judgment in R. v. Cox, 14 Q. B. D. 153.
(k) Rullinint v. Attorney-General for Victoria, [1901] A. C. 196.
(r) Charlton v. Coombes, i Giff. 372.
 Privilege. 113

is dishonest and the solicitor is innocent the communi

cation is not privileged (.r) . A fortiori, a communication
made to a solicitor in furtherance of any criminal
purpose does not come within the scope of professional
employment, and therefore communications made to
a solicitor by his client before the commission of a
crime, for the purpose of being guided or helped to the
commission of it, are not privileged, and this whether
the solicitor was or was not aware of his client's
intentions ; if he was so aware, then the communica
tion would not be in the course of any professional
employment ; if he was not aware, then there is no
professional confidence. This was the ratio decidendi
in R. v. Cox (y), which is a leading case on the subject.
In delivering the judgment of the court (ten judges)
in this case, Stephen, J., said:
" We are greatly pressed with the argument that, speaking
practically, the admission of any such exception to the privilege
of legal advisers, as that it is not to extend to communications
made in furtherance of any criminal or fraudulent purpose, would
greatly diminish the value of that privilege. The privilege must,
it was argued, be violated in order to ascertain whether it exists.
The secret must be told in order to see whether it ought to be
kept. We were earnestly pressed to lay down some rules as
to the manner in which this consequence should be avoided. The
only thing which we feel authorised to say upon this matter is,
that in each particular case the court must determine upon the
facts actually given in evidence or proposed to be given in
evidence, whether it seems probable that the accused person may
have consulted his legal adviser, not after the commission of the
crime for the legitimate purpose of being defended, but before
the commission of the crime, for the purpose of being guided or
helped in committing it. We are far from saying that the ques
tion whether the advice was taken before or after the offence will
always be decisive as to the admissibility of such evidence. Courts
must in every instance judge for themselves on the special facts of
each particular case, just as they must judge whether a witness
deserves to be examined on the supposition that he is hostile,
or whether a dying declaration was made in tho immediate prospect
of death. In this particular case the fact that there had been
a partnership (which was proved on the trial of the interpleader
issue), the assertion that it had been dissolved, the fact that
(*) Sec William* v. Qmbrada Rail. On., [1893] 2 Ch. 751.
(y) 14 Q. B. D. 153.
L.E. 1
114 Law op Evidence.

directly after the verdict a solicitor was consulted, and that the
execution creditor was met by a bill of sale which purported to
have been made by the' defendant to the man who had been and
was said to have ceased to be his partner, made it probable that
the visit to the solicitor really was intended *for the purpose for
which, after he had given his evidence, it turned out to have been
intended. If the interview had been for an innocent purpose the
evidence given would have done the defendant good instead of
harm. Of course, the power in question ought to be used with
the greatest care not to hamper prisoners in making their defence,
and not to enable unscrupulous persons to acquire knowledge to
which they have no right, and every precaution should be taken
against compelling unnecessary disclosures."
If a solicitor improperly hands a document to a third
party, the latter may give it in evidence (z). Where
the effect of an opinion of counsel was set out in a
statement of claim, it was held that the plaintiff must
produce it for the inspection of the defendant (a), or
be precluded from giving it in. evidence at the trial.
If an opinion of counsel, or, indeed, any other
privileged document, is made an exhibit to an affidavit,
anyone entitled to see the affidavit is also entitled to
see such opinion or other document (b), unless it is a
document which comes into existence solely for the
information of the court (c).
The privilege is the privilege of the client, and may
be waived by him, but no presumption adverse to him
arises from his not waiving it (d). The death of the
client does not terminate the privilege (e). No waiver
arises from the client calling the solicitor as a witness
unless he is examined in chief as to the privileged
matter.
It was once held that where a person had absconded
with two wards of court, his solicitor must produce
the envelopes of the letters received from him, such
(2) Per 1'akke. 1!. : Clmre v. Jonet, 21 L. J. Ex. 100.
(a) Mayor of Brittal v. Cox, 26 Ch. D. 678.
(i) In re IIinehcli.fi; [1803] 1 Ch. 117.
(<•) Sloane v. BritUh Stcanmhip Co., [1897] 1 Q. B. 18.).
(d) Wentworth v. Lloyil, 10 H. [,. Cits. 589.
(p) Sen JlulUutnt v. Alt.-Gen. far Victoria, [ 1901 ] A. C, at p. 190.
 «

Privilege. 115

envelopes not being privileged communications, and

that, even if they were, a solicitor could not aid
and abet in concealing from the Court of Chancery the
residence of its wards (/).
Although letters written between co-defendants '
simpliciter are not privileged, yet a letter written by
one co-defendant to another, with directions to send
to the joint solicitor, is ig). Where two parties employ
the same solicitor, a letter by one of them to him,
containing an offer to be made to the other, may be
given in evidence against the writer (h) ; but in such
case the joint solicitor cannot disclose the title of
either. Thus, where a borrower and lender employ the
same solicitor, he cannot be called to prove the abstract
of the borrower's title as against the borrower (i).
Secondary evidence of a privileged document may be
given if the person claiming privilege refuses to
produce it (k) .
Confidential communications.—The rule of privileged
communications has been confined strictly by the
English law to the cases which have been men
tioned. It does not extend to communications made
confidentially to stewards (I), or medical men (to),
or patents agents (») . When a secret is entrusted to a
person confidentially employed, the court will restrain
such person from making use of the secret, or divulging
it to others (o). A pursuivant of the Heralds' College
is not a legal adviser (p).

(/) Ramibotham v. Senior, 17 W. R. 1057.

(y) Jenkynx v. Butkby, L. R. 2 Eq. 548.
(A) Iiauijk v. Cradocki; 1 M. & U. 182.
(i) Doe v. Watkhu, 3 Ring. N. C. 421 ; cf. R. v. Avery, 8 C. & P. 59G.
(*) Calcraft v. Gnext, [18W8J 1 Q. B. 75!).
(7) Earl of Falmouth v. Moxk, 11 Price, 455.
(mi) Duchfua of Kingtton'x Cant; 20 How. St. Tr. 613 j It. v. Gihhont,
1 C. & P. 97 ; Lee v. Hamerton, 12 W. R. 975.
(») Moscley v. Victoria Rubber Co., 55 L. T. 482.
(») Morrixon v. Moat, 9 Hare, 241.
(/>) Sladc y. Tucker, 14 Ch. I). 824.
I2
116 Law of Evidence.

Communications to clergymen. —Communications to

clergymen are not privileged (q) ; but judges have
shown an indisposition to receive communications which
have been made to clergymen as such. Best, C.J.,
is reported to have said on one occasion that he would
never compel a clergyman, if he objected, to disclose such
communications (r) ; and in a case (s) where a woman
was indicted for the murder of her child, Alderson, B.,
objected to hear the chaplain of the prison as a witness
to conversations which he had had with the prisoner in
his spiritual capacity. The learned judge said :
" I think these conversations ought not to be given in evidence.
The principle upon which an attorney is prevented from divulging
what passes with his client is, because, without an unfettered
means of communication, the client would not have proper legal
assistance. The same principle applies to a person, deprived of
whose advice the prisoner would not have proper spiritual assist
ance. I do not lay this down as an absolute rule, but I think
such evidence ought not to be given."
The counsel for the prosecution said that after such
an intimation he should not tender the evidence.
On this branch of the law, Jessel, M.B., once said«) :
" The principle protecting confidential communications is of
a very limited character. It does not protect all confidential
communications which a man must necessarily make in order to
obtain advice, even when needed for the protection of his life, or
of his honour, or of his fortune. There are many communica
tions which, though absolutely necessary, because without them
the ordinary business of life cannot be carried on, still are not
privileged. The communications made to a medical man whose
advice is sought by a patient with respect to the probable origin
of the disease as to which he is consulted, and which must neces
sarily be made in order to enable the medical man to advise or to
prescribe for the patient, are not protected. Communications
made to a priest in the confessional, on .matters perhaps con
sidered by the penitent to be more important even than his life or
his fortune, are not protected. Communications made to a friend
with respect to matters of the most delicate nature, on which
advice is sought with respect to a man's honour or reputation, .ore
not protected. Therefore it must not be supposed that there is any
(y) Normaiuhaw v. Nurviamhaw, 69 L. T. (N.B.) 468.
(/•) Brvad v. Pitt, M. & M. 838.
(*) It. v. Griffin, C Cox C. C. 219.
(.0 MTtMer v. Le Ma reliant, 17 Ch. I). 681.
 Privilege. 117

principle which says that every confidential communication which

it is necessary to make in order to carry on the business of life is pro
tected. The protection is of a very limited character, and in this
country is restricted to the obtaining the assistance of lawyers as
regards the conduct of litigation or the rights to property. It has
never gone beyond the obtaining legal advice and assistance, and all
things necessary in the shape of communication to the legal
advisers are protected from production or discovery in order that
that legal advice may be obtained safely and sufficiently."
Bankers are bound not to disclose the state of a
customer's accounts, except upon a reasonable and
proper occasion, and what is a reasonable and proper
occasion is a question for the jury («). The banker of
a contributory can be compelled to give evidence as to
his account under s. 115 of the Companies Act, 1862
(25 & 26 Vict. c. 89) (x). In connection with this sub
ject, it may conveniently be mentioned here that by
the Bankers' Books Evidence Act, 1879 (y), it is pro
vided* that,
"Subject to the provisions of this Act, a copy of any entry in
a banker's book shall in all legal proceedings be received as prima,
fade evidence of such entry, and of the matters, transactions, and
accounts therein recorded,"
and that
" On the application of any party to a legal proceeding a court
or judge may order that such party be at liberty to inspect and
take copies of any entries in a banker's book for any of the
purposes of such proceedings. An Order under this section may
be made either with or without summoning the bank or any other
party, and shall be served on the bank three clear days before the
same is to' be obeyed, unless the court or judge otherwise directs."
It has been held by the Court of Appeal that such an
Order can be made e.n parte, but that the judge ought
to be careful about so doing. No evidence is abso
lutely necessary, but the judge must be satisfied that
the entries in question are admissible in evidence in
the action, and for this purpose evidence may be

(k) Hardy v. Veaxey, L. K. 3 Ex. 107.

(j-) Forbes' Case, 41 L. J. Ch. 467.
(SO 42 & 43 Vict. c. 11, as. 3, 7.
118 Law of Evidence.

necessary (z). An Order may be made in England to

operate in Scotland or Ireland and vice versa (a).
The making of an Order at all is a matter of discretion
with the court, and an Order was refused in an action
of libel to defendants who pleaded justification (6).
This Act cannot be used to get behind an affidavit of
documents. Therefore, where a plaintiff, on making
such an affidavit, had sealed up part of her pass books,
and sworn that the parts so sealed up were not relevant,
an application to order the plaintiff's bankers to pro
duce the entries in their books relating to the plaintiff's
account for the inspection of the defendants, was
refused (c). A banker is only exonerated by s. 6 of
this Act from personal attendance in court when he
craves the aid of and follows out the provisions of
ss. 2—5 (d).
By the Revenue, Friendly Societies, and National Debt
Act, 1882 (e), s. 11 (2), the privileges of the last-men
tioned Act are extended to banking companies to which
the provisions of the Companies Acts, 18(52 to 1880,
are applicable, provided they have complied with the
requirements of the Act under notice.
The principle established by the above Acts applies
to the accounts of persons other than the parties to the
proceedings (/). But the court must be satisfied by
the party asking for the Order that the entries are
admissible as evidence in the action, and the person
whose account is sought to be inspected must be
brought before the court (g), before it will make an
Order under s. 7 of the Act for inspection of the
(.-) Arnott v. Hayes, L. R. 36 Oh. D. 731.
(«) Kittani v. Link, [1896] 1 Q, B. 574.
(!>) Emmott v. Star Newspaper Co., 62 L. J. Q. B. 77.
(r) Parnell v. Wood, [18!I2] 1'. 137; Approved by Court of Appeal in
South Staffordshire Tramways Co. v. Ebbsmith, [1895] 2 Q. B. 609.
(//) Emmott v. Star Newspaper Co., 62 L. J. li. B. 77.
(V) 45 & 4(> Vict. c. 72 (see Appendix).
(/) Howard v. Jirall, 23 Q. B. I). 1.
(//) South Staffordshire Tramways Co. v. Ebbsmith. [1895]
2 Q. B. 0!iG.
 Privilege. 119

accounts of a person not a party to the action. The

Court of Appeal has laid down that where the account
is the account of a person not a party to, and having
no interest in the litigation, the court will take care
that the section is not made a means of oppression,
and will protect such person against a roving inspection
of his account (A).
Rule 6.
As to Evidence excluded on Grounds of Public Interest.
A witness cannot be asked, and will not be
allowed, to state facts, or to produce docu
ments, the disclosure or production of which
may be prejudicial to any public interest.
On Hardy's trial for high treason (t), a witness for the
Crown was asked, on cross-examination by Mr. Erskine,
whether the person to whom he had communicated a
report of the proceedings of the society to which the
prisoner belonged, was a magistrate of any species or
description, from a justice of peace to a Secretary of
State. It was held by Eyre, C. J., that he might say
whether the communication was made to a magistrate
or not. The witness said, "It was not to a magistrate."
Mr. Erskine then asked, "Then to whom was it?"
The Attorney-General objected to the question. Eyre,
C.J., said :
" It is perfectly right that all opportunities should be given to
discuss the truth of the evidence given against the prisoner ; but
there is a rule, which has universally obtained on account of its
importance to the public for the detection of crimes, that those
persons who are the channels by means of which that detection is
made, should not be unnecessarily disclosed ; if it can be made to
appear that really and truly it is necessary for the investigation of
the truth of the case that the name of the person should be dis
closed, I should be very unwilling to stop it ; but it does not
appear to me that it is within the ordinary course to do it, or that
there is any necessity for it in this particular case."

(A) Pollock v. GarU; [1898] 1 Ch. 1. (0 24 How. St. Tr. 815.

120 Law of Evidence.

The point was subsequently discussed before the

other judges, and the majority concurred with Eyre,
C.J., who thus laid down the rule :
" My apprehension is that, among those questions which are not
permitted to be asked, are all those questions which lead to tho
discovery of the channel by which the disclosure was made to the
officers of justice ; that it is upon the general principle of the con
venience of public justice that they are not to be disclosed ; that
all persons in that situation are protected from the discovery ; and
that, if it is objected to, it is no more competent for the defendant
to ask who the person was that advised him to make the disclosure,
than it is to whom he made the disclosure in consequence of the
advice—than it is to ask any other question respecting the channel
of communication, or all that was done under it."

It was held by Lord Ellenborough (k), that a

member of Parliament or the Speaker may be called
e n to give evidence of the fact of a member of Parlia
ment having taken part or spoken in a particular
debate ; but that he cannot be asked what he then
delivered in the course of the debate. It should be
noticed that at the date of this decision the debates in
Parliament were not allowed to be reported. It has
also been held, that communications in official corre
spondence relating to matters of State cannot be pro-.,
duced as evidence in an action against a person holding
an office, for an injury charged to have been done by
him in exercise of the power given to him as such
officer ; not only because such communications are
confidential, but because their disclosure might betray
secrets of State policy (/). Where a minister of State,
subpoenaed to produce public documents, objects to
do so on the ground that their publication would be
injurious to the public interest, the court ought not to
compel their publication (m) ; and the question whether
the production of such a document would be injurious
to the public service must be determined by the head
(*) Phtnltett v. Oobbctt, 5 Esp. 136.
(/) Anderton v. Ilamiltmi, 2 15. & B. l">(!n,
(m) Bcatson v. Skene, 6 H. it N. 838.
 Pbivilkge. 121

of the department having the custody of the paper and

not by the judge (n) . It has been said that this privi
lege is personal to the head and cannot be claimed by a
subordinate (o) ; but in a suit against an admiral in the
Eoyal Navy to recover damages for a collision caused
by his flagship, Sir E. Phillimore refused the plain
tiffs permission to inspect reports of the collision made
by the admiral to the Lords of the Admiralty, the
secretary to the Admiralty having made an affidavit
that their production would be prejudicial to the public
service (p). For the purpose of discovery before trial
it has been help that the privilege need not be claimed
by the head of the department (q). It has been stated
as a rule that if no objection is taken at a trial to
produce such a document by the person in whose
custody it is, it would be the duty of the judge to
intervene and to refuse to allow it to be produced (/•)■
It has also been held that communications between a
governor of a province and his attorney-general are
privileged (s). The rule under consideration was
discussed in Rajah of Coorg v. East India Co. (t),
where it was stated that the production of political
documents depends not upon the question whether the
person called on to produce them is a party to the suit
or not, but upon the danger to the public interests
which would result from their publication. Where an
officer in the army sued a superior officer for defama
tion, the alleged libel being contained in evidence given
by the latter before a military court of inquiry, the
House of Lords held that such evidence was not only
privileged from being the subject of an action for libel,

(;e) Beatton v. Skene, a 11. & N., at p. 853, per Pollock, C.B.
t») Dickson v. Lord Wilton, 1 F. & F. 424.
(j>~) Tlui Jiellerophon, 44 L. J. Adm. 6.
lq) Henetsey v. Wright, 21 Q. B. 1). 509.
(r) Per Smith, L.J., in Cluitterton, v. Secretary of State for India,
[1895] 2 y. B. 19.V
(<) Wyatt v. Gore, Holt, 299. (t) 28 Beav. 350.
122 Law of Evidence.

bat was wholly inadmissible, since the proceedings of

the court, being delivered to the Commander-in-Chief, <
and held by him on behalf of the Sovereign, ought not
to be produced except by her Majesty's command or
permission («). A communication by a justice of the
peace to the Lords Commissioners of the Great Seal
concerning another justice of the peace has been held
to be protected (x). The Director of Public Prosecu
tions cannot be asked to disclose the name of his
informant upon a criminal trial or any subsequent
civil proceedings arising out of it. On a criminal
trial, if the judge sees that the strict enforcement of
the rule would be likely to cause a miscarriage of
justice he may relax it in favorem innocentiw (y).
The courts have occasionally shown a disposition to
limit the rule. Thus, in an action (z) for penalties
against a man upon the ground that he had acted as a
parish committee-man, being at the same time a
collector of the property-tax, a clerk to the commis
sioners of the property-tax was called, and directed to
produce his books, to prove the defendant's appoint
ment. The witness refused, on the ground that he
had been sworn, on his own appointment, not to dis
close anything he should hear in that capacity respecting
the property-tax, except with the consent of the com
missioners, or by force of an Act of Parliament ; but
Lord Ellenborough said :
" I clearly think the oath contains an implied exception of the
evidence to be given in a court of justice, in obedience to a writ of
subpoena. The witness must produce the book, and answer all
questions respecting the collection of the tax, as if no such oath
had been administered to him."

It appears also that a grand juror may be compelled,

either in civil or criminal cases, to disclose what has
(«) Dawkim v. Lord Rokehy, L. R. 7 E. & 1.744.
(*) Fitzgibhon v. Green, Ir. R. 9 C. I.. 225.
(y) See per Bowes, L.J., in Mark* v. lieyfns, 25 Q. B. I). 500.
(j) Lee v. Birrell, 3 Camp. 337.
 Privilege. 123

passed before a grand jury. So Lord Campbell (a)

held that a witness cannot refuse to produce a letter
which he holds from a Secretary of State, to whom it
has been addressed in his public character, and who
forbids its production. Where a document is privileged
from production on the grounds of public policy,
secondary evidence of its contents is inadmissible (b).
Documents in Lunacy. —Closely allied to the rule
under consideration is that as to the inspection of
documents under the control of the judges in Lunacy.
It was thus stated by Lindley, L.J. (c) :
" It is not the practice in lunacy to produce documents in the
office to anyone who wants to see them. No one is allowed to see
them without an order of one of the masters or of a judge in lunacy.
(Sec Re Sileock't Lunacy and In re Wood.) A porson who has no
interest except curiosity to see such documents is not allowed to
see them. On the other hand, anyone who can satisfy the master
or judge that he desires to see such documents for any reasonable
and proper purpose is allowed to see them, provided always, if the
lunatic is living, that he is not prejudiced thereby. If the lunatic
is dead, the cases of In re Wood, In re Ferrior, and In re Smyth
show that, if the applicant wants to see documents in the custody
of the court, in order to make good a claim to the lunatic's pro
perty, such a purpose is prinui facie sufficient to induce the court
to allow inspection, even although the request is opposed by a
rival litigant. Nor have I found any case in which an application
by such a person, for such a purpose, has been made and refused.
But it is obvious that there are some exceptions to this general
rule. The court would not, under any circumstances, make an
order for the inspection of the reports which are confidentially
made to the court by its own medical advisers. But, with this
exception, and possibly some others which do not occur to me at
the moment, the general rule is to allow inspection by any person
claiming an interest in the property of a deceased lunatic or alleged
lunatic, who can satisfy the court that ho wants inspection for
some reasonable and proper purpose.
•' The fact that the documents are of such a kind that a litigant
who had them could not be compelled to produce them does not,
as a matter of law, disentitle his opponents from seeing them. As a
matter of law, as distinguished from a matter which the court ought
to consider in the exercise of its discretion, privilege is no bar to
inspection in such a case as I am now considering."
(«) Syket v. Dunbar, 2 Sclw. N. P. 105.
(A) Home v. Bentinek, 2 B. & B. 130 ; Stace v. Griffith, 2 1'. C. 420.
(c) ReStrachan, [1895] 1 Ch. 445.
124 Law of Evidence.

Eule 7.
Once privileged always privileged (d).
This rule'has two exceptions :
(1) In the case of privilege on the ground of non-crimi
nation when the reason for the privilege ceases the
privilege will cease also ; and therefore, if a penalty or
forfeiture would enure for the benefit of a plaintiff and
he waives the same, or when the time for suing for a
penalty has expired, a witness is compellable to answer,
notwithstanding the consequences, as also he is if by
contract he is bound to answer (e). So also a witness
is compellable to answer if the only person entitled to
sue for the penalty or enforce the forfeiture is dead (/) ;
as also when the offence has been pardoned.
(2) When a document otherwise privileged is made
public the privilege ceases, e.g., if a document is used
in court ; but only if it is so used that it is effectually
made public (g).

Rule 8.
As to Evidence excluded on ground of Indecency.
Evidence may be excluded on the ground of in
decency ; but this rule only holds in civil cases. Thus,
it is an established rule that parties shall not be per
mitted after marriage to say that they have had no
connection during the marriage (h), and this is not
altered by the Evidence Further Amendment Act,
1869, except in regard to proceedings instituted in
consequence of adultery (i) . But although a wife can-

(d) See Bullock v. Carrie, 3 y. B. D., at p. 358 ; Calcraft v. Guest,

[1898] 1 y.B. 759.
(e) Wigram on Discovery, 83. (/) Alton., 1 Vern.CO.
(g) See Ooldttmu v. Williams, Deacon f Co., [1899] 1 Ch. 47.
(A) II. v. Sourton, 5 A. & E. 180.
(/) See ante, p. 27.
 Privilege. 125

not prove non-access in order to bastardize her issue (k),

yet it appears that if that fact is proved by other
evidence, she may be examined as to collateral facts,
such as the name of an adulterer, or the time of a
birth (I) ; and, although a father cannot be heard to
say that a child born of his wife after marriage is
illegitimate (to) , yet a man reputed to be married can
be heard to say he was not married when a question
arises as to the pedigree of a child (n). In criminal
cases no objection can be taken to evidence on the
ground of indecency ; and in civil cases the rule is
restricted to such as involve considerations of domestic
morality ; or cases in which the admission of such
evidence would only tend to outrage conventional
propriety. Although neither wife nor husband can
give evidence of non-access after marriage, yet a
husband can give evidence of non-access before
marriage (o) . And although neither husband nor wife
can give evidence of non-access during marriage, yet
to rebut the presumption of the legitimacy of a child
born during separation, evidence of the conduct of the
husband and wife is admissible, and as part of such
evidence letters written by the husband or wife are
admissible (p).

(7«) Atohley v. Sprigg, 33 L. .1. Oh. 345.

(0 It. v. Lvffe, » East, 193 ; Legge v. Edmund*, 2:> L. J. Ch. 125.
(»<) liurnaby v. Baillk, 42 Ch. 1). 294.
(«) Murray v. Milner, 12 Ch. 1). 845.
(,,<) The Pmilett Pen-aye, [1903] A. C. 395.
{/>) The Aylrtford Peerage Owe, 11 App. Can. 11.
 ( 126. )

CHAPTER VIII.

HEARSAY OR SECOND-HAND EVIDENCE.

The term "hearsay" or second-hand evidence is by

some writers extended to cover all evidence which is
reported, whether by a witness or any other medium,
to the court, and this is probably scientifically accurate.
In a treatise of this nature it is, however, preferable to
confine the term to its ordinary application, i.e., to the
oral or written statement of a person who is not pro
duced in court, conveyed to the court either by a
witness or by the instrumentality of a document.
Hence, what a witness himself says is original evidence,
but when he repeats what another person has said this
is hearsay. It is a well-settled general rule that—

Hearsay or second-hand evidence is inadmissible.

The ground for the rejection of hearsay or second
hand evidence lies in the fundamental principle that
evidence has no claim to credibility unless it be given
on oath, or what is equivalent to an oath, and unless
the party to be affected b)' it has an opportunity of .
cross-examining the witness. The distinction between
original and hearsay evidence is of the widest possible
kind, when they are considered as elements of, and
guides to, moral certainty. When a witness states
something, which he himself has either seen or heard,
directly affecting the parties to a proceeding, such a
statement contains clearly the requisite principles of
presumptive truth : but when he states something
which he has heard from another person, the state
ment affords no satisfactory or reasonable information.
A multitude of probable contingencies diminish its
 Hearsay or Second-hand Evidence. 127

value. Thus, the witness may have misunderstood or

imperfectly remembered, or even may be wilfully mis
representing the words of the third person ; or the
latter may have spoken hastily, inaccurately, or even
falsely.
In the Berkeley Peerage Case (a), it was said by
Mansfield, C.J. :
" By the general rule of law, nothing that is said by any person
can be used as evidence between contending parties, unless it is
delivered upon oath in the presence of those parties. . . . Some
inconvenience no doubt arises from such rigour. If material
witnesses happen to die before the trial the person whose cause
they would have established may fail in the suit ; but although
all the bishops on the bench should be ready to swear to what they
heard those witnesses declare, and add their own implicit belief
of the truth of the declarations, the evidence would not be
received."

Where the object of evidence is to satisfy the court \

on matters which" are~for the court and not for a
jury, hearsay evidence is unobjectionable, even where
the court is discharging the function of a jury. Thus,
in order to show that reasonable search has been made
for a lost indenture, a witness may be asked whether
he has inquired of persons who were likely to know
about it, and what answers were given to his
inquiries (b).
The general doctrine is illustrated in Spargo v.
Brown (c) , which was an action for excessive distress ;
and the question was, Whether the plaintiff was tenant
to the defendant Hugh Brown, or to his brother John
Brown ? The plaintiff had paid rent to John ; but the
defendant, to show that the money had been paid to
John as his (the defendant's) agent, offered in evi
dence accounts tendered to him by John Brown, in
which John described himself as the agent of the
defendant. It was objected that John Brown, not

(a) 4 Camp. 411.

(i) 11. v. Braintree, 1 E. & K. 51. (r) 9 U. 4: C. 935.
128 Law of Evidence.

being dead, ought to have been called as a witness.

The judge rejected the evidence on this ground, and
the full court upheld his ruling. Littledale, J.,
said :
" The general rule is, that where a person is living, and can be
called as a witness, his declaration, made at another time, cannot
be received in evidence."

And Bayley, J., said :

" The general rule is, that every material fact must be proved
on oath. There is an exception to that rule, viz., that the declara
tions of a party to the record, or of one identified in interest with
him, are, as against such party, admissible in evidence ; but,
generally speaking, mere declarations not upon oath are not
evidence. The acts of a party may be evidence ; but here the
defendant merely produced a paper in the handwriting of
John Brown, without showing that he was identified with the
plaintiff."

Evidence of the acts of a person is often as com

pletely hearsay as the evidence of the words of the
same person might have been. Thus it is equally
hearsay to prove that a witness not before the court
treated an individual as sane, as it is to show that in
an oral or written statement he called him sane. This
was to a great extent the ground of the judgment
in Wright v. Doe (d), in which case the judges in the
Exchequer Chamber held, on an issue of devisavit
vel non (and the judgment was affirmed on appeal by
the House of Lords), that letters written to the testator
by different persons since deceased, and who had
been well acquainted with the testator, could not be
received in evidence on a question of sanity. The court
held that the letters were not receivable as mere
declarations of deceased witnesses, or as proof of treat
ment ; but, assuming that the letters were connected
with any act of the testator relating to them by which
intelligence was indicated, as, for example, if he had

(d) 7 A. & E. 313.

 Hearsay or Second-hand Evidence. 129

, answered them, they were receivable. Parke, B.,

} said :
" The question is, whether the contents of thesg/ letters are '
evidence of the fact to be proved upon the issue/ that is, the
actual existence of the qualities which the testator is in those
letters, by implication, stated to possess ; and these letters may
be considered, in this respect, to be on the same footing as if they
had contained a direct positive statement that he Avas competent.
For this purpose they are mere hearsay evidence, statements of
the writers, not on oath, of the truth of the master in question,
with the addition, that they have acted upon tfiu statements on
the faith of their being true, by thus sending the letters to the
testator. That the so acting cannot give a sufficient sanction for
the truth of the statement is perfectly plain, fop it is clear that if
the same statements had been made by parol or in writing to
a third person it would have been insufficient. ' Yet in both cases
there has been an acting on the belief of the trllth, by making the
statements, or writing and sending a letter tu a third person ;
and what difference can it possibly make that this is an acting
of the same nature by writing and sending /the letter to the
testator ? "
In Bcavan v. M'Donnell (e), which was an action to
recover a sum of money paid by the plaintiff for the
purchase of an estate, on the ground that he was a
lunatic, and therefore incompetent to contract, evidence
was received of his conduct before and after the trans
action, to show that the lunacy was of such a character
as would be apparent to the defendant when dealing
with him.

That which is apparently hearsay or second-hand

evidence is in many cases treated by the law as
original evidence, and admissible as such. Thus,
(1) evidence is original and not hearsay, which is
given to prove, in corroboration of a witness's testi
mony, that he affirmed the same thing on previous
occasions.(/).
"(2) The oral or written statements of persons not
before "the"~court are admitted where they can be
regarded as part of the res gestae,, or gist of the matter

(«) 10 Ex. 184. (/) HolMay v. Sweeting, Bull. N. P. 294.

I.. K, K
130 Law of Evidence.

in issue. Thus, in an action for false imprisonment, /

the defendant justified on the ground that he had given
the plaintiff in custody for forging a bill of exchange,
which had therefore been dishonoured on presentment
to the drawee. A witness stated that he had accom
panied the defendant to the drawee, who refused to
pay. He was then asked what the drawee had said at
the time of the refusal. The question was objected to,
but the court held that the evidence ought not to be
excluded. There were peculiar circumstances in the
case, but Tindal, C.J., said :
" Even if the inquiry before us had depended on the determina
tion of the point, whether evidence by the defendant of the
dishonour of the bill, and of the circumstances attending such
dishonour, was relevant to the question then before the jury, it
would have been difficult altogether to exclude such evidence
on the score of its irrelevancy " (</).

On the same principle, proof has been received of

the language uttered by the holders of seditious
meetings in order to show the objects and character
of such meetings. In the same way evidence may be
given of the inscriptions on flags used at such meetings
without producing the flags themselves ; for such
inscriptions used on such occasions are the public
expression of the sentiments of those who bear them,
and have rather the character of speeches than of
writings (h). Thus, a foreign proclamation, contained
in a printed placard, posted up at Ibraila, was treated
as an act done, and was allowed to be proved by an
examined copy. In this case Pollock, C.B., said :
" Hearsay evidence is admissible when it is part of a transaction ;
and in this way the exclamations of a crowd may be received as
evidence. But there is, generally speaking, this distinction
between what is said and what is done : in order to admit the
former it is necessary that the authority of the speaker should be
shown, in order to affect the parties ; but if it be something done
that is to be proved, no authority is required, because there is no
(?) Perkins v. Vaughan, 4 M. & G. 988.
(A) R. v. Hunt, 3 B. & Aid. 574.
 Hearsay or Second-hand Evidence. 131

danger of being misled ; and I regard a placard or proclamation on

a wall rather as something done. In a case before me at Guild
ford, where the plaintiff sought to recover the expenses of an
election, I would not allow orders given by third parties by word
of mouth to be admitted in evidence against the defendant, but I
admitted inscriptions on coaches" (;).
In a case where the question was in what capacity a
person signed a contract, statements as to what he said
as to capacity at the time of signing the contract
were held admissible (k). To prove an act of bank
ruptcy by the bankrupt beginning to keep his house, it
is allowable to prove that the bankrupt was denied
to his creditors by a servant at his house ; but it is
not enough to prove that the bankrupt directed that he
should be denied unless the direction be followed up by_
an actual denial (I). In trover by the assignees of a
bankrupt for goods, the property of the bankrupt,
letters written by him during his absence from home,
stating that he was absent to avoid two writs that were
out against him, have been held admissible evidence
for the plaintiffs of an act of bankruptcy, without
proof that there was in fact any writ issued, or any
pressure of creditors. It was held in the same case,
also, that, in order to make a declaration of a bankrupt
admissible evidence of an act of bankruptcy, it is not
essential that the declaration and the act should be
contemporaneous (m). In this case Lord Denman
concurred in a previous decision of Parke, B., that it
is impossible to tie down to time the rule as to declara
tions, that may be made part of the res gestce in cases
of bankruptcy ; and his lordship added, that "if there
be connecting circumstances, a declaration may, even
at a month's interval, form part of the whole res
gestce." In the case of B. v. Foster (n), where a
(i) Bruce v. Nicolupolo, 3 W. 1{. 4 S3.
(*) Young v. Sehuler. 11 Q. B. 1). 651.
(J) Per Lord Tenterden : Fi*her v. Boucher, 19 B. & C. 710.
. (nt) Rauch v. Great Western Rail. Co., 1 Q. B. 51. See also Rawton v.
Haigh, 2 Bing. 99.
(») 6 C. & P. 325.
K 2
132 Law of Evidence.

person was charged with manslaughter, three judges

concurred in admitting the evidence of a witness as to
a statement made by the deceased, in the absence of
the prisoner, at the time of the accident through which
the death ensued. Gurney, B., said : " What the
deceased said at the instant, as to the cause of the
accident, is clearly admissible." When a transaction
is complete no subsequent statement is admissible as
part of the res gestce. It was on this principle that
Cockburn, C.J., rejected the statement of a deceased
person in the much discussed case of B. v. Beding-
field (o). It is rather difficult at first sight to reconcile
this case with B. v. Foster, but the true view seems to
be that, in that case, the judges considered that the
transaction was not complete when the statement was
made, whereas in B. v. Bedingfield, Cockburn, C.J.,
considered that it was.
Statements by a deceased vendor, made at the time
of the sale as to the property sold, are evidence for its
subsequent identification (p). For the declaration of a
tenant for life to be evidence against the remainder
man, it must be accompanied by an act done by the
tenant for life, an act done by a third person not being
sufficient (q).
Notwithstanding the rule that a parent cannot
bastardise his issue, on an issue as to the legitimacy of
the plaintiff, a witness was allowed to state the declara
tion and conduct of the deceased mother, when
questioned about her child's parentage (r). And the
letters of a living mother were admitted as part of the
res gestce on a question of legitimacy of the child ;
evidence of her acts and conduct being admissible on
this question, although, of course, she could not have
been put into the witness box (s). Although on a
prosecution for rape and other kindred offences any
0) 14 Cox, 341. fp) Parrott v. Watti, 47 L. J. C. P. 79.
(//) Home v. Malkin, 27 W. R. 340.
(r) Harifrare v. llargrave, 2 C. & K. 701.
(t) The Ayletford Peerage, 11 App. Caa. 1.
 Hearsay or Second-hand Evidence. 133

complaint made by a prosecutrix is not evidence as

being part of the res gestae, nevertheless, the fact that a
complaint was made by a prosecutrix at the time of
the alleged offence, and the details of such complaint,
can and ought to be laid before the jury as evidence of
her conduct being consistent with her story in the
witness-box negativing any consent on her part (t).
Where consent is immaterial (as in the case of an
assault on a child), it would seem that evidence of com
plaint is not admissible (m).
In an action for misrepresentation of solvency
evidence may be adduced that at the time the credit was
given the plaintiff said that it was so given in conse
quence of the representations made to him (x).
(3) When it is material to prove the bodily or
mental feelings of an individual, evidence of statements
of such individual, at the time in question, relative to
such feelings, is original and not hearsay. Thus, in
fiveson v. Lord Kinnaird (//), the action was on a
policy of insurance, secured on the life of the plaintiff's
wife, and the defendants offered evidence that, a few
days after it was made, the deceased, who had pre
viously represented herself to the defendants as being
in good health, had given a totally different account of
her health to a witness. It was held that the witness
might relate her conversation with the deceased, and
that the statements of the latter, as so related, were
evidence in the same way as the answers of patients to
the inquiries of their medical attendants are evidence
as to the state of health, although letters to a medical
man from his patient detailing the symptoms of his
malady are not admissible (z). On the same principle,
in actions for crim. con., what the husband and wife

(0 E. v. TAUymnn, [1896] 2 Q. B. 167. The principle of this cose is

not of general application (Beatty v. Culling worth, 60 J. P. 740).
(«) li. v. Kingham, 66 J. P. 393. y
(*) Fellowet v. Williamson, M. & M. 306.
(y) 6 East, 188. (i) Witt T. Klindworth, 3 S. & T. H3.
134 Law of Evidence.

had said to each other, or letters written by either party

to the other, when there was no ground to suspect
collusion, were admissible evidence to show the terms
on which they lived (a) ; and the same rule applies
to proceedings in the Divorce Court.
(4) Evidence of general reputation, general character,
and general notoriety is original evidence, and not
hearsay. Thus, general reputation is admissible to
prove marriage (b) , except in prosecutions for bigamy,
and petitions for damages for adultery under the
Divorce Act, in which the marriage must be strictly
proved. Whenever the witness is shown to have
derived his information from some assignable individual,
it is excluded as hearsay (c). Following the principle
laid down by Mr. Fraser (d), Lord Eedesdale, in a
case, in the House of Lords (e), held, that repute to
raise presumption of marriage must be founded on
general, not singular, opinion; a divided repute is on
such a subject no evidence at all. Here his lordship
was speaking probably of Scotch marriages only ; for,
in the subsequent case of Lyle v. Ehvood (/),
Hall, V.-C, said: "It cannot be contended that where-
ever there is evidence of repute on one side and the
other a marriage cannot be established"; and the mar
riage was held proved although the repute was divided.
When it is proposed to infer a marriage from repute,
it is necessary to weigh the evidence cautiously— first,
with respect to the degree in which the opinion
prevails; next, with respect to its causes; and, lastly,
with respect to the infereuce to be drawn from it (g).
In trespass for destroying a picture, when the plea
was not guilty, and the defence that the picture was a
libel on the defendant's sister and brother-in-law, and
(«) Trelawnni v. Coleman, 1 B. & Aid. 90 ; cf. Willis v. Bernard,
8 Bing. 370.
(*) Doe v. Fleming, 4 Bing. 2Gfi ; Fax v. Bearhlock, 17 Ch. D. 429.
(c) Shedden v. Att.-Gen., 2 S. & T. 170.
(rf) "Fraser on the Personal and Domestic Relations," Vol. I., p. 207.
(f) Cunninghame v. Cunninghamr, 2 Dow. 511.
CO L. K. 19 Eq. 98. (</) Fraser, Vol. I., p. 206.
 Hearsay or Second-hand Evidence. 135

that he had therefore destroyed it, Lord Ellenborough

held, that the declarations of the spectators while
they looked at the picture in the exhibition room were
evidence to show that the pictures portrayed were
meant to represent the defendant's sister and brother-
in-law (h). So under a devise of lands in a certain
parish evidence is admissible that a part not comprised
in the parish was reported to be in it, and was intended
to be included in the devise (i). But evidence of a
rumour is not admissible to justify a slander (k).
(5) Where several persons are proved to be engaged
in one general conspiracy, all the transactions of that
conspiracy by the different parties may and ought to be
given in evidence ; and it is enough if the party accused
can be proved to be privy to the general conspiracy ;
for if that is proved everything that is done by the
different parties concerned in it must also be imputed
to him as a part of the conspiracy (I). Thus, in
Hardy's trial for high treason, letters written by one
conspirator to another were held to be evidence against
the prisoner after his complicity had been established.
So, if several defendants in trespass be proved to be
co-trespassers by other competent evidence, the declara
tion of one as to the motives and circumstances of the
trespass will be evidence against all who are proved to
have combined together for the common object (m).
But on a charge of effecting a conspiracy, although
statements made by any conspirator for the purpose of
carrying the conspiracy into effect are admissible in
evidence against the others, statements by one not
made in pursuance of the conspiracy are not admissible
against the others, nor are statements made after the
conspiracy is effected («).

(A) Du Bout v. Berenford, 2 Camp. 611.

(»') Amtee v. Xelmt, 1 H. & N. 225.
(*) Loekhart v. Jelly, 19 I,. T. (N.8.) 659.
(0 Per EYBB, C.J., : Re Hardy, 24 How. St. Tr. 451.
(im) Per Lord Ellenbokouuh : R. v. Hardmcke, 11 East, 585.
(«) R. v. Bloke, 6 13. 137.
136 Law of Evidence.

(6) Where either of the parties to the record appears

to be merely a trustee for a third party, his declaration
or admissions may be given in evidence to defeat the
claim of such third party (o) . In an action against a
sheriff for a false return, the statements of his deputy
to the plaintiff's attorney, as to the cause of the omission
to make an arrest, have been held to be evidence against
the defendant (p).
A similar rule holds in cases of partnership and
agency, i.e., that the acts or parol arrangements of a
partner or agent, made in the ordinary course of
business, bind a co-partner or principal respectively,
and may therefore be given in evidence for or against
him (q).
The general rule stated at the commencement of this
chapter has several important exceptions, which are
discussed in the following chapters.
It must also be noticed that under r. 7 of 0. XXX.
of theR. S. C. (for which see Appendix), on the hearing
of a summons for directions the court or a judge has
now power to make an order that evidence of any par
ticular fact shall be given by statement on oath of
information and belief, and thus to dispense j)ro tanto
with the general rule as to hearsay evidence. Rule 7 is
made under the provisions of s. 3 of the Judicature Act,
1894 (r), upon which the power to dispense with strict
evidence depends (s). On interlocutory motions affidavits
may contain statements as to the deponent's belief, with
the grounds thereof.

(<>) Banerman v. Radeniu*. 7 T. H. 663.

(yO North v. Miles, 1 Cam]). 389.
(if) Saitdilaitdx v. Marsh, 2 B. & Aid. 673 ; Doe v. Hawkins, 2 (j. B.
212.
(/■) 67 & 58 Vict. c. lfi.
(V) Baerlein v. Chartered Mercantile Bunk, [1895] 2 Ch. 488.
 ( 137 )

CHAPTER IX.

HEARSAY IN MATTERS OF PUBLIC AND GENERAL

INTEREST.

When an issue involves a question of public or general

interest, the rule that hearsay or second-hand evidence
is inadmissible does not apply : and generally—

In matters of public or general interest, popular

reputation or opinion, or the declarations of
deceased witnesses of competent knowledge,
if made ante litam motam {i.e., before the
litigated point has become the subject of
controversy), and without reasonable sus
picion of undue partiality or collusion, will
be received as competent and credible
evidence.

The ground for its reception lies in the supposition

that the universality and notoriety of the interests
concerned remove the temptation and the ability to
misrepresent, which would arise if such evidence were
received in matters of merely private and personal
concerns. Accordingly, it is rejected wherever the point
at issue appears to partake more of the nature of a
private than of a public interest. Thus a map attached
to an old enclosure award, although admissible to prove
that a particular road was a public highway, was held
inadmissible to prove the boundaries of such highway
in favour of a defendant charged with obstructing the
same (a) .

(a) R. v. Bergtr, [ 1894] 1 y. B. 823.

138 Law of Evidence.

In Wright v. Doe (b), Coltman, J., said :

" The true line (says Buller, J., in R. v. Eritwell) for courts
to adhere to, is that wherever evidence not on oath has been
repeatedly received and sanctioned by judicial determination, it
shall be allowed ; but, beyond that, the rule that no evidence shall
be admitted, but what is on oath, shall be observed. . . .
Evidence of opinion is admitted in some cases without oath, as, for
instance, where reputation is given in evidence to prove a public
right. . . . The principle upon which I conceive the exception
to rest is this, that the reputation can hardly exist without the
concurrence of many parties interested to investigate the subject ;
and such concurrence is presumptive evidence of the existence of
an ancient right, of which, in most cases, direct proof can no longer
be given, and ought not to be expected ; a restriction now generally
admitted as limiting the exception is this, that the right claimed
must be of a public nature affecting a considerable number of
persons."
And in the same case in the Exchequer Chamber (c),
Aldebson, B., said :
" The general interest which belongs to the subject would lead
to immediate contradiction from others, unless the statement
proved were true ; and the public nature of the right excludes the
probability of individual bias, and makes the sanction of an oath
less necessary."

In ejectment by the lessee of a tenant in tail against

the devisee in fee of a previous remainderman, the
question was whether the land in dispute was part of
the estate which had been originally devised by a
testator between fifty and sixty years previously. Evi
dence of reputation had been received that the land had
been purchased by the original testator ; but it was held
that, notwithstanding some special circumstances in
the case, the question was merely one of private owner
ship, and that therefore the evidence should have been
rejected (d).
In Weeks v. Sparke(e), to trespass on the plaintiff's
close, the defendant pleaded a prescriptive right of

(ft) 7 A. K. 360.
(.r) 1 Bing. N. C. 528. (<*) Doe v. Thomas, 14 East, 323.
(<0 lM.JtS. H79 ; ted. rf. Karl of Dunraren v. JJnvrlh/it. 15 Q. K.
791, pott, p. 141.
 Public and General Interest. 139

common for his cattle, and the plaintiff replied, travers- .

ing the plea, and prescribing for a right to use the |
locus in quo for growing corn until harvest time. It 1
was held that witnesses might prove the statement of
a deceased neighbour as to the nature of the enjoyment
of the respective rights ; but that a foundation for its
reception must first be laid by proof of the actual
enjoyment of the rights. Le Blanc, J., said :
" How is the right to be proved ? First, it is to be proved by
acts of enjoyment within the period of living memory ; and when
this foundation is laid, then, inasmuch as there cannot be any
witnesses to speak to acts of enjoyment beyond the time of living
memory, evidence is to be admitted from old persons (not any old
persons, but persons who have been conversant with the neighbour
hood where the waste lies, over which the particular right of
common is claimed) of what they have heard other persons, of the
same neighbourhood, who are deceased, say respecting the right.
Thus far it is evidence as applicable to this prescriptive right, it
being a prescription in which others are concerned, as well as the
person claiming it ; because a right of common is, to a certain
extent, a public right. And the only evidence of reputation which
was received was that from persons connected with the district.
In the same manner, in questions of pedigree, although they are
not of a public nature, the evidence of what persons connected
with the family have been heard to say, is received as to the state
of that family. In like manner also, upon questions of boundary,
though the evidence of perambulations may be considered to a
certain degree as evidence of an exercise of the right, yet it has
been usual to go further, and admit the evidence of what old
persons who are deceased have been heard to say on those occasions.
The rule generally adoptod, upon questions either of prescription
or custom, is this, that after a foundation is once laid of the right
by proving acts of ownership, then the evidence of reputation be
comes admissible, such evidence being confined to what old persons,
who were in a situation to know what those rights were, have been
heard to say concerning them."

There was, however, formerly considerable conflict

of opinion among the judges, as to the admissibility of
reputation and the declarations of deceased persons to
prove or disprove a claim of prescriptive right. In
Morewood v. Wood(f), where to trespass the defen
dant pleaded a prescriptive right, Lord Kenyon and
(/) 14 East, 327 n.
140 Law of Evidence.

Ashurst, J., held the question to be one of a private

nature, and that evidence of reputation should therefore
be rejected ; but Buller, J., and Grose, J., appear to
have thought the issue to be sufficiently of a public
nature to let in the evidence. In the case of Weeks v.
Sparke(g), Lord Ellenborough laid down the prin
ciple that when the right claimed does not curtail the
general rights of others, being merely the claim of an
individual against an individual, such evidence is not
admissible. Traditionary reputation has been received
as evidence of the boundaries between two parishes
and two manors, but not of the boundaries between
two estates (h).
In Rex v. Sutton (i) , the defendant was indicted for
the non-repair of a bridge, and, to disprove her liability,
offered a presentment of a jury in the reign of Edward III.,
by which it was found that they did not know who was
liable to repair ; and this was held to be evidence of
reputation for the defendant.
Reputation has been received in support of an
immemorial right of common, pur cause de vicinage
so pleaded (j). In Duke of Neivcastle v. Hundred of
Broxtowc (k), the question was, whether Nottingham
Castle was within the hundred : and it was held that
Orders made at the County Sessions between 165-4 and
1660, in which the castle was described as being within
the hundred, were admissible, as the justices must be
presumed to have had sufficient acquaintance with the
subject to which their declarations related ; and that,
although contrary evidence that the castle was excepted
from the hundred was given from Domesday-Book and
an old charter of Henry VI., the judge was right in
telling the jury to act on the evidence of a more modern
and continuous reputation. But when the question

Ql) 1 M. & S. 679.

(A) H East, 331 n. (y) Pritchard v. Powell, 10 Q. B. f?89.
(i) 8 Ad. & El. 51G. (*) 4 B. & Ad. 273.
 Public and General Interest. 141

was as to the rights of the county of the city of Chester,

as between that city and the County Palatine of Chester,
a decree by a Lord Treasurer and other persons who
were not a competent tribunal, and who had no personal
knowledge of the facts, except such as they derived
from an irregular judicial proceeding, was held inad
missible evidence of reputation (I) . So an extra-judicial
report by a government surveyor, appointed by Queen
Elizabeth, as to the boundaries of a manor, has been
rejected as evidence of such boundaries. Lord Den-
man said :
" The surveyor does not appear to have had any authority to
institute the inquiry ; and, stripped of his authority, he lias not
merely no right to make any kind of return, but the presumption
that he did make it falls to the ground. The paper may have been
written by any clerk idling in the office, from his own imagination,
or compelled, possibly by some interested person in furtherance of
a sinister object of his own " (m).
1
An old survey of landed property, taken under the ,
directions of a former proprietor, is no evidence that he
was entitled to it (n).
In a case in the Exchequer Chamber (o), on a ques- (
tion in replevin whether goods were taken in Norfolk I
or Suffolk, a map of Suffolk purporting to have been
republished in 17GG, with corrections and additions, by
the sons of J. K., from a map published in 1736 by
J. K., who then took an accurate survey of the whole
country, was tendered to show that the locus in quo
was not in Suffolk. It was produced by a magistrate
of both Norfolk and Suffolk, who had purchased it
twelve or fourteen years previously, and before any
dispute as to the boundaries had arisen. The court
rejected the evidence chiefly on the ground that the
new editors did not appear to have had any personal

(0 Rogert y. Wood, 2 B. & Ad. 24r>.

(»») Exam v. Taylor, 7 B. & A. 017.
(n) Daniel v. Wilkin, 7 Ex. 429.
(«) Hammond v. Bradstrert, 10 Ex. 390.
142 Law of Evidence.

knowledge of the subject, nor to be in any way con- f

nected with the district, so as to make it probable that
they had such knowledge. This case illustrates the
important principle, that, before ancient documents
can be received as evidence of reputation, it must be .
proved that they have come from the custody of a
person who is presumptively connected sufficiently by
knowledge with the matter in dispute, so as to render
him an authority. They must also bear the plain
marks of authenticity. Thus, in the above case it was
held, that the fact of the map being in the possession
of the county magistrate did not vouch for its accuracy,
and that it was unlike the case of a deed of conveyance
found in the custody of a party who, if it were genuine, I
would be entitled to it. So, too, in Bidder v. Bridges (p), 1
which was an action to enforce commonable rights, a
note-book, called Bracton's Note-Book, from the British
Museum, and a document forming part of the Cot-
tonian MSS. in the same Museum, and purporting to
be a Register of Merton Priory, were rejected by Kay, J.,
on the ground that there was no evidence of their ever
having been in such custody as would entitle a court to
treat them as authentic. In the same case, the same
judge admitted in evidence for what it was worth an
entry in the Church Book of the parish of Beddington,
made in 1678, of a note of an action in 1240, in which
the parson of Beddington was one of the defendants,
as an entry of an historical fact in which the parish
was interested. In the same case, the same judge
refused to admit in evidence, on the question of
boundary, the Ordnance map and certain maps from
the British Museum, on the ground that they were
only the opinions of map makers upon such informa
tion as they had at the time. The case went to the
Court of Appeal, which agreed with Kay, J., as to the

(^) 54 L. T. 529.
 Public and General Interest. 143

non-admissibility of a copy of the Eegister of Merton

Priory, but did not express any opinion on the other
matters above mentioned.
The hearsay, especially where it is documentary, ,
must contain a clear and unambiguous declaration
concerning the disputed issue. In one case, to prove
a public right of way over a manor, a map of the manor,
which had been made by a deceased steward of the
manor, was given in evidence. The map showed lines
made by the deceased witness which indicated clearly
some kind of way over the locus in quo, but contained
nothing to show whether the way was a public one, or
only one of several occupation ways such as existed on
the manor. If the way had been an occupation way it
would have been of a private nature, and it was
admitted could not be proved by the evidence which
had been given ; and, there being nothing on the face
of the map to show that it was a public way, and the
map having been used only to settle the boundaries of
the copyholds of the manor, it was held to be inad
missible (q). A map of the manor produced from the
manor house where it was usually kept, made by a
surveyor conversant with the locus in quo and recog
nised by parish authorities for rating purposes, was in
one case held admissible on a question of general right
to the waste of the manor. The tithe map was also
admitted in this case (r).
The conversations of former tenants of a manor, and
of other persons interested in it, have been held good
evidence as to the boundaries of the manor (s). A
document purporting to be a survey of a manor, while
it was part of the possessions of the Duchy of Cornwall,
and coming out of proper custody, was admitted by
Lord Romilly (t) as evidence of the boundaries and
(?) Pipe v. Fiddlier, 1 El. & El. 111.
(r) Smith v. Litter, 64 L. J. (N.s.) Q. B. 154.
(*) Dor v. Sleeman, 9 Q. B. 298.
(<5 Smith v. Earl Brownltrw, L. R. 9 Eq. 241.
144 Law of Evidence.

customs of the manor ; although a survey of a manor

belonging to Oliver Cromwell, and taken by commis
sioners appointed by him, containing also a presentment
by a jury that certain dues were payable to the lord,
was held inadmissible as a public document, or as
reputation to prove such dues («). More recently a
survey made in 1816 under an Act of Parliament on
the occasion of a sale of Crown lands, was admitted as
a public document and coming out of proper custody (x).
In this case, the case of Earl of Dunraven v. Llewellyn (y)
in the Exchequer Chamber was cited. There the ques
tion in trespass was, as to the property in a plot of
ground which lay between the waste of the plaintiff
and the estate of the defendant. The plaintiff offered
evidence of statements made before any controversy
arose, by his deceased tenants, who as such had exer
cised commonable rights over the waste adjoining the
locus in quo, and other statements made by deceased
persons, who, although not tenants, were resident in
the manor, and well acquainted with it. No evidence
was given of an actual enjoyment of the right on the
close by the tenants. Parke, B., said :
" If the question had been one in which all the inhabitants of
the manor, or all the tenants of it or of a particular district of it,
had been interested, reputation from any deceased inhabitant or
tenant, or even deceased residents in the manor, would have been
admissible, such residents having presumably a knowledge of such
local customs ; and. if there had been a common law right for every
tenant of the manor to have common on the wastes of a manor, repu
tation from any deceased tenant as to the extent of those wastes,
and therefore as to any particular land being waste of the manor,
would have been admissible. . . . This case is precisely in the
same situation as if evidence had been offered that there were many
persons, tenants of the manor, who had separate prescriptive rights
over the lord's wastes ; and reputation is not admissible in the case
of such separate right, each being private and depending on each
separate prescription, unless the proposition can l>e supported,
that, because there are many such rights, the rights have a public

(«) Duke of Beaufort v. Smith, i Ex. 450.

(*) Earn* v. Mrrthyr Tydfil Urban Council, [1899] 1 Ch. 241.
(y) 15 Q. B. 791.
 Public and General Interest. 145

character, and tlio evidence, therefore, becomes admissible. We

think this position cannot he maintained. . . . We are of
or^iojv therefore, that the evidence of reputation offered in this
case was, .according to the well-established rule in the modern
cases, inadmissible, as it is in reality in support of a mere private
prescription j_and the number of these private rights does not
make them to be of a public nature."

The Court of Appeal in the case last mentioned, said

that the question whether a piece of land was part of a
common over which any one in certain parishes had a
right of common, was a question of such general interest
in the locality as to let in evidence of reputation, and
they held that the Earl of Dunraven v. Llewellyn was
no authority to the contrary, as the issue in that case
was simply whether a piece of land was the plaintiff's
or defendant's. LlNDLEY, M.R., also said that War-
rich v. Queen's College, Oxford (z), shows that the Earl
of Dunraven v. Llewellyn does not go so far as is
sometimes supposed.
On an issue whether or not certain land, in a district
repairing it own roads, was a common highway, it has
been held admissible, but slight, evidence that, before
the point was litigated, the inhabitants held a public
meeting to consider the repair of the way, and that
several of them, since dead, signed a paper on the
occasion, stating that the land was not a public high
way (a). So the verdict or presentment of a jury
summoned by a court of competent jurisdiction to
determine the boundaries of two manors is admissible
evidence of reputation, in an issue as to the boundary
of a third manor, which is conterminous with one of
the former (b). Some of the remarks of the learned
judges, in this last case, may appear to be at variance
with the later case of Earl of Dunraven v. Llewellyn.
Thus, Coleridge, J., states: "On the question of

0) L. R. 6 Ch. 7 Hi.
(«) Jlarrarlough v. JuhnmiH, 8 A. Sl K. 99.
(ft) llrisco v. Lwiux. 8 A. & K. 198.
i.. i.. i.
146 Law of Evidence.

boundary between two owners, no doubt reputation is

admissible " ; but this observation must be limited by the
circumstances of the case, which seem to have been
regarded as converting an apparently personal question
into one of a public nature. An award, being in the
nature of a private transaction, is not evidence of
reputation (c) .
The general doctrine was discussed elaborately in the ,
case of B. v. Bedfordshire (d). There, on an indictment
against a county for not repairing a public bridge, the
defendants pleaded that A. was liable to repair a portion,
ratione tenure of the manor of 0. ; G. a certain other
portion, ratione tenures of the manor of H. ; and T. the
residue, ratione tenurat of the manor of C. Evidence
of reputation was tendered by the defendants to show
that, by immemorial custom, the respective parties
mentioned in this plea had repaired the respective
portions. The evidence was rejected at the trial,
apparently on the ground that the interests were of a
private nature ; but the court held that the evidence
ought to have been received. Lord Campbell, after
recognising the general principle, "that public reports
ought not to be held admissible so as to affect the rights
of private persons," proceeded to say :
" Upon the question here raised, all the inhabitants of the county,
who have property liable to be assessed to the county rate, have an
interest whether this bridge was to be repaired in part by the
owners of certain lands, ratione tenurtr ; such persons would be
affected by the verdict of the jury ; and then there are others whom
it would also affect ; viz., those who require the use of the bridge,
and to them it is of importance upon whom the liability rests to
repair the bridge. If a prosecution arises, heavy expenses are sure
to be incurred, and therefore such questions are certain to be
discussed, and a true reputation is very likely to exist. ... J
Certainly, the question objected to in this case touches the rights i
of individuals ; but then it also affects that of the county and the »
ratepayers. For these reasons, we think that evidence of reputa- '
tion was improperly rejected."
(r) Evans v. lives, 10 A. & K. 151 ; Lady tt'enman v. Mackenzie,
.-> K. & B. 447.
(rf) 4 K. & B. 535.
 Public and General Interest. 147

Whether the public are entitled to fish in a tidal river

is a question of public interest on which evidence of
reputation is admissible (e).
In questions concerning the admissibility of reputa
tion, distinctions have been drawn between cases in
which a public interest, and others in which merely a
local interest, is concerned ; but reputation appears to
be equally receivable in both instances, although its
value will depend essentially on the vicinity of the wit
ness to the locus in quo, and his personal knowledge of
the surrounding circumstances.
" In a matter in which all are concerned, reputation from any one
appears to be receivable ; but of course it would be almost worthless,
unless it came from persons who were shown to have some means of
knowledge, as by living in the neighbourhood " (/).

The next important restriction on the rule under

consideration, is contained in the principle that—

The declarations of deceased persons are not

admissible as reputation, unless they have
been made ante litem 7notam, i.e., before the
issue has become, or appeared likely to
become, a subject of judicial controversy.
In B. v. Cotton (g), Dampier, J., said :
" The reason why the declarations of deceased persons [are
admitted] upon public rights, made ante litem motam when there
wax no existing dispute respecting them, is that these declarations
are considered as disinterested, dispassionate, and made without
any intention to serve a cause or mislead posterity ; but the case is
entirely altered pout litem motam, when a controversy has arisen
respecting the point to which the declarations apply. Declarations
then made are so likely to be produced by interest, prejudice, or
passion, that no reliance can safely be placed upon them, and they
would more frequently impose upon the understanding than
conduce to the elucidation of the truth. It has, therefore, been
wisely decided that evidence of reputation arising pout litem motam
shall not be admitted."

(e) Neill v. Duke of Deroiuhirc, 8 App. Cas. 35.

(/) Per I'AKKE, B. : Create v. Barrett, I C. M. & H.928.
(jr) 3 Camp. 446.
148 Law ok Evidence.

Thus, the presentment of a homage, sworn to deter

mine boundaries, has been rejected, because there was
no jurisdiction, and because it amounted to a declara
tion post litem motam (h) ; but in an action by a copy
holder against his lord, where the question was as to
the amount of fine payable to the latter, the incidental
depositions of witnesses, in an action by a former
claimant against a former lord, have been admitted as
evidence for the lord, as depositions of persons called
on behalf of a person standing in pari jure with the
plaintiff, and because the same custom was not in
controversy (i).
It seems to be settled that the lis mota dates not
from the commencement of, an action or suit, nor even
from the commencement of actual litigation, but from
the time when the question began to attract public
attention as a controversy, The line of distinction is
the origin of the controversy, and not the commence
ment of the suit. After the controversy has originated,
all declarations are to be excluded, whether the con
troversy was or was not known to the declarant (k) .
Declarations however, will not be excluded on account
of their having been made with the express view of
preventing disputes (/) or in direct support of the
declarant's title (m), or from the declarant being in the
same situation, touching the matter in contest, with
the party relying on the declaration (n) .

(/i) Bamet v. Bie/iardi, 10 B. & C. 657.

(/) Freeman v. Phillipp*, 4 M. k S. 1!»7.
(A) Per Maxsfikld, C.J. : Berkeley Peerage Ciite, 4 Camp. 417.
(I) Berkeley Peerage Cane, 4 Camp. 401.
(/») Bur v. Buries, 10 Q. B. 325.
(«) Monkton v. Attorney- General, 2 Riiss. & M. 160.
 ( 149 )

CHAPTEE X.

EVIDENCE OF ANCIENT POSSESSION.

Although, as has been previously stated, hearsay or

second-hand evidence is not generally admissible in
questions concerning merely private and personal
rights, yet it is received, in some cases, where a con
troversy refers to a time so remote that it is unreason
able to expect a higher species of evidence ; but in
such cases the surrounding circumstances must be free
from reasonable suspicion, and it must appear that the
deeds or other documents, in which the hearsay is
contained, are ancient, i.e., more than thirty years
old ; that they come from the custody in which they
wouTcT'presumably be found, if authentic ; and that
they have been regarded and treated as authentic by
the guardians of them. It is therefore a rule that—

Ancient documents purporting to be a part of

the transactions to which they relate, and
not a mere narrative of them, are receivable
in evidence that those transactions actually
occurred, provided they be produced from
proper custody.
In Roe v. Bawlings (a), a paper was received which
purported to be a statement by a confidential agent, to
a former tenant for life, of rent reserved in 1728, and
as such had been indorsed by the latter. This was
held to be evidence in 1806 of the fact for the plaintiff,
a tenant in tail, to whom it had been handed down
with other muniments of title, to show that the rent

(«) 7 East, 27!».

150 Law of Evidence.

reserved by a tenant for life, who had immediately

preceded the plaintiff, was less than the rent originally
reserved. Lord Ellenborough said :
" Ancient deeds, proved to have been found amongst deeds
and evidences of land, may be given in evidence, although the
execution of them cannot be proved ; and the reason given is,
' that it is hard to prove ancient things, and the finding them in
such a place is a presumption they were fairly and honestly
obtained, and reserved for use, and are free from suspicion of
dishonesty.' This paper, therefore, having been found amongst
the muniments of the family . . . accredited . . . and pre
served . . . we think that it was evidence to be left to the
jury of the amount of the ancient rent at the time it bears date."

So the counterparts of old leases from the repository

of the lord of a manor, have been received in evidence
of the demise of premises, even without proof of
enjoyment (6) ; and in the same case, which was tried
in 1782, several leases, dated between 1680 and 1702,
were received as undoubtedly ancient ; but a lease
dated in 1730 was rejected as too recent. In Malcolm-
son v. O'Dea (c), it was laid down that the true ground
for admitting a lease is that of its showing an act or
acts of ownership. So, to prove a personal prescriptive
right of fishery, as appurtenant to a manor, old licences
on the court rolls, granted by the lords of the manor,
are admissible (d). Old rent rolls or court rolls are
received to prove rights to which they refer. Entries
in old parish rate-books are admissible as evidence to
prove who were the owners or occupiers of the property
at a previous time (e).
In ejectment, where both plaintiff and defendant
claimed through E., it was held that an ancient entry
made by E.'s steward in his rent-book, was evidence
as to the identity of the property (/). So, ancient

(J) (larkmn v. Woodhovue, 3 Doug. 189.

(n) 10 H. L. Cns. 593.
(rf) Rogers v. Allen, 1 Camp. 301 ; Malcolmsan v. O'Dea, 10 ILL.
Cas. 593. '
(<■) Smith v. Andrews, [1891] 2 Ch. 632.
(/) Doe v. Setiton, 2 A. & E. 171.
 Evidence of Ancient Possession. 151

terriers are received to prove the amount of vicarial

tithes (g). In Bishop of Meath v. Marquis of Win- I
Chester (h), in the House of Lords, the general doctrine,
more particularly as regards the next point to be con
sidered, viz., the custody of the document, was fully
considered. The main questions were, whether an
ancient deed, and also a case concerning the right of ]
presentation to a living, stated for the opinion of
counsel by a former Bishop of Meath in 1695, and
found among the family papers of his descendants,
were evidence touching the right of presentation as
against the plaintiff in error. Both documents were
held to be clearly admissible.
Proper custody.—Ancient documents, to be receivable |
as such, must be proved to have come from the custody
in which it was reasonable that they should be found.
This doctrine has been applied to family Bibles. A
New Testament containing entries of the births, deaths,
and marriages of a family, produced by a member
thereof, and proved to have been in the possession of
the family for a long time, is admissible in evidence
without proof of handwriting (i).
In the case of Bishop of Meath v. Marquis of
Winchester (j), Tindal, C.J., said:
" The result of the evidence, upon the bill of exceptions, we
think is this—that these documents were found in a place in which,
and under the care of persons with whom, papers of Bishop
Dopping might naturally and reasonably be expected to be found,
and that is precisely the custody which gives authenticity to docu
ments found within it ; for it is not necessary that they should be
found in the best and most proper place of deposit. If documents
continued in such custody, there never would be any question as
to their authenticity ; but it is when documents are found in other
than the proper place of deposit, that the investigation commences,
whether it was reasonable and natural, under the circumstances in
the particular case, to expect that they should have been in the
(j) Pearson v. Beck, 8 Ex. 452.
(A) 3 Bing. N. C. 198.
(i) Hubbard v. Lees, i H. & C. 418.
O) 3 Bing. N. C, at p. 200.
152 Law of Evidence.

place where they are actually found ; for it is obvious that whilst
there can bo only one place of deposit strictly and absolutely
proper, there may be various and many that are reasonable and
probable, though differing in degree, some being more so, some
less ; and in those cases the proposition to be determined is,
whether the actual custody is so reasonably and probably to be
accounted for, that it impresses the mind with the conviction, that
the instrument found in such custody must be genuine. That
such is the character and description of the custody, which is held
sufficiently genuine to render a document admissible, appears from
all the cases. On the one hand, old giants to abbeys have been
rejected as evidence of private rights, where the possession of
them has appeared altogether unconnected with the persons who
had any interest, in the estate. Thus, a manuscript found in the
Herald's Office, enumerating the possessions of the dissolved
monastery of Tutbury, a manuscript found in the Bodleian Library,
Oxford, and a grant to a priory brought from the Cottonian MSS.
in the British Museum, were all held to be inadmissible, the
possession of the documents being unconnected with the interests
in the property. On the other hand, an old chartulary of the
dissolved abbey of Glastonbury was held to be admissible because
found in the possession of the owner of part of the abbey lands,
though not of the principal proprietor. This was not the proper
custody, which, as Lord Rkdksdai.E observed, would have been
the Augmentation Office : and. as between the different proprietors
of the abbey lands, it might have been more reasonably expected
to have been deposited with the largest ; but it was, as the court
argued, a place of custody where it might be reasonably expected
to be found."

It appears from this case, that it is not necessary <

that the custody should be that which is strictly
proper : it is sufficient if it be one which may be j
reasonably and naturally explained (k), and one which
affords reasonable assurance of the authenticity of the
document (7). It is not, however, sufficient to produce
the documents without calling a witness to prove the
custody from which they come (m).
It has been doubted whether it is not necessary to
show some act of recognition or enjoyment, done with
reference to the documents. Thus, in Doe v. Pulman («),
(/.■) Dor v. Sampter, 8 A. A: E. l.">4.
(0 Per Coleridge, J. : Due v. Phillip*, 8 Q. H. 158 ; cf. Bidder v.
Bridges, 34 W. H. 514.
(mi) Evan* v. Hern, 10 A. & K. 154.
(«) 3 Q. B. 623 ; ted cf. Maleohmon v. O'Dea, 10 H. L. Cas. 593.
 Evidence of Ancient Possession. 153

which was an action of ejectment, to prove that an

ancient ancestor had been seised of the locus in quo,
the lessor of the plaintiff produced from her muniment
room the counterpart of an old lease, purporting to be
granted by the ancestor, but executed only by the
lessee, and it was held admissible, without proof that
the lessee had actually enjoyed under it.
It is said to be an established principle, that nothing
said or done by a person, having at the time an interest
in the subject-matter, shall be evidence either 'or him
or persons claiming under him (o) ; and therefore in
a settlement case {p), an old entry in a parochial book
was held not to be evidence, of the terms under which
a pauper resided in the parish. So, entries made by a
deceased person, through whom the defendant claims,
acknowledging the receipt of rent for the premises in
question, are not evidence of title for the defendant (q).

(») Per ABBOTT, C.J. : It. v. Debenham, 2 15. Si Aid. 115.

(/i) Ibid. (y) Outram v. .Vorttaiixl, 5 T. K. 123.
 ( 154 )

CHAPTER XI.

EVIDENCE IN QUESTIONS OF PEDIGREE.

In questions of pedigree, or inquiries concerning

relationship or descent the rule by which hearsay or
second-hand evidence is excluded is waived, and it is
well settled that—

The statements of deceased persons, who were

connected by blood or marriage with the
family in question, made ante litem tnotam,
are admissible to prove pedigree.
It is for the judge to decide, as a question precedent
to the admission of the evidence, whether the declarant
has been sufficiently proved to have been connected by
consanguinity or affinity to the family in question ;
and it makes no difference that the legitimacy of the
declarant happens to be also the only question in
issue (a). As to the danger of placing too great
reliance on this species of evidence, see the judgment
of Lord Eomilly in Crouch v. Hooper (b).
It has been held that the declarations must have
been from persons having such a connection with the
family that it is likely, from their domestic habits, that
they were speaking the truth, and could not be mis
taken (c). Thedeclarations of persons other than blood
relations, and husbands and wives, are not admis
sible. Thus, the declarations of deceased servants
and intimate acquaintances are rejected (d), even

(«) Uue v. Darie*, 10 Q. B. 314.

(A) 16 Beav. 182.
(c) Wkitelocke v. Baker, 13 Ves. 511.
(rf) Johnsvn v. Lawson, 9 Moore, 183.
 Evidence in Questions of Pedigree. 155

though coming under the head of dying declara

tions (e) ; nor are the declarations of illegitimate
relations received (/).
" The law resorts to hearsay of relations upon the principle of
interest in the person from whom the descent is to be made out ;
and it is not necessary that evidence of consanguinity should have
the correctness required as to other facta. If a person says another
is his relative or next-of-kin, it is not necessary to state how the
consanguinity exists. It is sufficient that he says A. is his relation,
without stating the particular degree, which perhaps he could not
tell if asked ; but it is evidence, from the interest of the person in
knowing the connections of the family; therefore the opinion of
the neighbourhood of what passed among the acquaintances will
not do " (</).
It was accordingly held that the declarations by a
deceased husband as to his wife's legitimacy are admis
sible, as well as those of her blood relations. Again,
in Doe v. Randall (h), it was held that the declaration
of a deceased woman of statements made by her former
husband that his estate would go to J. ¥., and then to
J. F.'s heir, were admissible to show the relationship
of the lessor of the plaintiff to J. F. Best, C.J., said :
" Consanguinity, or affinity by blood, therefore, is not necessary,
and for this obvious reason, that a party by marriage is more likely
to be informed of the state of the family of which he is to become
a member, than a relation who is only distantly connected by blood ;
as, by frequent conversations, the former may hear the particulars
and characters of branches of the family long since dead. . . .
The declarations of deceased persons must be taken with all their
imperfections, and if they appear to have been made honestly and
fairly, they are receivable. If. however, they are made pout litem
mutant, they are not admissible, as the party making them must
be presumed to have an interest, and not to have expressed an
unprejudiced or unbiassed opinion."

The statement of a wife as to her husband's family,

and that of a husband as to his wife's family, stand
upon the same footing (i).
(<■) Doe v. Ridgway, 4 B. & Aid. 53.
(/) Dor v. Barton, 2 M. & It. 28.
(j) Per Lord Ebskink : Yowles v. Young, 13 Ves. 147.
(A) 2 M. & P. 20.
(«') See till mctbury Pa rage Cum , 7 11. L. Can. 23.
156 Law of Evidence.

It has been said, on the authority of an old case :

" Hearsay is good evidence to prove who is my grandfather,
when he married, and what children he had, etc., of which it
is not reasonable to presume I have better evidence. So, to prove
my father, mother, cousin, or other relation, beyond the sea, dead ;
and the common reputation and belief of it in the family gives
credit to such evidence " (&).

Hence arises the doctrine, that the declaration

need not be one which has been made immediately
by the deceased, as of his own knowledge or belief,
to the witness; but it may be, as a learned judge
has expressed it, " two deep," or infinitely more
remote in degree. It is sufficient to show that a
general belief has prevailed in a family. Thus,
evidence that a person went abroad when a young
man, and, according to the repute of the family,
had afterwards died in the West Indies, and that the
family had never heard of his being married, is strictly
admissible to show that he died unmarried (Z).
On this ground, not merely oral declarations of
deceased persons connected with the family, but old
family documents, genealogies, entries in family
Bibles (m), inscriptions on tombstones, or walls, or
rings, if sufficiently authenticated as genuine, and as
having been recognised as such by the family, will be
received. The admissibility of genealogies was dis
cussed in Da vies v. Lowndes (n), in the Exchequer
Chamber. A paper purporting to be an old genealogy
having been offered as evidence of pedigree, Lord
Denman said :
" A pedigree, whether in the shape of a genealogical tree, or
map, or contained in a book, or mural or monumental inscription,
if recognised by a deceased member of the same family, is admis
sible, however early the period from which it purports to have

(7/) Bull. N. P. 294, cited in note 15 East, 21)4.

(/) Dor v. Grijtin, 1 East. 293.
O) Cf. Hubbard v. Lees, 1 H. & C. 418.
(«) 6 M. & G. 525.
 Evidence in Questions of Pedigree. 157

been deduced. . . . The reason why a pedigree, when made

or recognised by a member of the family is admissible, may be that
it is presumably made or recognised by him in consequence of his
personal knowledge of the individuals therein stated to be relations,
or of information received by him from some deceased members,
of what the latter knew or heard from other members who lived
before his time. And, if so, it may well be contended that if the
facts rebut that presumption, and show that no part of the pedigree
was derived from proper sources of information, then the whole
of it ought to be rejected ; and so also, if there be some, but an
uncertain and undefined, part derived from reference to improper
sources. But where the framer speaks of individuals whom he
describes as living, we think the reasonable presumption is that he
knew them, and spoke of his own personal knowledge, and not
from registers, wills, monumental inscriptions, and family records
or history : and consequently to that extent the statements in the
pedigree are derived from a proper source, and are good evidence
of the relationship of those persons."

In the Berkeley Peerage Case (o), on an issue as to

the legitimacy of the petitioner, the three questions
referred by the House of Lords to the judges were
substantially —
(1) Whether the depositions made by A.'s reputed
father, in a suit by A. against B., were evidence of
pedigree for A., in a suit by A. against C. (2) Whether,
in a similar case, entries made by A.'s reputed father in
a Bible, that A. was his son, born in wedlock on a
certain day, were inadmissible. (3) Whether such
entries- were inadmissible, if made with the express
purpose of establishing A.'s legitimacy in case it should
ever be called in question.
The point in the first question involved the question
whether hearsay declarations of pedigree, made after a
judicial controversy has arisen, are admissible. The
point in the second question was, whether an entry in
a book made by a deceased relation is evidence ; and in
the third, whether such an entry, if otherwise admis
sible, continues to be so when made with an express pur
pose of providing against a contemplated or impending

(w) 4 Camp. tul.

158 Law of Evidence.

controversy. It was held that the evidence in the first

case was inadmissible, as having been made after an
actual, though not as yet a judicial, controversy had
arisen ; that in the second it was strictly admissible,
whether the entry was made in a Bible or any other
book, or on any other piece of paper ; and that in the
third case it was also admissible, but with strong objec
tions to its credibility, on account of the particularity,
and perhaps the professed view with which it was
made.
Another important case on this subject is the Sussex
Peerage Case(p). There an entry made in her prayer-
book, by Lady Augusta Murray, of her marriage at
Home to the Duke of Sussex, was received not as con
clusive proof, but as a declaration made by one of the
parties. In the same case, evidence of declarations by
a deceased clergyman that he had celebrated the
marriage was rejected.
In Lyell v. Kennedy (q), the House of Lords held
that certain proceedings in which one James Martin
was a defendant were admissible to prove that in those
proceedings James Martin by his defence admitted that
one Elspeth Duncan was his mother. Lord Selborne,
in that case, said :
"With respect to the proceedings in 17G6 in the Sheriffs Court
of Perthshire (which were produced from the proper custody), I
consider them also admissible on the same principle on which
answers and decrees in Chancery have been admitted by this
House in peerage cases, as to matters of pedigree where the facts
of the pedigree were not in dispute, but only incidentally stated."

In accordance with the rules recognised in the pre

ceding cases, a cancelled will of an ancestor, found
among family papers, has been received as a declaration
concerning the relations of the family (r) ; and so has
an unexecuted will in the handwriting of the intending

(p) 11 C. & F. 85. (?) 14 App. Cas. 437.

(;•) Doe v. Earl of Pembroke, 11 East, 504.
 Evidence in Questions of Pedigree. 159

testator, which was treated as a statement, and not as

only an intended statement (s). Pedigrees hung up in
family mansions (t) ; a marriage certificate kept by the
family (») ; a genealogy made by a deceased member of
a family, even though purporting to be founded partly
on hearsay (v) ; engravings on rings (w) ; coffin-plates, i
and monumental inscriptions generally : are regarded
as admissible, but not always as credible evidence (x).
Bacon, V.-C, once said of inscriptions on tombstones : t
" In the case of tombstones, no doubt the publicity of the
inscription gives a sort of authenticity to it, and if it remains
uncontradicted for a great many years, it would, in the absence of
every other fact in the case, be taken to be true ; but you cannot
put it higher than that " (y). ♦

Conduct treated as evidence.— Not only hearsay

declarations of deceased relatives, but also proof of the
manner in which a person has been brought up and
treated by his family, will be evidence. In the Berkeley
Peerage Case, Mansfield, C.J., said :
" If the father is proved to have brought up the party as his
legitimate son, this is sufficient evidence of legitimacy till
impeached, and indeed it amounts to a daily assertion that the
son is legitimate " (z).

In Sturla v. Freccia (a), Lord Blackburn, speaking

of the statements of deceased members of a family
being evidence to prove pedigree, said :
" Such statements by deceased members of the family may be
proved not only by showing that they actually made the state
ments, but by showing that they acted on them, or assented to
them, or did anything that amounted to showing that they recog
nised them."
(») Re Lambert, 56 L. J. Ch. 122.
(?) Goodrii/kt v. Mutt, Cowp. 591.
(*) Doc v. Davie*, 10 Q. B. 814.
(r) Monkton v. Attorney- General, 2 K.ii M. 147.
Vowlet v. Young, 13 Ves. 144.
(x) Dariet v. Lowndet, 6 M. & G. 327.
(y) Hatlam v. Crow, 19 W. H. 969.
(i) 4 Camp. 416; cf. Khajah Hidaynt Oollah v. Itai Jan Khanum,
3 Moo. I. A. 295.
(<i) 6 App. Ca«. 641.
 1(50 Law of Evidence.

" Pedigree "—what it includes. This term embraces

not only general questions of descent and relationship,
but also the particular facts of birth, marriage and
death, and the times when, either absolutely or
relatively, those events happened. All these facts,
therefore, may be proved from hearsay derived from
relatives. It has been doubted whether specific dates
can be so proved ; but the preponderance of authority
appears to be in favour of permitting them to be so
proved. The written memorandum of a father as to
the time when his child was born, has been received to
prove when the infant would come of age (b) ; but in a
settlement case the declaration of a father as to the
place of his child's birth has been rejected, it not being
strictly a question of pedigree (c). So, an order of
removal was quashed, for being founded merely on the
pauper's own evidence as to the time and place of her
birth, because the statement was held to be one which
she could not make of her own knowledge (d) ; but in
Shields v. Boucher (e), Knight Bruce, V.-C, was of
opinion that declarations of a person deceased as to
what place his father came from would be admissible.

Relationship must be established. — Before the

declarations of deceased relations can be received as
such, it must be proved aliunde, i.e., by extrinsic and
independent sources of evidence, that the declarants
were related to the family (/). But prima facie
evidence is sufficient if unrebutted ig). The declara
tion must not be in the declarant's own interest. Thus,
a statement by a deceased person, who had been
married twice, tending to invalidate his first, and thus

(ft) Per Lord El l.RN BOROUGH : Roe v. Rawlhig*, 7 East, 290.

(p) II. v. Erith. 8 East, 539.
(7/) R. v. RUhwoHh, 2 Q. B. 487.
. (e) 1 Do G. & Sm. 40.
(/) Per Lord KLDON : Meritdry Peerage Case, 4 Camp. 419.
(g~) See Lyell v. Kennedy. 14 App. Cns. 4">1.
 Evidence in Questions of Pedigree. 161

establish his second, marriage, was rejected (h). It is

no objection that the declarant was in pari casu with
the party tendering the evidence (i) .
Does not apply to questions of age.— It should be
observed that the principle now under consideration
applies only where questions of pedigree are involved,
and therefore it does not a^ply. to cases in which only
the age of a person is material to be proved. Thus,
where m an action for goods sold and delivered a defen
dant pleaded infancy, and it was sought to prove the
plea by a statement contained in an affidavit made by
the defendant's deceased father in a chancery suit to
which the plaintiff was not a party, it was held that,
there being no question of pedigree in the action, the
evidence was not admissible (k).
Must be ante litem motam.— The rule which has
been mentioned in the preceding chapter, that the
hearsay declarations of deceased witnesses to be
admissible must have been made ante litem motam, is
observed in cases of pedigree. On this head it is only
necessary to refer to the declaration which has been
already quoted, of Mansfield, C.J., in the Berkeley
Peerage Case, that the lis mota, or beginning of the
litigation, dates from the origin of the controversy, and
not from the commencement of the trial. When a
question of pedigree has assumed such a degree of
conflicting interest, that the declarant must be
reasonably presumed to be under the influence of
undue partiality or prejudice, the disposition of the
courts is either to reject his evidence altogether, or to
receive it only with the strict limitations as to credibility
which are laid down by the judges in their answer to
the third question in the Berkeley Peerage Case. In a
(A) Plant v. Taylor, 7 H. &N. 211.
(*') Moid-Ion v. Attorney-General, 2 R. & M. 159.
(A) Hainet v. Guthrie, 13 Q. B. D. 818.
162 Law of Evidence.

case of disputed descent from a lunatic, one of the

claimants was allowed to give in evidence a deposition,
made by a deceased relation of the lunatic before a
master in chancery on an injunction, to discover who
was entitled by consanguinity to become committee.
It was urged that the deposition was inadmissible as
being made post litem motam ; but the court held that
it was admissible (I). In a petition for a declaration of
legitimacy it was proved that A., the petitioner's grand
father (whose legitimacy was in issue), had claimed
some property in the possession of his reputed maternal
uncle, but the latter said that he should defend any
action which A. might bring, and communicated the
circumstances to A.'s maternal uncle, and A. replied by
letter that he wished to establish his legitimacy, but
took no further proceedings. Sir J. Hannen held that
there was proof of the commencement of a controversy,
so as to exclude subsequent declarations by any mem
ber of the family as to the marriage of A.'s father and
mother (m).
Entries in public documents. —Finally, it must be
observed that an entry in a public document made by a
public officer for the information of the public is
presumed to be true, and is admissible in all cases,
including those in which pedigree is in issue (n) ;
therefore, in Lyell v. Kennedy (o), entries in Scotch
Parochial Begisters (produced from proper custody)
were held admissible on a question of pedigree.

(I) Gee v. Good, 29 L. T. 123.

(ni) Frederick v. Attorney-General, L. R. 3 P. & D. 196.
(n) See Sturla v. Freccia, 5 App. Cas. 623.
(<>) 14 App. Cas. 437.
 ( 163 )

CHAPTEE XII.

DYING DECLARATIONS.

The principle that evidence is inadmissible, unless

given on oath, and when the party who is to be affected
by it can have the benefit of cross-examination, is
limited by an exception in cases of homicide, where
the deceased, under the impression^ofimmediate
or impending dissolution, has made a statement con
cerning the identity of the assailant, and the circum
stances of the attack. It is presumed that the sense
of approaching death in the declarant is calculated to
produce in him a sentiment of responsibility, equal to
that which a religious and conscientious man feels
when required to make a statement on oath (a).
Where the sense or conviction of approaching death
is deficient or uncertain, dying declarations will not be
received. Even when they are received, their value
and credibility will vary infinitely, according to the
circumstances. In all cases a strong objection to their
full credibility arises from the fact that they are usually
given in evidence against one who has had no oppor
tunity of cross-examining the declarant, and thus of
refuting out of his own mouth the errors, omissions,
contradictions, and possibly wilful misstatements,
which the latter may have committed. It often
happens, also, that the declaration is made on great
pressure, when the declarant is suffering from physical
exhaustion or mental alienation, and when he is
partially, or even wholly, unconscious of the full pur
port of his declaration. These considerations, combined

(a) " iVemo mvritvrus prrcsumitnr mentiri."

164 Law of Evidence.

with the strong objection of the English law to con

demn any man on the testimony of an absent, or even
a deceased, witness, induce courts to regard this species
of evidence with great watchfulness and suspicion.
The judge, therefore, whose duty it is to inquire into
the circumstances under which the declaration has
been made, as a condition precedent to its admission,
will generally exclude it if there appear to be any
reasonable doubt as to the veracity, sanity, conscious
ness, or sense of religious responsibility and impending
dissolution in the mind of the declarant at the time of
the statement. Subject to these remarks it is held to
be a rule that—

In murder, or homicide, the declarations of the

deceased, concerning the cause and circum
stances of his mortal wound, iljnade with a
full consciousness of approaching death, are
admissible in evidence for or against the
prisoner who is charged with the crime (6).
In R. v. Woodcock (c), Eyre, C.J., said :
" The general principle on which this species of evidence is
admitted is that they are declarations made in extremity, when
the party is at the point of death, and when every hope of this
world is gone, when every motive to falsehood is silenced, and
the mind is induced by the most powerful considerations to speak
the truth ; a situation so solemn and so awful is considered by the
law as creating an obligation equal to that which is imposed by a
positive oath administered in a court of justice."
In this case it was held that a statement made by
the deceased to a magistrate, who administered an oath
to her extra-judicially, could not be received ; but that
a statement made by her when her dissolution was fast
approaching, and when she must have known the fact,

(J) Dying declarations arc inadmissible in civil cases (Stobart v. Dry-

den. 1 M. & W. 626.
(.<•) 1 Lcacli, C. C. 502
 Dying Declarations. 165

although she said nothing that indicated such a know

ledge, was receivable. The judge there left it to the
jury to say whether the statement was made under the
apprehension of death ; but the modern practice is for
the judge himself to decide this question. It will be
observed that, in this case, although the statement was
inadmissible as a statement on oath, in a situation
where an oath was improperly administered, there was
ho objection to it on the ground that the statement
was made in answer to a formal and solemn enquiry.
Accordingly, it is held not to be necessary that the
statement should be voluntary or spontaneous ; and
answers in articulo mortis to questions put by a
surgeon, for the purpose of ascertaining whether he
ought to call in a magistrate, have been received (d).
A statement taken down in writing by another person
and signed by the declarant is admissible (e).
It was said by Lord Denman (/), that, with regard
to declarations made by persons in extremis, supposing
all necessary matters concurred, such as actual danger,
death following it, and a full apprehension at the time
of the danger and of death, such declarations can be
received in evidence ; but all these things must concur
to render such declarations admissible. The expec
tation of death must be settled and hopeless ; but
" I'm dying " repeated more than once was held not
sufficient to indicate such an expectation (g).
The declaration must be made when the declarant
is in actual danger.—This proposition is commonly
stated more broadly, that the declaration must be
made in extremis (h) ; but there appears to be no
definite limitation of the time, before death, within

(d) Ii. v. Fagent, 7 C. & P. 238.

(< ) R. v. Whitmarth, 62 J. P. 680.
(J) Suite* Peerage Cate, 11 C. & F. 112.
(.7) R. v. Abbott, 67 J. P. 151.
(A) R. v. Van ButchAl, 3 C. 4c P. 629.
166 Law of Evidence.

which the declaration must be made ; and recent

cases support the doctrine, that declarations made
under apprehension of death, if otherwise admis
sible, will not be rejected because a considerable time
elapses between the declaration and the death. Thus,
in B. v. Mozley (i), the declarations were held by all
the judges to have been rightly received, although
the deceased did not die until eleven days after
making them, and although the surgeon held out
slight hopes of recovery to him until a few hours
before his death. Here, however, the deceased had
frequently expressed a belief, prior to the statement,
that he should never get better.
In B. v. Bernadotti (k) a declaration was admitted,
although the declarant lived for three weeks after
making it. There was no evidence in this case of any
subsequent hope of recovery; but, as stated in the next
paragraph, a subsequent hope of recovery does not
render a declaration inadmissible.
Hope of recovery.—It appears also that the doctrine
which has been laid down, that the declarations are
admitted only if they are made under an impression of
almost immediate dissolution, is by no means literally
correct. It is true, as stated by Tindal, C.J., in B. v.
Hayward (I), that any hope of recovery, however slight,
existing in the mind of the deceased at the time of the
declarations made, will undoubtedly render the evidence
of such declarations inadmissible ; and accordingly it
has been held (m), that in the absence of expressions
or conduct to show that the deceased was under the
impression of approaching death, his statements are
inadmissible.
(i) 1 Moo. C. C.-97 ; of. R. v. Smith, L. & C. 607.
(&) 11 Cox C. C. 316.
(0 6 C. & P. 157.
{m^Per Wightman, J.: R. v. Qualter, 6 Cox C. C. 357 ; cf.S.v.
Harvey, 23 L. T. 258.
 Dying Declarations. 167

In one case, the deceased made a declaration, stating

at the time that he believed he should not recover.
His spine was then broken in such a way that death
must have followed soon. Shortly before he had made
the declaration, he had said to a witness : " The sur
geon has given me some little hope that I am better ;
but I do not myself think that I shall ultimately
recover. ' ' The declaration was held to be admissible (n) .
Where, however, a woman made a statement to the
magistrate's clerk, who added to it the words, " I have
made the above statement with the fear of death before
me, and with no hope of my recovery," and then read
it over to her and asked her if it was correct, and after
wards at her request interlined the words " at present "
after the word " hope," it was held that the words
inserted qualified the force of her statement sufficiently
to make it inadmissible in evidence as a dying declara
tion, because there was not that absolute and hopeless
expectation of death which is required to give such
declarations validity (o). It may be laid down as now
settled that given the conditions rendering it admissible
at the time of making, a statement is not rendered
inadmissible by the fact that after making it the
deceased entertained a hope of recovery (p).
Evidence of this description is only admissible where
the death of the deceased is the subject of the charge,
and where the circumstances of the death are the sub
ject of the dying declaration.—Accordingly, where the
defendant had been indicted by the deceased for per
jury, and after conviction had shot the prosecutor, it
was held that a dying declaration by the latter as to
the circumstances of the perjury was inadmissible on
an application by the defendant for a new trial (q) . So,
(«) R. t. Reaney, D. & B. 151.
00 It. v. Jenkins, L. K. 1 C. C. B. 187.
Op) R. v. Hubbard, 14 Cox C. C. 565.
(j) Per Abbott, C.J. : R. v. Mead, 2 B. & C. 605.
168 Law of Evidence.

where the prisoner was indicted for administering

savin to a pregnant woman, but not quick with child,
with a view to procure abortion, Bayley, J., rejected
evidence of her dying declaration concerning the cause
of her death, because the death was not the subject of
the pending inquiry (r).
In a case (s) where the prisoner was indicted for
poisoning J. K., and it appeared that J. K. had eaten
some cake and died ; soon after which, the servant who
had made the cake ate some, and died also ; it was held
by Coltman, J., after consulting Parke, B., that the
dying declarations of the servant were evidence against
the prisoner, because the two consecutive deaths formed
one transaction. But this is a very doubtful decision.
This case was brought prominently before the Court for
Crown Cases Beserved, in R. v. Hind (<), where the
court, affirming B. v. Mead («), laid down as the rule
that a dying declaration is only admissible where the
death of the deceased is the subject of the charge, and
the circumstances of the death are the subject of the
declaration.

Accomplice.— The dying declarations of an accom

plice are receivable (x), as well as dying declarations
made in favour of the person accused (y).
(r) R. v. Ilidr/i ituon, 2 B. & C. 608 n. ; <•/. R. v. Lloyd, 4 C. & P. 233 ;
R. v. Hind, 2'J L. J. M. C. 147, 253.
0) R. v. Raker, 2 Moo. A: R. 53.
{r) R. v. Tinkler, 1 East, P. C. 354.
(y) R. v. Scaife, 1 Moo. & R. 551.
 ( 169 )

CHAPTEK XIII.
DECLARATIONS AGAINST INTEREST.
When a deceased person, whose veracity in other
respects is unimpeached, has, during his lifetime, made
a statement concerning the matter in issue, which
statement was at the time he made it opposed to his
pecuniary or proprietary interest, the legal presumption
is that the statement is true, or that it contains at least
some elements of credibility ; for in all the exceptions
to the general rule by which hearsay is excluded, it
must be remembered that credibility is by no means a
necessary consequence of admissibility. English law,
although frequently arbitrary, and perhaps unreason
able, in its dogmatic distinctions between credibility
and incredibility, refuses to reject any evidence which
it considers to contain any ingredients, however minute,
of presumptive truth ; but, while admitting it, the judge
will often intimate to a jury that they ought to -give it
little credit.
The rule which is now to be considered is the
following :

A declaration by a deceased person, who had a

competent knowledge of a fact, which
declaration was against the pecuniary or
proprietary interest of the declarant at the
time when it was made (a), is evidence
between third parties, and is evidence of
everything stated in the declaration (b).
In the leading case of Higham v. Bidgway (c), to prove
(«) It is not sufficient that it may or may not turn out at some
subsequent time to be against his interest (jEe parte Edward*, 11 Q. B. D.
415).
(i) Middleton v. Melton, 10 B. & C. 317.
(o) 10 East, 109 ; ef. Oleadow v. Atkin, 1 C. & M. 410.

!
170 Law of Evidence.

the time of birth, evidence was given that the man-

midwife, who attended the birth, was dead ; and the
books of the latter, who had kept them regularly, were
offered in evidence. They contained an entry in the
handwriting of the deceased of the circumstances of
the birth, and the date. There was also a charge for
attendance, against which the word "paid" was marked.
It was held, that the entry was evidence of the time of
the birth. Lord Ellenbokough said :
" The entry made by the party was to his own immediate
prejudice, when he had not only no interest to make it, if it was
not true, but he had an interest the other way, not to discharge a
claim, which it appears from other evidence that he had."

Bayley, J., added :

" All the cases agree, that a written entry by which a man dis
charges another of a claim which he had against him, or charges
himself with a debt to another, is evidence of the fact which he
so admits against himself ; there being no interest of his own to
advance by such entry. . . . The principle to be drawn from
all the cases is, that if a person have peculiar means of knowing
a fact, and make a declaration of that fact which is against his
interest, it is clearly evidence after his death, if he could have
been examined as to it in his lifetime."

SOf in a later case (d), the same learned judges

received evidence of entries of charges made by a
deceased attorney, who had prepared a lease, to show
that the lease was executed at a time later than its
apparent date. In this case the charges for preparing
the lease seem to have been paid, but this did not
appear upon the face of the entries. In the case of
In the Goods of Thomas (e), Lord Penzance admitted
as evidence of the execution of a will an entry made
by a deceased solicitor in his ledger admitting payment
of his charges for drawing it and attending its
execution.

Must be against pecuniary or proprietary interest. —

The declaration must be against either the pecuniary

id) Doe v. Robson, 15 East, 32. (0 41 L.J. P. Jc M. 32.

 Declarations against Interest. 171

or the proprietary (/ ) interest of the declarant ; no

other interest will suffice. This doctrine may be con
sidered as finally settled by the Sussex Peerage Case (g),
where declarations as to the marriage of Lady Augusta
Murray with the Duke of Sussex, made by the deceased
clergyman who performed the ceremony, were tendered
on the ground that they were declarations of a person
who knew the facts, who was not interested in mis
representing them, and who had an interest in being
silent concerning them, because the unlawful celebration
of the marriage might have subjected him to a prosecu
tion. All the judges concurred in holding, that the
declaration must be adverse to some pecuniary interest
in the declarant, and that even the fear of a prosecution
was not a sufficient interest to let in a declaration as
contrary to it. Lord Campbell said :
" As to the point of interest, I have always understood the rule
to be, that the declaration, to be admissible, must'have been one
which was contrary to the interests of the party making it in a
pecuniary point of view. I think it would lead to most incon
venient consequences, both to individuals and the public, if we
were to say that the apprehension of a criminal prosecution was
an interest which ought to let in such declarations in evidence " (K). ,
It is sufficient if the declaration is primafacie against
such interest. But that it was so need not be proved
by independent testimony (i).
The value of the declaration as evidence may be
destroyed by proving aliunde that although prima facie
against the interest of the declarant it is really for his
interest, or that it was made with an interest to pervert |
the facts (k).
Is evidence of the facts stated in it.—It is also settled
law that the declaration, or written statement, is
evidence of all the facts which it contains, and that
(/) Per Cockburn, C.J. : R. v. Birmingham, 1 13. & S. 7G8.
GO 11 C. 4:F. 85.
(A) See also Smith v. Blakey, L. I{. 2 Q. B. 326 : Mattey v. Allen,
13 Ch. D. 558.
(j) Taylor v. Witham, 3 Ch. 1). 605.
(Tt~) Taylor v. Witham, ubi mipra.
172 Law of Evidence.

in such cases the difference between oral and written ,

statements is not one of admissibility, but only of
weight (/). According to Parke, B., the entry in
Higham v. Bidgivay was evidence not only of the pay
ment of the man-midwife's charges, but also of partus \
cum forcipe (m) . So the statement of a deceased person
that he occupied a house at ±'20 a year was admitted
to prove not only the tenancy, but also his acquire
ment of a settlement -of the annual value of ±10.
Again, where, in order to establish a settlement, it
was proved that the pauper's grandfather had occupied
a house for four years in the appellant parish, and a
book containing certain entries of payment of rent
which were proved to be in his handwriting was pro
duced, these entries were admitted in proof of the
grandfather's settlement by renting a tenement, on
the ground that, the four years' occupation being by
itself primd facie evidence of a seisin in fee, the proof
of payment of rent would cut down the interest to a
tenancy, and that therefore the evidence was against
proprietary interest (n).
In Davies v. Humphreys (o), which was an action for
contribution by one of several makers of a promissory
note against a co-surety, the plaintiff, to establish the
suretyship, relied on a receipt indorsed on the note by
the deceased payee acknowledging a part payment of
±280 of the principal sum of ±300 ; and adding, " the
±300 having originally been advanced to E. H." (the
defendant). This was held to be evidence of the de
fendant's liability. Parke, B., in delivering the judg
ment of the court, said :
" That the receipt was evidence of the fact of payment, which
is admitted, in every case in which the proof of payment would
be relevant, was not disputed ; but it was denied that the whole

(0 v. Birmingham, 1 B. & S. 763 ; Bewley v. Atkinson, 13 Ch. D.

283.
Pereiral v. Nanton, 7 Ex. 3.
(n) R. v. Birmingham, 1 B. 4: S. 763 ; R. v. Exeter, 10 B.&.S. 433.
(«) 6 M. & W. 153.
 Declarations s against Interest. 173

entry would be admissible to show that the £300 was advanced to

E. H. . . . but the entry of a payment against the interest of
the party making it has been held to have the effect of proving
the truth of other statements contained in the same entry, and
connected with it."

His lordship, after referring to Higham v. Ridgway,

and Doe v. Robson (p), added :
" Without overruling these cases (and we do not feel ourselves
authorised to do so), we could not hold the memorandum in
question not to be admissible evidence of the truth of the whole
statement in it, and consequently to be evidence not merely that
£280 was paid by the plaintiff to the payee, as for a debt due
from E. H. as principal, but also of the fact that the debt was due
from E. H. to him."

Thus, also, where a paper purported to be an entry,

by a deceased receiver, of rents received from T. H.,
as one of three proprietors, it was held to be evidence
that two other proprietors were equally interested with
T. H. Pollock, C.B., drew an important distinction
between entries made against interest, and entries
made in the course of business :
" If the entry is admitted as being against the interest of the
party making it, it carries with it the whole statement ; but if the
entry is made merely in the course of a man's duty, then it does
not go beyond those matters which it was his duty to enter " (g).

When there are entries in an account book which

are admissible as being against interest, if there are
other items in the book which are closely connected
with such admissible entries, then not only may such
entries be looked at, but the whole account of which
they form an integral and essential part (r).
It is no objection that the declaration is founded on
hearsay.—It is held, that declarations against interest
are admissible against third parties, even though the

(/)) 15 East, 33.

(y) Percival v. Nanton, 7 Ex.3.
(/•) Hudson, v. Ownert ofBarge Swiftsure, 82 L.T.389.
174 Law of Evidence.

declarant himself received the facts on hearsay (s).

Thus, in Percival v. Nanson (f), Aldebson, B., said :
" An entry in an attorney's bill of a service of notice on A. B.
would be evidence of a service, although, such notice being
generally served by an attorney's clerk, the attorney probably had
no personal knowledge of such service."

Pollock, C.B., also said :

" If an accoucheur puts down in his book the name of a lady
whom he had delivered, and debits himself with the payment, such
entry would be evidence of the name, although he may have
known nothing of her name except from the information of
others."

The declarant must be deceased at the time when

the evidence is offered. Thus, in assumpsit on a pro
missory note by an indorsee against the maker, the
defendant, to prove fraud and the plaintiff's cognizance
of it, tendered declarations of the first indorsee, who
was alive, but was not called. They were rejected on
the ground that it is clear that declarations of third
persons alive, in the absence of any community of
interest, are not to be received to affect the title or
interests of other persons, merely because they are
against the interest of those who make them (u). Here
there was held to be no community or privity of interest
between the plaintiff and the absent witness ; but if
that had existed, the evidence would have been admitted
according to the principle already quoted, as laid down
by Bayley, J., in Spargo v. Brown (x). So it has
been held that the entries of a person against his
interest are not evidence between third parties, if the
declarant be alive, although it appears that he has
absconded on a criminal charge, and that it was quite
impossible to produce him as a witness (y).

(*) Create v. Barrett, 1 C. M. & R. 919. (<) 7 Ex. 1.

(«) Phillips v. Cole, 10 A. & E. 111.
(x) 9 U. & C. 938. and xnjira, p. 127.
( y) Stephen v. Gicenap, 1 M. k li. 120.
 Declabations against Inteeest. 175

An entry by a deceased person against interest will

be good evidence, although it appears that persons are
living, and not called, who are acquainted with the
fact. Thus, entries by a deceased collector charging
himself with the receipt of taxes, were received as
evidence against a surety that the money had been
paid, although the persons who paid it were living, and
might have been called. An attempt was made in
this case to exclude his evidence, because the entries
were contained in a private note-book, and not a
public account-book ; but the distinction was over
ruled (z)
After the expiration of a long term the death of the
declarant will be presumed (or), although in other cases
it must be proved.
The status of the party making the entry or declara
tion must sometimes be established before the entry is
read, unless it be made by a person in a public character,
in which case due appointment will be presumed (6).
Thus agency must be proved, where the declaration
was by an agent ; and accounts of rents signed by a
person styling himself clerk to a steward, but not
proved aliunde to have been so employed, although
they were found among family muniments, were re
jected, because there was no other evidence given to
show that the accounts affected the declarant in a
pecuniary character (c). Proof of handwriting, and
other extrinsic evidence of authenticity, will be un
necessary when entries have been made thirty years
previously, and are produced from proper custody (d).
It has been said that in the case of an entry against
interest "proof of the handwriting of the party and
his death is enough to authorise its reception ; at
(=) Middletnn v. Melton, 10 B. & C. 817.
(a) Doe v. Michael, 17 Q. B. 276.
(J) Davie* v. Morgan, 1 C. k J. 587.
(<■) De Jiutzen v. Parr, i A. & E. 53.
(<i) Wynne v. Tijrwhitt. i 13. & Aid. 376.
176 Law of Evidence.

whatever time it was made, it is admissible " (e). The

first part of this dictum applies of course only to entries
made within thirty years prior to the time when they
are tendered.
As miscellaneous instances of cases in which declara
tions against interest have been admitted as evidence,
the following may be mentioned. Where a deceased
tenant, by a written instrument, acknowledged L. as his
landlord, this was held to be evidence of L.'s title as
against subsequent tenants who did not claim through
the declarant (/). In ejectment by A., the declaration
by deed of a deceased receiver of rents and profits, that
he held under A.'s ancestor, is evidence against third
parties of A.'s title (<?). A declaration by a deceased
occupant, that he managed an estate for a claimant, is
evidence for the latter (h). In an action for specific
performance of an agreement to take a lease, an entry
of a deceased landlord in his own handwriting in his
rent-book of a promise to grant a lease to a tenant
was held admissible in evidence against the tenant as
being against the landlord's proprietary interest (i).
In an action by the Corporation of Exeter for port
duties, documents more than thirty years old, which
purported to be the receipt of such duties by ancient
receivers, but which were unsigned and in the third
person, were admitted (k). So, the receipts of an
ancient receiver of rents, brought from the muniment
chest of the family, are unobjectionable evidence (I).
Wherever there is privity of interest between the
declarant and a party to the proceedings, the declaration
will be received ; and it will be admissible, even though

(e) Per Parke, B. : Doe v. Turford, 3 B. & Ad. 898.

(/) Doe v. Edwards, 5 A. & E. 95.
(y) Doe v. Conlthard, 7 A. & E. 235.
(A) Baron de Bode't Cate, 8 Q. B. 208.
(0 Connor v. Fitzgerald, 11 Ir. L. K. 106.
(A) Mayor of Exeter v. Warren, 5 Q. B. 773.
(I) Mu*grave v. Emerton, 10 Q. B. 326.
 Declarations against Interest. 177

the declarant is alive (m) ; but neither the acts nor the
declarations of deceased tenants, although against their
interest, are any evidence against the reversioner ; for
a tenant cannot derogate from the title of his landlord ;
and, therefore, in a disputed right of common, the
plaintiff was not allowed to give evidence of declarations
made concerning it by a deceased former tenant of the
farm, in respect of which the plaintiff claimed the
right (n).
The declarations of a person in possession of property
are admissible, after his decease, to cut down his title,
not only as against those claiming under him, but also
against strangers (o) ; but declarations of what he heard
other persons say are not admissible (p) . The same
document may be proof of possession, and also admis
sible as a declaration against interest (q). The accep
tance of an allotment under an award made by
commissioners under an Inclosure Act by a person
against his interest is evidence that the land allotted
was waste of the manor (r) .
It will be observed that, in all the preceding cases
where entries have been tendered, great stress has been
laid on the circumstances of the custody from which
they are produced. The declarations under considera
tion are also subject to the remarks which have been
made on the declarations discussed in the two preceding
chapters, as to the necessity that they must be made
ante litem motem.

(wi) Woolway v. Rome, 1 A. &. E. 114.

* («) Papcndick v. liridgwater, o E. As 11. 160.
(») Sly v. Dredge, 2 P. 1). 91.
p) Lord Trlmltiton v. Kemmis, 9 C. & F. 780.
if) La Touckc v. J/uttun, lr. K. 9 Eq. 171.
r) Gery v. Redman, 1 Q. 11. D. 161.
 ( 178 )

CHAPTER XIV.

DECLARATIONS MADE IN THE COURSE OF

BUSINESS OR PROFESSIONAL DUTY.

It has long been a settled principle that—

Declarations made by a person, strictly in the

course of a trade or professional duty, and
without any apparent interest to misrepre
sent the truth, if contemporaneous with the
fact, are evidence, after his death, against
third persons, of the essential subject-matter,
but not of its surrounding circumstances.
Price v. Torrington is generally cited as the leading
case on this rule (a). The short report of it in Salkeld
is as follows : The plaintiff, being a brewer, brought an
action against the Earl of Torrington for beer sold and
delivered ; and the evidence given to charge the de
fendant was, that the usual course of the plaintiffs
dealing was, that the draymen came every night to the
clerk of the brewhouse and gave an account of the beer
they had delivered out, which he set down in a book
kept for that purpose, to which the draymen set their
names ; that the drayman was dead, but that this was
his hand set to the book ; and this was held good
evidence of a delivery, but otherwise of the shop-book
itself singly, without more. On the same principle,
in Pritt v. Fairclough (b), after evidence had been given
that it was the course of business in the plaintiff's
office for a deceased clerk to copy all letters, a letter-
book containing a letter, which purported to be the

(a) Salk. 285. (b) 3 Camp. 305.

 Declarations in the Course op Duty. 179

copy by the deceased of a letter which the defendant

refused to produce, was held good secondary evidence.
So, where it was material to show that a licence had
been sent to A. by the plaintiff, evidence was given,
that it was the course of business in the plaintiff's
office that such licences should be copied in the letter-
book and noted before they were sent, and the copy
and noted memorandum, in the handwriting of a
deceased clerk, that the licence had been sent, were
then received (c). Declarations by a deceased rector
have also been admitted as evidence as to the custom
of electing churchwardens in his parish (d).
In an action (e) of ejectment, the lessor of the
plaintiff had instructed A. to serve the defendant with
notice to quit. A. entrusted the commission to his
partner B., who had not served such notices before.
B. prepared three notices to quit (two of them being
for service on other persons) and as many duplicates.
He then went out, and on his return delivered to A.
three duplicate notices (one of which was a duplicate
of the notice to the defendant), indorsed by B. It was
proved that the two other notices' had been served on
the persons for whom they were intended, that the
defendant had subsequently requested A. that he might
not be compelled to leave, and that it was the invariable
practice for A. and B.'s clerks, who usually served the
notices to quit, to indorse, on a duplicate of such
notice, a memorandum of the fact and time of service.
It was held, on these facts, that the third duplicate was
admissible to prove that the notice had been served on
the defendant. Parke, B., said:
" It was proved to be the ordinary course of this office, that
when notices to quit were served, indorsements like that in question
were made ; and it is to be presumed that the principal observed
the rule of the office as well as the clerks."
(c) llagrdon v. Reed, 3 Camp. 379.
(d) Bremner v. Hull. H. & R. 800.
(e) Dm v. Turford, 8 B. k Ad. 890.
S 2
180 Law of Evidence.

The doctrine was also discussed in Poole v. Dicas (/), 7

where it was held that an entry made in a bill-book, /
in the course of business, by a notary's clerk, since /
deceased, of the dishonour of a bill which he had been /
instructed to present for payment, was evidence of the
dishonour.

The entry must be contemporaneous.—In all the

above cases great importance was attached to the fact
that the entries were immediately subsequent to, and
virtually contemporaneous with, the transaction. In
Doe v. Turford (g), Parke, B., said :
" It is to be observed, that in the case of an entry against interest,
proof of the handwriting of the party, and his death, is enough to
authorise its reception ; at whatever time it is made, it iR admis
sible ; but in the other case [in declarations in the course of
business], it is essential to prove that it was made at the time it
purports to bear date : it must be a contemporaneous entry."

So, in Poole v. Dicas, Tindal, C.J., said :

" If there were any doubt whether the entry were made at
the time of the transaction, the case ought to go down to trial
again."

It seems, however, to be sufficient if the entry be

made on the same day, or even on the following
morning. But if not made until two days after the
event it is not contemporaneous (h).

The entry must be of matters which it is the duty

of the writer to do and to record.—The entry must
be an entry of a particular thing which it was the duty
of the person making the entry to do, and it must be
also his duty to record it (i). The existence of the
duty must be proved aliunde (k). This is in accordance

(/) 1 Bing. N. C. 649. (//) 3 B. & Ad. 890.

(A) The Henry Cox/m. 3 P. D. 156.
CO Smith v. Maltey, L. R. 2 Q. B. 326 ; Trotter v. Maclean, 13 Ch. D.
574.
(i) Bright v. Legerton, 2 De G. F. & J. 614.
 Declarations in the Course of Duty. 181

with the dicta of the judges in Doe v. Turford (I) and

Percival v. Nanson (to), to the effect that an entry in
the course of business, unlike an entry against interest,
is evidence only of the facts which it was the duty as
well as the custom of the deceased declarant to enter,
and the same principle was laid down in Chambers v.
Bernasconi, which was argued first in the Exchequer i
and then in the Exchequer Chamber («).
Personal custom is not equivalent to a duty. —
Therefore entries in the books of a deceased solicitor or
bills of costs delivered by him are not admissible on
the ground that it was his duty to keep proper books,
or that they were made out in the course of his duty.
The contrary was once held by Lord Bomilly (o), but
his decision cannot be relied upon after what has been
said by the judges in subsequent cases (p). Neverthe
less, the books and bills of costs of a deceased solicitor
may be admissible in evidence for reasons other than
the rule under discussion in this chapter, e.g., as
declarations against interest (q), or on special grounds
against particular people (r). In short, whenever the
entry or declaration does not appear to have been in
trre~course~of such a duty as previously mentioned, but
only of a personal custom, not creating responsibility
in the declarant, it is inadmissible. On this principle,
the account books of deceased tradesmen, made by
themselves, are not evidence for their executors to
charge a debtor. So in Ireland, entries in registers
kept in Boman Catholic chapels have been held inad
missible (s). An entry in a deceased stockbroker's
(0 3 B. & Ad. 898.
(to) 7 Ex. 3. (b) Tyr. 335.
(«) Rturtin* v. liichardt, 28 Bea. 370.
(p) Bright v. Legerton, 2 De G. F. & J. 617 ; Hope v. Hope, W. N.
(1893) 21 ; Ecroyd v. Coulthard, W. N. (1897) 25.
(}) Ante, p. 170.
(r) Bright v. Legerton, 2 De G. F. & J. 606 j: cf. Bradthaw v
Widdrington, [1902] 2 Ch. 430.
(0 Ennis v. Qirrol, 17 W. R. 344.
182 Law of Evidence.

day-book was held inadmissible to prove that certain

shares were purchased for the client, it not being the
duty of the stockbroker, as between himself and his
client, to keep the book (t).
The entry must not be made on hearsay.—It has
long been settled that, when the entry has been made
on hearsay, it will not be received. In an action for
goods sold, where the only evidence of delivery was an
entry made by a witness, by the direction of a deceased
foreman, who was not present when the goods were
delivered, but who, in the course of business, had
himself been informed of the delivery by the person
whose duty it was to deliver the goods, and who was
also dead, the entry was rejected (u). In the case of
The Henry Coxon (x), Sir Kobert Phillimore said :
" It seems to me that the authorities point to this, that entries
in a document made by a deceased person can only be admitted as
evidence when it is clearly shown that the entries relate to an act
or acts done by the deceased person, and not by third parties."
Verbal and written declarations made in the course
of a duty, stand on the same footing, so far as regards
their admissibility.—But oral evidence will not be
received to contradict, nor even to explain, a written
entry which has been made in the course of business.
Thus, in Stapylton v. Clough (y), to prove service of a
notice to quit, a duplicate notice, indorsed with the day
of service, and signed in the course of duty by a
deceased agent, was tendered ; but it was also sought
to explain and vary the particulars of the indorsement,
by evidence of subsequent oral declarations made by
the deceased. It was held, that the indorsement must
be received as it stood ; and Lord Campbell said,
" I agree with what I am reported to have said in the Sussex
Peerage Case that there is no distinction between verbal and
(0 Massey v. Allen, 13 Ch. D. 558.
(it) Brain v. Price, 11 M. & W. 773.
O) 3 P. D. 158 ; cf. Ryan v. King, 25 L. R. (Ir.) Ch. 184.
(y) 2 El. & Bl. 933.
 Declarations in the Course of Duty. 183

written declarations made in the course of a duty, so far as regards

their admissibility ; but to deduce from this doctrine that whatever
is said subsequently to the time of making the entry respecting
the transaction may be admitted in evidence, would lead to the
greatest injustice."
Declarations in the course of duty are inadmissible
while the declarant is alive (z) ; but although entries
by a witness who is alive are not evidence per se, they
may be used by him for the purpose of refreshing his
memory (a).
In connection with this subject it may be observed
that Order XXXIII., Eule 3, of the E. S. C, 1883,
provides that, where an account is directed to be taken,
the court may direct that, in taking the account, the
books of account in which the accounts required to be
taken have been kept, shall be taken as prima facie
evidence of the truth of the matters therein contained,
with liberty to the parties interested to take such objec
tions thereto as they may be advised. This is a similar
power to that conferred on the Court of Chancery by
15 & 16 Vict. c. 86, s. 54 (b). The same principle is
adopted for proceedings in county courts by Eule 8
of Order XXIV. of the County Court Eules, 1903.

(z) Digby v. Stuidman. 1 Esp. 328.

(a) R. v. Worth, 4 Q. B. 139.
(i) The power was exercised in Banks v. Cartwright, 15 W. R. 417,
in the case of books of account kept by trustees to which the beneficiaries
had access.
 ( 184 )

CHAPTEK XV.

STATEMENTS BY DECEASED OR ABSENT

WITNESSES. /D •

On the general principle by which hearsay or second

hand evidence is inadmissible, the statements of
witnesses at former trials would not be received, but
for the rule that —

In a matter between the same parties, the state

ments of a witness at a former trial may be
used on a subsequent trial, if the witness be
dead or has become insane ; or if he is out
of the jurisdiction, or has been diligently
sought for and cannot be found ; or if he has
been subpoenaed, but is too ill to attend (a).
The matter in issue must be substantially the same,
and the statements, which must have been made on
oath in a judicial proceeding, cannot be given in
evidence against any person who was not party or
privy (b) to the proceeding (c) ; because the person
against whom this evidence is tendered, or some one to
whom he is privy, must have had an opportunity to
cross-examine the witness (d). The statements must
be such that they are admissible against the party
tendering them as well as against the opposite
party (e).

(a) If the illness is temporary the proper course would seem to be to

postpone the trial (Harrison v. Bladet, 3 Camp. 458).
(J) " Privy " for this purpose means " claiming under," and does not
include privity in blood. See Morgan v. Nicholl, L. R. 2 C. P. 117.
(r) Lady Llanover v. Hom/ray, L. R. 19 Ch. D. 224 ; cf. Morgan v.
Nicholl, nbi supra.
(d) Attorney- General v. Davison, M'Clel. & Y. 169 ; ef. Nevil v.
Johnson, 2 Vera. 447.
(«) See Morgan v. Nicholl, ubi supra.
Statements by Deceased oe Absent Witnesses. 185

The rule applies in criminal cases except that the !

former eviden.ce._Qf.a witness who is out of the jurisdic
tion, or cannot be found, is inadmissible (/). If a
witness lias been kept away by the contrivance of one
of two prisoners, his former evidence is admissible
against the contriving prisoner, but not against the
other (g). Of course, the same principle would apply
equally in civil cases.
The rule applies if a witness be kept away by collu
sion, or other improper means. Thus, in an old case
where a witness was sworn in a trial in the C. B.,
and was subpoenaed by the defendant to appear at a
subsequent trial in the K. B. but did not appear,
persons were allowed to prove what his evidence was
at the first trial, because the court thought there was
reason to presume that he was kept away by the
petitioner (h). It cannot, however, be said that every
species of mere subsequent incapacity to appear will
let in evidence that has been given at a former trial (i).
If one party gives evidence from a former trial to
show that a verdict was improperly obtained, the other
party may rebut it by proof of other evidence given at
the first trial, although the second trial is not between
the same parties nor as to the same rights (k).
The former evidence of a witness when admissible
may be proved in several ways. Mansfield, C.J., once
said (I),
" What a witness, since dead, has sworn upon a trial between
the same parties may be given in evidence, either from the judge's
notes or from notes that have been taken by any other person who
will swear to their accuracy ; or the former evidence may be
proved by any person who will swear from his memory to its
having been given."
This remains true except that there is a doubt as to
the admissibility of the judge's notes. In Conradi v.
(/) R. v. Scaife, 17 Q. B. 242. R. v. Scai/e, ubi supra.
(A) Green v. Qatewick, Bull. N. P. 242 b.
(i) R. v. Eruwell, 3 T. R. 707.
(*) Doe v. Pariingham, 2 C. & P. 440.
(0 Mayor of Doncaster v. Bay, 3 Taunt. 362.
186 Law of Evidence.

Conradi (to), Lord Penzance said that he knew of no

authority or practice by which the judge's notes in a
former trial were admissible in evidence in another suit
if objected to; but he did not decide the point. It
appears to be open to the parties to enter into an
agreement that the judge's or shorthand writer's notes
at the first trial shall be received as evidence in the
second ; and after such consent neither party can
dispute its validity (n). The court will, however,
require distinct evidence of such an agreement (o). In
the absence of agreement or consent, it would appear
the judge's notes cannot be received to prove the former
evidence of a witness, and their reception would be
open to very serious objections.

A judge as a witness.— It appears that a judge of '

the High Court cannot be called to give evidence of the
substance of a former trial, but that he may be called
to prove anything collateral or incidental to it (p). In
B. v. Gazard, Patteson, J., recommended the grand
jury not to examine one of their number, who had been
chairman of quarter sessions on the trial when the
prisoner had committed the alleged perjury. His lord
ship said :
" It is a new point, but I should advise the grand jury not to
examine [the gentleman] ; he is the president of a court of record,
and it would be dangerous to allow such an examination, as the
judges of England might be called upon to state what occurred
before them in court."

However, in a trial for perjury, under a commital

by a county court judge, Byles, J., held that the judge
ought to have been called to prove the perjury from his
notes; and that the rule prohibiting the calling of

(m) L. R. 1 P. k D., at p. 520 ; cf. Ex parte Learmouth, 1 Madd. 113.

(») Wright v. Tatham, 1 A. & K. 3.
(<0 Doe v. Earl of Derby, 8 A. & E. 783.
(j>) Ji. v. Gazard, 8 C. & P. 595 ; R. v. Earl of Thanet, 27 How. St.
Tr. 815.
Statements by Deceased or Absent Witnesses. 187

judges as witnesses is confined to judges of the superior

courts. His lordship said : " If you had called me, I
should not have come " (q). An arbitrator is an admis
sible witness to prove what took place before him up to
the making of his award, so as to show what was the
subject matter into which he was inquiring, but he
must not be asked how his award was arrived at, nor
can he be asked questions to explain or contradict his
award (r).
Order LVIIL, Eule 11, of the B. S. C, 1883, provides
that when any question of fact is involved in an appeal,
the evidence given orally in the court below shall be
brought before the Court of Appeal by the production
of a copy of the judge's notes, or such other materials as
the court may deem expedient. Where it is the duty of
a judge to take notes, his notes are admissible in the
Court of Appeal. But where he takes notes merely as
private memoranda for his own assistance, they are not
admissible (s).
" Other materials " include shorthand writer's notes,
which may be used by special leave to supplement the
judge's notes. Where the parties have agreed in the
court below, with the consent of the judge, that short
hand notes should be taken, these notes may be used
on appeal. But if the judge has himself taken notes in
addition, the Court of Appeal can always refer to such
notes (f).
It is sufficient that evidence of what occurred at a
former trial, when admissible, should be substantially,
without being literally, correct, except where actual
words are the gist of the issue. Thus, on an indictment
for perjury, evidence of the words spoken, coupled with
a confident conviction on the part of the witness that

(?) R. v. Harrey, 8 Cox C. C. 99.

M Duke of Buccleuch v. Metropolitan Board of Work*, L. E.
BE. 41. 418.
(i) Jin iida in* v. Liquidator* of Jersey Banking Co., 13 App. Cas. 832,
(0 Yorkshire Laundries v. Pickles, [1901] W. N. 28.
188 Law op Evidence.

they were all that was material to the pending inquiry,

and that they were not qualified by other expressions,
has been held to be sufficient (u).

Practice of the Court of Chancery.—By the old

practice of the Court of Chancery, the depositions of
witnesses taken in a former suit might, with the other
proceedings, be read at the hearing of a subsequent
cause, provided that the issue was the same, that the
parties were the same, or that the parties in the second
suit were privy to or had a community of interest with
the parties in the first suit, and that the individual
against whom the depositions were offered, or the
person through whom he claimed, or with whom he
had a community of interest, had an opportunity of
cross-examining the witness (x) : and it was held by
the House of Lords in City of London v. Perkins (y),
that the depositions could be read during the lifetime
of the witnesses. With regard to the use of affidavits
made in a previous suit, the rule was stated by Kin-
dersley, V.-C, in Laurence v. Maule (2), as follows :
" The general rule with regard to the admission of evidence is
that where an issue has been raised between certain parties and
evidence has been adduced upon that issue by one of those parties
which could be used by him as against the other party, and in a
subsequent proceeding the same issue is raised between the same
parties and the witness who gave evidence in the former pro
ceeding has died, the court will admit the evidence given by the
deceased witness in the former as evidence in the subsequent
proceeding ; but the evidence is not admissible unless the issue is
the same and the parties are the same in both proceedings."

Eule 3 of Order XXXVII. of the R. S. C, 1883,

provides that :
" An Order to read evidence taken in another cause or matter
shall not be necessary, but such evidence may, saving all just
exceptions, be read on ex parte applications by leave of the court
or a judge, to be obtained at the time of making any such applica-

(»/) 3 Bro. P. C, ed. Toml. 602.

('.-) 4 Drew. 472.
Statements by Deceased or Absent Witnesses. 189

tion, and in any other case upon the party desiring to use such
evidence giving two days' previous notice to the other parties of
his intention to read such evidence." j

This rule is only intended to dispense with the

necessity of obtaining an Order, and does not make
evidence in another cause admissible unless the issue
be the same and the parties the same as stated at
p. 184 (a).
Section 136 of the Bankruptcy Act, 1883 (b), provides
that :
" In case of the death of the debtor or his wife, or of a witness
whose evidence has been received by any court in any proceeding
under this Act, the deposition of the person so deceased, purporting
to be sealed with the seal of the court, or a copy thereof pur
porting to be so sealed, shall be admitted as evidence of the matters
therein deposed to."
But the answers of a bankrupt on his public
examination are not evidence against persons other
than himself (c).
As to reading at a trial depositions taken at a pre
vious stage of the proceedings, see post, Part III.,
Chapter VI.

(a) Printing Telegraph, ete. Co. v. Brucker, [1894] 2 Q. B. 801.

(i) 46 & 47 Vict. c. 52.
(c) In re Brunner, Ex parte the Board of Trade, 19 Q. B. D. 572.
 ( 190 )

CHAPTEK XVI.

ADMISSIONS.

When a party to an action or suit has, either

expressly, or by necessary implication, ad
mitted the case, or part of the case, of an
opposite party, the latter is not required to
prove what is so admitted.
Admissions, properly so called, can be made only in
civil, and are not allowed in criminal, proceedings.
"They are regarded as being a waiver of proof on the
part of their makers, rather than as evidence against
them. They are potius ab onere probandi relevatio,
quam proprie probatio. They are not conclusive unless
they assume the form of estoppels. Admissions need
not be pleaded as such (a).
In Heane v. Rogers (b), Bayley, J., said :
" There is no doubt but that the express admissions of a party
to the suit, or admissions implied from his conduct, are evidence—
and strong evidence—against him ; but we think that he is at
liberty to prove that such admissions were mistaken or were
untrue, and that he is not estopped or concluded by them, unless
another person has been induced by them to alter his condition :
in such a case the party is estopped from disputing their truth
with respect to that person (and those claiming under him) and
that transaction ; but as to third persons he is not bound."

Estoppels bind parties and privies, not strangers. —

This rule, it maybe observed, applies to all admissions,
and not to estoppels only. There are three classes of
privies, viz., privies in blood (c) (e.g., heir to ancestor),

(a) Steuart v. Gladstone, 10 Ch. D. 644.

(ft) 9 B. & C. 586.
(<s) 8 & 4 Will. 4, c. 106, does not affect tracing a privy in blood ( Weeks v.
Birch, 69 h. T. 7G9).
 Admissions. 191

privies by law (executor to testator, husband to wife),

and privies by estate or interest (purchaser to vendor,
donee to donor) (d) . The estate or interest in the last
case may be either legal or equitable ; and therefore
the admissions of a party to the record are receivable
to defeat the interest of a third person, although the
person is only a nominal party and trustee for the
latter, for the court will not look on any party to the
record as a cipher (e). It is doubtful, however, how
far the admission of a cestui que trust can be received
to defeat the claim of the trustee on the record (/).
There is no privity between a landlord and his tenant, J
and, as the tenant cannot derogate from his landlord's i
title, the admission of a tenant is no evidence against J
his landlord. Hence, a declaration by a tenant that he
was not entitled to a right of common in respect of his
farm, has been held to be no evidence that such right
did not belong to the reversioner (g).
An estoppel," it has been said, " is an admission, or some
thing which the law treats as equivalent to an admission, of an
extremely high and conclusive nature,—so high and so conclusive,
that the party whom it affects is not permitted to aver against it
or offer evidence to controvert it, though he may show that the
person relying on it is estopped from setting it up, since that is
not to deny its conclusive effect as to himself, but to incapacitate
the other from taking advantage of it. Such being the general
nature of an estoppel, it matters not what is the fact thereby
admitted, nor what would be the ordinary and primary evidence
of that fact, whether matter of record, or specialty, or writing
unsealed, or mere parol. . . . This is no infringement on the
rule of law requiring the best evidence, and forbidding secondary
evidence to be produced till the sources of primary evidence have
been exhausted ; for the estoppel professes not to supply the
absence of the ordinary instruments of evidence, but to supersede
the necessity of any evidence by showing that the fact is already
admitted ; and so, too, has it been held, that an admission which
is of the same nature as an estoppel, though not so high in degree,
may be allowed to establish facts, which, were it not for the
admission, must have been proved by certain steps appropriated by
law to that purpose " (Ji).
(rf) 2 Sin. L. C. 706. (e) Bauerman v. liadenius, 1 T. K. 063.
if) Doe v. Wainwright, 8 A. & E. 691.
(S) Papendick v. Bridgwater, 5 E. & B. 166. (A) 2 8m. L. C. 693.
192 Law of Evidence.

An estoppel is only a rule of evidence, and an action

cannot be founded on estoppel (i) .

Estoppels are of three kinds :

I. By matter of record ;
II. By deed (p. 206) ;
III. By matter in pais (p. 209).
N.B.—The first two are reciprocal, the last is not
necessarily so.
I. Estoppel by matter of record.—This is the highest
species of estoppel, and is based on the principles
" interest reipublicce ut sit finis litium" and "res judi
cata pro veritate accipitur." The doctrine of res judi
cata does not apply only where there is a record, but
applies to judgments in all kinds of litigious proceedings
whether there be a record or not (k) . Judgments are
of two kinds, viz., judgments in rem, and judgments in
personam, the respective effects of which by way of
estoppel are very different.
A judgment in rem is, according to Lord Coke, one
which is pronounced by a competent tribunal upon the
status of some particular subject-matter, either a thing
or a person. No perfectly satisfactory definition of a
judgment in rem has, however, yet been given (/).
The chief instances in modern times are to be found
in the Ecclesiastical, Admiralty, Probate, and Prize
Courts (m), and upon questions of legitimacy, marriage,
divorce, and the like. The decision of a court of sum
mary jurisdiction under the Private Street Works Act,
1892 (55 & 56 Vict. c. 57), that a street is a highway
repairable by the inhabitants at large is a judgment in
(0 Per Bowen, L.J. : Low v. Bouverir, [1891] 3 Ch., at p. 105.
(*) See In re May, 28 Ch. 1). 516.
(/) Institutes of Justinian by Sandars, L. iv. tit. vi. 8. I. Ditto by
Ortolan, s. l'J54.
(m) Hughes v. Cornelius, 2 Shower, 232.
 Admissions. 193

rem and conclusive as to the status of the street (»).

A certificate of a judge under the Parliamentary
Elections Act, 1868 (o), finding that a person claiming
a seat has been duly elected is a judgment in rem (p).
A judgment in bankruptcy proceedings has the effect
of a judgment in rem, but this effect it owes to the
Bankruptcy Act. Judgments in rem are binding not .
only on the parties to the proceedings but upon all the
world, and not only on the tribunals of the country
where pronounced, but on the tribunals of other
countries ; bjit this dQfilriafi-is..subject to the qualifica
tion, that such a judgment to operate by way of estoppel
muslTnot have been obtained by fraud, must not carry
a~manifest error on its face, and must not be contral
to Tiatural justice.
A judgment in personam, or more correctly inter
partes, also operates as an estoppel (if not open to
impeachment on the ground of fraud), but such_a
judgjnjntjs_conclusive only between the parties to the
record and their privies, upon the maxim "lies inter
alios acta alteri nocere non debet." The rule, there
fore, is that, as between the parties to the action and
their privies, the facts actually decided by a court of
competent jurisdiction cannot be litigated again, and
are conclusive evidence of the state of the issue between
them (</). There is no doubt that an action lies to
impeach any judgment (even a judgment by default)
on the ground of fraud (r). So that, where a judgment
inter partes is relied upon as an estoppel, the person
against whom it is set up can impeach it on the ground
of fraud, assuming he was not himself guilty of or
privy to the fraud, i.e., if he was not a party to the

(«) Mayor, etc. of Wakefield v. Coolte. [1904] A. C. 31.

O) 31 k 32 Vict. c. 125.'
Waygood v. James, L. B. + C. P. 361.
(</) Boileau v. Rutttm, 2 Exch. 665.
(r) Wyatt v. Palmer, [1899] 2 Q. B. 10P.
r..E. o
194 Law of Evidence.

proceedings in which the judgment was obtained ; if

he was a party, then it still is not settled by any
absolute decision whether he can do so (s) ; but it may
be contended that he can, otherwise his opponent
would be allowed to override the principle that—
" No obligation can be enforced in an English court of justice
which has been procured by the fraud of the person relying upon
it as an obligation " (<),

as well as the principle stated by Lord Coleridge,

C.J. («), that—
" No action can be maintained on the judgment of a court either
in this country or any other, which has been obtained by the fraud
of the person seeking to enforce it."

The judgment relied on for the estoppel must have

been pronounced by a court having concurrent or
exclusive jurisdiction directly on the point (.c), and
must be final.
The principle applies to the judgments of county
courts, to judgments obtained in chambers (y), and to
the judgments of courts of summary jurisdiction, but
the judgment of a court of summary jurisdiction cannot
operate as an estoppel, (1) as to any matter as to which
that court had no authority to adjudicate directly and
immediately between the parties ; (2) as to any matter
incidentally coming in question, as to which a finding,
if held to be conclusive between the parties, would
operate in prejudice of the rights of others not parties
to the proceeding ; or (3) as to any incidental matter
not otherwise determined, than as having been the

(#) I.e., in the case of an English judgment ; in the case of a foreign

judgment it is clear that he can from Abouloff v. OppenheimerAO Q. B. D.
295.
(£) Per Brett, L.J., in Abovloff v. Oppcnheimer, ubi supra, at
p. 30R.
(u) In Abouloff v. Oppenheimer, ubi supra, at p. 303.
(j) Per Lord HOBHOU8E in Attorney- General of Trinidad v. Eriche,
[1893] A. C. 523.
(y) Shaw v. Herefordshire County Council, [1899] 2 Q. B. 282.
 Admissions. 195

particular ground on which the court dismissed a

cHafge~or* complaint (z) .
If a public body with powers given by Statute exceeds
those powers, no estoppel arises (a) .
In bankruptcy the consideration for a judgment debt
can always be inquired into (b), and at the instance of
the judgment debtor, as well as at that of the trustee (c). /
This enables the registrar to decide to refuse to make a
receiving order on a judgment debt. But such a decision \
of the registrar does not operate to set aside the judgment
or as an estoppel to prevent on a subsequent petition /
a receiving order being made based on the same s
judgment (d). The file of proceedings in a bankruptcy \
does not create an estoppel (e) .
The rule formerly was that a judgment to operate as /
res judicata must have been pronounced before the com
mencement of the action in which it is pleaded (/) ; but
a doubt has been expressed whether this is so under the
present practice (g). A judgment by consent has the)
same effect by way of estoppel as any other judgment (h). f
A judgment against one of two joint debtors is a bar to
proceedings against the other, and this rule applies
when the two debtors are sued in one action and one
of them consents to judgment against himself (i). A
verdict and judgment in a former divorce suit brought
by a husband against his wife of his having committed
adultery, is conclusive evidence thereof in a subsequent
suit by him against his wife for the same purpose but

(z) Per Lord Selborjje, L.C. : R. v. Hutching; 6 Q. B. D. 304 ; cf.

North Eastern Bail. Co. v. Dalton Overseers, [1898] 2 Q. B. 66.
(<t) Vestry of St. Mary, Islington v. Hornsey Urban District Council,
f 1900] 1 Ch. 695.
(*) Ex parte Kibble, L. K. 10 Ch. 373.
(c) Ex parte Lennox, 16 Q. B. D. 315.
Id) In re Vitoria, [1894] 1 Q. B. 259.
(e) Ex parte Bacon, 17 Ch. 1). 447.
(/) 77/r Delta, 1 P. 1). 393.
(i) Per PEARSON, J. : //ouston v. Sligo, 29 Oh. D. 454.
(A) Be American and Mexican Co., [1895] 1 Ch. 37 ; cf Shaw v.
Herefordshire Couii/i/ Council, [1899] 2 Q. U. 282.
(») McLeod v. Power, [1898] 2 Ch. 295.
02
196 Law of Evidence.

with a different co-respondent (k) . This is so even if

the decree be set aside on the intervention of the
Queen's Proctor on grounds not affecting the propriety
of the verdict (I).
It may be here noticed that as a general rule a verdict
without a judgment is no evidence at all(ra), and in
ordinary cases if a verdict be followed by a judgment,
and this judgment is afterwards set aside, the verdict
falls with the judgment, and neither party can give such
verdict in evidence at a second trial (n) .
The tests whether the rule, which is founded on the
maxim " Res judicata pro veritate accipitur," applies
are—1st, that the thing must be the same ; and one of
the criteria of the identity of two suits in considering a
plea of res judicata is the question whether the same
evidence would support both (o) ; 2nd, that the person
to be affected by the judgment must be party or privy
toThe proceedings in which it was given. It should be
observed that it has been held that where a person who
is not a party to the proceedings but is cognizant of
them stands by and takes the benefit of the judgment,
he is estopped by his conduct from reopening the
questions covered by the judgment (p). But where an
action was brought by A. against B. to enforce certain
debentures, and C, who had covenanted to indemnify
B., assisted B. in his defence, and paid his costs when
he failed, in an action to enforce the debentures subse
quently brought by A. against C, the latter was held
not estopped by the judgment in the former action (q).
Had B. sued C. on the contract of indemnity, C. would

(A) Conradi v. Conradi, L. R. 9 P. & 1). 514.

(0 Sutler v. Bntler, [1894] P. 25.
(hi) See judgment of Smith, L.J., in Butler v. Butler, nbi svpra.
(«) Ibid.
(<>) See Lonl WESTBURY's judgment in Hunter v. Stewart, 4 Dc G.
F. & .T. 168.
(p) Wilkinson v. Bladen, [1896] 2 Ch. 788.
(r/) Mercantile Investment, ete. Co. v. Hirer Plate, ete. Co., [1894]
1 Ch. 578.
 Admissions. 197

have been estopped by the judgment in the former

action (r).
Applying the before-stated tests we find that the
judgment against a man in a civil suit is not evidence
against him on a criminal trial, andmce versd. Where
by an act injury is done to a man's property and also
injury to his person, his recovering damages in an
action for the former injury will not be a bar to an
action by him to recover damages for the latter
injury (s). This is because they are separate rights
giving rise to distinct causes of action ; but where two
injuries of the same character occur to a person from
the same act and in the same right the judgment in an
action brought upon one bars the right to bring an
action upon the other (t). A judgment against a man
in his individual character is not evidence against him
when suing in a representative character, and vice versd,
because he would sue or be sued in a different right.
In an action for infringement of a patent, it was
declared invalid ; the defendant then presented a
petition for revocation of the patent, and it was held
that the patentee was not estopped from setting up the
validity of the patent on this petition, as the petition
was really presented on behalf of the public, and was
not personal to the petitioner (it) . In an administration
suit, a judgment recovered against executors, who were
also trustees of the real estate, has been held not to
operate by estoppel, but to be primd facie evidence of a
debt against the persons interested in the real estate (a0~
An administratrix who brought an action, under 9 &
10 Vict. c. 83, to recover compensation for the family
of an intestate for causing his death, was held not
estopped by the judgment thereon in a subsequent
(r) Ibid,
(*) Brumien v. Humphrey, 14 Q. B. D. 141.
(f) McDougall v. Knight, 25 Q. B. D. 1.
(«) Me Deeley's Patent, 12 R. P. C. 199.
(z) Ilariry v. Wilde, L, K. 14 Kq. 438.
198 Law of Evidence.

action brought by her as administratrix against the

same defendants for injury to his personal estate from
the same cause (y) . The general rule is that a party
to an action is bound by the proceedings in the
action (z), and even where a man was improperly made
a party to a suit, but did not object to his having been
joined, he was held to be estopped by the decree in that
suit (a). A judgment against the principal debtor is
not binding on a surety unless he is a party to the
action (b).
It may here be noticed that a judgment pronounced
by a magistrate will operate by way of estoppel in his
favour in proceedings subsequently taken against him
for acting without jurisdiction, even though the facts
creating jurisdiction are erroneously found by the
judgment (c). A similar rule would apply to all persons
when exercising judicial functions.
Extent of estoppel.—It was laid down by De Grey,!
C.J., in the Duchess of Kingston's Case(d), that a'
judgment only operates by way of estoppel upon the7,
point actually decided, and is not even evidence of any
matter which came collaterally in question, although
within the jurisdiction of the court, or of any matter
to be inferred by argument from the judgment. Thus,
a judgment of conviction on an indictment for forging
a bill of exchange, though conclusive as to the prisoner
being a convicted felon, is not only not conclusive, but
is not even admissible evidence of the forging in an
action on the bill (e) ; but when a question is neces
sarily decided in effect, though not in express terms,
between the parties to an action, they cannot raise the
(y) Leggott v. Great Northern Rail. Co., 1 Q. B. D. 599.
(i) Seardtley v. Beardnley, [1899] 1 Q. B. 746.
to) Collier v. Walter; L. R. 17 Eq. 252.
(V) Ex parte Ymtng, 17 Ch. D. 668.
O) Srittain v. Kinnaird, 1 Brod. & B. 432 ; sec aim Mold v.Williamt,
B Q. B. 473.
(d) 2 Smith's L. C. 680.
(c) Per Blackburn, J. : Castriqiie v. Imrie, L. K. 4 E. & I. 434.
 Admissions. 199

same question as between themselves in any other

action in any other form (f). Here may be appro
priately cited the language of Wigram, V.-C, in
Henderson v. Henderson (g) :
" Where a given matter becomes the subject of litigation in
and of adjudication by a court of competent jurisdiction, the court
requires the parties to that litigation to bring forward their whole
case, and will not (except under special circumstances) permit the
same parties to open the same subject of litigation in respect of
matter which might have been brought forward as part of the
subject in contest, but which was not brought forward only because
they have from negligence, inadvertence, or even accident, omitted
part of their case. The plea of res judicata applies, except in
special cases, not only to points upon which the court was actually
required by the parties to form an opinion and pronounce a
judgment, but to every point which properly belonged to the
subject of litigation, and which the parties exercising reasonable
diligence might have brought forward at the time."

Where the basis of the decision in an action in the

Chancery Division of the High Court that a com
promise was invalid was that a will which had been
admitted to probate was a forgery, it was held that the
persons to whom probate was granted were estopped
from denying the will to be a forgery in a suit in the
Probate Division to revoke the probate (h). In this
case Cotton, L.J., said :
" Although the object of the present action is different from
that of the Chancery action, and although that object is not within
the jurisdiction of the Chancery Division, yet, inasmuch as the
point for decision here is the same and the parties are the same as
in the former action, I do not think we ought to allow the question
to be litigated again. The former action decided the question on
which the decision in the present action must turn."

In an action for infringement of a patent, when the

validity of the patent had been upheld in a previous
action between the same parties, the defendants were not
allowed to question the validity of the patent on fresh
materials for impeaching it, which they alleged they

( f) Gregory v. Moletworth, 3 Atkyns, 626.

(7) 3 Hare, at p. 115. Priettman v. Tk«ma$, 9 P. D. 210.
200 Law of Evidence.

had discovered since the previous action. Homer, J.,

in the course of his judgment, said :
" But a further point is now taken on behalf of the defendants.
It is said that they are entitled in this action to retry the question
of the validity of the patent, because they have discovered fresh
materials for impeaching it, fresh alleged anticipations, and are
entitled to have the issue of validity retried on the footing of
these further materials. In my opinion they are not so entitled.
If they were held to be so entitled I do not see how there could be
any finality of the questions in an action as between parties such
as these. According to this contention, a defendant might try his
case piecemeal. He might raise such objections as he thought
convenient, and when he was defeated he might then raise other
points at his leisure, and might in that way try the case piecemeal,
and, so far as I can see, extend it over as long a period as he
pleased. In my opinion, a defendant is not entitled to do
that. When the question of the validity of a patent is brought
to trial by reason of the defendant's contesting the question, he
is bound to put his whole case before the court ; and if he does
not do so then, it is his own fault or his misfortune. He cannot
be allowed to put part of his case, or to put his case in an incom
plete manner. He is bound when the question is raised to search
and find out all that he intends to rely upon in support of his
contention that the patent is invalid. For these reasons it appears
to me that the defendants are not entitled to have this question of
validity retried, because, as they say, they have found further
materials which would have assisted them if they had known of
them at the first trial " (t).
But, as was said by Knight Bruce, V.-C, in
Barrs v. Jackson (k) :
" The rule against re-agitating matters adjudicated is subject to
this restriction—that however essential the establishment of par
ticular facts may be to the soundness of judicial decisions, however
it may proceed on them as established, and however binding and
conclusive the decision may be as to'its immediate and direct
object, those facts are not all necessarily established conclusively
between the parties, and that either may again litigate them for
any other purpose as to which they may come in question, pro
vided the Immediate subject of the decision be not attempted to be
withdrawn from its operation so as to defeat its direct object.7'
Unessential matter of fact—It may here be observed
that where a judge expresses his opinion or gives a
finding upon a matter of fact, when that matter of fact
(»') Shite Machinery Co. v. Cutlun, 13 K. P. C. 141.
(/() 1 Y. & C, Ch. 585 ; approved by Lord SELBOHNE in R. v. Hutch-
ingi, 6 Q. B. 1). 304.
 Admissions. 201

is not essential to his decision, such matter of fact does '

not thereby become res judicata, and such opinion or
finding does not operate as an estoppel, whether treated
as a judgment in rem or as a judgment inter partes (I).
Where the decree of a court is capable of more than
one construction, it is necessary to look at the pleadings
to ascertain what was the issue which the court intended
to decide (m). It is also important to bear in mind that
the validity of a judgment of a court of competent
jurisdiction upon parties legally before it may be ques
tioned not only on the ground that it was pronounced
through fraud, collusion or covin (ri), but that it was
not pronounced in a real suit, or, though in a real and
substantial suit, yet between parties who were really
not in contest with each other (o). It may here be
observed, that the judgment against one of two co-
contractors is a bar to a subsequent action against the
other, and if the defendant in the first action consents
to the judgment in such action being set aside, it still
is a bar to the subsequent action (p). Where a judg
ment roll was erroneously made up by the plaintiff, and
did not represent accurately that which the jury had
really found at the trial, the court, in a subsequent
action between the same parties, would not treat the
judgment roll as establishing an estoppel (q).
Admissions in pleadings.—It is unnecessary to give
evidence of facts which are admitted in pleading ; nor
can evidence be received to dispute such admissions.
Kule 13 of Order XIX. of the E. S. C, 1883, provides
that :
" Every allegation of fact in any pleading, not being a petition
or summons, if not denied specifically or by necessary implication,

(I) Concha v. Concha, 11 ApD. Cas. 511.

(m) Robinton v. Dhuleep Sing, 11 Ch. 1). 798.
(») Girdlrstone v. Brighton Aquarium Co., 4 Ex. D. 107.
(o) Earl of Bandon v. Becher, 2 C. & F. 510.
lp) Hammond v. Schojield, L. R. 1 Q. B. 653.
(y) Want v. Mom, 70 L. T. 178.
202 Law of Evidence.

or stated to be not admitted in the pleading of the opposite party,

shall be taken to be admitted, except as against an infant, lunatic,
or person of unsound mind not so found by inquisition."

And by Kule 19 of the same Order, the denial must

not be evasive, but the point of substance must be
answered. By Bule 20, the bare denial of a contract is
only a denial of the making of the contract in fact, and
not of its legality or sufficiency in law, whether with
reference to the Statute of Frauds or otherwise. A
statement by a plaintiff or defendant that "he believes,"
or " has been informed and believes," that a fact is
true, is an admission ; but if he states that he " has
been informed," without any statement as to his belief,
there is no admission (r). It has been held that admis
sions of a fact on the record amount only to a waiver
of proof of that fact ; and that if the adverse party
seeks to have any inference drawn from the fact so j
admitted, he must prove it like any other fact (s).

Previous proceedings of a criminal or penal nature

in a court of competent jurisdiction operate as an
estoppel in favour of the accused, and therefore when a
person has been once convicted for, or acquitted of, an
offence by a court of competent jurisdiction, the con
viction or acquittal is a bar to all further criminal
proceedings for the same offence, for as has been stated,
" a man should not twice be put in jeopardy for the
same offence " (t).
On this general principle, a verdict and conviction j_
for non-repair of a highway estops the convicted party
or parish from disputing subsequently their liability to.
repair the highway (u) ; but a conviction for obstructing
a highway does not estop the convicted person from
(?•) Daniell's Chancery Practice, 6th cd., vol. i.. p. 575.
(*) Edmunds v. Grtn-es, 2 M. & W. 642 ; cf. Brown v. Newall, 2 M. & C.
576.
(0 B. v. Drewry, 18 L. J. M. C. 189.
(«) B. v. Haughton. 1 E. & B. 501.
 Admissions. 208

maintaining trespass against the prosecutor in respect of

the same highway ; for the proceedings are not between
the same parties in respect of the same right (x) .
It was held that the dismissal by justices of a
bastardy summons on the merits, under 7 & 8 Vict,
c. 101, s. 2, was no bar to a subsequent summons under
the same statute (y). This was so held because there
was no appeal by the mother from such dismissal.
Lush, J., in the case under notice, doubted the sound
ness of the decision, and it is submitted rightly. There
is no appeal from an order of the House of Lords, and
yet such order operates as an estoppel. But when an
affiliation order made under the above statute is
quashed by the court of quarter sessions, on appeal by
the defendant, the decision of the court of quarter
sessions operates as an estoppel {z) . The principles of
the cases under notice would appear to apply equally to
the dismissal of a summons under the Bastardy Act,
1872 (35 & 36 Vict. c. 65). And it has been held that
where under that Act an affiliation order is made for
a certain payment, the mother cannot subsequently
apply for another order, i.e., she is barred by the first
order (a). And in a recent case (b) it was held that a
dismissal of a summons for an affiliation order on the
ground that the defendant was not the father of the
child, did not operate by way of estoppel in an action
subsequently brought by the mother of the plaintiff for
damages for seduction of her daughter, on the ground
that the parties were not the same in the two proceedings.
But in the course of the judgments, the decision of a
court of quarter sessions in affiliation proceedings seems
to be treated as operating as an estoppel between the
actual parties to the proceedings.
(ar) Petrie v. Nuttall, L. R. 11 Ex. 509.
(y) li. v. Oautil, L. K. 2 Q. B. 466.
(z) S. v. Glynn, L. K. 7 Q. 1$. 16.
(a) William* v. Dariet. 11 Q. B. 1). 74.
(i) Andenon v. Collin*, [1901] 2 K. B. 107.
204 Law of Evidence.

Foreign judgments.—Not only the majority of foreign

judgments in rem, but all foreign judgments in
personam are, if pronounced by a competent court, for
the purposes of estoppel, on a footing analogous to
home judgments (c), provided they are final and un
alterable by the court pronouncing them (d), and it
makes no difference that a man has appeared in a
foreign court only under the duress of wishing to
protect his property (e). It is an important and
interesting question how far a foreign judgment is
liable to examination in a home tribunal. It was
finally decided by the House of Lords in Castrique v.
Imrie (/), and the Judicial Committee of the Privy
Council in Messina v. Petrococchino (g), that the home
tribunal cannot act as a court of appeal from the
foreign tribunal, i.e., a foreign judgment cannot be
impeached as being erroneous on the merits, or founded
on a mistake either of fact or law. Even where the
law applied is English law, and a mistake of English
law is apparent on its face, the judgment of the foreign
court is still binding (h). There still remains the
question—supposing the foreign court to have wilfully
refused to apply English law, when by the comity
of nations it is applicable, is its judgment then im
peachable in an English court? Lord Hatherley
was evidently of opinion that it is (i), and this opinion
is probably correct. A foreign judgment obtained by
the fraud of a party cannot be enforced by law in
England, even though the foreign court may have
decided that no fraud was perpetrated (k), and a foreign

(c) Duehess of Kingston's Case, 2 Smith's L. C. 679 ; Miccardo v.

Garcia*, 12 C. & F. 36K.
(d) Nonvion v. Freeman, 15 App. Cas. 1.
(c) Voinett v. Barrett. 55 L. J. Q. B. 39.
(/) L. K. 4 E. & I. 415.
Cv) L. K. 4 F. C. 150.
(A) See Godard v. Gray, L. R. 6 Q. B. 139.
(/) See Simpson v. Fuao, 1 J. & H. 18.
(A) Abouloff v. Oppenheimer, 10 Q. B. D. 295.
 Admissions. 205

judgment can be impeached on the ground of fraud,

even where to establish the fraud it is necessary to go
into the merits of the case {I). Finally, it may be
remarked that an irregularity in the procedure of the
foreign court does not prevent a judgment from opera
ting by estoppel (m). In short, the judgment of a
foreign court will be treated as valid by an English
court until set aside by the foreign court, unless there
has been some defect in the initiation of the proceed
ings, or in the course of the proceedings, which would
make it contrary to natural justice to treat the foreign
judgment as valid (n).
Where a settlement was made in England on a
marriage between a Turk domiciled in England and
an English lady, the former promising to reside always
in England, Hall, V.-C, held that a Turkish court
could not, by a decree of divorce pronounced without
notice to the wife or other persons interested under the
settlement, make void the settlement (o). An English
composition deed made before a colonial judgment is
no defence to an action on such judgment in an English
court, the deed not having been pleaded in the colonial
action (p).
As previously stated, for a foreign judgment to
operate by estoppel it must have been pronounced by
a competent court. An English court, in deciding on
the competence of a foreign court, tries that question
by its own maxims (ij) ; and one of the maxims of
English courts is that the courts of a foreign state have
authority to decide all questions touching the personal
status and personal property of individuals domiciled
(0 Va&ela v. Lawcs, 25 Q. B. D. 310.
(«w) Pemberton v. Hughes, [1899] I Ch. 781.
(n) Per Vaughax Williams, L.J., in Pemberton v. Hughes, nbi
tupra.
(<») Colli* v. Heetor, L. R. 19 Kq. 334.
(j>) Ellis v. iPHenry, L. K. 6 C. V. 228.
(17) See Wcntlake's l'rivate International Law, 3rd eil., Chap. XVII.,
cf. Sehibtby v. Weitenholz. L. R. 6 Q. li. 155.
206 Law of Evidence.

in such state. Therefore, a decree of divorce pro

nounced by a foreign court in the case of parties
domiciled within its jurisdiction will be recognised as
valid in England, although the marriage may have
been solemnized in England, and although it may have
been dissolved for a cause which would not have been
sufficient to obtain a divorce in England (r).

II. Estoppel by deed.—The next species of estoppel

is by instruments under seal ; and this kind of estoppel
(as well as an estoppel by record) , is equally binding on
the parties to the deed and those who claim under
them. The principle is, that where a man has entered
into a solemn engagement by deed under his hand and
seal, as to certain facts, he shall not be permitted to
deny any facts which he has so asserted (s) ; but this
only applies in an action or proceeding based on the
deed in question ; in a collateral action there is no
such estoppel (t). There is probably an estoppel by
record created by letters patent between the Crown
and the grantee, but this does not extend so as to give
all her Majesty's subjects the benefit of such estoppel (u) .
A lease is evidence for and against a lessee of the terms
on which he holds, and also for or against an assignee
who claims under him (x). So, a recital in a deed is
evidence against him who executed the deed, and
against every person claiming under him (y). But a
recital must be the language of both parties to the
deed to estop both (z). It may be here remarked, that
the substance of a recital carries with it the context ;

(r) Harvey v. Farnie, 8 App. Cas. 43 ; ef, Pemberton v. Ilvghes,

[1899] 1 Ch. 781.
0) Per TAUNTON, J. : Bowman v. Taylor, 2 A. & E. 291.
(f) See judgment of Wood, V.-C, in Carter v. Carter, 3 K. & J.
644.
(m) Per Fby, L.J. : Cropper v. Smith, 26 Ch. D. 712.
(x) Houghton v. Karnig, 18 C. B. 235.
(»/) Gwyn v. Xeath, L. K. 3 Ex. 209 ; but not in favour of strangers
to the deed (see Trinidad Anplmlte Co. v. Coryat, [1896J A. C. 592).
(.-•) Stronghill v. Buck, 14 Q. 15. 787.
 Admissions. 207
\
and, in a record, is conclusive evidence of collateral
matter which was necessary to support the groundwork
of the judgment (a). In construing recitals in deeds,
and determining how far they operate as estoppels on
the parties, the effect must be gathered from the
apparent intention of the instrument (b). There are
three rules applicable to the construction of a deed ;
if the recitals are clear and the operative part is
ambiguous the recitals govern the construction ; if the
recitals are ambiguous and the operative part is clear,
the operative part must prevail ; if both the recitals
and the operative parts are clear, but they are incon
sistent with each other, the operative part is to be
preferred (c). There must be a positive statement of ',
a fact in a deed in order for it to operate by way of
estoppel in relation to such fact (d). The rule is that
an estoppel should be certain to every extent, and there
fore if the thing be not precisely and directly alleged
on the mere matter of supposal it shall not be an
estoppel (e). The recital in a deed of a former deed
between the same parties proves, as between such
parties, so much of the former deed as is recited, and
no more (/). If a party to a deed, or his privy,
attempts to set the deed aside on the ground of mis
representation or mistake in regard to statements which
happen to be embodied in the recitals, the burden of
proving them to be falsehoods rests upon such party
or privy who is prima facie bound by such recitals or
admissions (g).
A recital is conclusive evidence against parties only
where it is distinctly antecedent to, and related to, the

(«) //. v. Bartington, 4 E. & B. 780.

(*) Stnmghill v. Buck, 1!) L. J. Q. B. 209.
(c) Ex parte Dawe*, 17 Q. 1$. 1). 280.
(//) General Finance Dincount Co, v. Liberator Building Society,
10 Ch. D. IB.
(<•) Per Lord Tenterdejj in Right v. Badinall, 2 B. & Ad. 278.
(/) Oillett v. Abbott, 7 A. & E. 783.
t</) Melbourne Banking Corporation v. Brougham, 7 App. Cus. 307.
208 Law of Evidence.

substance of the deed. The law on this point is thus

laid down by Parke, B., in Carpenter v. Butter (h) :
" If a distinct statement of a particular fact is made in the
recital of an instrument under seal, and a contract is made with
reference to that recital, it is clear that as between the parties
to such instrument and in an action upon it, it is not competent for
the party bound to deny the recital."

The same learned judge also laid down that a recital,

even in an instrument not under seal, may be con
clusive to the same extent. In other cases recitals
are treated as primd facie evidence which may be
rebutted. A recital in a policy of insurance that a
premium has been paid is conclusive against the
insurance company (i). A covenant will not create
an estoppel (A-).
A party to a deed is not estopped from showing that
it is void from fraud or illegality, or from having been
executed by him while under duress or while a minor.
When an educated person, who, by very simple means,
might have ascertained what are the contents of a deed,
is induced to execute it by a false representation of
such contents, it is doubtful whether he may not, by
executing it negligently, be estopped between himself
and a person who innocently acted upon the faith of
the deed being a valid one (I). The engrossment of a
deed tendered for execution will operate as an admission
by, but not as an estoppel against, the party tendering
it (m).
Infants and married women.—Infants are not bound
by recitals in deeds executed by their guardians (n).
Married women are estopped by recitals in deeds by

(h) 8 M. & W. 212 ; cf. Lainton v. Tremere, 1 A. & E. 792.

(/) Bobertt v. Security Co., [1897] 1 Q. 15. 111.
(£) See General Finance Discount Co. v. Liberator Building Society,
10 Ch. D. 15.
(0 Per Mellish. L.J. : Hunter v. Walteri, L. R. 7 Ch. 75.
O) Jlullcy
(«■) v. Jiulley,
Sec Mil/tee v. Lordh.Harewood,
R. i) Ch. 739.
18 Ves. 274.
 Admissions. 209

which they are bound (o), and a fortiori by such deeds.

But although a married woman is bound by estoppel
quoad her separate estate, yet she cannot get rid of a
fetter on anticipation by means of the doctrine of
estoppel (p).
III. Estoppels by matter in pais.—In Lyon v.
Beed (q), Parke, B., says of such estoppels :
" They are all acts which anciently really were, and in contem
plation of law have always continued to be, acts of notoriety, not
less formal and solemn than the execution of a deed, such as livery of
seisin, entry, acceptance of an estate, and the like. Whether a
party had or had not concurred in an act of this sort, was deemed a
matter which there could be no difficulty in ascertaining, and then
the legal consequences followed."

But the courts, both of law and equity, have extended

the doctrine to cases where the notoriety is less solemn
and formal. Hence the rule is that when one, by his
words or conduct, wilfully causes another to believe the
exTstence of a certain state of things and induces him
to' act on that belief so as. to alter his previous position,
the former is precluded from averring against the
latter a different state of things as existing at the same
time (r). By the term " wilfully " in the above rule it
has been laid down (s), that
" we must understand, if not that the party represents that to
be true which he knows to be untrue, at least that he means his
representation to be acted upon and that it is acted upon accord
ingly, and if, whatever a man's real intention may be, he so
conducts himself that a reasonable man would take the representa
tion to be true and believe that it was meant that he should act

(o) Jones v. Frost, h. It. 7 Ch. 776 ; 20 W. R. 793.

0>) Bateman v. Faber, [18981 1 Ch. 144.
(?) 13M.it W. 309.
(r) Per Lord Denma.v : Pickard v. Sears, 6 A. & E. 474 ; cf,
Attorney-General v. Stephens, 1 K. & J. 724.
(*") Per Rarke, B. : Freeman v. Cooke, 2 Ex. 663. Approved and
followed in McKenzie v. British Linen Co., 6 App. Cas. 82, where a duty
was under the circumstances held to be cast on a customer of a bank to
inform the bank of a forgery ; but in Squire v. West Australian Mortgage,
etc. tii., [1896] A. C. 257, no such duty was, under the circumstances,
held to be cast.
L. E.
210 Law of Evidence.

upon it, and does act upon it as true, the party making the
representation would be equally precluded from contesting its
truth ; and conduct by negligence or omission, where there is a
duty cast upon a person by usage of trade or otherwise to
disclose the truth, may often have the same effect. As, for
instance, a retiring partner omitting to inform his customers of the
fact, in the usual mode, that the continuing partners were no longer
authorised to act as his agents, is bound by all contracts made by
them with third persons on the faith of their being so authorised."

Where in bankruptcy proceedings, a bill of sale given

by a debtor, was treated as valid with the knowledge
and acquiescence of the debtor, and on that footing he
obtained a release on payment of a composition to his
creditors including the grantees, it was held that the
debtor could not in a subsequent action against the
grantees, say that the bill of sale was invalid (t).
Another instance is found in tbe doctrine that where
a person, knowing that a testator, in making a disposi
tion in his favour, intends the property to be applied
for purposes other than for his own benefit, either
expressly promises, or by silence implies, that he will
carry the testator's intention into effect, and the
property is left to him upon the faith of that promise
or undertaking, it is in effect a case of trust, and in
such case the court will not allow the devisee to set up
the Statute of Frauds, or, rather, the Statute of Wills,
by which the Statute of Frauds is now in this respect
superseded, and for this reason, the devisee, by his
conduct, has induced the testator to leave him the
property («).
Some of the " recognised propositions of an estoppel
in pais " were once laid down by the Court of Common
Pleas (a;) , and one of them was thus stated :
" If in the transaction itself which is in dispute one has led
another into the belief of a certain state of facts by conduct of
culpable negligence calculated to have that result, and such
culpable negligence has been the proximate cause of leading, and
(0 Roe v. Mutual Loan Fund, 19Q.B. D. 347.
(w) Llewellyn v. Washington, [1902] 2 Ch. 220.
(>) Carr v. London and North Western Bail. Co., I,. R. 10 C. P. 318.
Approved by the Court of Appeal in Seton v. La/one, 19 Q. B. D. f>8.
 Admissions. 211

has led, the other to act by mistake upon such belief to his preju
dice, the second cannot be heard afterwards as against the first to
show that the state of facts referred to did not exist."
In that case it was held that the defendants were
not, under the circumstances, estopped from showing
that certain goods alleged to have been delivered to
them as carriers had never reached their hands,
although the plaintiff had received from them advice
notes for such goods (y) . These doctrines apply to a
statement of a material fact which is untrue, even
though the person making it believed it to be true (z) :
but they do not however apply to a statement of a fact
not yet in existence, nor to a matter of future inten
tion (a) ; a promise de futiiro to be binding at all must
be binding as a contract (b). It is generally considered
that the rule is, that a person cannot be made liable
for a misrepresentation, unless it is a misrepresentation
in point of fact, and not merely in point of law (c) ;
but this has been questioned (d) , and it is probable that
the rule is not applicable to any but cases where both
parties have the same means of knowing what is the
law on a given point. A statement of fact, whether
written or oral, to operate as an estoppel, must be clear
and unambiguous (e).
The result of the previous authorities on the above
points was thus stated by Kay, L.J., in the case of
Low v. Bouverie (/) :
" (1) There has been from ancient' time a jurisdiction in Courts
of Equity in certain cases to enforce a personal demand against
(y) See also Coventry v. Great Eastern Rail. Co., 12 Q. B. D. 776.
(i) See Lord Selborne's judgment in Vagliatio v. Bank of England,
[1891] A. C. 107.
(a) Bank of Louisiana v. Bank of New Orleans, 43 L. J. Ch. 269 ; ef.
Jordan v. Money, 5 H. L. Cas. 185 ; and George Whitchurch, Limited v.
Cavanagh, [1902] A. C. 117.
(6) Maddison v. Alderson, 8 App. Cas., at p. 473.
(c) Per Mellish, L.J., in Beattie v. Lord Ehury, L. R. 7 Ch. 802.
(rf) Per Bowen, L.J. : West London Commercial Bank v. Kitson,
13 Q. B. D. 363.
(e) Low v. Bouverie, [1891] 3 Cb. 82 ; cf. Colonial Bank v. Cady,
15 App. Cas. 267.
(/) Ubi supra.
p 2
212 Law of Evidence.

one who made an untrue representation, upon which he knew that

the person to whom it was made intended to act, if such person did
act upon the faith of it and suffered loss by so acting. (2) This
was readily done where the representation was fraudulently made,
in which case an action of deceit would lie at law. (3) Belief
would also be given at law and in equity, even though the represen
tation was innocently made without fraud, in all cases where the
suit will be effective if the defendant is estopped from denying the
truth of his representation. (4) Where there is no estoppel, an
innocent misrepresentation will not support an action at law for
damages occasioned thereby. (5) Estoppel is effective where an
action must succeed or fail, if the defendant or plaintiff is prevented
from disputing a particular fact alleged."
The six following are among the most important
kinds of estoppels by matter in pais :
(1) Estoppel between landlord and tenant. — A
tenant, during his possession of the premises, cannot
deny that the landlord under whom he has entered, or
to whom he has paid rent, had title at the time of his
admission, and this extends to the case of lodgers.
" The security of landlords would be infinitely
endangered if such a proceeding were allowed " (g) ;
and even if a tenant consents to give up possession to a
person claiming to be the landlord, such person is
estopped as the tenant would have been from disput-v
ing the landlord's title (h). So, where a person had
dealt with property as an executor de son tort, his /
payment of rent to the superior landlord was held to
estop him from denying his liability as assignee to
perform the covenants in the lease (i). Nevertheless a
tenant, although he cannot be permitted to prove that
his landlord had no title, at the time of entry, may
show that his title has expired (k), and may prove that
a parcel of land, about which he and the lessor are
disputing, was never comprised in the lease at all (/).
(a) Per Lord Ellexborouch : Sails v. Weslwood. 2 Camp. 12.
(A) Doe v, Mills, 2 B. & Ad. 17.
(») Williams v. Heales, L. R. 9 C. P. 171.
(i) England v. Slade, 4 T. K. 082 ; cf. Langfurd v. Selmet, 3 K. & J.
22U.
(I) Per Lord Blackburn : Clark v. Adie, 2 App. Cas. 435.
 Admissions. 213

So, too, a person who enters on land by the licence of

the party in possession is estopped from denying the
title of such party to such possession jyn) . When a
tenant took a lease of land from a coparcener who was
only entitled to a portion of the rents and profits he
was held estopped from denying the title of the heir
and privy in blood of the lessor to the whole land (n).
Conversely, a landlord who has granted a lease is '
estopped from alleging his want of title, and this
whether the lease is by deed or not. Payment of rent j
and receipt of rent alike raise strong presumptions of
tenancy, but do not operate by way of estoppel ; for,
when a tenancy is attempted to be established by mere
payment of rent, without any proof of an actual demise
or of the tenant's having been let into possession by
the person to whom the payment was made, evidence
is always admissible on the part of the tenant to
explain the payment of rent and to show on whose
behalf such rent was received (o) .
(2) Estoppel between bailee and bailor.—A bailee is
estopped from denying that his bailor had, at the time
the bailment was made, authority to make it (p). But
when the bailee is evicted by title paramount he can
set up that title against the bailor, with the consent of
the person whose title is set up (q).
(3) Estoppel between licensee and licensor. — A
licensee is estopped from denying the title of the
licensor to grant the license. Thus, a licensee of a
patent cannot dispute the title of the patentee ; but
a licensee can show that what he has done does not
fall within the ambit of the patent (r), and for this
(m) Doe r. Baytop, 3 A. & E. 188.
(») Weeks v. Birch, 69 L. T. 759.
(o) Per Pattesox, J. : Due v. Francis, 2 M. Jc R. 57.
Gosling v. Bimie, 7 Bing. 338.
(q) Biddle v. Bond, 6 B. & S. 225 ; Rogers v. Lambert, 21 Q. B. D.
573.
(r) Clark v. Adie, 2 App. Cas. 413.
214 Law of Evidence.

purpose he may refer to former patents to show what

is a proper construction of his licensor's patent (s).
He can of course prove that the patent has come to an
end (t). It may here be observed that a patentee is
not estopped from disputing the validity of the patent
as against his assignee, except where it is proved that
the assignee bought on the faith of the statements in
the patentee's petition to the Crown (u). To allow a
licensee to dispute the title of his licensor would be
inconsistent with the law, as it would be equally
inconsistent with the ordinary reason and good sense
of mankind (x).
(4) An agent is estopped from denying the title of
his principal (y).

(5) Estoppels arising from bills of exchange.—The

acceptor of a bill of exchange is, by s. 54 of the Bills of
Exchange Act, 1882 (z), precluded from denying to a
holder in due course—
" (a) the existence of the drawer, the genuineness of his signa
ture, and his capacity and authority to draw the bill ; (b) in the
case of a bill payable to drawer's order, the then capacity of
the drawer to indorse, but not the genuineness or validity of his
indorsement ; (c) in the case of a bill payable to the order of a
third person, the existence of the payee and his then capacity to
indorse, but not the genuineness or validity of his indorsement."

By s. 55 the drawer of a bill " is precluded from

denying to a holder in due course the existence of the
payee and his then capacity to indorse"; and the
indorser of a bill, by indorsing it,
" is precluded from denying to a holder in due course the
genuineness and regularity in all respects of the drawer's signature
and all previous indorsements, and is precluded from denying

0) Courhman v. Greener, 1 E. P. C. 197.

(t) Muirhead v. Commercial Cable Co.. 11 K. P. C. 317.
O) Cropper v. Smith, 2 R. P. C. 81.
(*) See Croisley v. Dixon, 10 H. L. Cas. 304.
(y) Dixon v. Hammond, 2 B. & Aid. 310.
0) 45 & 46 Vict. c. 61.
 Admissions. 215

to his immediate or a subsequent indorsee that the bill was at the

time of his indorsement a valid and subsisting bill, and that he had
then a good title thereto."
It has been held that subsequent acknowledgment
of a forged signature to a bill cannot operate as an
estoppel (a) , and that the payment of a bill upon which
a man's acceptance has been forged does not make him
liable to pay a second similarly forged acceptance, even
without notice of repudiation (b). It has also been
held that the acceptor of a bill of exchange is under
no duty to take precautions against the fraudulent
alteration of a bill after acceptance, and therefore is
not estopped from relying on any such fraudulent
alteration (c). Although if a customer of a bank by
the neglect of due caution causes his bankers to pay
a forged order, he cannot set up the invalidity of a
document upon which he has induced them to act as
genuine (d).
(6) Standing by.—Where a party, having an interest
in property, stands by and permits another to deal with
such property, as if he were the absolute owner, and as
if there were no such secret equity, he will not be per
mitted to assert such secret equity against those with
whom the apparent owner has dealt. This doctrine
was discussed at length, in the case of Bamsden v.
Dyson (e) in the House of Lords, when the following
valuable canons were laid down by the law lords :
(i.) " If a stranger begins to build on land supposing it to be his
own, and the real owner, perceiving his mistake, abstains from
setting him right, and leaves him to persevere in his error, a court
of equity will not afterwards allow the real owner to assert his
title to the land, (ii.) But if a stranger builds on land knowing
it to be the property of another, equity will not prevent the real

(«) Brook v. Booh, L. R. 6 Ex. 89.

(*) Morn* v. Bcthell, L. K. 5 C. P. 47.
(c) Sehofald v. Earl of Londesbonmgh, [1896] A. C. 514.
(d) See Toung v. Orutt; 4 Bing. 253, and the judgment of Lord
Macsaghtkn in Schofkld v. Earl of Lowlrsboroutjh, nbi supra.
• (e) L. B. 1 E. & I. 129.
216 Law of Evidence.

owner from afterwards claiming the land, with the benefit of all
the expenditure upon it. (iii.) So if a tenant builds on his land
lord's land, he does not, in the absence of special circumstances,
acquire any right to prevent the landlord from taking possession
of the land and buildings when the tenancy has determined."

Lord Kingsdown, affirming the principles of the

case of Gregory v. Michell (/), laid down the following
rule :
" If a man under a verbal agreement with a landlord for a
certain interest in land, or, what amounts to the same thing,
under an expectation created or encouraged by the landlord that
he shall have a certain interest, takes possession of such land
with the consent of the landlord, and upon the faith of such
promise or expectation, with the knowledge of the landlord and
without objection by him, lays out money upon the land, a court
of equity will compel the landlord to give effect to such promise
or expectation."

It seems now to be considered that, in order for the

party standing by to be bound, he must have been
aware of his legal .rights (g), though this was not
always the case (h). So, where a wife allows her
husband to spend the income of her separate estate, he
is- not accountable to her afterwards for it (i) ; nor can
she recover any portion thereof after his death. When
an insurer of a ship has accepted notice of abandon
ment, with full knowledge of the facts of the loss, he is
estopped from afterwards denying a total loss or relying
on a breach of warranty (k) .
As connected with the foregoing, it may be mentioned
that if a person obtains possession of land, claiming
under a will or deed, he cannot afterwards set up
another title to the land against the will or deed,
though the deed or will did not operate to pass the
land in question, and any person who gains possession

(/) 18 Ves. 328.

C?) Per FBY, J. : Wilmott v. Barber, 15 Ch. D. 105.
(A) Tresdalc v. Teesdale, 1 Macn. Select Cases in Equity, 170.
(0 Smith v. Lord Camflford, 2 Ves. jun. 716.
(it) Provincial Inmrance Co. v. Leduc, 22 W. R. 939.
 Admissions. 217

through a person interested in the land under the will

or deed is equally estopped (I).
Misrepresentation.—Here may be noticed the exten
sive ground for relief in equity which arises from the
principle, that where a party is drawn into a contract
by misrepresentation, he has his option of avoiding or
enforcing the contract. This doctrine affects not only
the parties to the agreement, but all who induce others
to enter into it, and applies not only where statements
were made which are false in fact, but where, although
false in fact, they were believed to be true by the person
making them, if such person in the due discharge of
his duty ought to have known, or formerly knew and
ought to have remembered, that they were false (to).
Where a material representation is made to a person
to induce him to enter into a contract, and he does
enter into it, the inference of law is that he did so
under the inducement of the representation, and in
order to take away his title to be relieved from the
contract, on the ground that the representation was
untrue, it must be shown that he had knowledge of the
facts contrary to the representation, or that he stated
in terms, or showed clearly by his conduct, that he did
not rely on the representation (n).
The fraud of a married woman binds her separate
estate in equity (o).

Acts, conduct, manner, demeanour, and acquies

cence will operate as admissions, some of
which are rebuttable, others are not.
Thus, the assumption of a character is evidence to
create a liability for acting in it, as also the tacit
(0 Per Lopes, L.J. : Dalton v. Fitzgerald, [1897] 2 Ch. 86.
(m) See per Lord Romilly, M.R., in Pulsford v. Richards, 17 Beav.
95 ; cf. Smith v. Kay, 7 H. L. Cas. 750.
See judgment of Jessel, M.R. : Redgra ve v. Hurd, 20 Ch. D. 21.
(») Vanghan v. Vanderstegen, 2 Drew. 363 ; Sharp v. Foy, L. R.
2 Ch. 35. Cf. supra, p. 209.
218 Law of Evidence.

recognition of it waives objections to its validity. On

this ground executors de son tort are liable for inter
fering with the property of a deceased person. When
a person, by holding himself out as a shareholder,
induces a company to register him as such, he cannot
deny that he is a shareholder in an action on such
shares (p). So, where shares were allotted to a person,
in pursuance of an authority signed by him to have his
name entered as a shareholder, and he paid calls and
received a dividend on such shares, it was held that he
was a shareholder (q). Where a company, under
circumstances which made it doubtful whether an
agreement was binding on its shareholders, transferred
its business to a new company, one of the terms of the
agreement being that the shareholders in the old
company should receive shares in the new company,
and share certificates were sent to all the shareholders
in the old company, it was held, that a shareholder
who had acknowledged the receipt of and retained the
certificates, was a shareholder in the new company ;
but that one who had taken no notice of the communi
cation was not a shareholder (r). In the same case
Lord Hathebley said :
" No authority can be found for holding that a person, by simply
doing nothing, may be rendered liable. The mere fact of standing
by and being told there is something done which you have not
authorised, cannot fix you with the heavy liabilities which shares
in a joint stock company would create."

Estoppel arising on share certificates.—A company,

by issuing a share certificate representing a person to
be a holder of certain shares, is estopped, as against
another person who bond fide acts upon the faith of the
representation, from denying the truth of the share

(yO Sheffield Rail. Co. v. Woodcock, 7 M. & W. 574.

Cy) Setcell'i Cage, L. R. 8 Ch. 131.
(r) Challi* s due, L. K. 6 Ch. 260 ; cf. hank of Hindustan v. Alison,
L. li. 6 C. P. 222.
 Admissions. 219

certificate (s), including the statement, if any, that the

shares are fully paid up (<) . The estoppel does not give
a title to the shares or make the person in whose favour
it arises a shareholder, but renders the company liable
in damages (a). No estoppel arises where the person
acting on the certificate knows the true state of the
facts (x). But estoppel arises where, if the person to
whom the statement is made had thought about it, he
would have seen it was not true (y). In one case a
purchaser of shares from a person, who had become the
registered holder by means of a forged transfer, was
held to be entitled to compensation from the company
in the event of his being compelled to re-transfer to
their proper owner ; since, by holding out the seller as
the registered owner, they were estopped from denying
him to be so after the purchaser had acted upon such
representation (z). Again, where a person, after re
ceiving a certificate of the registration of some shares,
repaid to the vendor the amount of a previous call, on
the faith of the certificate, the company were held
estopped by the certificate, and liable for the value of
the shares (a). In 1884 a company was held estopped
by a certificate issued by their secretary, although he
had wrongfully affixed their seal and had forged a
director's signature (b). Recently, where the secretary
had fraudulently affixed the seal to a certificate and
forged the signatures of two directors, the Court of
Appeal held that there had been no such negligence by
the company as to fix them with responsibility for his
acts, and they were not bound by the certificate (bb).
(.«) In re Bahia. etc., Rail. Co., 3 Q. B. 584. Approved by the House
of Lords in Balkix Consolidated Co. v. Tompkinson, [1893] A. C. 396.
(0 Burhinshaw v. Nicollt, 3 App. Cas. 1004 ; Bloomenthal v. E,ord,
[1897] A. C. 156.
00 Balkis, etc. Co. v. Tompkinson, [1893] A. C. 396.
(*) Be London Celluloid Co., 39 Ch. D. 190.
(y) Per Lord Herschell in Bloomenthal v. Ford, [1897] A. C. 156.
(O Be Bahia, etc. Rail. Co., 3 Q. B. 584.
(a) Hart v. Front/no Mining Co., L. H. 5 Ex. 111.
(ft) Shaw v. Port Philip Colonial Gold Mining Co., 53 Q. B. D. 103.
(J>b) Ruben and Ladenbuii) v. Great Fingall Consolidated, Limited,
[1904] W. N. 163 ; 20 T. L. R. 720. .
220 Law of Evidence.

The House of Lords must decide which of these two

decisions is right, assuming they cannot be distinguished
on the facts. It is only the person in whose favour the
estoppel exists that can render the company liable on
it (c). A " certification " issued by a company estops
them from denying the facts certified (d) ; but it was
held by the House of Lords that where the secretary of
a company having authority to certify on behalf of the
company certified a transfer of shares without having
received the certificates, the company were not estopped
by the certification (e). It should be noticed that a
" certification " is not under the seal of the company
whereas a share certificate is, and the estoppel arising
from a wrongful use of a company's seal is not governed
by precisely the same considerations as an estoppel
from the fraudulent acts of a company's agent.
Irregularly issued securities.—Where commissioners
were empowered by a local Act to issue mortgage secu
rities, it was held that they could not, as against a bond
fide holder for value, set up an illegality in the issue of a
security, but were estopped from denying its validity (/) .
A company cannot rely on an informality in the issue
of their debentures as an answer to a petition for
winding up (g) . Where a company registered an assign
ment of debentures, it was held that they could not
equitably set off against the transferee any claim against
the transferor (h). This doctrine was extended to a
case where there was no registration ; for, a company
having received notice of an assignment for value of
one of their debentures, and acknowledged the receipt
by stamping the duplicate notice, it was held that such
stamping estopped them from setting up against the
(e) Simm v. Anglo-American Telegraph Co., 5 Q. B. J). 188.
(d) Hishop v. Balkis Consolidated Co., 25 Q. B. D. 512.
(e) George Whitchurch, Limited v. Caranagh, [1902] A. C. 117.
(/) Webb v. Heme Hay Commissioners, 5 Q. B. 642.
(g) He Exmouth Dock Co., L. R. 17 Eq. 181.
(A) Higgs v. North Assam Tea Co., L. K. 4 Ex. 387 ; followed by Lord
Komilly : In re North Assam Tea Co., L. K. 10 Eq. 465 ; cf. In re
General Estates Co., L. R. 3 Ch. 758.
 Admissions. 221

transferee any equities attaching between themselves

and the transferor (i). A useful statement of the law
on the subject of the right of a company to question
irregularly issued securities, as developed up to 1883,
is found in the judgment of Lord Justice Kay in
Be Romford Canal Co. (k). He said :
" When a company have power to issue securities,an irregularity
in the issue cannot be set up against even the original holder if he
has a right to presume omnia rite acta. If such security be legally
transferable, such an irregularity and a fortiori any equity against
the original holder cannot be asserted by the company against a
bond fuh transferee for value without notice. Nor can such an
equity be set up against an equitable transferee, whether the
security was transferable at law or not, if, by the original conduct
of the company in issuing the security or by their subsequent
dealing with the transferee, he has a superior equity. There
remains the present case in which I must treat the parties as
equitable transferees only of securities which the company, having
power to issue such, represent on the face of them to be legally
transferable, and where the company would be able to plead at law
against the original holder or the first transferee that the deben
tures were invalid because issued by an insufficient meeting of
shareholders. I think the decision of Biggs v. Northern Assam
Tea Company (I) warrants me in saying that, if the original conduct
of the company in issuing these debentures was such that the
public were justified in treating it as a representation that they
were legally transferable, there would be an equity on the part
of any person who had agreed for value to take a transfer of
these debentures to restrain the company from pleading their
invalidity, although that might be a defence at law to an action
by the transferor."

But it must be noticed that although a company may

be estopped from questioning the validity of certain
of the debentures issued by it, the holders of the other
debentures are not so estopped (m). Where a person
possessed of a security, purporting on the face of it to
be transferable by delivery, leaves such security in the
hands of another, who makes it over to a bond fide
holder for value, the owner of the security cannot set
up as against the bond fide holder that it was not so
(i) Bmntorii Case, L. B. 19 Eq. 302.
(A) 24 Ch. D. 92. (Z) L. R. 4 Ex. 337.
(jti) Afowatt v. Castle Steel, etc., Co., 34 Ch. D. 58.
222 Law of Evidence.

transferable (n) . Where a person executed transfers of !

shares and left them in the hands of his brokers, who j
raised money on them, it was held that he was estopped J
from making any claim in respect thereof as against J
the lenders (o). '
A collector of turnpike .tolls, although not legally
appointed, has been held capable of maintaining an
action for them on a count for an account stated,
where the defendant had paid part and promised the
remainder {p). The title of an assignee in bankruptcy,
if not formally disputed, has been held sufficiently
established by proof that the defendant had treated
with him as such (q) ; but where the plaintiff professes
to sue in a particular capacity, it must be strictly
proved, in the absence of an admission (r).

An admission by a person in one character is no j

evidence against him in another. —Thus, declarations j
by a person before becoming an executor are not I
evidence against him in that office (s). "
Generally, it is a rule, as laid down by Lord Ellen-
boeough, that any recognition .of a person standing
in a given relation to others is prima facie, but not
conclusive, evidence against the person making the
recognition, that such relation exists, though the value
of such evidence will depend entirely on the circum
stances (t). It has been held by the Court of Queen's
Bench, that the mere filing of an affidavit of proof
against the estate of an insolvent agent to an undis
closed principal, after that principal is known to the

(») Goodwin v. Robarts, 1 App. Cas. 476 ; Rnmball v. Metropolitan

Rank, 2 Q. B. D. 194.
(n) Rentinck v. London Joint Stock Rank, [1893] 2 Ch. 120.
lp) Peacock v. Harris, 10 East, 104.
(y) Dickinson v. Coward, 1 B. & Aid. 677.
(/•) Collins v. Carnegie, 1 A. & E. 695.
(*) Legge v. Edmonds, 25 L. J. Ch. 125.
(0 Dickinson v. Coward, 1 B. & Aid. 679.
 Admissions. 223

creditor, is not a conclusive election by the creditor to

treat the agent as his debtor (u) .
It may here be noticed that in addition to the liability
which a person who is in fact a partner in a firm is
under for the debts of the firm, a liability for the debts
of a firm may arise by estoppel. This liability is thus
defined by the Partnership Act, 1890 (x), s. 14, which
is as follows :
" (1) Every one who by words spoken or written or by conduct
represents himself, or who knowingly suffers himself to be repre
sented, as a partner in a particular firm, is liable as a partner to
any one who has, on the faith of any such representation, given
credit to the firm, whether the representation has or has not been
made or communicated to the person so giving credit by or with
the knowledge of the apparent partner making the representation,
or suffering it to be made.
" (2) Provided that where after a partner's death the partner
ship business is continued in the old firm name, the continued
use of that name or of the deceased partner's name as part thereof
shall not of itself make his executors or administrator's estate
or effects liable for any partnership debts contracted after his
death."

Therefore, if a person retires from a partnership,

but omits to give proper notice of dissolution, he may
be liable for debts incurred in the subsequent carrying
on of the business by a new firm ; but he cannot be
sued jointly with the new firm, and if the new firm
be sued for such a debt, the retiring partner cannot
afterwards be sued (y). This, of course, is only a
branch of the doctrine of estoppel by conduct :
" If man allows his name to be held out to the public as being
the person responsible for the transaction in question he may be
liable in consequence of this holding out, or in consequence of his
conduct, although he may not have originally authorised the act,
because he has not taken steps which he should take to stop the
unauthorised use of his name "(2).

(«) Curtit v. Williamton, L. B. 10 Q B. 57.

(*) 53 & 54 Vict. c. 39.
(y) Scarf v. Jardinr, 7 App. Cas. 345.
(--) Per Byrne, J. : Walter v. Aihton, [1902] 2 Ch. 294.
224 Law of Evidence.

It has been said that a declaration in the presence of

a party to a cause, becomes evidence, as showing that
the party, on hearing such a statement, did not deny
its truth : such an acquiescence, indeed, is worth very
little where the party hearing it has no means of
personally knowing the truth or falsehood of the
statement (a) . The declaration must have been made
on an occasion when a reply from the party might be
properly expected (b). A mere conditional acknow
ledgment of liability, in the event of a party primarily
liable not paying, will not dispense with the necessity
of formal notice of dishonour of a bill (c). Where, how
ever, the indorser of a bill, being told that the holders
were about to take proceedings against him, said he
would pay if time was given him, it was held that
he had waived his right to notice of dishonour (d). In
settlement cases, proof that a parish has relieved for
seven years has been held to be evidence that the
pauper was settled in the parish (e). So, evidence of
relief given to a pauper residing out of the relieving
parish admits a settlement (/) ; but mere relief of
casual paupers is no evidence of a settlement (g), even
where the relieving parish has enabled the pauper to
remove to another parish (h) . Proof that a party to an
action (though not himself examined) has requested
others to give false evidence, is evidence against him as
an admission against his own case (i) .
Admissions by acquiescence.—Acquiescence in an
act is evidence ot an admission ; but, to make it so,
(a) Per Parke, B. : Haydep v. Gymer, 1 A. & K. 163; of. Xeile v.
Jaklc, 2 C. & K. 709.
(*) Boyd v. Bolton, Ir. R. 8 Eq. 113.
(c) Hick* v. Duke of Beavfort, 4 Bing. N. C. 229.
(d) Wood* v. Dean', 3 B. tc S. 101.
(e) R. v. Barnsley, 1 M. & S. 377.
(/) It. v. Edwinttowe, 8 B. ic C. 671.
C?) if. v. Chathnm, 8 East, 498.
(A) R. v. Trowbridge, 7 B. it C. 252.
0) Jforiarty v. London, Chatham and Borer Rail. Co., L. R.
5 Q. B. 314.
 Admissions. 225

it has been said that it must exhibit some act of the

mind, and amount to voluntary demeanour or conduct
of the party. For non-repudiation by a principal of an
unauthorised act of an agent to bind the principal,
the latter must have had present to his mind proper
materials on which to exercise his election (k). It has
been stated that—
" Acquiescence and ratification must be founded on a full know
ledge of the facts ; and further, it must be in relation to a
transaction, which may be valid in itself and not illegal, and to
which effect may be given as against the party by his acquiescence
in and adoption of the transaction " (I).

Accounts. —If an account be delivered and retained

for any time without objection, it is presumed to bd
correct (m) ; and where an account has been stated,]
and a bill given for the amount, the debtor cannot, in
an action on the bill, impeach the charges (n). An
objection to one of several items in an account, without
remark as to the others, is evidence of an admission ,
that they are correct (o). A banker's pass book is
evidence of acquiescence by the customer of the prin
ciples on which the accounts are made up (j)) ; but the
directors of a building society cannot ratify an illegal |
borrowing simply by returning a pass book (q) . An
account sent by a creditor to a debtor is, as against the
sender, evidence of a contract (/•). ; and, even where
the account, although made out, was not sent in, a
contract was implied (,s). In an action by a surety
against his principal, it has been held that the

(*) See Be Buuehe v. Alt, 8 Ch. D. 286.

(I) Per Lord Fitzgerald in La Baaque Jacques Cartier v. La
Bunque d' JSpargne,etc. de Montreal, 13 App. Cas. 118.
(im) Willis v. Jerneijan. 2 Atk. 252.
(«) Knox v. Whalley, 1 Ksp. 159.
lit) Chesman v. Court, 2 M. A: G. 307.
(yj) Williamson v. Williamson, L. 11. 7 Eq. 542.
(7) Per Lord SELBORN'E : Blachbnrn Building Society v. Cu/ilirTe,
21 Ch. I). 72.
()•) Morland v. Isaac, 20 Beav. 3l>2.
(*) Bruce v. Garden, 17 W. H. 990.
1..):. v
22G Law of Evidence.

uncontradicted statement by the former to the latter,

that he had paid a debt by cheque, is slight evidence of
payment (t).
A notice to quit lands, which has been served and
not objected to, is evidence against the tenant that the
tenancy commenced at the season of the year when the
notice to quit expires (u). So, in an action on use and
occupation, payment of rent is evidence of a holding,
and of its terms (x) . Where a purchaser kept an
abstract and made an appointment to examine the
deeds, he was held estopped from afterwards denying
the contract to purchase (y). The mere omission
to take legal proceedings in respect thereof is not
acquiescence in an act (z) .
It is held that a party's own statements are evidence
against himself, whether they corroborate the contents
of a deed, or other written instrument, or not (a). In
such a case it has been decided that an abstract or
affidavit used by a person on a reference before a master
to prove title in himself may be received in evidence
aganst him in a subsequent litigation (b). The state
ment relied upon must be distinctly a statement of fact,
and not merely an opinion or inference of law by the
deponent ; for in the latter case he will not be
estopped (c). This doctrine seems to have been
slightly extended in the case of Richards v. Morgan ((/),
in which a question was raised relative to the admis
sibility in an action of certain depositions, which the

(0 Price v. Bvrra, 6 W. R. 40.

(«) Thomas v. Thomai, 2 Camp. (147.
<>) Harden v. Hetketh , 4 H. 4: X. 17").
(y) Thomat v. Brown, 1 Q. B. D. 714.
(z) Fnlwood v. Fnlwood, 9 Ch. D. 176; cf. Bowland v. Mitchell.
13 R. P. C. 457; London, Chatham and Dover Bail. Co. v. Ball,
47 L. T. (>-.s.) 413.
(a) Starterie v. Pooley, 6 M. Si W. 664.
(b) Pritchard v. Bagthawe, 11 C. B. 457.
(c) Morgan v. Gntchman, 14 C. B. 100.
(rf) 4 B. 4: S. 641.
 Admissions. 227

defendant had used in a Chancery suit, wherein the I

same facts were in issue. Crompton, J., said :
" A document knowingly used as true, by a party in a court of
justice, is evidence against him as an admission even for a stranger
to the prior proceedings, at all events, when it appears to have
been used for the very purpose of proving the very fact, for the
proving of which it is offered in evidence in the subsequent suit."

So it was held, that an examined copy of answers to

interrogatories, filed in the usual way, may be read in
evidence against the person making them in a subse
quent action to which he is a party, without proof of
his handwriting or production of the interrogatories
themselves (e).
Admissions are implied from the attornments inferred
from the relation of landlord and tenant (/ ) ; and from
submission to a distress (g) ; and in some cases un- 1
answered letters are evidence of the statements which
they contain (h) ; but their value will depend entirely
on special circumstances. The mere fact of their not
having been answered will amount to no recognition of
their accuracy (i), unless, of course, the relation between
the parties is such that a reply might be properly
expected (k) ; but they will be receivable in conjunction
with subsequent statements made with reference to
them by the party to whom they are addressed (Z) .
The admission by a wife of the commission of
adultery is sufficient proof against herself of the
adultery, provided the court, after looking at the
evidence of such admission with caution, considers that
(e) Fleet v. Perrins, L. 1{. 3 Q. B. 536.
(/) Mayor of Stafford v. Till. 4 Bing. 75.
(j) Crowley v. Vitty, 7 Ex. 319.
(A) Lucy v. Moujlit, 5 H. 4c N. 229 ; but sec the remarks of Lord
Hatherley iu Challm'n Caie, L. K. 6 Ch. 266.
(i) See judgment of BOWEN, L.J., in Wiedemann v. Walpole, [1891]
2 Q. B. 539.
(It) See the judgment of Willes, J., in Rieharie v. GMatly, L. It.
7 C. P. 131.
(0 Oaihill v. Skene, 14 Q. B. 664.
Q 2
228 Law of Evidence.

her evidence is trustworthy, and that it amounts to a

clear, distinct, and unequivocal admission of adul
tery (m) ; and the court may act on it, even without
corroboration, if all reasonable ground for suspicion is
removed (n). Where an admission had been made in
the presence of three people, two of whom were called
to prove the admission, but the third, who could have
given corroborative evidence of the adultery, was absent,
the court declined to act on the admission unless the
third person was called (o) . This suggests the rule
that whenever it is apparent that corroboration is
obtainable the court will not act upon the admission in
the absence of such corroboration.
It should be remembered that—

Admissions, whether written or oral, which do

not operate by way of estoppel, constitute
only prima facie and rebuttable evidence
against their makers, and those claiming
under them, as between them and others.

Thus, although the acknowledgment in the body of

a deed of the consideration money having been received
is conclusive between the parties (p), a receipt indorsed
on a deed was only prima facie evidence of payment
until it was provided by s. 55 of the Conveyancing Act,
1881, in the case of deeds executed since December 31st,
1881 (g), that—
" A receipt for consideration money or other consideration in
the body of a deed or indorsed thereon shall, in favour of a
subsequent purchaser not having notice that the money or other
consideration thereby acknowledged to be received was not in fact
paid or given wholly or in part, be sufficient evidence of the
payment or giving of the whole amount thereof " (5).

()«) Robinson v. Robinson, 1 S. & T. 393.

(») Williams v. Williams, L. R. 1 P. & 1). 29.
(«) White v. White, 62 L. T. 663.
0) Baker v. Dewey, 1 B. & C. 704. (?) 44 & 45 Vict. c. 41.
 Admissions. 229

Receipts.—A receipt indorsed on a bill, and generally

all parol receipts, are only primd facie evidence of pay
ment. It has been held, indeed, in an action by
assignees in a bankrupt's name, that a receipt in full
of all demands by the nominal plaintiff is conclusive
against his assignees (r) ; but it seems that this case is
not law (s) ; and it has been held that a plaintiff who
had given the defendant a receipt for goods sold with a
view to defraud his creditors, was not estopped from
showing that no money had passed, and that no sale
had ever taken place (t). Entries of moneys received
are primd facie evidence against the maker ; but entries
of payments are not, as a general rule, evidence in his
favour, yet entries of payments may be so connected
with entries of receipts, that if the latter are read
against the maker, the former would be admissible in
his favour (u). Under Order XXXIII., r. 3, of the
E. S. C, 1883, the court or a judge may direct that,
in taking an account, the books of account in which
the accounts in question have been kept shall be taken
as primd facie evidence of the truth of the matters
therein contained.

The admission of a partner concerning the part

nership affairs, is evidence against his co
partners, if made in the ordinary course of
business (x) ; that of an agent is evidence
against his principal ; and that of one of
several parties jointly interested is evidence
against the others or other of them.
Thus, the admission by one of several plaintiffs who
sued as partners, that the subject-matter of the action
was his own personal contract, has been received as
(r) Alner v. George, 1 Camp. 392.
(«) iiinwv. Foster, 2 H. &N. 779. (0 floices v. Fottar, tupra.
(a) Per Kindersley, V.-C. : Reeve v. Whitmore, 2 D. & S. 450.
(x) Partnership Act, 1890 (53 & 54 Vict. c. 39),s. 15.
230 Law of Evidence.

evidence to bar the action (y). And generally, in

partnership transactions, the representations, although
tortious or fraudulent, of a partner are binding on his
co-partners (z) . So, the admission of a retired partner
as to a partnership transaction while he was in the
firm, is evidence in an action against a continuing
partner (a) ; and admissions made by one partner after
dissolution are admissible to prove payment of a
partnership debt after dissolution (6) .
When there is a joint interest, the admissions of one
party concerning a material fact within his knowledge
are generally evidence against another party (c). Thus,
an admission by one in his character of executor is
evidence against his co-executor (d) except perhaps
under special circumstances (e). A receipt by one of
two trustees is evidence against both (/).
In Whitcomb v. Whiting (g) it was held that
payment of interest by one of several makers of a joint I
and several promissory note takes it out of the Statute
of Limitations as against the others ; and that such j
payment may be given in evidence in a separate action 1
against any one of the others. It was also stated by j
Lord Mansfield in that case, that " an admission by
one is an admission by all." By s. 1 of Lord
Tenterden's Act (h) it was enacted, that no joint
contractor shall lose the benefit of the statute by the
written acknowledgment or promise of another ; though
the effect of payment by one of such joint contractors
is expressly reserved to continue as before the
Statute (i) ; but by the Mercantile Law Amendment
(y) Lucas v. De la amr. 1 M. & S. 249.
(?) Kapp v. Latham, 2 B. & Aid. 795.
(a) Wood v. Bradeleeh, 1 Taunt 104.
(*) Pritcluird v. Draper, 1 K. & M. 191.
(<•) Per Le Blanc, J. : if. v. Ilardwicke, 11 East, 589.
(d) Fox v. Waters, 12 A. & E. 43.
0) See judgment of Kay, L.J., in Peek v. Ray, [1894] 3 Ch., p. 289.
C n Scaife v. Johnson, 3 B. & C. 421.
(A) 9 Geo. 4, c. 14.
 Admissions. 231

Act, 1856 (19 &20 Vict. c. 97, s. 14), no co-contractor

or co-debtor, whether liable jointly only, or jointly and
severally, will lose the benefit of the Statutes of Limita
tion, by reason only of payment of any principal,
interest, or other money by any other co-contractor or
co-debtor.
Before the acts or acknowledgment of one party can
be made evidence against another, it must be proved
that such a joint interest existed as creates an express
or implied authority to bind (k). It is not enough that
there should be a mere community without an actual
privity of interest. Thus, the courts have refused to
extend the doctrine of Whitcomb v. Whiting to the
case of a payment by one of two joint and several
makers of a promissory note as against the executors of
the other ; and have held that such a payment does not
take the note out of the Statute of Limitations as
against the latter (l). So, payment by an executor of
one of two such makers will not take the note out of
the Statute as against the other (m) . In actions of tort,
the admissions of one defendant will not as a general
rule affect another defendant. In settlement cases,
however, it Jias been held that the declarations of
a rated parishioner are evidence against his own
parish (»).

Principal and agent.—In cases of principal and agent,

the ordinary rule applies, qui facit per alium facit per
se : and the principal will be affected by the admissions
of his agent, so far as they are within the scope of his
authority; but not when they exceed it (o). Thus, it
was said by an eminent judge that when it i s proved
that A. is agent of B., whatever A. does, or says, or

(4) Dickinson v. Valpy, 10 B.& C. 128.

(0 Atkins v. Tredgold, 2 B. & C. 23.
(m) Slater v. Zawson, 1B.S Ail. 396.
(») R. v. Hardtcicke. 1 1 East, f>78.
00 Great Western Rail. Co. v. Willis, 18 C. B. (N.9.) 748.
232 Law of Evidence.

writes in the making of a contract as agent of B., is

admissible in evidence because it is part of the contract
which be makes for B., and therefore binds B. (p) ;
and the principal's liability towards third parties cannot
be restricted by any private arrangement between him
and his agent (q). Evidence of an interpreter's version
of an agent's language is prima facie correct, and is
evidence against the principal without calling the
interpreter (r) .
It should be stated that the representation, declara
tion, and admission of the agent does not bind the
principal if it is not made at the very time of the
contract but upon another occasion, or if it does not
concern the subject-matter of the contract, but some
other matter in no degree belonging to the res gestae (s).
Thus, a letter from an agent to his principal, contain
ing merely an account of his transactions, is not
evidence against the latter (t) ; but where an agent,
within the scope of his authority, wrote to his principals
that he had received a sum of money on their account,
and they replied, giving directions as to its disposition,
it was held that the agent's statement so recognised
was evidence that the principals had received the
money (w) .
A principal will, of course, not be prejudiced by an
admission of his agent which is not within the scope of
his authority. On this ground in detinue for goods
against a pawnbroker, to prove possession, evidence was
rejected of a statement by the defendant's shopman,
that it was a hard case on his master, who had advanced
money on the goods. It was held that such a state-

O) Per Gibbs, C.J. : Lnnghorn \. Allnutt, 4 Taunt. 519.

(?) Maddick v. Marshall, 18 C. B. (S.8.) 829 ; Edmunds v. Btuhell,
L. R. 1 Q. B. 97.
(r) Reid v. Hotkim, 6 El. & Bl. 953.
(*) Story on Agency, s. 135.
(f) Langhorn v. Allnutt, i Taunt. 511.
(«) Cvate* v. Bainhridge, ~> Ring. 58.
 Admissions. 233

ment was not within the scope of the shopman's

authority; and Tindal, C.J., said :
" It is dangerous to open the door to declarations by agents
beyond what the cases have already done. The declaration itself
is evidence against the principal, not given upon oath ; it is made
in his absence, when he has no opportunity to set it aside, if
incorrectly made, by any observation, or any question put to the
agent. . . . Evidence of such a nature ought always to be
kept within the strictest limits to which the cases have confined
it"(x).

It is not necessary to call an agent to prove his

admissions (y) .
Joint-stock companies are bound by the admissions
of their directors and other agents who are acting
within the scope of their authority ; but when a contract
entered into by the directors of a company is ultra vires
of that company, as being against its memorandum of
association, not only is it not binding on that company,
but it cannot be made binding by being ratified by the
general body of shareholders (z). Nor can a company
ratify a contract entered into on its behalf previous to
its registration (a). The statements of a chairman of
directors, made at a meeting of the company, are not
admissible in evidence against the company because
what he says is in fact a confidential report made by
the chairman (as agent) to his principals (the company).
The secretary of a company is only its agent in so far
as he is acting strictly within the powers conferred on
him by the directors (6). The liability of a company for
the fraud of its secretary rests on the same basis as the
liability of an individual for the fraud of his agent (c).
If there are two principals the statements of their
(x) Garth v. Howard, 8 Bing. 453.
(y) Irting v. Motley, 7 Bing. 543 ; Peyton v. St. Thorn aft Hospital,
4 M. & R. 625 n.
(j) Ashbury Railway Carriage Co. v. liiehe, L. R. 7 E. k I. 668.
(a) Kelner v. Barter, L. li. 2 C. P. 174.
(by George Wliitehurch, Limited v. Caranagh, [1902] A.C. 117.
(o) See Shaw v. Port Phillip, etc. Co., 13 Q. B. D. 103 ; and Ruben v.
Great Fingnll Consolidated. [1901] 1 K. B. 650, reversed on appeal,
[1904] W. N. 163 ; 20 T. L. R. 720.
 234 Law of Evidence.

agent are not evidence for one of such principals against

the other (d) .
Agejicjrinustbe proved before the admissions can be
■ received ; though comparatively slight evidence is
received as prima facie evidence of authority. Thus,
—to prove authority to sign a guarantee, evidence that
the agent, the defendant's son, had signed for the
defendant in three or four instances and accepted bills,
was held sufficient prima facie evidence of agency (e).
So, production of a writ purporting to be signed by the
plaintiff's town agent, coupled with a receipt for the
sum claimed, purporting also to be signed by such
agent, was received to prove a plea of payment (/).
It may be stated that a principal is liable for anything
done by his general agent, or by his special agent,
when doing one of the class of acts within the powers
conferred on him by the principal, although no express
command or privity of the principal is proved ig) ; and
even when his acts are contrary to the instructions of his
principal if done for the benefit of his principal (h) , and
this is so even if the agent acts fraudulently, provided
. the act is within the scope of the powers conferred
upon the agent, and the other party is dealing with him
in good faith (i) . But a principal is not liable in an
action of deceit for an act of an agent which is not
within the powers conferred upon the agent and is
done fraudulently and for his own benefit (k).

(rf) In re Dexala Mining Co., 22 Ch. D. 593.

f«) Watkiiu v. Vinoe, 2 Stark. 368.
(/) Weary y. Alderton, 2 M. & Rob. 127.
(jf) See judgment of Willes, J., in Barwick v. English Joint Stuck
Bank, L. K. 2 Ex. 259 ; cf. Limpus v. London General Omnibus Co.,
1 H. & C. 526.
(A) Limpus v. London General Omnibus Co., nbi supra ; Grierson
and Oldham v. Birmingham Hotel Co., 17 R.P. C. 158.
(i) Bryant, Powis and Bryant v. Quebec Bank, [1893] A. C. 179 ;
cf. Hambro v. Btirnand. [1904] 2 K. B. 10.
(i) See judgment of Bowen, L.J., in British Mutual Banking Co. v.
Charnwood, 18 Q. B. D., at p. 717; cf. Limpus v. London General
Omnibus Co., uhi supra; and Farquharson Brothers $ Co. v. King Jf Co.,
[1902] A. C. 325, in which caRe the appellants' clerk had no authority to
make the sale in question, and they had not represented that he had. If
they had so represented, the decision would have been against them.
 Admissions. 235

The admissions of agents are receivable in criminal

cases, but only to supply a link in the evidence. Thus,
on Lord Melville's trial for embezzlement, evidence
was received of a receipt of public money by an
authorised agent, to show that the money was
actually received. Lord Erskine said :
" The first steps in the proof of the charge must advance by
evidence applicable alike to civil and criminal cases ; for a fact
must be established by the same evidence, whether it is to be
followed by a civil or criminal consequence ; but it is a totally
different question, in the consideration of criminal j -stice, as
distinguished from civil, how the noble person now on trial may be
affected by the fact, when so established. The receipt by the
paymaster would in itself involve him civilly, but could, by no
possibility, convict him of a crime " (Z).

Where the wife of a prisoner charged with receiving

stolen goods had made out a list of goods and prices at
his request, and subsequently handed it to the police
in his presence, it was held that such list could be
given in evidence against the prisoner (?«).
The instructions of a principal to his agent are not
evidence in an action on a contract against a third
party, unless it be shown that they were communicated
to the latter (n). The admissions of an infant are
generally not evidence against him (o) ; nor, generally,
are the admissions of a guardian, or next friend,
evidence against an infant who sues by him (p). But
infants and their guardians and next friends are now
compellable to make discovery of documents and to
answer interrogatories in the same way as other litigants.
Admissions by solicitors. —A solicitor is presumed to
have a general authority for whatever he may say or do
on behalf of his client in the conduct of a case : and
his authority to make admissions will be implied when
(0 29 How. St. Tr. 746.
O) K. v. Mallory, 13 Q. B. 1). 33.
(«) Smetkumt v. Taylor, 12 M. k W. 545.
(<>) Ilohlen v. Hearn, 1 Beav. 465.
Q>) Cowling v. Ely, 2 Stark. 366 ; *. r. James v. Hatfield, 1 Stra. 548.
236 Law of Evidence.

he has been proved to be the solicitor on the record (</) .

In Young v. Wright (r), Lord Ellenborough said :
" If a fact is admitted by the attorney on the record with
intent to obviate the necessity of proving it, he must be supposed
to have authority for the purpose, and his client will be bound by
the admission ; but it is clear that whatever the attorney says in
the course of conversation is not evidence in the cause " («).

The solicitor on the record is bound by the acts of his

agent and so is the client (t).
Where an attorney on the record gave the following
undertaking : "I hereby undertake to appear for A.
and B., joint owners of the sloop Arundel," etc., this
was held sufficient primafacie evidence that A. and B.
were such joint owners (u) ; but an admission before
action by an attorney who afterwards appeared on the
record, has been held insufficient, without proof that he
was authorised at the time to make the admission (.r).
An admission by a solicitor's clerk or agent is as valid
as an admission by the solicitor himself (y). Where
the defendant's attorney, after a controversy had arisen,
admitted in conversation with the plaintiff's attorney
that his client's title was under B., and ended with B.,
and the plaintiff claimed as a remainderman after B.,
this was held to be a good admission of B's title (z).
So, in an action on a bill, an admission by the defen
dant's attorney that the acceptance was in his client's
handwriting is evidence of acceptance without produc
tion of the bill (a). Of course the client is not bound by
admissions made by his solicitor fraudulently (b) .

(5) Gainxford v. Grammar, 2 Camp. 9.

(r) 1 Camp. 159.
(/) See Petch v. Lyon, 9 Q. B. 147.
(«) Carruthers v. A'ewen, [1903] 1 Ch. 812. I
(«) Marshall v. Cliff, 4 Camp. 133.
(*) Waystaffy. Wilton, 4 B. &. Ad. 339.
()/) Taylor v. Williams, 2 B. & Ad. 845.
(:) Dorrett v. Meux, 15 C. B. 142.
(o) Chaplin v. Lrry, 9 Ex. 531.
(A) Williams v. Preston, 20 Ch. D. 672.
 Admissions. 237

Admissions by counsel.—It has been said that if the

parties have a particular controversy, and it seems
plain that a certain fact is admitted, the jury, as men
of common sense, may draw the same conclusion as to
that fact as if it were formally proved before them (c) ;
and therefore it has' been suggested that if counsel
opens statements which he does not prove, the opposite
party may treat them as admissions ; but this doctrine
has been disputed in a later case (d). Generally
counsel have authority to make all admissions in civil
cases, which they may think proper in the conduct of a
case : and accordingly a special case signed by counsel
on each side, at a former trial, has been held evidence
of all the facts therein stated, at a subsequent trial (e) ;
but ordinary and less formal admissions by counsel at a
former trial are not evidence on a subsequent trial (/).
When counsel with the authority of their clients
consent to an order the clients cannot arbitrarily with
draw such consent (g). In criminal cases it is clear
that solicitors have no authority to make admissions ;
and it seems that not even counsel have such
authority (h).
Admissions by a wife. — A wife has no implied,
authority to make admissions in prejudice of her
husband's rights, even though he may possess such
rights jure uxoris (i) ; nor can her admission of a tort
committed by her be given in evidence to affect her
husband in an action in which he is liable for costs and
damages (k). Where a wife was carrying on business
at a distance from her husband, it was held that her
(c) Per ALDERSON, B. : Stracy v. Blake, 1 M. & W. 173.
(rf) Duncnmbe v. Daniell, 8 C. & P. 222 ; ted ef, Machell v. EllU,
1 C. 4c K. 682 ; Darby v. Outelty. 1 H. S N. 1.
(«) Van Wart v. WaoUey,R. & M. 4 ; Swinfen v. Swinfen, 18 C. B. 485.
(/) Colledye v. Horn, 3 Bing. 11!).
0/) Hareey v. Croydon Rural •Sanitary Authority, 26 Ch. D. 219.
(A) R. v. Tlwrnhill, 8C.&P. 575.
0) Alban v. Pritchett, 6 T. K. 681.
(V) Denn v. White, 7 T. K. 112.
238 Law of Evidence.

admission as to the amount of rent, and the terms of

tenancy, was not evidence of the facts against him, in
replevin by him against his landlord. Alderson, B.,
said :
" A wife cannot bind her husband by her admissions, unless they
fall within the scope of the authority which she may be reasonably
presumed to have derived from him ; and where she is carrying on
a trade, if it be necessary for that purpose that she should have
such a power, she may be his agent to make admissions with
respect to matters connected with the trade. . . . Here it
could not be necessary, for the purpose of carrying on the business
of the shop, that she should make admissions of an antecedent
contract for the hire of the shop " (Z).

Whenever it can be inferred, from the antecedents of

a case, that a wife had an express or implied authority,
as an agent, to bind her husband, her admissions will
affect him (m) . Thus in an action against a husband [
for goods supplied to his wife, the jury ought not only |
to be asked whether the goods were necessaries, but J
also whether the wife had authority to buy (n) ; for a
wife has no original authority to pledge her husband's '
credit at all (o). Where a business is such as is usually
transacted by women, a wife's admission concerning it
has been received against her husband (p) ; and, as
regards her separate property, the admissions of a
married woman are on the same footing as if she were
unmarried.
Principal and surety. —Admissions by a principal
are not evidence against a surety, unless connected
and contemporaneous with the original transaction.
Thus, a surety by bond for the conduct of a clerk has
been held not bound by the admissions of the clerk
that he had embezzled money (q) ; nor, on a guarantee
(0 Meredith v. Footner, 11 M. & W. 202.
(tw) Manby v. Scott, 2 Sm. L. C.
(») Iteitl v. Teakle, 13 C. B. G27 ; cf. Jolley v. Been, 15 C. B. (N.8.)
628.
(<>) Reneaux v. TeaUe, 8 Kx. 630.
(y) Anon., 1 Str. 627. (7) Smith v. Whittingham, 6 C. &. P. 78.
 Admissions. 239

to pay for goods, is the surety bound by the admission

of his principal as to delivery (r). Eeceipts in the
books of a deceased collector or clerk are evidence-
against a surety, as declarations in the course of
business or against interest (s).
Finally, it is to be observed that the whole of a
statement, whether verbal or in writing, containing
an admission is to be received together. But every
part of the statement may not have the same legal
operation. Thus, in an action against a partnership
firm for goods supplied between June, 1893, and
February, 1894, the only evidence that one of the
defendants had ever been a member of the firm at
all was a letter written by him, on January 2nd, 1893,
to the manager of a bank, with whom the firm had
an account, in answer to an inquiry as to whether
he claimed any interest in the balance standing to the
credit of the firm at the bank, which letter was as
follows : "I have not banked any money this last eight
months, as I have dissolved partnership with my
brother last April." It was contended, for the defen
dant, that the admission of the partnership could not
be separated from the statement of the dissolution.
This the county court judge held, but on appeal the
Divisional Court held otherwise. Willes, J., said :
" The letter clearly contains an admission that William was a
partner in Wren Brothers in April, 1892, and it must be presumed
that the state of things so admitted to have existed at that date
continued to exist, unless the contrary be proved. No doubt the
statement that the partnership had been dissolved is evidence in
the defendant's favour ; but it is for the jury to say what weight
is to be attached to it " (().
The statement will not be inadmissible, because
portions of it contain hearsay ; but the fact will be
matter of comment by the judge to a jury, and he will
(r) Erans v. Beattie, 1 C. k V. 394.
(*) JHrldUton v. Melton, 10 B. & C. 317 ; Whitmarth v. George,
8 B. & C. 556.
(0 Brown, v. Wren Brother!, [1895] 1 Q. B. 390.
240 Law of Evidence.

also remind them that it is their duty to consider the

whole statement, although an admission in this respect
will not vitiate a verdict, if it appear that the whole
admission has been otherwise brought fairly before
them.
A party against whom a deed is produced has a
right to insist on the whole deed being read. But a
mutilated document may nevertheless be given in
evidence {u) .
Payment into Court.
The effect of payment into court as an admission of
liability is now governed by Order XXII. of the E. S. C,
1883. Under Eule 1 of this Order (which is confined to
actions to recover a debt or damages and Admiralty
actions) a defendant may pay money into court by way
of satisfaction, which admits the claim or cause of action
in respect of which the payment is made, or he may,
with a defence denying liability (except in actions or
counterclaims for libel or slander), pay money into
court which will be subject to the provisions of Eule 6.
Payment into court without a denial of liability is only ■
an admission of liability up to the amount paid in. I
Therefore, where, in an action on a bill for work done,
the defendants paid in £10 without any denial of
liability, the defendants were held not precluded from
showing that the work was not done at their request
except as to that amount (x). Payment into court
with a denial of liability is not an admission of the
cause of action (y), although, under Eule 6, the plaintiff
may accept it in satisfaction of the claim or cause of
action in respect of which the payment into court has
been made, in which case he is entitled to have the
money paid out to him.
(«) Lord Trimlettown v. KennU, 9 C. & F. 775.
O) Brnnell v. Varies, [1S93] 1 Q. B. 367.
(jr) Cook v. Ford, [1899] 2 Ch. 93.
 Admissions. 241

Admissions without Prejudice.

An admission cannot be given in evidence against a
party who has made it with a declaration or intimation
that it is to be regarded as confidential, or without
prejudice, nor can the answer to such a communication,
even though not guarded by similar words (z) ; for,
when a correspondence begins with a letter written
" without prejudice," that covers the whole (a). Where
a letter was written by the plaintiff's solicitors to the
defendant with proposals for a compromise, but not
expressed to be " without prejudice," and it was followed
in a day or two by another letter from the solicitors to
the effect that their communications were intended to
be "without prejudice to the plaintiff's legal and other
rights," it was held by Hall, V.-C, that the second
letter protected the first and also subsequent letters
from being used in evidence (b). It must appear dis
tinctly that the communication was meant to be confi
dential ; and an offer of compromise, unaccompanied
by any such qualification, is strictly receivable in the
nature of an admission (c). When an offer is made in
a letter written without prejudice, and such offer is
accepted (d), or when an admission is made in such a
letter subject to a condition, and such condition has
been performed (e), the letter can be used in evidence
against the writer, notwithstanding that it was written
" without prejudice." With these exceptions, nothing
which is written or said without prejudice, can be
used as evidence without the consent of both parties (J).
It has been laid down that the rule has no application

(i) Paddock v. Forrester. 3 M. & G. 903.

(«) lie Harris, 44 L. J. Bk. 33.
(*) Peacock v. Harper, 26 W. K. 109.
(<•) Wallace v. Small, M. k. M. 446.
(rf) In re Hirer Steamer Co., L. 11. 6 Ch. 822.
(e) Holihtoorth v. Dimsdale, 1'J W. II. 798.
(/) Walker v. Wiltshire, 23 Q. B. D. 337.
242 Law of Evidence.

unless some person is in dispute or in negotiation with

another, and also that it has no application to a
document which in its nature may prejudice the person
to whom it is addressed, and, therefore, when a letter
headed " without prejudice " was sent by a debtor to
one of his creditors, in which the debtor offered to
compound for the debt, and stated that he was unable
to pay his debts and would suspend payment unless
the composition was accepted, it was held that the
letter was admissible in evidence as being an act of
bankruptcy by the debtor (g). The court is entitled to
look at the document for the purpose of deciding as
to its admissibility (h).

Admissions before Hearing or Trial.

In order to save expense and facilitate proceedings,

it is usual and right for each party, previous to trial,
to call on the opposite party to make various admis
sions, by which the party so admitting cannot be
prejudiced, and to which therefore he cannot reason
ably object. These admissions are now regulated and
required by Order XXXII. of the E. S. C, 1883, which
provides under Rule 1 that any party may give notice
by his pleading, or otherwise in writing, that he admits
the truth of the whole or any part of the case of any
other party. Under Eule 2 either party may call upon
the other party to admit any document, saving all just
exceptions (i) . Under Eule 4 any party may, by notice
in writing, at any time not later than nine days before
the day for which notice of trial has been given, call
on any other party to admit, for the purposes of the
cause, matter, or issue only, any specific fact or facts

(g) Re, DaiiUrey, [1893] 2 Q. B. 116.

(ft) IM.
(0, In complying with this notice care should be taken that the words
" saving all just exceptions," arc expressly used.
 Admissions. 243

mentioned in such notice. And in case of refusal or

neglect to admit the same within six days after service
of such notice, or within such further time as may be
allowed by the court or a judge, the costs of proving
such fact or facts shall be paid by the party so neglecting
or refusing, whatever the result of the cause, matter, or
issue may be, unless at the trial or hearing the court
or a judge certify that the .refusal to admit was reason
able, or unless the court or a judge shall at any time
otherwise order or direct. Provided that any admission
made in pursuance of such notice is to be deemed to be
made only for the purposes of the particular cause,
matter, or issue, and not as an admission to be used
against the party on any other occasion or in favour
of any person other than the party giving the notice :
Provided also, that the court or a judge may at any
time allow any party to amend or withdraw any admis
sion so made on such terms as may be just.
Rule 4 was new ; but Rule 2 is substantially the same as
Order XXXII., Rule 2, of the R. S. C, 1875, and is also
similar to the practice existing prior to 1875 under the
Common Law Procedure Act, 1852, and the Chancery
Amendment Act, 1858. Under those Acts it was held
that a party, by admitting a document, does not thereby
in any way recognise its legal validity, but merely
enables the opposite party to dispense with the usual
evidence which would otherwise be necessary to bring\
it before the court. Thus, when a party admitted his
signature to a bill of exchange, he was still allowed to
object to the insufficiency of the stamp (k) ; and an
admission on notice of certain documents which were
described as copies of , or extracts from, certain original
documents, was held not to make such copies evidence,
in the absence of sufficient reason for the non-pro- I
duction of the originals (/). An admission of a bill of
(*) Vane v. Wh ittinqton, 2 Dowl. (N.S.) 757.
(0 Slwrpe v.Lnmbe, 11 A. ic E. 805.
244 Law of Evidence.

exchange drawn by the plaintiff, directed to the defen

dants, " and accepted by one H. B. for the defendants,"
was held to estop the defendants from disputing H. B.'s
authority to accept (m) ; and it has been held that,
after admission of a deed, no objection can be taken
to an erasure or interlineation which may afterwards
appear (n). Where the defendant objected at the trial to
an unexplained interlineation which had been admitted
without objection, Colehidge, J., said :
" Before a party admits a deed it is produced to him for the
very purpose of enabling him to inspect it, and say whether lie
objects to its admission in the form in which it appears to be
written. Here it must be considered, either that the defendant
really admitted that the deed was correct, and the interlineation
no objection, or that the admission was made with the dishonest
intention of entrapping the plaintiff ; and as it must be presumed
that the defendant acted upon the inspection of the deed upon
which he had a right to act, I think the objection has been waived
under the notice to admit."

Where there is a variance in date between the docu

ment admitted and that which is produced, it will be
immaterial, unless the opposite party has been misled
by it (o) ; but it ought to be shown that the document
admitted and that produced are the same (p) .
The courts will not sanction any agreement for an
admission by which any of the known principles of
law are evaded. No effect, therefore, will be given to
an agreement to waive an objection arising from a deed
not having been stamped (</).
Order XVIII., Kule 6, of the County Court Rules,
1903, contains the following provision :
" Where a party desires to give in evidence any document, he
may, not less than five clear days before the trial, give notice to

O) Waken v. Hopkint, 1 C. B. 737.

O) Freeman v. Steggal, 14 Q. B. 202.
(<>) Field v. Fleming. 5 Dowl. 450.
Q0 Clay v. Thachrah, 9 C. 4: l*. 47.
(y) Oicrn v. Thomas, A M. 4; K. 3">7.
 Admissions. 245

any other party in the action or matter who is competent to make

admissions requiring him to inspect and admit such document ;
and if such other party does not within three days after receiving
such notice make such admission, any expense of proving the same
at the trial shall be paid by him, whatever may be the result, unless
the court otherwise orders ; and no costs of proving any document
shall be allowed unless such notice has been given, except in cases
where, in the opinion of the judge at the trial, or of the registrar
on taxation, the omission to give such notice has been a saving of
expense."
 ( 246 )

CHAPTEE XVII.

CONFESSIONS.

As in civil controversies the admissions of parties are

received against their makers, so in criminal trials the
confession of a prisoner is held to be evidence against
him of a high nature ; but since a person charged with
a crime may be induced by his situation either to
criminate himself untruly, under the influence of
excitement or terror, or trusting to a promise of
forgiveness by a prosecutor, or other person who may
be presumed to have a power of pardoning, it has long
been the policy of the criminal law to reject evidence of
every confession or statement by a prisoner, which has
been made under the pressure of any species of physical
or moral duress. "Whenever, therefore, at a criminal
trial, there appears to be ground of reasonable suspicion
that a confession of guilt has been elicited from a
prisoner by a threat of punishment in the event of a
refusal to confess, or by a promise of forgiveness on
condition of confessing, the court will inquire strictly
into the antecedent circumstances of the statement
which is to be tendered, and will not receive it unless
it is proved to have been the free and voluntary declar
ation of the prisoner. The rule, as now recognised, is
the following :

The statement of a prisoner as to the circum

stances of a crime with which he is charged
is evidence against himself, provided the
court is satisfied (a), that the statement be
free and voluntary, and that it has not been

R. v. Thompson, [1893] 2 Q. B. 12.

 Confessions. 247

extracted by any sort pf threats or violence,

nor obtained by any direct or implied pro
mises, however slight, nor by the exertion
of any improper influence (b).
This rule has been established by a series of
decisions.
In R. v. Baldry (c), Lord Campbell, C.J., said :
" The rule seems to be this : If there be any worldly advantage
held out to the accused to be obtained by confession, or any harm
threatened to him if he refuses to confess, any statement made by
him in consequence of any such inducement must be rejected.
The reason for this rule I take to be, not that the law supposes
that what is said after such inducement is false, but that the
prisoner may have said something under a bias, and that it is not a
purely voluntary confession."

Pollock, C.B., in the same case said :

" By the law of England every confession to be used against a
prisoner must be a voluntary confession. Every inducement held
out by a person in authority will render a confession inadmissible ;
and the cases have gone very far as to who are persons in
authority."

On these grounds a confession will be inadmissible

when it has been obtained by any threat or promise of
favour held out by a prosecutor or his wife (d) ; by the
prisoner's master or mistress when the crime has been
committed against either of them, but not otherwise (e) ;
by the attorney of such person in authority ; by a
constable, or anyone acting under a constable (/) ; and
especially by a magistrate (g). The mere presence of a
constable, however, is not enough, if he does not
interfere in giving the advice or holding out the
inducement (h) .

(J) R. v. Fennell, 7 Q. B. D. p. 150. (c) 2 Den. C. C. 430.

(/0 R. v. Spencer, 7 C. & P. 776.
(c) R. v. Moure, 2 Den. 522.
(/) fl. v. Enoch, 5 C. & P. 535.
(5) R. v. Drew, 8 C. k P. 140.
(A) R. v. JarvU, 1 C. C. R. 96 ; R. v. Reeie, 1 C. C. R. 362.
 •248 Law of Evidence.

The inducement must be held out by a person who is

presumably in authority, and who consequently lias
presumably power to forgive, or otherwise influence
the current of events. The inducement need not be
expressed, but may be implied (i), and it need not be
made to the accused directly if it is intended to come,
and does come, to his knowledge (k).
Where a maid-servant was indicted for child murder,
a confession elicited from her by her mistress was held
admissible, because the crime was in no way connected
with the management of the house, and there was,
therefore, no probability that the mistress or her
husband would prosecute in it (I). So, too, when a
confession is elicited by an inducement held out by a
non-resident daughter of a prosecutor, it appears that
she is not a person in authority competent to hold out
an inducement, and that the confession is admis
sible (m). If, however, the inducement is made in the
presence of a person in authority, such as a prosecutor,
or one who is likely to be a prosecutor, who stands by
and does not object, his silence is treated as a tacit
acquiescence in the inducement, and the confession
will be rejected (n) ; but where one of two prisoners
said to the other in the presence of the prosecutor and
a policeman, " you had better tell him the truth," and
neither the prosecutor nor the policeman spoke, a con
fession made by the prisoner so addressed was held
admissible (o) ; and so was a confession in the case
where the mother of one of the prisoners (who weie
young boys) said to them, in the presence of a constable
and of the mother of the other boy, " you had better, as
good boys, tell the truth " (p). When the inducement
is held out by a person who has no authority in the

(0 R- OUlet, 11 Cox, C. C. 69.

(4) Sec R. v. Thompson, [1893] 2 Q. B., at p. 17.
(0 R. v. Moore, 2 Den. 522.
(m) R. v. Sleeman. Dears. 269. («) R. v. Parker, L. & C. 42.
(«) R. v. Luekhurst, Dears. 245. Q>) R. v. Reeve, 1 C. C. R. 362.

V
 Confessions. 249

matter, a confession will be admissible. Thus, when a

prisoner's neighbours, who were not connected with
the prisoner, advised her to tell the truth for the sake
of her family, the confession was received (q). When
the inducement has been once held out by a person in
authority, no subsequent confession to such person will
be admissible, unless it appear clear that the impression
which it was calculated to make has been removed
from the mind of the prisoner.
_A confession made to a person in authority, if not
induced by him, may be admissible (r) ; but a confes
sion made to a third party, if induced by a person in
authority, is inadmissible (s).
The prosecutor must prove affirmatively to the
satisfaction of the judge that the confession was not
obtained by improper means (£). In the absence of
such satisfactory proof, the confession will not, of
course, be received ; and if a judge subsequently dis
covers that a confession has been improperly received,
he will strike it from his notes, and direct the jury that
it is to have no weight with them (u).
No general rule can be laid down as to the precise
inducements which are sufficient to exclude a con
fession. But a confession will generally be excluded if
a prisoner be told that it will be better for him if he
confess, or worse for him if he do not confess (jr) ; and
the following are instances of inducement where a
subsequent confession has been rejected :
" If you do not tell me who your partner was, I will commit you
to prison " (y).
" Tell me where the things are, and I will be favourable to
you " (*).

(?) R. v. Rowe, Kuss. k K. 153 ; R. v. Taylor, 8 C. k P. 733.

(r) R. v. Oibboiu, lC.tP. 97.
(») R. v. Rntwvll, C. & M. 584.
ff) R. v. Warringham, 2 Den. C. C. 447 n.
250 Law of Evidence.

" If you are guilty, do confess ; it will perhaps save your neck ;
you will have to go to prison ; pray tell me if you did it " (a).
" If you do not tell me all about it I will send for a con
stable " (6).
" You had better tell all you know " (c).
" Anything you can say in your defence we shall be ready to
hear " (rf).
11 It would have been better if you had told at first " (e).
" I should be obliged to you if you would tell us what you know
about it ; if you will not, of course we can do nothing for
you"(/).
" It will be best for you if you tell how it was transacted " (g).
" Speak the truth, it will be better for you if you do " (A).

On the other hand, confessions have been received,

notwithstanding the following apparent inducements :
" You had better tell the truth " ; or " Be sure to tell the
truth " (0-
" If you will tell where the property is you shall see your
wife"(i-)-

In B. v. Court, Littledale, J., said :

" It can hardly be said that telling a man to be sure to tell the
truth is advising him to confess what he is really not guilty of.
The object of the rule relating to confessions is to exclude all
confessions which may have been procured by the prisoner being
led to suppose that it will be better for him to admit himself to be
guilty of an offence which he really never committed " (I).

In B. v. Fennell (m), a confession made by the

prisoner to the prosecutor in the presence of a police
inspector immediately after the prosecutor had said to
the prisoner, " The inspector tells me you are making
house-breaking implements ; if that is so, you had

(a) if v. Upchvrch, 1 Moo. C. C. 465.

(J) if. v. Richards, 5 C. & P. 318.
(e) if. v. Thomat, 6C.S: P. 353.
(d) if. v. Morton, 2 M. & K. 514.
0) if. v. Walkley, 6 C. & P. 175.
If) if. v. Partridge, 7 C. & P. 551.
(g) R. v. Warringham, 2 Den. 447.
(/<) if. v. Rote, 7« L. T. 119.
(/) if. v. Court, 7 C He P. 486 ; but see if. v. Roue, ubi supra.
(*) if. v. Lloyd, 6 C. A: P. 393.
(I) 7 C. & P. 487.
()«) 7 Q. B. D. 147.
 Confessions. 251

better tell the truth; it maybe better for you," was

held not admissible in evidence. It would seem, also,
that a statement made by a prisoner in expectation of
a reward and a pardon which have been offered by the
Crown, is inadmissible (n).

Official questions.—A confession obtained by mere

official questions, without threat or promise, is admis
sible (o) ; thus, where one member of the firm by
whom the prisoner was employed called the latter into
the counting-house, and said, in the presence of another
member of the firm and two policemen :
" I think it is right that I should tell you that, besides being in
the presence of my brother and myself, you are in the presence of
two police officers ; and I should advise that to any question that
may be put you will answer truthfully, so that if you have com
mitted a fault, you may not add to it by saying what is untrue " ;

and he then produced a letter (which the prisoner

denied having written), and added, "Take care; we
know more than you think we know " ; and the
prisoner thereupon made a confession : the court held,
that the above words did not operate as an inducement
or a threat, but were only in the nature of a warning,
and admitted the evidence (p). If the master had
added, " It will be better for you to tell the truth," the
confession would have been held inadmissible.

Statements to police officers in reply to questions.—

In B. v. Baldry (<?), the policeman who apprehended
the prisoner told him, at the time of the apprehension,
that "he need not say anything to criminate himself;
what he did say would be taken down and used in
evidence against him." The prisoner then confessed,
and the Court of Criminal Appeal held that these words

(m) B. v. Blackburn, 6 Cox, C. C. 333.

(«0 B. v. Thornton, \i. & M. 27.
O) B. v. Jartu, L. K. 1 C. C. B. 96.
(..?) 2 Den. C. C. 430.
'252 Law of Evidence.

did not contain any promise or threat to induce the

prisoner to confess, and the confession was admissible.
There have been many decisions on this subject, but
it is now well settled that the statements of an accused
person in answer to questions put to him by a police
man or other officer are admissible, provided they are
not brought about by any inducement of advantage or
suggestion of advantage, or by any threat or suggestion
of a threat (r).
It is also necessary in order to exclude a confession,
that the inducement held out should contain some
promise or prospect of a temporal benefit. If, there
fore, it amounts to no more than a moral or religious
exhortation, it will be admitted. Thus, where a person
said to a boy of fourteen, who had been apprehended
on a charge of murder, " Now, kneel you down by the
side of me and tell me the truth " ;. and, on the boy
doing so, added, "I am now going to ask you a very
serious question, and I hope you will tell me the truth
in the presence of the Almighty " : the confession which
followed was admitted by the judges (s). So the
words, "Do not run your soul into more sin, but tell
the truth," have been held not to contain an induce
ment (t).
A confession will not be inadmissible merely because
it has been obtained by deception. Even when the
prisoner has made it only on receiving a preliminary
oath of secrecy from the person trusted, such person
will be competent and compellable to reveal it (it) ; and
a confession made by a prisoner while drunk has been
received (v).
Voluntary statements made by a prisoner before a
committing magistrate are strictly admissible against
(r) Rogers v. Ifawken, 78 L. T. 655. See also R. v. Rose, 78 L.T. 119.
(*) R. v. Wild, K. & M. 452.
(0 R. v. Sleeman, Dears. C. C. 269.
00 It- v. Shaw, 6 C. & P. 372.
(r) R. v. SpiUbnry, 7 C. & P. 187.
 Confessions. 253

him ; but before a magistrate asks a prisoner it he

wishes to make any statement, he is bound to caution J1
him in the language of 11 & 12 Vict. c. 42, s. 18. By
that section it is provided that, after the examinations
of all the witnesses on the part of the prosecution shall
have been completed, the justice of the peace, or one of
the justices by or before whom such examination shall
have been so completed as aforesaid, shall, without
requiring the attendance of the witnesses, read, or
cause to be read, to the accused the depositions taken
against him, and shall say to him these words, or words
to the like effect :
" Having heard the evidence, do you wish to say anything in
answer to the charge ? Sou are not obliged to say anything
unless you desire to do so, but whatever you say will be taken
down in writing, and may be given in evidence against you upon
your trial *' ;

and_ whatever the prisoner shall then say, in answer

thereto, shall be taken down in writing and read over
to him, and shall be signed by the said justice or
justices, and kept with the depositions of the witnesses,
and shall be transmitted with them as thereinafter
mentioned ; and afterwards, upon the trial of the said
accused person, the same may, if necessary, be given
in evidence against him without further proof thereof,
unless it shall be proved that the justice or justices
purporting to sign the same did not in fact sign the same ;
provided always, that the said justice or justices,
before such accused person shall make any statement,
shall state to him, and give him clearly to understand
that he has nothing to hope from any promise of
favour, and nothing to fear from any threat which may
have been holden out to him to induce him to make
any admission or confession of his guilt ; but whatever
he shall then say may be given in evidence against him
upon his trial, notwithstanding such promise or threat;
provided, nevertheless, that nothing therein enacted or
254 Law of Evidence.

contained shall prevent the prosecutor in any case from

giving in evidence any admission or confession, or other
statement of the person accused or charged. A volun
tary statement by a prisoner before the depositions are
complete, and before the statutory caution has been
given, is admissible (x).
When a confession is inadmissible, every statement
or act, which, presumably and reasonably, flows from
it will be also inadmissible in evidence ; for it is held
that the influence which produces a groundless con
fession may also produce groundless conduct (y). But
although a confession may be inadmissible, a witness
may be asked whether, in consequence of something
which the prisoner had said, he has made any discovery
of other facts which bear on the case {z) .

On a joint charge. —Iftwo_persons be charged jointly,

the confession of one will not be evidence against the
other, for a prisoner is called upon to answer deposi
tions on oath, but not to make any answer to the
statement of another prisoner (a) ; but the record of
the conviction of a principal in a felony, who has
pleaded guilty, is evidence against an accessory to the
commission of the principal felony (b). On trials for
conspiracy, where the conspiracy has been proved, the
acts of one conspirator are evidence against the other
conspirators. Thus it was held in ii. v. Hardy (c),
that the statements in the letters addressed by one
conspirator to another were evidence against the latter.

Principals and agents are not criminally liable, as

such, for their respective acts, and, therefore, cannot

O) R. v. Stripp, Dears. C. C. 648 ; R. v. Santome, 1 Den. 0. C. 545.

(,//) R. v. Jmltiits, K. k R. 492.
(•) R. v. Gould, 9 C. & P. 364.
(a) Per Patteson, J. ; R. v. Swinnerton, C. A: M. 593 ; R. v.
A ppleby, 3 Stark, 38.
(») R. v. Illicit, 4 C. & P. 377
(r) 24 How. St. Tr. 475.
 Confessions. 255

be affected by each other's confessions. Thus, on

Lord Melville's trial for embezzlement, it was held,
that the admissions of his agent that the latter had
received money on account of his principal only affected
the principal with a civil liability, and that it could
by no possibility convict him of a crime (d). There is
an exception to this rule in the case of a libel published
in a newspaper, where the proprietor is prima facie
liable for the insertion by his agent (e).

Uncorroborated confessions.—A prisoner may be

convicted on proof of a confession without other
evidence (/) ; but judges are unwilling to direct a •
conviction in such cases. Instances are common in
which prisoners, under the influence of a morbid senti
ment, have confessed crimes which they have never
committed ; and there are others in which the con
fession seems to have been prompted by the full, but
unfounded, bebef in the confessing party that he had
committed the crime. It has been said that—
" X°° great weight ought not to be attached to evidence of
what a party has been supposed to have said; as it very frequently
happens, not only that the witness has misunderstood what the
party has said, but that, by unintentionally altering a few of the
expressions really used, he gives an effect to the statement com
pletely at variance with what the party really did say (g).

A confession made before magistrates must be proved

at the trial by the depositions, unless it be clearly
shown that the statement was not taken down at the
time.
00 29 How. St. Tr. 764.
(<0 Ji. v. Outch, 1 M. It M. 433.
(/) R. v. Sullivan, 16 Cox, C. C. 347.
(#) Per PARKE, B. : Earle v. Picken, 5 C. & P. 542 n.
 ( 256 )

CHAPTER XVIII.

THE BURDEN OF PROOF.

On whom does the onus probanda, or burden of proof,

rest, when an issue between two parties is before a
tribunal? The answer to this question includes the
answer to another, which causes frequently great con
troversy, as preliminary to the opening of a case, viz.,
which party has the privilege, or incurs the duty, of
beginning ? Practically, no point connected with judicial
proof involves more subtle principles of law ; and none
involves more important advantages and disadvantages,
according to the circumstances, to the contending
parties. It is needless to insist on the importance
which necessarily attaches to the order in which parties
are allowed to state their cases to the court. •
The general rule of the civil law has been adopted
in England by courts of equity, as well as courts of
law. Ei incumbit probatio qui dicit, non qui negat.
The issue must be proved by the party who states an
affirmative ; not by a party who states a negative. In
other words, it is a legal «naxim that a negative cannot
be proved. This rule is, however, subtler in substance
than in form. Thus, a legal affirmative is by no means
necessarily a grammatical affirmative, nor is a legal
negative always a grammatical negative. A legal
affirmative often comes in the shape of a grammatical
negative, and a legal negative often appears as a
grammatical affirmative.
The rule may, therefore, more correctly be laid down
that—
 The Burden op Proof. 257

The issue must be proved by the party who states

the affirmative in substance, and not merely
the affirmative in form.
There are two tests for ascertaining on which side
the burden of proof lies: first, it lies upon the party
who would be unsuccessful if no evidence were given
on either side (a) : secondly, it lies upon the party who
would fail if the particular allegation in question were
struck out of the pleading (6). And it is well established,
that where the party on whom the onks lies of proving
an allegation gives evidence as consistent with one
view of the case as the other, he fails in his proof (c) .
The general rule is, however, subject to exceptions.
Inasmuch as the law will not presume the commission
of a crime or tort, the party alleging the commission
oT an act amounting thereto must prove it. In
jtinos v. Hughes {d), the court would not presume
the work to have been done in an unworkmanlike
manner ; and in an action for putting combustible
goods on board the plaintiff's ship without due notice,
it was held that the plaintiff was bound to prove the
negative (e). So, in an action for breach of a covenant
or promise to repair, if the plaintiff alleges that the
premises were not kept in repair, and the defendant
pleads that they- were, the plaintiff must begin, and
prove the non-repair (/). So, in ejectment by a land
lord, on a breach of covenant by defendant to insure
the premises, the burden of proof lies on the plaintiff,
because the object of the action is to defeat the estate
granted to a lessee (7). In bankruptcy the burden is

(fl) Amox v. Hughes. 1 M. & Rob. 464.

(ft) Mills v. Barber, 1 M. & W. 427.
(c) 8 E. & ]i. 268 ; ef. Cotton v. Wood, 8 C. B. (N.8.) 568.
(<i) 1M.& Rob. 464.
(e) William) v. Ea»t India Co., 3 East, 193 ; Wahclin v. London and
South Western Mail. Co., 12 App. Cus. 45.
(/) Soward v. Leggatt, 7 C. Jt P. 613.
(j) Doe v. Whitehead, 8A.li K. 571.
i.. i:. s
258 Law of Evidence.

on the petitioning creditor to show that the debtor's

domicil is in England (/;) ; but if it is not disputed, he
need not adduce evidence on the point in the first
instance (i). The owner of the surface of land has a
prima facie right to have it properly supported from
below, and the burden of proof is on any person claim
ing against such right (k). In a case where the
plaintiffs had brought an action against the defen
dants for non-delivery of goods shipped under a bill
of lading containing the usual exceptions, but not
excepting negligence, the goods had been damaged
by sea water through the stranding of the vessel, and
the defendants claimed exemption from liability on the
ground that the loss was occasioned by perils of the
sea, to which the plaintiffs rejoined that, even if that
were true, that peril of the sea was the result of
negligent navigation on the part of the defendants'
servants. It was held by the Court of Appeal that as
the loss apparently fell within the exception, the burden ■
of showing that the defendants were not entitled to the
benefit of the exception, by reason of negligence, lay
upon the plaintiffs. Lopes, L.J., in giving judgment
said :
i
" It appears to me in this case that the burden of proving that
the loss which has happened is attributable to an excepted cause
lies on the person who is setting it up. That in this case would
be the defendants, the shipowners. If, however, the excepted
cause by itself is sufficient to account for the loss, it appears to me
that the burden of showing that there is something else which
deprives the party of the power of relying on the excepted clause
lies on the person who sets up that contention. That in this case
would be the plaintiffs, who are the shippers" (/).

Where a plaintiff sues for damages for negligence he

he )
must prove such negligence, and where the defence of/

(A) Ke parte Cunningham. 13 Q. B. 1). 418.

(0 Ex parte Barnes, 16 Q. B. J). 522.
(k) Lore v. Bell, 9 App. Cas. 286.
(0 The Glendarroeh, [1894] V. 266.
 The Burden of Proof. 259

contributory negligence is set up the burden of proving

such contributory negligence is on the defendant ; but
if the contributory negligence is admitted by the
plaintiff, or proved by the plaintiffs' witnesses while
establishing negligence against the defendant, that is
enough (m).

Where there is a disputable presumption of law

in favour of one party, it will be incumbent
on the other to disprove it.
The maxim omnia preesumuntur rite esse acta has
considerable effect in shifting the burden of proof.
Therefore, by s. 30 of the Bills of Exchange Act,
1882 (n), it is provided as follows :
"(1) Every party whose signature appears on a bill is primA
facie deemed to have become a party thereto for value : (2) Every
holder of a bill is prima facie deemed to be a holder in due course ;
but if in an action on a bill it is admitted or proved that the
acceptance, issue, or subsequent negotiation of the bill is affected
with fraud, duress, or force and fear, or illegality, the burden
of proof is shifted, unless and until the holder proves that, subse
quent to the alleged fraud or illegality, value has in good faith been
given for the bill."

These provisions substantially reproduced the law

as it stood on the cases at the time of the passing
of the Act. Before the Act it had been held that when
a bill sued on was accepted in the name of a firm, but
the acceptance was proved to be by one of the partners
in fraud of the partnership and contrary to the partner
ship articles, the onus was on the plaintiff to show that
he gave consideration for the bill (o). On the principle
that, where an act is tainted apparently with illegality,
the party justifying it must disprove its illegality, a de
fendant in libel, who pleads a fair report of proceedings

(711) Wnkelin v. London and South Western Rail. Co., 12 App. C'as.
45.
(«) 45 & 46 Vict. c. 61.
(<>) Hogg v. Sheen, 18 C. 15. (X.S.) 42C.
82
260 Law of Evidence.

in a court of justice, must prove the correctness

of the report (p). In actions for libel where the
occasion is a privileged one, the onus is on the plaintiff
to prove that the defendant was actuated by malice (q);
and in actions for malicious prosecution the onus is of
course on the plaintiff, who must show that the pro
ceeding was entirely groundless, and it is not sufficient
for him to prove the dismissal of the charge (r) . The
onus is on those who seek to charge an executor or
trustee with a loss arising from the default of an agent
where the propriety of employing an agent has been
established (s). Where a false representation is made
to a person for the purpose of inducing him to enter
into a contract and he does- enter into it, the burden of
proof in an action to enforce the contract lies on the
party who made the representation to show that the
other party did not rely on it (<)•
"Whenever it is alleged by a party to a deed or his
privy that the recitals in such deeds are untrue, the
burden of proving their falsehood rests upon such
party or privy, who is prima" facie bound by such
recitals as admissions («). Where a person sued upon
a covenant in restraint of trade sets up its invalidity,
it is for him to prove that it is invalid (x). In patent
cases the burden of proof of infringement is ordinarily
on the patentee (y) ; and where a defendant denies the
novelty of the plaintiff's invention, the burden of
proving the issue thus raised is on him, but the
plaintiff can call evidence in reply to rebut the defen
dant's evidence on this point {z).

(/>) MelUtieh v. Lloyd, 46 L. J. C. P. 404.

(?) Clark v. Molyntur, 3 Q. B. I). 237 ; approved, Jcnourc v. Delmege,
[18111] A. C.,at p. 79.
(r) Abrath v. North Eastern Bail. Co., 11 App. Cas. 247.
(*) Brier v. Eruon, 26 Ch. 1). 238.
(0 Bcdgrare v. Hurd, 20 Ch. D. 1.
(w) Melbourne Banking Corporation v. Brougham. 7 App. Cas. 307.
(a;) Boutillon v. Rmmllan, 14 Ch. I). 351.
ly) A'eilton v. Bettt, L. R. 5 K. & I. 1.
(i) Penn T. Jack, L. R. 2 Eq. 314.
 The Burden op Proof. 261

When a person, who is able* to exercise what has

been termed " dominion " over another, takes a benefit
from him, such person must prove that the transaction
was a righteous one (a), and that the gift was intended
to be given (b) . This is not confined to cases of parent
and child, guardian and ward, solicitor and client, and
the like, but extends to every case in which two
persons are so situated that one may obtain consider- j
able influence over the other (c). But if a married '
woman, who has purported to charge her separate
property for money advanced to her husband, alleges
undue influence, she must prove it {d). Where a
married woman, living apart from her husband, con
tracts debts, the Court of Chancery will impute to her
an intention to deal with her separate property (e) , and
throw upon her the onus of proving the contrary.
An important general principle was laid down in the
opinion of the judges upon the case submitted to them
by the House of Lords in The Banbury Peerage Case (/),
thus :
" Where there is prima facie evidence of any right existing in
any person, the onus probandi is always upon the person or party
calling such right in question."

Therefore, where there is a primd facie right to light

in the grantee of land, the burden of proving any
limitation of such right is upon the grantor who
alleges it (g). So a court always treats a deed or
instrument, which is prima facie good, as what it

(a) Cooke v. Lamotte, 16 Beav. 240 ; cf. AUcard v. Skinner 38 Ch. 1).
145.
(A) Walker v. Smith, 29 Beav. 396 ; cf. Turner v. Coiling, h. R. 7 Ch.
329.
(o) Cf. ante, p. 57.
(d) Field v. Sowlr, 4 Rom. 112.
(c) Johnson v. Gallager, 3 l)e G. F. & J. 521 ; approved l>y the Judi
cial Committee of the Privy Council in London Chartered Bank of
Australia v. Lempriere, h. li. 4 P. C. 572.
(/) 1 S. & S. 165.
C<7) Broomjield v. Williams, [1897 J 1 Ch. 602.
262 Law of Evidence.

purports to be (h), and the onus of proving that it is

not what it purports to be, or that it is invalid, rests
upon the party impeaching it (i). But where a will is
propounded, there are two rules of law which are
always acted upon :
" The first that the onus proband/ lies in every case upon the
party propounding a will, and he must satisfy the conscience of
the court that the instrument so propounded is the last will of a
free and capable testator. The second is, that if a party writes or
prepares a will under which he takes a benefit, that is a circum
stance that ought generally to excite the suspicion of the court, and
calls upon it to be vigilant and jealous in examining the evidence
in support of the instrument, in favour of which it ought not to
pronounce unless the suspicion is removed, and it is judicially
satisfied that the paper propounded does express the true will of
the deceased " (&).

In another case (I) it was held :

" That the second rule is not confined to the single case in which
a will is prepared by or on the instructions of the person taking
large benefits under it, but extends to all cases in which circum
stances exist which excite the suspicion of the court ; and wherever
such circumstances exist, and whatever their nature may be, it is
for those who propound the will to remove such suspicion, and to
prove affirmatively that the testator knew and approved of the
contents of the document, and it is only where this is done that
the onus is thrown on those who oppose the will to prove fraud or
undue influence, or whatever else they rely on to displace the case
made for proving the will."

In criminal proceedings the burden of proof, as a

general rule, rests on the prosecution, on account of
the presumption of the innocence of the accused. That
burden is discharged in cases of murder and man
slaughter by simply proving the killing of the deceased,
and it is for the accused to prove, if he can, those facts
which will reduce the act to one of manslaughter or
justifiable or excusable homicide. But the practice is
for the prosecution to produce all persons present when

(A) Jacobs v. Richards, 18 Beav. 303.

(i) Nickol v. Vavghan, ] C. & F. 49.
Ik) Per Parke, 15., in Barry v. Butlin, 2 Moo. P. C. 480.
(I) Tyrrell v. Painton, [1894] P. 151.
 The Burden of Proof. 263

the killing took place, so that they shall be available as-

witnesses if required. In a variety of cases the legis
lature has thrown the burden of proving authority,
consent or lawful excuse on the defendant in criminal
proceedings. Thus, by the Summary Jurisdiction Act,
1879 (m), s. 39 (2), it is enacted that :
'• Any exception, exemption, proviso, excuse, or qualification,
whether it does or does not accompany in the same section the
description of the offence in the Act, order, byelaw, regulation, or
other document creating the offence, may be proved by the defen
dant, but need not be specified or negatived in the information or
complaint, and, if so specified or negatived, no proof in relation to
the matter so specified or negatived shall be required on the part
of the informant or complainant " («).

In the case of offences under s. 2 of the Merchandise

Marks Act, 1887 (50 & 51 Vict. c. 28), the burden of
proof of the exemptions is thrown on the defendant.
So, too, when a person is charged with making or
possessing coining tools, under 24 & 25 Vict. c. 99,
s. 24, without lawful authority or excuse, the burden of
proving that he had such authority or excuse rests on
him. By s. 17 of the Prevention of Cruelty to
Children Act, 1894 (o), it is enacted that:
" Where a person is charged with an offence under this Act, or
any of the offences mentioned in the schedule to this Act, in respect
of a child who is alleged in the charge or indictment to be under
any specified age, and the child appears to the court to be under
that age, such child shall for the purposes of this Act be deemed
to be under that age, unless the contrary is proved."
I
This applies whether the child is produced in court
or not. Where the child is not produced the prosecu
tion must of course give satisfactory evidence of age.
But a certificate of birth need not be put in (p).

(m) 42 * 43 Vict. c. 49.

(») A similar provision will be found specifically incorporated into
many modern Acts of Parliament creating offences.
<>) 57 & 58 Vict. c. 41.
p) R. v. Cox, [1898] 1 Q. B. 179.
264 Law of Evidence.

The Betting and Loans (Infants) Act, 1892 (q), con

tains important provisions as to the onus probandi on
the defendant in prosecutions under ss. 1 and 2.
In an action for goods sold and delivered, with a plea
of infancy, the onus probandi lies upon the defendant ;
as the_law presumes that, when a man .contracts,
he is of proper age to contract, until the contrary be
shown (r). So, negligence in carriers (s), legitimacy of
children born in wedlock (t), duration of life (u), and
insanity, are all issues in which the onus probandi
is regulated by the legal presumption as to the fact :
and the party who disputes the truth of the presump
tion in the particular case is bound to show that it does
not apply (x).
Another exception to the above-stated general rule
arises from the principle that :

In every case the onus probandi lies on the

person who wishes to support his case by a
particular fact which lies peculiarly within
his knowledge, or of which he is reasonably
cognizant (y).

Thus, generally, in summary proceedings before

magistrates, the defendant, who claims a qualification,
and not the informer who charges the want of it, must
prove the fact ; for this is peculiarly within the know
ledge of the former (z). This principle has been

(}) 55 Vict. c. 4 ; see Appendix.

(r) Hartley v. Wharton, 11 A. & E. 934.
(«) Marsh v. Home, 5 B. k C. 322.
(0 Plowet v. Bottey, 2 I), k S. 145. See also ante, p. 69.
(») See ante, p. 74.
(a>) Hall v. Warren, 9 Ves. 611.
(.y) Per Holroyd, J. : B. v. Burdett, 4 B. Aid. 140.
(i) B. v. Turner, 5 M. & S. 206.
 The Burden of Proof.

expressly imported into the Game Act, 1831 (1 &

2 Will. 4, c. 32, s. 42), which enacts that :
" It shall not be necessary in any proceeding against any person
under this Act to negative by evidence any certificate, licence,
consent, authority, or other matter of exception or defence ; but
the party seeking to avail himself of any such certificate, licence
. . shall be bound to prove the same."

Under the Licensing Act, 1872 (a), the burden of

proving that the person supplied was a bond fide
traveller, rests on the defendant ; but, by the Licensing
Act, 1874 (6), if he fails in such proof, but the justices
are satisfied that the defendant truly believed that the
purchaser was a bond fide traveller, and further that the
defendant took all reasonable precautions to ascertain
whether or not the purchaser was such a traveller,
the justices shall dismiss the case as against the
defendant.
The burden of proving that he did not know that a
ship, built by order of or on behalf of any foreign state
when at war with a friendly state, was intended to be
used and employed in the military and naval service of
such foreign state, is thrown upon the builder of such
ship by the Foreign Enlistment Act, 1870 (c) ; and by
s. 24 of the Elementary Education Act, 1873 (d), when
a child is apparently of the age alleged for the purposes
of any legal proceedings under that Act, or the Elemen
tary Education Act, 1870 (e), it shall lie on the defendant
to prove that the child is not of such age. And by s. 3
of the Betting and Loans (Infants) Act, 1892 (/), where
such a document as mentioned in the previous sections
is sent to any person at any place of education, and
such person is an infant, the person sending, or causing
to be sent, the document, shall be deemed to have

O) 35 & 36 Vict. c. 94. (d) 36 & 37 Vict. c. 80.

(A) 37 & 38 Vict. c. 49. («) 33 & 34 Vict. c. 75.
(<•) 33 k 34 Vict. c. 90. (/) 55 Vict. c. 4.
266 Law of Evidence.

known that such person was an infant, unless he proves

that he had reasonable ground for believing such person
to be of full age.
When a plaintiff takes an inquiry as to damages
arising from the use of his trade mark by the defendant,
the onus of proving some special damage by loss, of
custom or otherwise rests upon him (g) ; and in suits to
restrain the sale of a patented article, it is incumbent
on the plaintiff, not only to prove the sale, but to prove
that the article was not made by himself or his
agents (h).
In practice the plaintiff generally begins, because,
to quote the words of Lord Denman, in Mercer v.
Whall (t).
" It appears expedient that the judge, the jury, and the defen
dant himself, should know precisely how the claim is shaped. This
disclosure may convince the defendant that the defence which he
has pleaded cannot be established. On hearing the extent of the
demand, the defendant may be induced at once to submit to it
rather than persevere. Thus the affair reaches its natural and
best conclusion. If this does not occur, the plaintiff, by bringing
forward his case, points his attention to the proper object of the
trial, and enables the defendant to meet it with the full under
standing of its nature and character."

The strict rule, however, is that :

The party on whom the onus probandi lies, as

developed by the record, must begin.
But it is considered that the plaintiff must begin in
actions of libel, slander, and injuries to the person, and
in all other actions in which the plaintiff seeks to
recover unliquidated damages, and wherever there are
several issues, and the burden of proving any one of
them lies on the plaintiff, he is entitled to begin,
provided he undertakes to give evidence on such issue.

(p) Leather Cloth Co. v. Hirsch field, L. R. 1 Eq. 299.

(A) BetU v. Willmott, L. R. 6 Ch. 239.
(0 6 Q. B. 447.-
 The Burden of Proof. 2(57

By sub-s. (7) of s. 2(5 of the Patents, Designs and Trade

Marks Act, 1883 (k), on the hearing of a petition for
the revocation of a patent, the defendant is entitled to
begin. Order XXXVI., Rule 22 of E. S. C, 1883, that
when at the trial the defendant appears and the plain
tiff does not, the defendant, if he has no counterclaim,
shall be entitled to judgment dismissing the action,
applies, even when the burden of proof is on the
defendant (I).
The Merchant Shipping Act, 1894 (to), contains in
s. 697 some provisions relative to the burden of proof
in proceedings as to offences thereunder. It is as
follows :
Any exception, exemption, proviso, excuse, or qualification, in
relation to any offence under this Act, whether it does or does not
accompany in the same section the description of the offence, may
be proved by the defendant, but need not be specified or negatived
in any information or complaint, and, if so specified or negatived,
no proof in relation to the matter so specified or negatived shall be
required on the part of the informant or complainant."

(i) 46 4; 47 Vict. c. 57.

(0 Armour v. Bati: [1892] 2 Q. B. 233.
(»») 57 k 58 Vict. c. 60.
 ( 268 )

CHAPTEE XIX.

JUDICIAL NOTICE AND THE PROOF OF FOREIGN

LAWS.

The courts take judicial notice of numerous facts,

which it is therefore unnecessary to prove. Theo
retically all facts which are not judicially noticed must
be proved ; but there is an increasing tendency on the
part of judges to impart into cases heard by them their
own general knowledge of matters which occur in daily
life.
They notice all the public Statutes of the realm (a) ;
and indeed every Statute passed since 1850, unless the
contrary is expressly provided by such Statute (6) ;
their own course of procedure and practice, and also of
the procedure and privileges of both Houses of Parlia
ment ; the maritime law of nations (c) ; a war in which
the country is engaged, but not a war between foreign
countries (d) ; the great and privy seals (e) ; royal
proclamations ; the preamble of an Act (/) ; the signa
ture of the Clerk of Parliaments (g) ; the "London
Gazette"; almanacks and divisions of the years; the
status of a foreign sovereign or state, and the boundaries
of the territories of such a sovereign or state, the
Foreign or Colonial Office, as the case may be, having
been applied to by the court for information (h) ; the
negotiability of bonds to bearer whether Government or
trading bonds, and whether foreign or English (i) :

(a) Pugh v. Ilobiruim, 1 T. R. 11C.

(i) Interpretation Act, 1889, 8. 9.
(c) Chandler v. Grieves, 2 H. Bl. 606 n.
(rf) Dolder v. Iluntingtield, 11 Ves. 292.
(<■) 29 How. St. Tr. 707. (/) R. v. Sutton, 4 M. & S. 532.
(<7) Badixche Anilin, etc. v. Levinstein, 4 R. P. C. 470.
(A) Mighdl v. Sultan of More, [1894] 1 Q. B. 161 ; Flutter v.
Venture Syndicate, [1900] 1 Ch. 811.
(0 Edelttein v. Schuler, [1902] 2 K. B. 144.
 Judicial Notice, etc. 269

indeed all customs established by the course of judicial \

decision, e.g., the custom of hotel-keepers to carry on
business with furniture which is not their own (k), and
that bankers have a general lien on their customers'
securities deposited with them as bankers in the
absence of special circumstances (I).
The existence of a custom is a question of fact, and it
is_necessary to prove the custom in each case until
it becomes so well known that the courts take judicial
notice of it_{m).
Custom of the City of London can be proved by the
certificate of the Recorder, and when it has been so
certified the court will take judicial notice of it («).
By the Documentary Evidence Act, 1845 (o), s. 3, all
copies of royal proclamations, purporting to be printed
by the Queen's printer, are made evidence thereof in all
courts, without proof being given that such copies were
so printed. By the Documentary Evidence Act, 1868 (p),
this principle was extended to orders or regulations in
council, and to proclamations, orders and regulations
issued by any of the Government departments or officers
specified in the schedule to the Act. This Act provides
that primd facie evidence of any such proclamation,
order or regulation may be given in any of the modes
specified in the Act (q). The Documentary Evidence
Act, 1882 (r), provides (s. 2) that—
" Where any etiactment, whether passed before or after the
passing of this Act, provides that a copy of any Act of Parliament,
proclamation, order, regulation, rule, warrant, circular, list, gazette,
or document shall be conclusive evidence, or be evidence, or have
any other effect, when purporting to be printed by the Government
Printer, or the Queen's Printer, or a printer authorised by her
Majesty, or otherwise under her Majesty's authority, whatever
may be the precise expression used, such copy shall also be

(A) Ex parte Turquand, 14 Q. B. D. 63G.

(/) London Chartered Hank of Australia v. White, 4. App. fas. 422.
(m) Per CHANNELL, J., in Moult v. IlaUiday, [1898] 1 Q. H. 129.
<») Crotbie v. Hetherington, 4 M. & G. 933.
(«) 8 & 9 Vict. c. 113. Sec Appendix.
ij>~) 31 & 32 Vict. c. 37. Hoc Appendix.
lq) See Ilwjgin* v. Ward, 21 W. K. 914. (>■) 45 A: 4f. Vict. c. !.'.
270 Law of Evidence.

conclusive evidence, or evidence, or have the said effect (as the

case may be) if it purports to be printed under the superinten
dence or authority of Her Majesty's Stationery Office."

This Act also provides (s. 4) that—

" The Documentary Evidence Act, 1868, as amended by this
Act, shall apply to proclamations, orders, and regulations issued by
the Lord Lieutenant, either alone or acting with the advice of the
Privy Council in Ireland, as fully as it applies to proclamations,
orders, and regulations issued by her Majesty."

By the Documentary Evidence Act, 1895 (s), the

Documentary Evidence Act, 1868, as amended by the
Documentary Evidence Act, 1882, is made applicable
to the Board of Agriculture.
By the Documentary Evidence Act, 1845 (s. 1), it is
enacted that, whenever by any Act then in force or
thereafter to be in force,
" any certificate, official or public document, or document or
proceeding of any corporation or joint stock or other company, or
any certified copy of any document, byelaw, entry in any register
or other book, or of any other proceeding, shall be receivable in
evidence of any particular in any court of justice, or before any
legal tribunal, or either House of Parliament, or any committee of
either House, or in any judicial proceeding, the same shall res
pectively be admitted in evidence, provided they respectively
purport to be sealed or impressed with a stamp or sealed and
signed, or signed alone, as required, or impressed with a stamp and
signed, as directed by the respective Acts made or to be hereafter
made, without any proof of the seal or stamp, where a seal or stamp
is necessary, or of the signature or of the official character of the
person appearing to have signed the same, and without any
further proof thereof, in every case in which the original record
could have been received in evidence."

And also (s. 2) —

" All courts, judges, justices, masters in Chancer}', masters
of courts, commissioners judicially acting, and other judicial
officers, shall henceforth take judicial notice of the signature of
any of the equity or common law judges of the superior courts at
Westminster, provided such signature bo attached or appended to
any decree, order, certificate, or other judicial or official document."

(*) 58 Vict. c. 9.
 Judicial Notice, etc. 271

By 14 & 15 Vict. c. 99, s. 10, judicial notice is to be

taken in England and Wales of documents admissible
in evidence of any particular in any court of justice in
Ireland.
The Commissioners for Oaths Act, 1889 (52 & 53 Vict,
c. 10), s. 6, which gives powers as to oaths and notarial
acts abroad to British Ambassadors, and certain other
officials, provides that—
li Any document purporting to have affixed, impressed, or sub
scribed thereon or thereto , the seal and signature of any person
authorised by this section to administer an oath in testimony of
any oath, affidavit, or act being administered, taken, or done by or
before him, shall be admitted in evidence without proof of the seal
or signature being the seal or signature of that person, or of the
official character of that person."

Affidavits or proofs in Bankruptcy sworn abroad

before a consul or vice-consul are admissible under this
section without further verification (t).
The Companies Act, 1862 («), provides by s. 125,
that in all proceedings under that Act judicial notice
shall be taken of the signature of any officer of the
Courts of Chancery or Bankruptcy in England, or in
Ireland, or of the Court of Session in Scotland, or of
the registrar of the Court of the Vice-Warden of the
Stannaries, and also of the official seal or stamp of the
several officers of such courts respectively.
By s. 61 of the Judicature Act, 1873 (x), judicial
notice is to be taken of the seals of district registries
and by s. 84 of the Patents, Designs, and Trade Marks
Act, 1883 (y), impressions of the seal of the Patent
Office are to be judicially noticed and admitted in
evidence.
It appears to be the rule that the seal of a notary
public in any part of her Majesty's dominions will be
judicially noticed, but not the seal of a foreign notary
public. It may be remarked that the certificate of a
(0 Ea parte Magcc, 15 Q. 15. D. 332. (je) 36 Ic 37 Vict. c. 66.
(«) 25 k 26 Vict. c. 89. (y) 46 A: 47 Vict. c. 57.
272 Law of Evidence.

notary public of a protest abroad of a foreign bill of

exchange is evidence of that fact, but as a rule notarial
or consular certificates are not evidence of facts
certified, e.g., the mere production of the certificate of
a notary public stating that a deed had been executed
before him will not in any way dispense with the
proper evidence of the execution of the deed (z).
Foreign law.—Judicial notice is not taken of the laws
or customs of foreign states, but such laws must be
proved like facts by skilled witnesses (a). No witness
will be competent to prove foreign law unless he appear
to have filled an official position, or to be connected
manifestly with the legal profession, or to have been
in some position in which it is probable that he would
have acquired a practical acquaintance with the law in
question (b) . In The Sussex Peerage Case (c) , a Roman
Catholic Bishop in England was called to give evidence
as to the law of marriage at Rome. It appeared that
it was part of his official duties to decide for spiritual
purposes questions as to the validity of marriages
between Roman Catholics, and that for this purpose he
had to apply the law of Rome. It was held that his
evidence was admissible, as he was engaged in the per
formance of important and responsible public duties,
and that in order to discharge them properly he was
bound to make himself acquainted with the law in
question. A legal practitioner practising before the
Privy Council is not an expert qualified to give evidence
concerning the law of those countries for which the
Privy Council is the ultimate Court of Appeal (d). A
person who formerly carried on business as a merchant
and commissioner of stocks at Brussels has been
allowed to prove what the usage in Belgium is as to the
(.-) Kye v. Macdoiiald, L. R. 3 P. C. 343.
(a) By 24 & 25 Vict. c. 11, s. 1, the courts are empowered to remit a
case to a court of any foreign state to ascertain the law of such state, if
a convention has been entered into with such state.
(ft) Van tier Donekt v. Thcllmini, 8 C. B. 812.
(<•) 11 C. & F. 134. (<*) Cartwright v. Cartwriglit, 26 W. K. 682.
 Judicial Notice, etc. 273

presentment of promissory notes there (e). A person

who has acquired, by study in one country, a merely
theoretical knowledge of the laws of another country is
not competent to prove the laws of such country (/) ;
but the certificate of a foreign ambassador, under the
seal of the legation, has been held evidence of the law
of the country by which he was accredited (g) . Foreign
law cannot be proved in England (h), as it can in some
countries, by books printed or published under the
authority of the government of a foreign country, and
purporting to contain the statutes, code, or other law
of such country, nor by printed or published books of
reports of decisions of the courts of such country, nor
by books proved to be commonly admitted in such
courts as evidence of the law of such country. A witness
called to prove foreign law may, however, refer to laws
or treatises to aid his memory (i) ; and if the witness
states that any text-book, decision, code, or other legal
document truly represents the foreign law which he is
called to prove, the court may look at the treatise and
treat it and give effect to it as part of the testimony of
the witness (k). A question of foreign law being one
of fact must in every action be decided on evidence
adduced in that action, and not by a previous decision,
or on evidence adduced in another action (I).
Colonial laws (to) and the laws of Scotland are
regarded as foreign law for the purposes of proof,
except that in the House of Lords judicial notice is
taken of Scotch law (n).

(O Van der Donckt v. r/ullumn, 8 C. B. 812.

(/) Briitow v. Secqueeille, 5 Exch. 275 ; In the Good* of Bonelli,
1 P. D. 69.
(a) In the Goods of Klinijeman, S S. & T. 18.
(A) Sustex Petra/je Cane, 11 C. & F. 134.
(«') See NeUon v. Lord Bridport, 8 Beav. 538, and Sussex Peerage
One, 11 C. &F. 116.
(*) Concha v. Murietta, 40 Ch. I). 554.
(0 M'Cormick v. Oanutt, 5 De G. M.& G. 278.
(wi) Wey v. Galley, 6 Mod. 194.
Q«) Cooper v. Cooper, 13 App. Cos. 88.
274 Law of Evidence.

In order to afford facilities for the more certain ascer

tainment of the law administered in one part of her
Majesty's dominions, when pleaded in the courts of
another part thereof, it has been enacted that :
" If in any action depending in any court within her Majesty's
dominions, it shall be the opinion of such court, that it is necessary
or expedient for the proper disposal of such action to ascertain the
law applicable to the facts of the case as administered in any other
part of her Majesty's dominions on any point on which the law of
such other part of her Majesty's dominions is different from that
in which the court is situate, it shall be competent to the court in
which such action may depend to direct a case to be prepared set
ting forth the facts, as these may be ascertained by verdict of a
jury or other mode competent, or may be agreed upon by the
parties, or settled by such person or persons as may have been
appointed by the court for that purpose in the event of the parties
not agreeing ; and upon such case being approved of by such court
or a judge thereof, they shall settle the questions of law arising out
of the same on which they desire to have the opinion of another
court, and shall pronounce an order remitting the same, together
with the case, to the court in such other part of her Majesty's
dominions, being one of the superior courts thereof, whose opinion
is desired upon the law administered by them as applicable to the
facts set forth in such case, and desiring them to pronounce their
opinion on the questions submitted to them in the terms of the
Act . . ." 0).

When an opinion has been thus obtained, the court

in which the action is pending is to apply such opinion
to such facts, or to order such opinion to be submitted
to the jury, with the other facts of the evidence,
or conclusive evidence as the court may think fit, of
the foreign law therein stated (p). Under this Act the
law of Scotland has been ascertained by a case remitted
to the Court of Session in Scotland (q), and the law of
Bengal by a case remitted to the Supreme Court of
Bengal (r).
(«) 22 & 23 Vict. c. 63, s. 1.
(/>) 22 & 23 Vict. c. 63, s. 3.
(?) Lord v. Colvin, 1 D. & S. 24.
(r) Legiti v. Princess of Coorg, 30 Beav. 632.
 PART II.

CHAPTEE I.

WRITTEN EVIDENCE.

In the first part of this work the general principles of

evidence, and their application to the issue, have been
considered, but chiefly in relation to oral evidence.
In the second part, written or documentary evidence
will be discussed. It will be first desirable to add a
few more remarks upon a branch of the subject which
has been already touched upon ; and to show generally
in what cases written instruments are treated as
primary and best evidence, and in what cases as
secondary and inferior evidence.
When a writing purports to be in the nature of a
public or judicial record, the deliberate solemnities
with which its settlement and recognition are pre
sumed to have been accompanied render it clearly the
best and primary evidence of the matters to which it
refers. So, where a contract is required by the law to
be in writing or has been voluntarily put into writing
by the parties, all controversy as to its purport and
effect ought clearly to be determined by the inspection
of the written instrument, and therefore the written
contract must as a general rule be produced, and though
oral evidence may be given to explain such a written
contract, it cannot be given to vary it, except when in
equity relief is sought on the ground of mistake or
t2
276 Law of Evidence.

surprise (a). Similarly, where a writing or print is the

very matter in issue, as in libel, oral evidence of the
words of the libel is inadmissible as long as the writing,
or print, is producable ; and where it appears that a
representation or statement by a witness was made in
writing, his own act operates against him in the
nature of an estoppel in pais, and he will not be
allowed to say what the statement was, but the writing
must be produced to prove it. Thus, a witness can
not be asked whether his name is written in a book ;
but the book must be produced, or its non-production
be excused according to the principles under which
secondary evidence is admissible (b). He cannot be
examined as to the contents of a letter, but the whole
of it must be read (c) . In all such cases oral evidence
will be inadmissible, until it be proved that even-
endeavour has been used, without success, to produce
the writing.
An anomalous exception to the rule that parol
secondary evidence is inadmissible where there is parol
primary evidence which ought strictly to be produced,
is found in the principle that,
"whatever a party says, or his acts amounting to admissions, are
evidence against himself, though such admissions must involve
what must necessarily be contained in some deed or writing : for
instance, a statement by a party, or one under whom he claims,
that an estate has been conveyed to or from such person, or that
such person filled the character of assignee—which could only be
by deed."

The learned judge who laid down this principle as

above added that
'• the reason why such statements are admissible, without notice to
produce or accounting for the absence of the written instrument,
is, that they are not open to the same objection which belongs to
parol evidence from other sources when the written evidence
might have been produced ; for such evidence is excluded from

(a) Price v. Ley, 32 L. J. Ch. 530.

(//) Darby v. Outeley, 1 H. k N. 1.
(r) Queen's Cane, 2 13. Sc.. B. 286.
 Wkitten Evidence. 277

the presumption of its untruth from the very nature of the case,
when better evidence is withheld ; whereas what a party himself
admits to be true may reasonably be presumed to be so. The
weight and value of such testimony is quit* another question " (d).

In the case of Slatterie v. Pooley (e), in which

this judgment was given, it was necessary to show that
a certain debt was included in an insolvent's schedule.
The schedule itself was tendered and rejected, because
it was not duly stamped. Evidence was then tendered
and rejected of a verbal admission by the defendant
that the debt was included in the schedule. On a rule
for a new trial, for improper rejection of this evidence,
the court held that it ought to have been received, on
the principle stated above. The decision in Slatterie v.
Pooley has been severely attacked both in England
and Ireland. But it has survived those attacks.
On a similar principle, where, on an action for con
tribution towards money paid on a written contract,
there was evidence of the express authority of the
defendant to enter into the contract, of the execution
thereof, and that the defendant, when informed of the
amount paid, did not dispute his liability, it was held
that the contract need not be put in evidence (f).
This exception has excited much controversy, and, if
fully carried out, would act perhaps as a virtual aboli
tion of the general rule with which it professes to be
consistent ; but it was sanctioned by the Court of
Exchequer, although it is limited to cases in which
the admission has been voluntary by the party making
it, since he cannot be compelled to make such admis
sions, nor ought questions which tend to elicit them to
be allowed (g). Where a party gives a portion of a
writing in evidence, the adverse party is entitled to
have read all other passages which are connected with,
or construe, control, modify, qualify, or explain the
(d) Per l'ARKK, 15. : Slatterie v. Pooley, 6 M. & W. 668. See also
H. v. Batingutoke, 14 Q. B. 611.
(/) Chappell v. Bray, 6 H. & N. 145.
') Darby v. Ouneley, 1 H. i; N. 1.
278 Law of Evidence.

passages which have been read ; but not distinct pas

sages, or passages which are irrelevant to, or not
explanatory of, such first-mentioned passages (h).
Where the writing is merely in the nature of a
personal memorandum, which has been drawn up by
a witness for his own convenience, it is inadmissible as
a writing, but may be used by the witness to refresh
his memory. Letters to a party are only received on
the presumption that, by answering them, or acting on
them, or even by the bare act of receiving them, he
has connected them with the controversy between
himself and the writer ; but a mere written statement,
not made on oath by one party, and not shown to have
come to the knowledge and to have been recognised or
adopted in some way by another party, is no evidence
against the latter. i
The general rule for determining whether a writing is
primary or secondary evidence, is to consider whether
it contains the substance of the issue, and is in the
nature of a contract or an admission by the parties, or
whether it is only a personal memorandum. In the
formerjcase it must be produced as the best evidence;
in the latter, it is admissible only to refresh and guide
the memory of the witness in his oral depositions.
Thus, records are in the nature of a contract between
parties, which has been settled and ratified by public
consent, as expressed in a judicial act ; they are, there
fore, primary evidence; but a public Act of Parliament
is in the nature of a memorandum, for judges and the
public, of laws which every one is presumed to have
engraven in his memory (i).
Writings are either public or private; and public
writings are either judicial or non-judicial. These will
now be considered in their order.

(A) See Darby v. Oueeley, 1 H. k N. 1.

(i) R. v. Sutton, 4 M. & S. 532.
 ( 279 ;

CHAPTER II.

PUBLIC JUDICIAL DOCUMENTS.

The proof of the most important public judicial docu

ments will here be treated of.

ACTS OF PARLIAMENT.
These are either public or private. The former are,
theoretically, not proved, as the court takes cognisance
of them ; but, practically, they are generally proved by
copies purporting to be printed and published by the
King's printer ; and this course seems to be implied
from the terms of 41 Geo. 3, c. 90, s. 9, which enacts
that the Statutes of England and of Great Britain,
printed and published by the King's printer, shall be
received as conclusive evidence in the Irish courts ;
and the Statutes of Ireland, prior to the Union, so
printed and published, shall be received in like manner
in any court of civil or criminal jurisdiction in Great
Britain. If there be ground for supposing the printed
copy inaccurate, reference should be had to the Parlia
ment Roll (a). Every Act passed after 1850 is a public
Act, unless the contrary is expressly provided by such
Act (6).
Private, local, and personal Acts, which are not
public Acts, can be proved under the Documentary
Evidence Act, 1845 (c), s. 3, by copies purporting to be
printed by the King's printer, without necessarily any
further proof that they were so printed. Even this
proof is unnecessary if the Act contains a clause

(a) Price v. Hollis, 1 M. Jt S. 105.

(6) Interpretation Act, 1889 (52 4: 33 Vict. c. 63), s. 9.
(<•) 8 & 9 Vict. c. 1 13.
280 Law of Evidence.

declaring it to be a public Act, and that it shall be

taken notice of as such without being specially
pleaded (d) ; but such a clause will not render it
evidence against third parties (e).
The 3rd section of the last-mentioned Act also
declares that all copies of the journals of either House
of Parliament and of royal proclamations, purporting
to be printed by the printers to the Crown, or of either
House, shall be admitted in all cases as evidence
thereof without proof of their being copies so printed.
By s. 2 of the Documentary Evidence Act, 1882 (/"),
copies printed under the superintendence or authority
of His Majesty's Stationery Office are also admissible.

EECORDS.
Where the existence of a record is in issue, the
record itself, if producible, must be produced (for which
purpose an order of a judge or master is now necessary
(R. S. C, Order LXL, Rule 28) ) by exemplification
under the great Seal or by an examined copy. Speaking
generally, a record may be proved by an office copy
(under R. S. O, Order XXXVII., Rule 4), or by an
examined copy.
By the 1 & 2 Vict. c. 94, the Master of the Rolls is
made superintendent of the general records of the
realm, and is empowered to make rules for the admis
sion of such persons as ought to be admitted to the use
of such records : and he is authorised personally, or by
deputy, to allow copies to be made of such records.
This is because it is 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.
By s. 13, a certified copy of any record, sealed with the

(rf) Woodward v. Cotton, 1 C. M. & R. 14.

(e) Unit v. Beetles, M. & M. 421. (/) 45 & 4fi Vict. c. 9.
 Public Judicial Documents. 281

seal of the Record Office, is evidence in every case in

which the original record would be admissible ; and
by s. 12, any person desirous of procuring such a copy
may do so at his own cost by permission of the Master
of the Rolls : but such copy shall be admissible to
prove the record, only after examination and certificate,
under seal, by the Deputy Keeper of the Records, or
one of the assistant record keepers.
By the County Court Acts, 1888 (g), s. 180, it is
provided that—
" For every court there shall be a seal of the court, and all sum
monses and other process issuing out of the said court shall be
sealed or stamped with the seal of the court, and all such sum
monses and other process purporting to be so sealed shall in
England be received in evidence without further proof thereof ;
and every person who shall forge the seal or any process of the
court, or who shall serve or enforce any such forged process,
knowing the same to be forged, or deliver or cause to be delivered
to any person any paper falsely purporting to be a copy of any
summons or other process of the said court, knowing the same to
be false, or who shall act or profess to act under any false colour
or pretence of the process or authority of the said court, shall be
guilty of felony."

Although all judicial proceedings, which are regulated

as to the mode of proving them by the above Statutes,
should be proved conformably to them, yet as their
language is declaratory and directory, and is not com
pulsory, the records of superior and inferior courts may
be proved, by means of examined copies, when they
are obtainable. An examined copy must be proved to
be such by a witness who has compared the copy word
for word with the original, or who has examined the
copy while another person read the original ; and it
will not be. necessary to call the latter person, nor to
prove that the witness also read the original while the
other person compared the copy ; for it will not be
presumed that a person has wilfully misread a

Ojf) 51 & 52 Vict. c. 43.

282 Law of Evidence.

record (h). The copy must be complete and accurate,

and not contain abbreviations (t) ; and it must appear
that the record was in the custody of the proper officer
at the time when the copy was taken.

A decree in Chancery may be proved by an exemplifi

cation under the seal of the court ; or by an examined
copy, or by a decretal order or paper, with proof of the
bill and answer (j). If it be required only to show that
a decree was made, or that it has been reversed, the
enrolled and sealed decree is sufficient, without pro
ducing the bill and answer (ft) .

A bill or answer in Chancery is no evidence of the

facts contained in it, not even of those on which the
prayer of relief is founded (t) ; but where the parties to
a suit are parties in an action in which the same
matters are in issue, the statements of either, in a bill
or answer, are evidence against the maker in the nature
of admission (to) . Where a witness at the trial gives
evidence at variance with statements which he has
made in an answer in Chancery, an examined copy of
such answer has been held admissible to contradict
him (n). A decree cannot be received as evidence
except against the party against whom it was made,
or those claiming under him ; but it may be read as a
precedent. A decree or other proceeding in Chancery
is not a record until it has been signed and enrolled (o).
A judgment which has been entered in the Entry Book
of Judgments can be proved by a certified copy of the
entry (p).

(/() Eeid v. Margison, 1 Camp. 409 : cf. Slane Peerage Case, 5 C. &
F. 23.
(«") II. v. Christian, C. & M. 388.
O) Trowel v. Castle, 1 Keb. 21.
('*) Bull, N. P. 735. (0 Doe v. Sybunrn, 7 T. K. 2.
(m) Ilodghinson v. Willis, 3 Camp. 401.
(«) Ev er v. Ambrose, 4 B. & C. 25.
(«) S. v. Smith, 8 B. & C. 341.
lj>) Ex parte Anderson, 14 Q. B. D. 606.
 Public Judicial Documents. 283

A former conviction or acquittal may now be proved

under the 14 & 15 Vict. c. 99, s. 13, by a certificate
purporting to be under the hand of the clerk of the
court, or other officer having the custody of the records
of the court where such conviction or acquittal took
place, or by the deputy of such clerk or other officer,
that the paper produced is a copy of the record of
indictment, trial, conviction and judgment, or acquittal,
as the case may be, omitting the formal parts thereof.
On trials for perjury it is enacted by the 14 & 15 Vict,
c. 100, s. 22, that such a certificate, containing the sub
stance and effect only, omitting the formal portion of
the indictment and trial for any felony or misdemeanor,
shall be sufficient evidence of the same ; but the mere
fact of the trial may be proved by the officer of the
court on production of his minutes, or apparently, by
any one who was present at the first trial (q).

VERDICTS.
A verdict may be proved by producing the postea,
indorsed on the Nisi Prius record, when it is only
required to show that a trial took place (r) ; but the
whole record and a copy of the judgment will be
necessary to establish the finding of any substantial
fact.

FOREIGN JUDGMENTS, ETC.

These are now regulated by 14 & 15 Vict. c. 99, s. 7,
which enacts that :
"All proclamations, treaties, and other acts of state of any
foreign state or of any British colony, and all judgments, decrees,
orders, and other judicial proceedings of any court of justice in any

?) B. v. Nrivvian, 2 Den. 390.

r) Pitton v. Walter, 1 Stra. 162.
284 Law of Evidence.

foreign state or in any British colony, and all affidavits, pleadings,

and other legal documents filed or deposited in any such court, may
be proved in any court of justice, or before any person having
by law or by consent of parties authority to hear, receive, and
examine evidence, ejtherjjy examined copies or by copies authenti
cated as hereinafter mentioned ; that is to say, if the document
sought to be proved be a proclamation, treaty, or other act of state,
the authenticated copy to be admissible in evidence must purport
to be sealed with the seal of the foreign state or British colony to
which the original document belongs : and if the document sought
to be proved be a judgment, decree, order, or other judicial pro
ceeding of any foreign or colonial court, or an affidavit, pleading,
or other legal document filed or deposited in any such court, the
authenticated copy to be admissible in evidence must purport
either to bo sealed with the seal of the foreign or colonial court to
which the original document belongs, or, in the event of such court
having no seal, to be signed by the judge, or, if there be more than
one judge, by any one of the judges of the said court ; and such
judge shall attach to his signature a statement in writing on the
said copy that the court whereof he is a judge has no seal ; but if
any of the aforesaid authenticated copies shall purport to be sealed
or signed as hereinbefore respectively directed, the same shall
respectively be admitted in evidence in every case in which the
original document could have been received in evidence, without
any proof of the seal where a seal is necessary, or of the signature,
or of the truth of the statement attached thereto, where such
signature and statement are necessary, or of the judicial character
of the person appearing to have made such signature and state
ment."

Foreign judgments and other proceedings may still

be proved as before the statute by examined copies (s) .
A foreign proclamation may be proved by production of
a copy proved to be accurate, but evidence of a verbal
proclamation is inadmissible as hearsay.

CONVICTIOXS.
Convictions before magistrates are proved by examined
copies which are made out, on application, by the clerk
of the peace. In many cases also, under particular
statutes, copies certified by the proper officer are
sufficient evidence.

00 Appleton v. Brayhrooke, 6 M. k S. 34.

 Public Judicial Documents. 285

A conviction is presumed to be unappealed against

tM the contrary is shown (t) ; and it is conclusive
evidence against the plaintiff in an action for malicious
prosecution, even where no appeal lies (u).
A conviction cannot be controverted in evidence (x) ;
and, as long as it stands, is conclusive against every
one against whom it is producible (y).

ORDERS.

The original Order, as in cases of removal, must be

produced if possible ; but secondary evidence may be
given of it, if it appears that the party, whose duty it
is to produce it, has been served with notice (z).
Where the Order refers to proceedings which are not
strictly judicial, and which are also extrinsic to the
controversy between the parties, the person in whose
custody such documentary evidence is must be sub
poenaed to produce it ; and, if he refuse to appear,
secondary evidence cannot be given, but the recusant
witness may be attached (a).

INQUISITIONS
Are in the nature of judicial inquiries into matters of
public importance ; and they are admissible under the
limitations which have been already discussed in the
chapters on public or general interests, and ancient
possession.

(0 24 ii 25 Vict. c. 96, s. 112.

(w) Bn»ebt v. Matthew; L. K. 2 C. P. 684.
(x) Faweett v. Fowler, 7R.i C. 394.
(y) See Strickland v. Ward, 7 T. R. 633 ; Bijiioe v. Bank of Emjlund,
[1902] 1 K. B. 470.
(r) 11. v. Jtixticr* of Peterborough, 18 L. J. M. C. 79.
(a) R. v. Llanfatthly, 2 K. k B. 940.
286 Law of Evidence.

An inquisition of lunacy is evidence for a prisoner

to show that he was insane when he committed the
offence.

ORDERS AND RULES OF THE HIGH COURT.

The Orders of the judges of the High Court are

proved by the production of the original Order, signed
by the judge. The court takes judicial notice of the
signature.,
A judge's Order will not justify a party in tendering
secondary evidence, merely because the Order refers to
it as if it were primary. Thus, where a judge's Order
required a party to admit "a copy of a letter," it was
held that the other party could not give it in evidence,
without accounting first for the non-production of the
original. A judge's Order secures the accuracy of the
secondary evidence, but does not give it the effect of
primary evidence (b).

CERTIFICATES.
A copy of a record of any public fact made by an
officer in a public or judicial capacity, and strictly
within the course of his duty (but not otherwise), is
generally, and in many cases specially by Statute,
evidence of the facts which it purports to record; but
a mere certificate of an extra-judicial fact, or of a
fact which the officer was not bound to record, is
inadmissible.
In criminal law, various certificates containing the
substance of the original record are evidence. Thus, by
24 & 25 Vict. c. 96, s. 116, it is enacted that when a
prisoner is charged with a felony or misdemeanor, after
a previous conviction for a felony or misdemeanor, the

(*) Per Lord Denman : Sharp v. Lamb, 11 A. & E. 805.

 Public Judicial Documents. 287

first offence and conviction may be proved by a certificate,

containing the substance of the original record, and
purporting to be signed by the clerk of the court, or
other officer having the custody of the records. The
24 & 25 Vict. c. 99, s. 37, has a similar provision in
offences against coin.
So the 14 & 15 Vict. c. 99, s. 13, enacts that when
ever it may be necessary to prove a formal conviction
or acquittal of a prisoner, it shall not be necessary to
produce the original record or a copy ; but it shall be
sufficient to produce a certificate of such former convic
tion or acquittal, purporting to contain the substance of
the original record, and signed by the clerk of the court
or other proper officer.
The 14 & 15 Vict. c. 100, s. 22, enacts that in trials
for perjury or subornation of perjury, or a trial of any
indictment for felony or misdemeanor, a certificate of
the trial of such indictment, purporting to be signed by
the clerk of the court or of the records, shall be sufficient
evidence of the former trial.
A certificate by two justices that a charge of assault
and battery had been heard and dismissed, is admissible,
under 24 & 25 Vict. c. 100, ss. 44, 45, to bar all subse
quent civil and criminal proceedings for the same
cause (c). Under IB & 19 Vict. c. 126, s. 12, a similar
certificate has the same effect.
Many other documents, in the nature of copies or
certificates, are admissible in substitution for originals,
or per se, by virtue of special Acts ; but the limits of this
work permit only a general reference to them. They
are generally admissible under the Documentary
Evidence Acts, but are also in many cases made
specially admissible by particular Statutes.

(r) Tunnicliffe v. Tedd, 5 C. B. 553.

288 Law of Evidence.

WRITS AND WARRANTS.

These must be proved, until they are returned, by
actual production ; but after their return they become
matters of record, and are provable by copies (e) .

ORDERS AND RULES OF INFERIOR COURTS.

Where these are in the nature of a record, they will
be subject to the usual rule, and may generally be
proved by a certified exemplification (/). Where the
court is not of record, the books containing the pro
ceedings must be produced and proved by the proper
officer, who ought to be subpoenaed to attend with
them ; but if he does not attend, or if he refuses to
produce the book or document containing the Order or
Rule, secondary evidence cannot be given, but the officer
may be attached (g) .

JOURNALS OF THE HOUSES OF LORDS AND

COMMONS.
The journals of the House of Lords, it being a court
of record, have always been provable by copies (/»). A
question was formerly raised whether the journals of
the House of Commons were records or not (t), but it
was decided that copies of them might be tendered in
evidence. Under the Documentary Evidence Acts
copies of the journals of either House are admissible, if
they purport to be printed by certain printers.

0) Bull, N.P. 234. (/) Woodcraft v. Kimiston, 2 Atk. 317.

(g) if. v. Llan/aethly, 2 E. & B. 940.
(A) See Lord DufferitCt Case, i C. & F. 368.
(t) Wynne v. Middleton, Doug. 593.
 Public Judicial Documents. 289

BANKRUPTCY PROCEEDINGS
Are proved according to the provisions of the Bankruptcy
Act, 1883 (&), ss. 28, 30 and 132—138, for which see
the Appendix. Section 132 provides that a copy of the
London Gazette containing any notice inserted therein
in pursuance of this Act, shall be evidence of the facts
stated in the notice, and also that the production of a
copy of the London Gazette containing any notice of a
receiving order, or of an order adjudging a debtor
bankrupt, shall be conclusive evidence (I) in all legal
proceedings of the due making and the date of the
order.
The effect of this section is to make the advertise
ment conclusive evidence, not only as regards the
persons who were parties to the bankruptcy proceed
ings, but also as against other persons (e.g., the holder
of a bill of sale executed by the bankrupt), of the
validity of the adjudication and of the date thereof, but
the advertisement has no such effect in proceedings
taken for the purpose of questioning or annulling an
adjudication (m).
By s. 28 (4), the report of the Official Receiver is
made prima facie evidence of the statements therein
contained for the purposes of that section. It has been
decided that it is also prima facie evidence for the
purposes of s. 18 («)•

PROBATES—WILLS.
A probate of a will is in the nature of a judicial pro
ceeding or record of the court. It constitutes the
proper legal proof of title in an executor to his testator's

(4) 46 fc 47 Vict. c. 32.

(/) See Ex parte Learoyd, 10 Ch. D. 3.
(in) Ex parte Geisel, 22 Ch. I). 430.
(m) Ex parte Campbell, 15 Q. B. D. 213.
r
290 Law of Evidence.

personalty, and is conclusive against all the world (o).

It is a copy of the will, sealed with the seal of the
Court of Probate, and attached to a certificate which
states that the will has been proved and registered,
and that administration of the goods of the deceased
has been granted to one or more of the executors
named therein. The will itself is not evidence (p),
except where the court is called upon to construe a
disputed will when the court may and often does look
at the original will (q). And in such a case, where an
English translation of a foreign will has been admitted
to probate, the court can look at the foreign original or
a certified copy thereof (r). If the probate be lost,
either it may be proved by an examined copy, or the
court will grant an exemplification, but not another
probate (s) ; or a certified copy of the entry in the act
book, under 14 & 15 Vict. c. 99, s. 14, is sufficient.
The act book itself will also be evidence, without
accounting for the non-production of the probate (t) ;
and under 14 & 15 Vict. c. 100, s. 14, an unstamped
copy of the act book has been received as evidence of
probate, to prove an executor's title (u). Where no act
book is kept, or other record of probates, it appears
that the will itself, indorsed with the appointment of
the executor, will be evidence (x). The same remarks
apply to letters of administration (y).
Will of personal estate.—The rule is that (except in
proceedings for the protection of the assets) no notice
can be taken of an alleged will of personal estate,
unless it has been proved in an English Probate Court
or in a colonial court having concurrent jurisdiction

fo) Allen v. Dundas, 3 T. R. 125.

(p) Pinney v. Phmey, 8B.&C. 335.
(y) Turner v. Hellard, 30 Ch. D. 390.
(r) In re Clitf* Trust*. 40 W. R. 439.
(*) Shepherd v. Shorthose, 1 Stra. 412.
(t) Cox v. Allingkam, Jacob, 514. (>) Doe v. Mew, 7 A. & E. 240.
(«) Dorret v. Meux, 15 C. B. 142. (y) Noel v. Wells, 1 Lev. 352.
 Public Judicial Documents. 29l

with the English Probate Court, or having been proved

in a Colonial Court a copy has been deposited with
and sealed by a Court of Probate in the United
Kingdom under s. 2 of the Colonial Probates Act,
1892 (for which see Appendix). In a case where the
main question was as to the liability to legacy duty of
the personal estate of a testator whose will had been
proved in Her Majesty's Supreme Court for China and
Japan at Shanghai, and not in England, Chitty, J.,
held that he would look at the Shanghai probate,
because the Shanghai Court has, from its constitution,
all such jurisdiction with respect to the property of
British subjects as for the time being belongs to.
the Court of Probate in England (z) ; but in a sub
sequent case, where a petitioner asked for payment
out of a sum of money to which he was entitled under
an appointment by will, Pearson, J., held that the
probate of the will in the Supreme Court of New
Zealand was not sufficient for him to act upon, but
that an English probate was necessary. He distin
guished the last-mentioned case on the ground of the
difference in the nature of the jurisdiction of the
Shanghai Court from that of the New Zealand
Court (a).
In the case of a will relating to lands, or any descrip
tion of realty, it was necessary formerly to produce the
original will (b) ; but now a devise of real estate may
be proved by the probate, or a sealed office copy from
the Court of Probate. In this case the person tender
ing the evidence must give ten days' notice before trial
to the other party, who may, in four days after receipt
of such notice, give a counter-notice that he disputes
the validity of the devise, and that the original must

(i) In re Tootart Truttt, 23 Ch. D. 532.

(«) Ex parte Lhmhmtse Jloard of Works, In re Vallunce, 24 Ch. D.
177.
(i) Doe v. Caltert, 2 Camp. 389.
u 2
292 Law of Evidence.

be produced (c). Even in the absence of a counter-

notice the probate is only prima facie evidence (d).
Where a will relating to land in England had been
proved in the Supreme Court of the Colony of Victoria,
Hall, V.-C, accepted letters testimonial under the
seal of that court as sufficient evidence for the purposes
of a preliminary judgment in a partition action. He
intimated, however, that ihe further proof might be
insisted on at a later stage of the action, although
probably at the cost of the party insisting (e).
To prove a will of land against the heir, all the
witnesses must be called (/), unless one of them is
dead, or abroad, or insane, or has not been heard of for
many years, when his evidence will be dispensed with,
or unless the heir admits it, when the court will establish
it without declaring it to be well proved ; but where
the action is by the heir against the devisee, the latter
is not required to produce all the witnesses (g).
In all other cases, to prove a will it is sufficient to
call one of the witnesses who can speak to the attesta
tion (h) ; and who can testify either that he saw the
testator sign, or that he heard him acknowledge to the
witness, or in his presence, that the will was his (i).
The witnesses must also have subscribed either actually
in the presence of the testator, or so near to him that,
although he did not see them sign, he might have seen
them without the necessity of locomotion. Thus,
where the witnesses were in one room, and the testator
in another ; and the latter, although he did not see
them sign, might have seen them through a window,
the will was held good (k) ; but not so where the
testator could not have seen them without changing
(ft) 20 & 21 Vict. c. 77, as. 64, 65.
{<{) Barraclovgh v. Gremhovgh. L. R. 2 Q. li. 612.
Qej Waite v. Bingloj, 21 Ch. D. 674.
(/ ) Booth v. Blvndrll, 19 Ves. 41)4.
£/) Tatham v. Wright, 2 R. & M. 1. 00 Bull. N. P. 201.
(/') Stonehoiise v. Evelyn, ;i 1'. Wins. 11!!.
(*) tihira v. Glascock, 2 Salk. 088.
 Public Judicial Documents. 293

his position (I). To obtain probate of a will it is of

course necessary to call one of the attesting wit
nesses {m), although it is not necessary to call both (») ;
but if one is called and fails to prove the execution,
the other must be called, if possible, although he may
be known to be adverse to the party producing him (o) ;
and if a witness gives evidence against a will, he may
be contradicted by other evidence, or it may be shown
that he has an adverse interest (p). When probate of
a will had been granted on the evidence of the two
attesting witnesses, such probate was confirmed in
subsequent proceedings although one of the witnesses
testified against the will and the other was not called ;
the court being of opinion that the one witness had
been tampered with, and good reasons were given for
not calling the other (q). Where all the witnesses
swear the will was not duly executed, other evidence
is admissible to support it (r). The presumption of
due execution often operates to prove a will (s).
If the witnesses are dead, their handwriting must be
proved, unless the will is thirty years old, in which
case it is said to prove itself (t) ; that is, if it is pro
duced from the proper custody, and is otherwise
apparently authentic, it will be presumed to be so, even
though there are circumstances which would lead to
tEe inference that it has been cancelled (u). The
thirty years are computed from the date of the will (x).
In such a case it is not necessary to call any one of the
alleged witnesses, even though they appear to be
living (y).
(/) Doe v. Manifold, 1 M. J: S. 294.
(to) Bowman, v. Hodgton, L. R. 1 P. & D. 362.
(») Belbin v. Skeatt, 1 Sw. b Tr. 148.
(«) CMi * v. Colet, L. R. 1 P. k D. 70. (//) Ibid.
lq) Pilkington v. Gray, [1899] A. C. 401.
(r) See Wright v. linger*, L. R. 1 P. k I). 078.
(*) Vide supra, p. 65. (f) llaneliff v. Perhin*, Dow. 202.
(«) Andrew* v. Mottley, 12 C. B. (N.8.) 526.
(.*■) M'Ki nirr v. Prater, 9 Ves. 5.
(y) Doe v. Walley, 8B.iC. 22.
 ( 294 )

CHAPTEE III.

PUBLIC NON-JUDICIAL WRITINGS.

Public writings, which are not of a judicial character,

are evidence of the matters which they purport to
declare ; provided they appear to have been obtained
from proper custody, i.e., from a place where it is
reasonable to presume that they would be deposited, if
authentic.

Proof of public non-judicial documents.—This is

now chiefly regulated by the Law of Evidence Amend
ment Act, 1851 (a), s. 14 of which enacts that
" Whenever any book or other document is of such a public
nature as to be admissible in evidence on its mere production
from the proper custody, and no statute exists which render its
contents provable by means of a copy, any copy thereof or
extract therefrom shall be admissible in evidence in any court of
justice, or before any person now or hereafter having by law or by
consent of parties authority to hear, receive, and examine evidence,
provided it be proved to be an examined copy or extract, or
provided.it purport to be signed and certified as a true copy or
extract by the officer to whose custody the original is intrusted,
and which officer is hereby required to furnish such certified copy
or extract to any person applying at a reasonable time for the
same, upon payment of a reasonable sum for the same, not
exceeding fourpence for every folio of ninety words."

Under this section it has been held that an un

stamped copy of an act book of the Ecclesiastical Court
is evidence of probate to prove executorship (b). So the
journals of the House of Lords, entries in the books of
tax-collectors, commissioners of the excise or customs,
secretaries of state, and registers of municipal or parlia
mentary electors, which were provable before the Act

(n) H k 16 Vict. c. !)9. (J) Dorret v. 3fewr, 15 C. B. 142.

 Public Non-judicial Writings. 295

by examined copies, may now be proved either by

examined or certified copies under the Act. So
charters, letters-patent, grants from the Crown,
pardons and commissions may be proved either by
originals, or examined or certified copies ; or also, as it
seems, by exemplifications under the Great Seal. As
to royal proclamations, orders in council, and orders
of Government departments, see supra, p. 269. As
to proclamations, treaties, etc., of foreign states or
colonies, see supra, p. 283. Foreign official documents
which cannot be produced here may be proved by
examined copies (c).
The 14 & 15 Vict. c. 19, s. 14, cited above, has
virtually superseded the 8 & 9 Vict. c. 113, s. 1 (the
Documentary Evidence Act, 1845), so far as it refers
to public documents ; but, as the two Acts are con
strued cumulatively, and as the earlier Act extends to
some private documents, it is subjoined.
The Documentary Evidence Act, 1845 (d), s. 1,
provides that—
•'Whenever by any Act now in force or hereafter to be in
force any certificate, official or public document, or document or
proceeding of any corporation or joint stock or other company, or
any certified copy of any document, byelaw, entry in any register
or other book, or of any other proceeding, shall be receivable in
evidence of any particular in any court of justice, or before any
legal tribunal, or either House of Parliament, or any Committee of
either House, or in any judicial proceeding, the same shall respec
tively be admitted in evidence, provided they respectively purport
to be sealed or impressed with a stamp or sealed and signed, or
signed alone, as required, or impressed with a stamp and signed, as
directed by the respective Acts made or to be hereafter made,
without any proof of the seal or stamp, where a seal or stamp is
necessary, or of the signature or of the official character of the
person appearjng to have signed the same, and without any
further proof thereof, in every case in which the original record
could have been received in evidence."
The effect of these enactments, as to documents of a
public nature, is to allow the substitution of certified

(/•) Burnaby v. Baillie, 42 Ch. D. 292. (rf) 8 &. 9 Vict. c. 113.

296 • Law of Evidence.

or examined copies in all cases in which the original,

if produced, would be evidence.
Whenever, therefore, it is proposed to tender an
examined or certified copy of a public document in the
place of an original, the practical question is, whether
the original is such a public document as is intrinsically
evidence per se (e).
It must be remembered that, notwithstanding the
Documentary Evidence Acts, and the 14 & 15 Vict,
c. 99, s. 14, there are numerous cases in which the
originals of documents, apparently of a public nature,
must still be produced, and where neither certified
nor examined copies are admissible. A considerable
degree of vagueness still attaches even to many cases
in which certified or examined copies are clearly ad
missible ; and it should be remembered that, whenever
a doubt exists as to whether a document is public or
private, the prudent and the right course will be to be
provided with the originals.
Where a public document or mark requires to be
authenticated, it may be proved by any expert and
credible witness. Thus the Post Office mark may be
proved by any postmaster, or by any one who is in the
habit of receiving letters by the post (/).
Those descriptions of public documents which are
practically most important will now be considered.

REGISTERS OF BIRTHS, MARRIAGES AND DEATHS.

Parish registers are in the nature of records, and

need not be produced, or proved by subscribing wit
nesses (<j). They are therefore provable under the
14 & 15 Vict. c. 19, s. 14, by copies purporting to be
signed by the incumbents of the parishes (h) .

00 Limey v. Linxey, L. J. P. & M. 28. (/) Abbey v. Lill, 5 Bing. 299.

0?) Per Lord Mansfield : Birt v. Barlow, Doug. 172.
(A) In re Hall's Estate, 9 Hare, App. xvi.
 Public Non-judicial Writings. 297

It should appear that the original is in the proper

custody, which, in the case of marriage, baptismal and
death registers, is with the incumbent, and not the
parish clerk (i). The register, or the copy, as the case
may be, is only proof of the fact of a marriage, or
a birth, or a death, of a person or persons therein
named. It is no evidence of the identity of a party ;
nor is a baptismal registry evidence of the date of the
birth (k), but it is of age (I), although not strong
evidence per se (m) ; the certificate when put in must
be looked at as a whole («). Identity must be shown
extrinsically ; in the case of a marriage, either by
proving the handwriting of the parties, or by calling a
witness who was present at the marriage (o) ; but the
handwriting may be spoken to without producing the
register (p).
By the 52 Geo. 3, c, 146, s. 7, verified copies of all
registers of baptisms and burials are to be sent yearly
by all ministers to the registrar of their diocese ; and
by the 6 & 7 Will. 4, c. 86, s. 38, the Eegistrar-General
is to cause to be sealed or stamped with the seal of his
office, all certified copies of entries given in his said
office : and all certified copies of entries purporting to
be sealed or stamped with the seal of the said register
office are to be received as evidence of the birth, death,
or marriage to which the same relates, without any
further or other proof of such entry ; and no certified
copy purporting to be given in the said office is to be
of any force or effect which is not sealed or stamped as
aforesaid. Non-parochial registers deposited with the
Registrar-General are made evidence by 3 & 4 Vict,
c. 92, extended by 21 & 22 Vict. c. 25. Copies
(i) Doe v. Fowler, 19 L. J. Q. B. 151.
(4) In re Wintle, L. R. 'J Eq. 873.
(0 K. v. Wearer, L. R. 2 C. C. R. 85.
(hi) Per Chitty, J. : Glenitter v. Harding, 29 Ch. I). 992.
(«) Ibid.
(») Birt v. Harlow, Doug. 272.
(p) Sayer v. Olottop, 2 Kxch. 409.
298 Law of Evidence.

purporting to be sealed with the seal of the office are

receivable in civil cases by the 3 & 4 Vict. c. 92, s. 9,
subject to the regulations of s. 11 as to notice ; but in
criminal cases ithe original register or record must be
produced (s. 17), and it may be used in evidence in
civil cases (s. 12). As to Scotch marriages since 1856,
see 19 & 20 Vict. c. 96. As to Irish marriages, see
7 & 8 Vict. c. 81, incorporated with and amended
by 26 & 27 Vict. c. 27 ; 33 & 34 Vict. c. 110 ; and
36 & 37 Vict. c. 16. As to marriages by British sub
jects out ofithe United Kingdom before British consuls,
see the Foreign Marriage Act, 1892 (q). As to mar
riages between Christians in British India, see West-
macot v. Westmacot (r). Certified copies of Scotch
parochial registers are evidence in English courts on
questions of Scotch pedigree relating to persons and
families always resident and domiciled in Scotland (s) .
By the Registration of Burials Act, 1864 (t), register
books kept under the Act, or copies, are evidence of the
burials entered therein.
By s. 38 of the Births and Deaths Begistration Act,
1874 (u), it is provided that an entry or certified copy
of an entry of a birth or death under the Begistration
Acts, 1836 and 1874, is not to be evidence of a birth or
death unless it purports to be signed by some person
professing to be the informant, and to be a person
required by law to give information to the registrar
concerning the birth or death, or purports to be made
on a coroner's certificate, or in pursuance of the pro
visions of the Act as to registration of births and deaths
at sea. An entry made under the Act of 1836 is
evidence not merely of the fact but of the date of
(?) 55 & 56 Vict. c. 23.
(/•) [1899] P. 183.
(.*) Lyell v. Kennedy, 14 App. Cas. 437.
(0 27 & 28 Vict. c. *J7.
(«) 37 & 38 Vict. c. 88.
 Public Non-judicial Writings. 299

birth (.r). Copies of the registers of baptisms kept

in India by order of the Government of India are
admissible in evidence (y).

PATENTS, DESIGNS, AND TRADE MARKS.

Section 23 of the Patents, Designs, and Trade Marks

Act, 1883 (z), provides that the Begister of patents shall
be prinid facie evidence of any matters by the Act
directed or authorised to be inserted therein.
By s. 55, the Begister of designs is to be prima" facie
evidence of any matters by this Act directed or
authorised to be inserted therein.
By s. 76, the registration of a person as proprietor of
a trade mark is to be prima facie evidence of his right
to the exclusive use of the trade mark, and shall, after
the expiration of five years from the date of the regis
tration, be conclusive evidence of his right to the
exclusive use of the trade mark, subject to the pro
visions of the Act.
By s. 84, the impressions of the seal of the Patent
Office are to be judicially noticed and admitted in
evidence.
By 8. 89, printed or written copies or extracts, pur
porting to be certified by the Comptroller, and sealed
with the seal of the Patent Office, of or from patents,
specifications, disclaimers, and other documents in the
Patent Office, and of or from registers and other books
kept there, are to be admitted in evidence in all courts
in her Majesty's dominions, without further proof or
production of the originals.
By s. 96, a certificate, purporting to be under the
hand of the Comptroller, as to any entry, matter or

(m) Payne v. Bennett, [1904 J P. 738.

(i) 46 & 47 Vict. c. 57.
300 . Law of Evidence.

thing which he is authorised by the Act, or any general

rules made thereunder, to make or do, is to be prima
facie evidence of the entry having been made, and of
the contents thereof, and of the matter or thing having
been done or left undone.

COPYRIGHT.
The Copyright Amendment Act, 1842 (a), s. 11 (6),
enacts, that a register of the proprietorship in the
copyright of books and assignment thereof, and in
dramatic and musical pieces, whether in manuscript or
otherwise, and licenses affecting such copyright, shall
be kept at the Hall of the Stationers' Company, and
shall be open to inspection of any person, on the
payment of one shilling for every entry searched for.
The proper officer is empowered to give a certified
copy under his hand, and impressed with the stamp of
the company, of any such entry, which copy shall be
received as evidence in all courts, and as prima facie
proof of the proprietorship or assignment of copyright
or license, as therein expressed, but subject to be
rebutted by other evidence (<•) ; and, in cases of
dramatic or musical pieces, such copy shall be prima
facie proof of the right of representation or performance,
subject to be rebutted as aforesaid.
By s. 24, no proprietor of a copyright in any book
first published after the passing of the Act, can take
any legal proceedings for infringement of such copy
right, unless it is registered. "Book" includes
"map" (d). The name of the author or composer

(n) 5 & (i Vict. c. 45.

(ft) These provisions are incorporated by reference into the International
Copyright Act, 1844 (7 & 8 Vict. c. 12), and into the Copyright of Works
of Art Act, 1862 (25 & 26 Vict. c. 68).
(<•) See Lucas v. (Awke, 13 Ch. D. 872.
(rf) Stannard. v. Lee, L. K. 6 Ch. 346.
 Public Non-judicial Writings. 301

must be correctly stated on the register (e), as well as

the day of publication, and the names of the publishers,
or their firm (/).
The International Copyright Act, 1886 (g), provides,
by s. 7, that—
" Where it is necessary to prove the existence or proprietorship
of the copyright of any work first produced in a foreign country to
which an Order in Council under the International Copyright Acts
applies, an extract from a register, or a certificate, or other docu
ment stating the existence of the copyright, or the person who is
the proprietor of such copyright, or is for the purpose of any legal
proceedings in the United Kingdom deemed to be entitled to such
copyright, if authenticated by the official seal of a Minister of
State of the said foreign country, or by the official seal or the
signature of a British diplomatic or consular officer acting in such
country, shall be admissible as evidence of the facts named therein,
and all courts shall take judicial notice of every such official seal
and signature as is in this section mentioned, and shall admit in
evidence, without proof, the documents authenticated by it."

And sub-s. (2) of s. 8 of the same Act provides that—

" Where a register of copyright in books is kept under the
authority of the government of a British possession, an extract
from that register purporting to be certified as a true copy by the
officer keeping it, and authenticated by the public seal of the
British possession, or by the official seal or the signature of
the governor of a British possession, or of a colonial secretary, or
of some secretary or minister administering a department of the
government of a British possession, shall be admissible in evidence
of the contents of that register, and all courts shall take judicial
notice of every such seal and signature, and shall admit in evidence,
without further proof, all documents authenticated by it."

Section 15 of the Newspaper Libel and Kegistration

Act, 1881 (/(), provides that—
" Every copy of an entry in or extract from the register of
newspaper proprietors, purporting to be certified by the registrat
or his deputy for the time being, or under the official seal of the
registrar, shall be received as conclusive evidence of the contents
of the said register of newspaper proprietors, so far as the same
appear in such copy or extract without proof of the signature
thereto or of the seal of office affixed thereto, and every such
(c) Wood v. Homey, L. R. 3 Q. IS. 223.
(/ ) Low v. lioutledgi; 33 L. J. Ch. 717.
(y) 49 k 50 Vict. c. 33. (/<) 44 & 45 Vict. c. 60.
302 Law of Evidence.

certified copy or extract shall in all proceedings, civil or criminal,

be accepted as sufficient prima facie evidence of all the matters
and things thereby appearing, unless and until the contrary thereof
be shown."

REGISTER OF VOTERS AND POLL BOOKS.

The Parliamentary Registration Act, 1843 (i), pro
vides (s. 79) that the register of voters under that Act
shall be conclusive evidence that the persons named
therein continue to have the qualifications which are
annexed to their names. It has been held by the
Court of Common Pleas that, though the Ballot Act,
1872 (&), has repealed s. 98 of the Registration Act, the
register is conclusive not only on the returning officer,
but also on every tribunal which has to inquire into
elections, except only in the case of persons prohibited
from voting by any statute or the common law of
Parliament {I).

SHIPPING REGISTERS, ETC.

The Merchant Shipping Act, 1894 (m), contains
provisions as to the admissibility in evidence and the
mode of proof of registers, entries therein and in log
books, declarations under the Act, and Board of Trade
documents. These provisions will be found in the
Appendix.

CORPORATIONS.
Corporation documents are not strictly of a public
nature for the purpose of evidence ; but they will be
conveniently considered here as being of a quasi public
nature.

(0 6 & 7 Vict. c. 18. (7) Sioux v. Jolliffe, L. B. 9 C. P. 734.

(k) 35 & 36 Vict. c. 33. (;«) 57 & 58 Vict. c. 60.
 Public Non-judicial Writings. 303

Corporation books are evidence to pxove entries of a

public character (n), but not to prove transactions of
the corporation with the public (o). They appear to
be evidence in the nature of admissions between
members of the corporation ( p) ; but not of the rights
and privileges of the corporation against strangers (q).
Where such books are tendered as evidence, under
s. 14 of the Law of Evidence Amendment Act, 1851 (r),
they must appear tolbe of such a public nature as the
Act intends, in order to admit of the substitution of
examined or certified copies for the production of the
originals ; but, generally, they appear to be inadmissible
unless rendered admissible by statute.
By the Municipal Corporations Act, 1882 (s),
s. 22—
" (5) A minute of proceedings at a meeting of the council, or of a
committee, signed at the same or the next ensuing meeting, by the
mayor, or by a member of the council, or of the committee,
describing himself as, or appearing to be, chairman of the meeting
at which the minute is signed, shall be received in evidence without
further proof.
" (6) Until the contrary is proved, every meeting of the council,
or of a committee, in respect of the proceedings whereof a
minute has been so made, shall be deemed to have been duly con
vened and held, and all the members of the meeting shall bo
deemed to have been duly qualified ; and, where the proceedings
are proceedings of a committee, the committee shall be deemed to
have been duly constituted, and to have had power to deal with
the matters referred to in the minutes."

JOINT-STOCK COMPANIES.
The proceedings, contracts, etc., of public companies
in reference to the subject-matter of this work, are
subject to the provisions of several Statutes, of which

(n) Marriage v. Lawrence, 3 B. & A. 144.

(») Gibbon'* Case. 17 How. St.Tr.810.
(/))Hill v. Manrhrster Waterworks Co., 2 B. & Ad. 544.
(y) Mayor of London v. Lynn, 2 H. Bl. 214 n.
14 & 15 Vict. c. 99.
s) 45 & 46 Vict. c. 50.
304 Law of Evidence.

the principal are the Companies Act, 1862 (t), the

Companies Winding-up Act, 1890 («)> and the Com
panies Act, 1877 Or).
For the sections of these Acts material for the
purposes of this work see the Appendix.
It should be observed that by the last-mentioned
enactment certified copies of the documents or parts of
documents kept and registered at the English, Scotch,
and Irish offices for the registration of joint stock
companies are receivable in evidence as of equal
validity with the originals. The certificate is to be
under the hand of the registrar or one of the assistant
registrars for the time being, whom it is not necessary
to prove to be such registrar or assistant registrar.
It may be observed that where a document is
tendered, purporting to be sealed by the seal of a
company or corporation, the genuineness of the seal
must be proved by some one who knows it (y), unless
it be the seal of the Corporation of London (z), or
the seal of the Apothecaries' Company, which prove
themselves (a).

CHAEITABLE TRUSTS.
By the Charitable Trusts Recovery Act, 1891 (b),
s. 5 (1), it is provided that—
" For the purposes of any action, petition, or proceeding insti
tuted by the board under this Act, the following provisions shall
have effect : (1) The printed reports of the Charity Commissioners
appointed under an Act passed in the fifty-eighth year of the reign
of his Majesty George the Third, and intituled, ' An Act for
appointing Commissioners to inquire concerning Charities in
England for the Education of the Poor,' and under other Acts for
inquiring into charities, shall be admissible as prima facie evidence
of the documents and facts therein stated ; provided that either
party intending to use any such report as evidence shall give notice
of such intention in the prescribed manner to the other party.
(0 25 & 20 Vict. c. 89.
(k) 53 & 54 Vict. c. 63. 0) I>ov v. Mason, 1 Esp. 53.
O") 40 & 41 Vict. c. 20. («) 14 & 15 Vict. c. 99, s. 8.
(y) Afoitrs v. Thornton. S T. II. 207. (o) 54 Vict. c. 17.
 Public Non-judicial Writings. 305

(2) Where any yearly or other periodical payment has been made
in respect of any land, to or for the benefit of any charity or
charitable purpose, for twelve consecutive years, such payment
shall be deemed, subject to any evidence which may be given to
the contrary, prima facie evidence of the perpetual liability of
such land to such yearly or other periodical payment, and no proof
of the origin of such payment shall be necessary."

BYELAWS.
These are quasi public documents, which are generally
regulated by particular Statutes or charters. They
appear to be generally within the spirit of the Docu
mentary Evidence Acts and the Law of Evidence
Amendment Act, 1851. Their validity depends,
- primarily, on their conformity to the powers given by
special Acts, or to the provisions of the Companies
Clauses Consolidation Act, 1845 (c), s. 124 of which
empowers a company—
" from time to time to make such byelaws as they think fit, for
the purpose of regulating the conduct of the officers and servants
of the company, and for providing for the due management of the
affairs of the company in all respects whatsoever, and from time
to time to alter or repeal any such byelaws, and make others, pro
vided such byelaws be not repugnant to the laws of that part of
the United Kingdom where the same are to have effect, or to the
provisions of this or the special Act ; and such byelaws shall be
reduced into writing, and shall have affixed thereto the common
seal of the company ; and a copy of such byelaws shall be given to
every officer and sen-ant of the company affected thereby."

It is provided (s. 127) that the production of a written

or printed copy of the byelaws of the company, having
the common seal of the company affixed thereto, shall
be sufficient evidence of such byelaws in all cases of
prosecution under the same.
A railway byelaw will not be binding on strangers,
unless it has been approved by the Board of Trade or

(c) 8 & 9 Vict. c. 1G.

L.K. X
30G Law of Evidence.

Commissioners of Bailways, or other proper officer (d) ;

nor, generally, unless it is proved to have come actually
or constructively to the notice of the party who is to
be affected by it (e). Where such byelaw is good, or
where a statutory notice has been affixed under the
Carriers Act, it will be sufficient, apparently, to prove
that such a byelaw or notice was duly affixed, and then
to prove an examined copy, for it will be a public
document within s. 14 of the Law of Evidence Amend
ment Act, 1851 (/).
By the Municipal Corporations Act, 1882 (g),
s. 24—
" The production of a written copy of a byelaw made by the
council under this Act, or under any former or present or future
goneral or local Act of Parliament, if authenticated by the cor
porate seal, shall, until the contrary is proved, be sufficient evidence
of the due making and existence of the byelaw, and, if it is so
stated in the copy, of the byelaw having been approved and con
firmed by the authority whose approval or confirmation is required
to the making or before the enforcing of the byelaw."

By the Salmon Fishery Act, 1873 (A), s. 45—

" The production of a written or printed copy of any byelaw
purporting to have been confirmed, authenticated by the common
seal of the board, shall be conclusive evidence of the existence
and due making of such byelaw in all legal proceedings, and the
production of a copy of any newspaper or newspapers containing
the notice of the making of any such byelaw shall be taken and
received in all legal proceedings as evidence that all things required
by this Act for the making and publication of the byelaw therein
advertised have been duly done, performed, and published."

The byelaws of railway companies, municipal and i

other corporations, will not be recognised by the courts
of law, but will be treated as ultra vires and void, if they
impose restrictions or penalties which are unreasonable

00 3 & 4 Vict c. 97, s. 7 ; and see 8 & 0 Vict. c. 20, ss. 108—111.
(<0 Great Western Rail. Co. v. Goodman. 12 C. B. 313.
(O Motteram v. Eastern Comities Bail. Co., 7 C. B. (N.8.) 58.
0y) 45 & 46 Vict. c. 50.
(A) 36 & 37 Vict. c. 71. .
 Public Non-judicial Writings. 307

or unnecessary for the purposes in view, or if their

provisions are inconsistent with those of any Statute
of the realm (i).

BILLS OF LADING.
By the Bills of Lading Act, 1855 (k), ss. 1 and 2,
every consignee of goods named in a bill of lading, and
every indorsee of a bill of lading, becomes the absolute
owner, with all the personal rights and liabilities of
ownership, subject to the consignor's right of stoppage
in transitu, and claims for freight. By s. 3—
" Every bill of lading in the hands of a consignee or indorsee
for valuable consideration, representing goods to have been shipped
on board a vessel, shall be conclusive evidence of such shipment
as against the master or other person signing the same, notwith
standing that such goods or some part thereof may not have been
so shipped, unless such holder of the bill of lading shall have had
actual notice at the time of receiving the same that the goods had
not been in fact laden on board : provided, that the master or
other person so signing may exonerate himself in respect of such
misrepresentation by showing that it was caused without any
default on his part, and wholly by the fraud of the shipper, or of
the holder, or some person under whom the holdar claims."

It has been held that this section does not estop the
owners of a ship from showing the incorrectness of
the bill of lading signed by the ship's agent as to the
weight of goods actually shipped (/) ; and in an action
for freight the master is not estopped from denying the
amount of goods actually received, though he would be
estopped in an action against the owners for non
delivery (m).

(i) Calder Navigation Co. v. Pilling, 14 M. & W. 70 : Chilton v.

London and Croydon Hail. Co., Hi M. & W. 212 ; Ererett v. (Jrapet,
A L. T. Ii(>9 ; Johnson v. Mayor of Croydon, 1G Q. B. 1). 708 ; /fea/j v.
Day, U W. It. 627.
(*) 18 A: lit Vict c. 111.
(.7) Jemel v. Bath. L. K. 2 Ex. 2«7.
(hi) lilanchet v. Llantitit Colliery Co., L. K. 9 Ex. 77,

x 2
308 Law of Evidence.

BILLS OF SALE (»).

The Bills of Sale Act, 1882 (o), s. 8, provides that :
"Every bill of sale shall be duly attested (p ), and shall be regis
tered under the principal Act (5) within seven clear days after the
execution thereof, or if it is executed in any place out of England
then within seven clear days after the time at which it would in
the ordinary course of post arrive in England if posted immediately
after the execution thereof ; and shall truly set forth the considera
tion for which it was given ; otherwise such bill of sale shall be
void in respect of the personal chattels comprised therein."

This section is not retrospective (r) ; and, therefore,

the registration of bills of sale executed between
January 1st, 1879, and November 1st, 1882, is governed
by the Bills of Sale Act, 1878 (s), s. 8. The registra
tion is effected in the Bills of Sale Department of the
Supreme Court (t).
Section 16 of the Act of 1878 is as follows :
" Any person shall be entitled to have an office copy or extract,
of any registered bill of sale, and affidavit of execution filed there
with, or copy thereof, and of any affidavit filed therewith, if any,
or registered affidavit of renewal, upon paying for the same at the
like rate as for office copies of judgments of the High Court of
Justice, and any copy of a registered bill of sale, and affidavit pur
porting to be an office copy thereof, shall in all courts and before
all arbitrators or other persons, be admitted as prima facie evidence
thereof, and of the fact and date of registration as shown thereon."

Section 16 of the Act of 1882 provides that :

" any person shall be entitled at all reasonable times to search
the register, on payment of a fee of one shilling, or such other fee
as may be prescribed, and subject to sucli regulations as may be
prescribed, and shall be entitled at all reasonable times to inspect,
examine, and make extracts from any and every registered bill of

(») For the definition of the term "bill ot sale," see ss. 4, 5, 6, ami 7 of
the Bills of Sale Act, 1878, in the Appendix.
(o) 45 it 46 Vict. c. 43.
I.e., by one or more credible witness or witnesses not being a party
or parties thereto (s. 10).
(?) I.e., the Hills of Sale Act. 1878, which requires also the filing of an
affidavit containing certain particulars. See s. 10.
(r) Ilieimm v. Dnrlou; 23 Ch. D. 690.
(*) 41 & 42 Vict. c. 31. (0 R. S. C, 1883, Order LXI., r. 1.
 Public Non-judicial Writings. 309

sale without being required to make a written application, or to

specify any particulars in reference thereto, upon payment of one
shilling for each bill of sale inspected, and such payment shall be
made by a judicature stamp : Provided that the said extracts shall
be limited to the dates of execution, registration, renewal of regis
tration, and satisfaction, to the names, addresses, and occupations of
the parties, to the amount of the consideration, and to any further
prescribed particulars."

It would seem, however, that the production of a

certificate of registration of a bill of sale, even though
it states that the affidavit of execution has been duly
filed, does not preclude the necessity of producing an
office copy of the bill of sale (u), although, probably, a
copy of the affidavit need not be produced, still it is
better to produce both.

FRIENDLY SOCIETIES, AND INDUSTRIAL AND

PROVIDENT SOCIETIES.
For the provisions of the Friendly Societies Act,
1875, and the Industrial and Provident Societies Act,
1878, on the subject of evidence, see the Appendix.

NATURALISATION.
For the provisions of the Naturalisation Act. 1870,
on the subject of evidence, see the Appendix.

HISTORIES
are admissible to prove a matter relating to the king
dom at large (x), such as the death of a sovereign or
the time of his accession. They are admissible to prove

(k) Emmott v. Marchant, 3 Q. B. D. 555. 00 Bull. N. P. 248.

310 . Law of Evidence.

ancient facts of a public nature (y), although not to

prove a particular or local custom. Maps are admis
sible under the circumstances mentioned in Part I.,
Chap. IX., and maps and charts generally offered for
public sale are admitted as evidence of general geogra
phical facts, such as the relative positions of countries,
counties and towns ; and distances (other than minute
distances) may be proved by the use of the Ordnance
maps (z) .
Peerages, army and navy lists, directories, calendars,
or other non-official publications, are inadmissible.
But dictionaries are constantly referred to in court for
the meanings of words, especially in trade-mark cases.

(y) Read v. Bishop of Lincoln, [1892] A. C. 633.

(i) Movflet v. Cole, L. R. 8 Ex. 35.
 ( 311 )

CHAPTER IV.

SECONDARY EVIDENCE.—PROOF OF HANDWRITING.

—ATTESTING WITNESSES. — WRITINGS WHICH
REFRESH THE MEMORY.

When a party has done everything in his power to |

bring before the court primary evidence of the docu
ments on which he relies by searching for them in j
places where it was most reasonable to expect them to
be deposited, and not finding them, or by giving the
opposite party notice to produce them (a), or when the
document is in the hands of a third person, who can
refuse to produce it on the ground of privilege, or who
is out of the jurisdiction, he will then, and not till then,
be permitted by the court to give secondary evidence
of such documents. When a document is alleged to
have been destroyed by the opposite party, notice to
produce is necessary (b).
The search must be bond fide and diligent (c).—It is
not necessary to call a person of whom inquiries have
been made as to a deed, but his declarations may be
given in evidence (d). If there are several places of
probable deposit, all must be searched (e). Every
possible search need not be made, but every reasonable
search will be sufficient (/), and the search need not be
recent or made for the purposes of the trial (g).

There are no degrees in secondary evidence.—There

fore, when the absence of primary evidence is explained

(a) As to notice to produce, see Part III., Chap. VIII.

(*) Doe v. Morris, 3 A. & E. 46.
(r) R. v. Denio, 7 B. 4c C. 620. (e) Doe v. Lewi*, 11 ("!. B. 1035.
(7/) B. v. Keniluortk, 7 Q. B. 642. (/) Hurt v. Hart, 1 Hare, 1.
Qj) Fitz v. Rabbits, 2 Moo. & R. 60.
312 Law of Evidence.

satisfactorily, any species of admissible secondary

evidence may be substituted for the original. Thus, a
lost deed may be proved, either by an examined copy (/i) ,
or by oral evidence of any one who can swear positively
to the contents of the original ; and, therefore, where it
appeared that a party held a copy of an original, which
was not produced, it was held that he was not obliged
to produce the copy, but might give oral evidence of
the original (i). As soon as a party has accounted
for the absence of the original document, he is at
liberty to give any kind of secondary evidence. The
rule is, that no evidence is to be adduced which
ex naturd rei supposes still greater evidence behind in
the party's own power and possession (k). In Doe v.
Boss (k), it was held that oral evidence of an original
might be substituted for an attested copy, which was
tendered but rejected for want of a stamp. It is not,
however, to be supposed that oral evidence of a docu
ment, although equally admissible with an attested or
examined copy, is therefore entitled to the same
credibility ; and it will be for a jury to place their own
estimate on the value of the witness's memory.

Copies of documents.—Although either a copy or

oral proof of an original will be equally admissible as
secondary evidence, the copy of a copy will be inadmis
sible (I) as being one step farther removed from the
original. It has been suggested that if the copy
tendered is proved to have been compared with the
first copy and the first copy with the original, the copy
tendered would be admissible, but probably this is
not so.

(^) But not by what purports to be an attested copy, though the

death and handwriting of the attesting witnesses be proved (Brindley v.
M'oodlwu.se, 1 Car. & Kir. 647).
(i) Brown v. Woodman, 6 C. & P. 206.
(i) Per PARKE, B. : Doe v. Rons, 7 M. k W. 102.
(?) Liebman v. Pooley, 1 Stark. 167.
 Secondary Evidence. 313

Stamping.—It will be presumed, in the absence of

contrary evidence, that the original was properly
stamped, if it required to be stamped (to), and an
unstamped copy will be good secondary evidence ; but
neither at Jaw (n) nor in equity (o) can secondary
evidence of the contents of an unstamped agreement be
given, even though it was destroyed by the wrongful
act of the party objecting to such evidence.
When a copy is tendered as secondary evidence, it
must be proved to be accurate by a witness who made
it, or who actually read it and compared it with the
original (p) ; but drafts from which, by indorsements
upon them, it appeared that certain deeds were
engrossed, have been held good secondary evidence of
the contents of such deeds (q).
All originals must be accounted for before secondary
evidence can be given of any one (r). It may be
remarked that secondary evidence of the contents of a
lost will may be adduced as well as of the contents of
any other lost instrument (s). To obtain probate of a
lost will not only must its contents be proved, but also
its due execution and attestation (t).
If a witness attends on a subpoena duces tecum, with
a document which he refuses to produce on the ground
of privilege, secondary evidence will be admissible. If
he does not attend on such a subpoena or attends and
refuses to produce the writing on any other ground but
that of privilege, secondary evidence will not be admis
sible, but the witness will be punishable for contempt (u) .

(7/;) Marine Investment Co. v. Havitide, L. H. 5 E. & I. 624.

(«) Rip/liner V.Wright, 2 B. & Al. 478.
(«) Smith v. Henley, 1 Phil. 391.
(_]>) Fisher v. Sumnda, 1 Camp. 193.
0/) Waldy v. Gray, L. R. 20 Eq. 250.
OO Per Parke, B. : Ativan v. Fumiral, 1 C. M. & R. 292.
00 See Sugden v. Lord St. Leonards, L. R. 1 P. k I). 164 ; and In the
Goods of Leigh, [18921 P. 82, where the will had been torn into pieces
after the testator's death and Home of the pieces had been lost.
(0 Harris v. Knight, 15 P. D. 170.
00 R. v. Llanfaeihly, 2 El. k Bl. 940.
314 Law of Evidence.

When production is refused of a document on the

ground of private privilege, secondary evidence of
its contents is admissible (.?;). Where a document is
privileged on the ground of public policy, secondary
evidence of its contents is inadmissible (y) .

PEOOF OF HANDWRITING.
The proof of signatures, or handwriting, is the
essential part of the proof of private writings. There
are various admissible kinds of such proof.
1 . Handwriting may be proved by calling the party who wrote
or signed. This is the most satisfactory evidence.
2. By a witness who actually saw the party write or sign.
3. By a witness who has seen the party write on other occasions,
even if it be but once only. Such witness must swear to his belief
that the writing produced is the writing of the person, and it is not
sufficient for him to swear that he thinks that it is (z).
4. By a witness who has seen documents, purporting to be
written by the same party, and which, by subsequent communica
tions with such party, he has reasons to believe the authentic
writings of such party.
5. A witness may give his opinion as to the authenticity of a
disputed document by comparing the handwriting with any docu
ment which has been proved to the satisfaction of the judge to be
the genuine writing of the party (a). The witness must be skilled
in comparing handwritings, but he need not be a professional
expert. Thus in R. v. Silverlock (6), a solicitor who had given
considerable study and attention to handwriting was held a
competent witness.

The practical principles of this department of

evidence are well illustrated in the subjoined judgment
of Patteson, J., in Doe v. Suckermore (c). He said :
" All evidence of handwriting, except where the witness sees the
document written, is in its nature comparison. It is the belief

(a?) Calcraft v. Guest, [18!"8] 1 Q. B. 759.

(y) Home v. Bentinck, 2 B. & B. 130 ; State v. Griffith, L. B.
2 P. C. 420.
(r) Eagleton v. Kingston, 8 Ves. 473. (i) [1894] 2 Q. B. 766.
(«) 28 Vict. c. 18, s. 8. (c) 5 A. & E. 703.
 Secondary Evidence. 315

which a witness entertains upon comparing the writing in question

with an exemplar in his mind derived from some previous know
ledge. That knowledge may have been acquired, either by seeing
the party write, in which case it will be stronger or weaker accord
ing to the number of times and the periods and other circumstances
under which the witness has seen the party write ; but it will be
sufficient knowledge to admit the evidence of the witness (however
little weight may be attached to it in such cases), even if he has
seen him write but once, and then merely signing his surname ; or
the knowledge may have been acquired by the witness having seen
letters or other documents professing to be the handwriting of the
party, and having afterwards personally communicated with the
party upon the contents of those letters or documents, or having
otherwise acted upon them by written answers producing further
correspondence or acquiescence by the party in some matter to
which they relate ; or by any other mode of communication between
the party and the witness, which, in the ordinary course of
transactions of life, induces a reasonable presumption that the
letters or documents were the handwriting of the party ; evidence
of the identity of the party being of course added aliunde, if the
witness be not personally acquainted with him. These are the
only modes of acquiring a knowledge of handwriting which have
hitherto, as far as I have been able to discover in our law, been
considered sufficient to entitle a witness to speak as to his belief in
a question of handwriting. In both the witness acquires his
knowledge by his own observation upon facts coming under his
own eye, and as to which he does not rely on the information of
others ; and the knowledge is usually, and especially in the latter
mode, acquired incidentally, and, if I may say so, unintentionally,
without reference to any particular object, person or document."

Where it is desired to prove the handwriting of an

ancient document, it may be proved by the evidence of
a witness who has in the course of business examined
documents admitted to be written by the same party,
but not by a witness who has merely inspected such
, documents for the purpose of giving evidence (d).
On these common law principles has been engrafted
the principle numbered 5, supra. The statutory pro
vision now in force is the following :
" Comparison of a disputed writing with any writing proved to
the satisfaction of the judge to be genuine shall be permitted
to be made by witnesses ; and such writings, and the evidence of

(rf) Fit-waiter Peerage Case, 10 CI. & F. 193.

31(5 Law of Evidence.

witnesses respecting the same, may be submitted to the court and

jury as evidence of the genuineness or otherwise of the writing in
dispute " (e).

Before any writing is admissible as a standard of

comparison, its genuineness must be proved to the
satisfaction of the judge (/), but it need not be relevant
to the issue (7). Where an attesting witness swore
clearly and distinctly that a deed was executed in his
presence by E. and his wife, both of whom he knew,
this evidence was held not to be counter-balanced by
the evidence of experts who expressed an opinion that
the signature purporting to be that of R. was not in the
character of his handwriting (h). "Where the hand
writing of any part of a document provable by a copy
is in dispute, the original must be produced (i).

PROOF BY ATTESTING WITNESSES.

It was a common law principle, that where a writing
was attested, the witnesses, or one of them, must be
called to prove the execution of the instrument; and it
was not competent to a party to prove it even by the
admission of the person by whom it was executed ; but
by s. 26 (now repealed) of the Common Law Procedure
Act, 1854, it was enacted, that it should not be neces
sary to prove, by the attesting witness, any instrument,
to the validity of which attestation is not requisite ;
and such instrument might be proved by admission or
otherwise, as if there had been no attesting witness
thereto. Section 103 of that Act confined this prin
ciple to courts of civil judicature in England or Ireland ;
but by the Evidence and Criminal Practice Amendment

0) 28 Vict. c. 18, s. 8.
• (/) Hut/hex v. Lady Dinorben, 32 L. T. 271.
(jO Biroh v. Bidr/way, 1 F. & F. 270.
(A) Newton v. Jlicki tts, 9 H. L. CaH. 262.
(t) Auriol v. Smith, 18 Ves. 198.
 Secondary Evidence. 317

Act, 1865 (k), it was extended to criminal proceedings.

Section 7 of this Act (which applies to all courts, civil
and criminal, and all persons having by law or consent
of parties authority to hear, receive, and examine
evidence) re-enacts the above-mentioned section, with
the omission of the words in italics which were really
surplusage.
In determining, therefore, whether it will be neces
sary under these Acts to call the attesting witness to
an instrument, the practical question is, whether the
instrument is one which requires attestation to give it
validity. If the instrument would be void without
attestation, the subscribing witness must still be called ;
but, if attestation be unnecessary, the witness need not
be called. Thus, in numerous statutory instruments,
attestation is essential to their validity: e.g., wills;
warrants of attorney and cognovits ; bills of sale ;
indentures of pauper apprentices under the Merchant
Shipping Act, 1894 (I) ; instruments executed in pur
suance of powers requiring attestation ; conveyances to
charitable uses, etc. On the other hand, bonds, deeds,
and agreements of every kind, which are equally
binding whether attested or not, are clearly provable
without the production necessarily of a subscribing
witness. But according to the practice on Lunacy and
Chancery petitions, the court requires proof by the
attesting witness of a document or proof of his signa
ture if it can be obtained ; if not, the document may
be proved as if unattested (m). So, too.it has been
held that on ex parte applications a deed cannot be
proved, except by the attesting witness (ri) ; but this is
strictly confined to ex parte applications (o).

(t) 28 Vict. c. 18.

(0 57 & 58 Vict. c. 60, a. 107.
O) Be Mice, 32 Ch. D. 85,
(*) Rc Betty's Ettate, 1 Jur. (N.8.) 222.
(») Worthington v. Moore, 64 L. T. (N.8.) 338.
318 Law of Evidence.

Exceptional cases.—It is a rule that an attesting

witness need not be called to prove an instrument
which is more than thirty years old ; or when the
original is withheld by an adverse party, who refuses
to produce it after notice (p) ; or when the adverse
party, in producing it after notice, claims an interest
under it ; or when the adverse party has recognised the
authenticity of the instrument by acts creating an
estoppel in a judicial proceeding.

Death, etc., of attesting witness.—When the attest

ing witness is proved to be dead, insane, beyond the
jurisdiction of the court, or otherwise not producible
after due endeavours to bring him before the court,
evidence of his handwriting is sufficient. In such cases
it will generally be sufficient to prove the handwriting
of the attesting witness. It is also held, that where an
instrument requires to be attested by several witnesses,
it may be proved by calling any one of them (q) , except
in the case of wills, which, under certain circumstances,
can be proved only by the production of all the pro
ducible witnesses (r). An instrument which is required
to be attested by several witnesses may be proved by
evidence of the handwriting of one of such witnesses,
coupled with proof of his identity, as soon as the
absence of all the witnesses has been explained
satisfactorily, but not otherwise (s).
Where a witness, called to prove the execution of an
instrument, sees his signature to the attestation, and
says that he is therefore sure that he saw the party
execute the deed, that is a sufficient proof of the
execution of the instrument, though the witness adds
that he has no recollection of the fact of the execution

O) Poole v. Warren, 8 A. & E. 588.

(//) Holdfast v. Downing, 2 Str. 1254.
(r) Supra, p. 202.
(a) XeUon v. Whittall, 1 B. & Aid. 19.
 Secondary Evidence. 319

of the instrument (t). Where an attesting witness has

become blind, he must be called to give evidence from
recollection (u). If the attesting witness be called, and
can recollect nothing, then the execution of the deed
may be proved aliunde (x) . If all the witnesses are
dead, the handwriting of one of them must be proved,
and then the statement in the attestation clause will be
presumed to be correct (y) . Where an attesting witness
lived abroad, it seems that stricter proof of his death
ought to be required (z) . When the attesting witness
to a will (the attestation clause being insufficient)
refuses to make an affidavit as provided for by Eule i of
the Probate Eules, 1862, the court, under s. 24 of the
Probate Act, 1857, may order that such witness be
examined in open court (a).

WRITINGS WHICH EEFEESH THE MEMORY.

A document which may be inadmissible intrinsically
and per se as primary or secondary evidence, either
because it does not embody the substance of the issue,
or because it is in the nature of hearsay, will often be
admissible to refresh the memory of a witness, and to
enable him to speak to the matters to which it refers.
It appears that such a document may be handed to
a witness for inspection, and that the witness may
give oral evidence accordingly, after a perusal of its
contents :
1st. When the writing actually revives in his mind a recollection
of the facts to which it refers.

(<) Per BATLBY, J. : .Vauyhan v. Hubbard, 8 B. & C. 51G ;

rf. Burling v. Pattison, 9C.&P. 579.
(a) lite* v. Williams, 1 I). & S. 314.
(r) Talbot v. Hudson, 7 Taunt. 251.
(y) Adam v. Kerr, 1 B. & P. 360.
(2) Henley v. Philips, 2 Atk. 48.
(a) In the Goods of Sweet, 61 L. J. P. & I). 15.
320 Law of Evidence.

2nd. When, although it fail to revive such a recollection, it /

creates a knowledge or belief in the witness that, at the
time when the writing was made, he knew or believed it
to contain an accurate statement of such facts.
3rd. When, although the writing revives neither a recollection
of the facts, nor of a former conviction of its accuracy,
the witness is satisfied that the writing would not have
been made unless the facts which it purports to describe
had occurred accordingly (fc).

It is not necessary that the memorandum should

have been actually made by the witness, if he can
otherwise make it an original source of personal recol
lection. Thus, a witness has been allowed to refresh
his memory from a paper which he remembers having
recognised as a correct narrative when the facts were
fresh in his memory (c) .
In this way a writing, which is. inadmissible for
want of a stamp, may practically be made evidence, as
a memorandum to prompt the oral statement of a
witness ; but this case can only arise where the writing
is not in itself primary or best evidence, and where a
party has his option of resorting either to written or
oral evidence. Thus, a writing which is void as an
agreement may be equally serviceable as a memo
randum ; again, a memorandum of the receipt of
money, which was void as a receipt for want of a
stamp, has been held strictly admissible to refresh the
memory of a witness, and to enable him to say, from
the fact of his signature, that he had received money
which he had no recollection of having received (d).
In this case Lord Tenterden said :
" In order to make the paper itself evidence of the receipt
of the money, it ought to have been stamped. The consequence
of its not having been stamped might be, that the party who paid
the money, in the event of the death of the person who received

(b~) When a witness's knowledge of a fact is derived solely from a

memorandum used to refresh his memory, his evidence is, of course, not
conclusive (Dupny v. Truman, 2 Y. ifc C. 341).
(c) Du heu of Kingston's Case, 20 How. St. Tr. 619.
(d) Mavghan v. Hubbard, 8 B. & C. 14.
 Secondary Evidence. 321

it, would lose his evidence of such payment. Here the witness, on
seeing the entry signed by himself, said that 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 said that he had no
doubt he had received the money, there was sufficient parol
evidence to prove the payment."

According to the third principle, supra, a person who

is shown an entry made by himself may depose to the
facts the subject of the entry, although he has no
recollection of them (e) .

As to production of the memorandum.—Generally

speaking, the memorandum from which a witness
speaks need not be produced in court ; but, if produced,
it becomes evidence for the party producing (/) , and
the opposite party will be entitled to see it, and to
cross-examine from it (g). He may cross-examine
upon such part of the memorandum as is referred to by
the witness, without making the memorandum evidence
per se for the opposite party ; but if he cross-examines
upon other parts, he makes them portions of his own
evidence (h) . Where a document is put into a wit
ness's hand, but nothing is done upon it, the opposite
party is not entitled to see it (i) ; and where a diary
was used by a witness to refresh his memory, it was
held that the opposite party was only entitled to see
such portions as referred to the subject-matter of the
suit (k). Where the witness derives his knowledge of
a fact solely from his reliance on the accuracy of the
memorandum, it must be produced (I). But in other
cases, where the original memorandum has been lost or

(<0 B. v. St. Martiu't, Leicetter, 2 A. & E. 210.

(/) Payne v. Ihhotton. 27 L. J. Kx. 41.
GiO U. v. Hardy, 24 How. St. Tr. 824.
(A) Per Gukney, B. : Gregory v. Tarernor, 6 C. & P. 281.
(i) Sinclair v. Sterenmn, 1 C. & P. 585.
(4) Burget* v. Bennett, 20 W. R. 720.
(0 Doe v. Perkins, 3 T. R. 754.
r..K.
322 Law of Evidence.

destroyed, a copy, if proved to be correct, may be

used.
Time when made. —There is no precise time within
which a writing must be shown to have been made,
before it can be used by a witness. It is not necessary
that it should have been made contemporaneously with
the occurrence of the fact ; but it ought to have been
made soon afterwards, or at least within such a sub
sequent time as will support a reasonable probability
that the memory of the witness had not become
impaired when the statement was committed to paper.
It appears to be only necessary that the witness should
swear positively that the memorandum was made at a
time when he had a distinct recollection of the facts,
and ante litem motam (m).
The memorandum must either have been made by
the witness, or recognised by him, at or about the
time when it was made, as a correct account. It must
not contain any of the elements of hearsay, and it will
therefore be inadmissible if it appears to be the state
ment of a third person (n) , as where it had been drawn
up by such a person from the witness's own memo
randa ; or even if it is a copy made by the witness
himself from his own original memoranda (o). This
rule is consistent with the general principles of
secondary evidence, by which the copy of a copy,
unless in the nature of a duplicate original, is inadmis
sible, and corresponds with the express dictum of
Patteson, J., in Burton v. Plummet (p), that "the
copy of an entry, not made by the witness contem
poraneously, does not seem to be admissible for the
purpose of refreshing a witness's memory." The cases
(m) Wood v. Cowper, 1 C. & K. 646.
(«) Anon., Ambler, 252.
(») Jones v. Stroud, 2 C. & P. 1U6.
(p) 2 A. & E. 313.
 Secondary Evidence. 323

where such a privilege appears to have been conceded,

as where the author of a written report (q), or an
article in a newspaper (r), has been allowed to refer to
the printed versions, are cases where such printed
versions appear to have been treated as originals, and
not as copies.
(?) Home v. Mackenzie, 6 C. & F. 628.
(;•) Topham v. McGregor, 1 C. & K. 320.
 ( 324 )

CHAPTEE V.

MATTERS WHICH ARE REQUIRED TO BE PROVED

BY WRITING—THE STATUTES OF FRAUDS AND
OF LIMITATIONS—PRESCRIPTION.

Many matters can be proved only by deed or other

writing; and, in such cases, oral evidence, however
distinct and direct, is wholly inadmissible.

INCORPOREAL RIGHTS,

Such as advowsons, rents, remainders, reversions,

profits a prendre, and easements, can be created or
assigned only by deed, and must therefore be proved by
deed. Thus, a ticket of free admission to a theatre or a
racecourse is insufficient evidence of a title to enter,
unless it be by deed (a).

CONTRACTS BY CORPORATIONS.
A contract by a corporation must in general be
either under the seal of the corporation or signed on
its behalf by a person authorised under seal to do so,
or must be ratified under seal (b).

Exceptions.—This rule is an ancient principle of the

common law, and still remains in the abstract unmodi
fied ; but practically, a large number of exceptions

(a) Wood v. Leadbitter, 13 M. i; W. 812.

(A) See Arnold v. Mayor of Poole, 4 M. i, G. 860 ; Mayor, etc. of
Oxford v. Crow, [1893] 3 Ch. 535.
Matters which Must be Proved by Writing. 325

have been engrafted on it, and their cumulative result

appears to be that minor contracts, where there is a
paramount convenience such as to amount almost to a
necessity, or contracts connected with the objects for
which the corporation was established, may be proved
without being under the seal of the corporation (c).
Although, as a general rule, an inferior servant can be
retained even by a non-trading corporation by parol,
the same principle does not apply to all such servants ;
for it has been held that the contract for the engage
ment of a clerk to a master of a workhouse by a board
of guardians must be under seal (d).
The practical question in such cases is : Was the
transaction incidental or foreign to the objects and
daily business of the corporation ? If it was incidental,
as to repair the premises of the corporation (e) ; or
a contract to buy or sell such goods as the corporation
is formed to buy and sell (/), or to purchase goods for
the purposes of the corporation (g), such a matter does
not require to be proved by the corporation seal. The
East India Company was formerly held liable upon
bills of exchange accepted on its behalf although its
seal was not on them (h). When the goods to be
supplied are not such as those in which the corporation
usually deals (t) ; or when the contract is of such a
magnitude, and of such an unusual description, as to
require reasonably the formal and express assent of the
corporation, the fact must be proved by writing under
the corporate seal (k) ; but magnitude per se is not an
(c) Mayor of Ludlow v. Charlton, 6 M. & W. 821 ; cf. Church v.
Imperial Gas Co., 6 A. & E. 861.
(d) Austin v. Bethnal Green Guardian*, L. R. 9 C. P. 91 ; <•/. Dxjte v.
St. Pancrat Guardians, 27 L. T. (N.s.) 342.
0) Saunders v. St. Neott Union, 8 Q. B. 810.
(/) Church v. Imperial Gaslight and Coke Co., 6 A. & E. 846.
(g) South of Ireland Colliery Co. v. Waddell, L. K. 4 C. P. 617.
(A) Murray v. East India Co., 5 B. k A. 204.
(i) Copper Miners' Co. v. Fox, 16 Q. B. 229.
(*) Homersham v. Wolrerhampton Bail. Co., 6 Exch. 137.
326 Law op Evidence.

element in deciding whether a contract not under seal

is binding on the corporation (I).
It may be remarked, that the tendency of recent
decisions is to restrict the general principle that
corporations can only contract under seal. The courts
are unwilling to hold such contracts void, merely
because they are not evidenced by the corporate seal ;
and are more and more inclined to hold corporations
bound by them when they are entered into by duly
appointed agents ; but the agents of a corporation
have no power to bind it by any act which the corporate
body has not power to do. Corporations are bound by
the misrepresentations of their agents (to) ; and it has
been said by a high authority, that, although corpora
tions can only contract under seal, they are bound by
their conduct, and by the acts of their solicitors, after
their contract, just as an individual would be (n). So,
in torts, corporations are liable for the acts of their
servants, although they have not been appointed under
the corporate seal (o) ; and use and occupation may be
maintained by a corporation against a tenant who has
entered, but who has not been constituted tenant by a
demise under seal {p). Entry, occupation, and pay
ment of rent for corporate property under a demise not
under seal will constitute a yearly tenancy (q).
As to executed contracts.—Although it was at one
time doubted how far a corporation was bound by an
executed contract, not under seal, and of which the
corporation had received the benefit ; it is now settled
that the corporation will be bound if it has accepted
(?) Per EBLB, J. : Jfenilcrxon v. Australian Strain Navigation Co.,
5 E. & B. 409.
(»«) Conybeare v. Neie Sruuswick Co., 8 Jur. (x.s.) 375.
(h) Per Lord St. Leonards : Eastern Counties Rail. Co. v. Ilawkcs,
5 H. L. Cas. 376.
(<>) Eastern Counties Bail. Co. v. Prawn, 6 Exch. 314 ; Goff v. Great
Northern Rail. Co., 3 E. & E. 672.
(j>~) Mayor of Stafford v. Till, 4 Bing. 77.
(j) Ecclesiastical Commissioners v. Merral. I.. R. 4 Ex. 162.
Matters which Must be Proved by Writing. 327

the benefit of the contract (r), except, of course, where

any Statute intervenes, as in the case of contracts by
urban authorities (s). Where goods which a corpora
tion has contracted by parol to buy have been received
by~it, or after work is done and adopted for the pur
poses of the corporation, the objection that the contract
was not under seal cannot be taken (£).

Acquiescence and part performance.—The doctrines

of acquiescence and part performance are applied by
courts of equity to contracts by corporations or incor
porated companies as well as to those by private
individuals. Thus, where the directors of a railway
company entered into an informal agreement, upon the
faith of which certain works were executed on a spot
where the company was constructively present, the
company was held to the agreement («) .

Contracts ultra vires.—Even where the contract is

ultra vires, and one which a corporation or incorporated
company cannot lawfully enter into, still, if any benefit
has been derived by the corporation or incorporated
company from the contract, they are liable to the
extent of such benefit. Thus, where a life assurance
company granted marine policies, and the policies so
granted were held void as being ultra vires, the holders
were held to be entitled to recover from the company
the amount of the premiums paid by them (x).

(»■) Melbourne Banking Corporation v. Brougham, 7 App. Cu. 307.

(*) See infra, p. 331.
(f) Sa undent v. St. Xeot'* Union, 8 Q. B. 810.
(a) Laird v. Birkenhead Rail. Co., Johns. 500 ; cf. Crook v. Corpora
tion of Seaford, L. 1{. (i Ch. 551 ; and see Mayor of Kidderminster v.
Uardwiek, L. R. 9 C. P. 13.
(x) In re I'hcrnix Life Aiturance Co., 2 J. & II. 441.
328 Law of Evidence.

CONTRACTS BY CIOMPANIES.
Under the Companies Clauses Consolidation Act,
1845 (jj), contracts are provable under the following
section :
Section 97. " The power which may be granted to any such
committee to make contracts, as well as the power of the directors
to make contracts, on behalf of the company, may lawfully be
exercised as follows ; (that is to say,)
" With respect to any contract which, if made between private
persons, would be by law required to be in writing, and
under seal, such committee or the directors may make such
contract on behalf of the company in writing, and under the
common seal of the company, and in the same manner may
vary or discharge the same :
" With respect to any contract which, if made between private
persons, would be by law required to be in writing, and
signed by the parties to be charged therewith, then such
committee or the directors may make such contract on behalf
of the company in writing, signed by such committee or any
two of them, or any two of the directors, and in the same
manner may vary or discharge the same :
" With respect to any contract which, if made between private
persons, would by law be valid, although made by parol
only, and not reduced into writing, such committee or the
directors may make such contract on behalf of the company,
by parol only, without writing, and in the same manner may
vary or discharge the same :
" And all contracts, made according to the provisions herein
contained shall be effectual in law, and shall be binding
upon the company and their successors, and all other parties
thereto, their heirs, executors, or administrators, as the case
may be :
" And on any default in the execution of any such contract,
either by the company or any other party thereto, such
actions or suits may be brought, either by or. against the
company, as might be brought had the same contracts been
made between private persons only."

On this section it has been held, that where a com

pany has had the benefit of a contract made by an
agent, there will be evidence for a jury of such a
contract (z).

(jO 8 & 9 Vict. c. 16.

(j) Pauling v. London and Xorth Wetter* Bail. Co., 8 Ex. 867.
Matters which Must be Proved by Writing. 329

By s. 98 the directors are to cause minutes to be

made of all contracts entered into by them, which
minutes are to be signed by the chairman of the
meeting, and in this form they are to be prima facie
evidence that the meeting has been duly convened, and
that the persons attending were directors, etc., as the
entry describes them.
The above Act applies (a) to contracts made by
companies which are incorporated by special Acts, and
placed under its provisions, but it does not apply
to contracts made by ordinary joint stock companies
after complete registration. These are regulated by
several Acts, of which the principal is the Companies
Act, 1862 (b) ; but the latter Act does not contain any
clauses similar to those which were contained in the
Joint Stock Companies Act, 185(5, and which are sub
stantially re-enacted in the Companies Act, 1867, and
therefore under this Act contracts by joint stock com
panies were on the same footing as contracts by
corporations except as provided by s. 47 of the Act
of 1862, which enacts that—
" A promissory note or bill of exchange shall be deemed to have
been made, accepted, or endorsed on behalf of any company under
this Act, if made, accepted, or endorsed in the name of the com
pany by any person acting under the authority of the company, or
if made, accepted, or endorsed by or on behalf or on account of
the company, by any person acting under the authority of the
company."

But now by s. 37 of the Companies Act, 1867 (c),

which is, so far as is consistent with the tenor thereof,
to be construed as one with the 25 & 26 Vict. c. 89,
therein called " the principal Act," it is enacted, that :
" Contracts on behalf of any company under the principal Act
may be made as follows ; (that is to say,)
"(1) Any contract which if made between private persons
would be by law required to be in writing, and if made
(d) Section 1.
(») 25 & 26 Vict. c. 89. (c) 30 & 31 Vict. c. 131.
330 Law of Evidence.

according to English law to be under seal, may be made

on behalf of the company in writing under the common
seal of the company, and such contract may be in the
same manner varied or discharged :
" (2) Any contract which if made between private persons
would be by law required to be in writing, and signed
by the parties to be charged therewith, may be made on
behalf of the company in writing signed by any person
acting under the express or implied authority of the
company, and such contract may in the same manner be
varied or discharged :
" (3) Any contract which if made between private persons
would by law be valid although made by parol only,
and not reduced into writing, may be made by parol on
behalf of the company by any person acting under the
express or implied authority of the company, and such
contract may in the same way be varied or discharged :
"And all contracts made according to the provisions herein
contained shall be effectual in law, and shall be binding upon the
company and their successors, and all other parties thereto, their
heirs, executors, or administrators, as the case may be."

TRANSFER OF SHARES.
Section 14 of the Companies Clauses Consolidation
Act, 1845 (d), enacts, that every transfer of shares
under that Act shall be by deed duly stamped, in
which the consideration shall be truly stated ; and a
form of transfer is given in the Schedule B. to the
Act. The Companies Act, 1862 (e), contains no similar
provision, but by s. 22, provides that shares shall be
transferred in manner provided by the regulations of
the company, which, in the case of companies governed
by Table A., is, that instruments of transfer are to be
executed both by transferor and transferee, and that
the transferor is to be deemed to remain the holder of
a share until the name of the transferee has been
entered in the company's register.
As to proof of documents registered at the Registry
of Joint Stock Companies, see ante, p. 304.

(rf) 8 & 9 Vict. c. 1C. (c) 25 & 28 Vict. c. 89.

Mattees which Must be Pboved by Wbiting. 331

SALE OF SHIPS.
Section 24 of the Merchant Shipping Act, 1894 (/"),
enacts that :
" A registered ship or a share therein (when disposed of to
a person qualified to own a British ship) shall be transferred by
bill of sale. The bill of sale shall contain such description of the
ship as is contained in the surveyor's certificate, or some other
description sufficient to identify the ship to the satisfaction of
the registrar, and shall be in the form marked A [in the schedule],
or as near thereto as circumstances permit, and shall be executed
by the transferor in the presence of, and be attested by, a witness
or witnesses."

It appears that this provision extends to all vessels

not propelled by oars.

CONTRACTS BY URBAN AUTHORITIES.

By s. 174 of the Public Health Act, 1875 (g), every

contract made by an urban authority whereof the value
or amount exceeds ,£50, must be in writing and sealed
with the common seal of such authority. It has been
held by the House of Lords that this section prevents
urban authorities from being bound by any contract
whereof the value or amount exceeds £50, unless such
contract is under seal, even though it be an executed
contract of which the urban authority have had the
full benefit, and which has been effected by their agent
appointed under their seal (/t). A compromise of ah
action is not a contract within the above-mentioned
section (i). In one case it was held that under the
circumstances the seal might be affixed to a contract to

(/) 57 k 58 Vict. c. 60. GO 38 & 89 Vict. c. 55.

(A) Young v. Mayor, etc. of Leamington, 8 App. Cas. 517.
(0 Att.-Gen. v. Gatkill, 22 Ch. D. 537.
332 Law of Evidence.

perform certain work after the work had been partly

performed (k). Only the contracting parties can take
the objection of want of seal (I).

CONTRACTS BY REGISTERED INDUSTRIAL AND

PROVIDENT SOCIETIES.
Contracts by the above societies are now regulated
by s. 35 of the Industrial and Provident Societies Act,
1893 (m), which provides—
" Contracts on behalf of a registered society may be made,
varied, or discharged as follows :
" (a) Any contract, which if made between private persons
would be by law required to be in writing, and if made
according to the English law to be under seal, may be
made on behalf of the society in writing under the
common seal of the society, and may in the same manner
be varied or discharged ;
" (b) Any contract, which if made between private persons
would be by law required to be in writing and signed
by the persons to be charged therewith, may be made
on behalf of the society in writing by any person acting
under the express or implied authority of the society,
and may in the same manner be varied or discharged ;
" (c) Any contract under seal which, if made between private
persons, might be varied or discharged by a writing not
under seal, signed by any person interested therein, may
be similarly varied or discharged on behalf of the society
by a writing not under seal, signed by any person acting
under the express or implied authority of the society ;
" (d) Any contract, which if made between private persons
would be by law valid though made by parol only and
not reduced into writing, may be made by parol on
behalf of the society by any person acting under the
express or implied authority of the society, and may in
the same manner be varied or discharged ;
" (e) A signature, purporting to be made by a person holding
any office in the society, attached to a writing whereby any
contract purports to be made, varied, or discharged by or

(i) Mellits v. Shirley Board of Health, 14 Q. B. 1). 911.

(/) Bournemouth Commissiiniers v. Watts, 14 Q. B. D. 87.
(»") 56 & 57 Vict. c. 39.
Matters which Must be Proved by Whiting. 333

on behalf of the society, shall prima facie be taken to be

the signature of a person holding at the time when the
signature was made the office so stated.
" All contracts which may be or have been made, varied, or dis
charged according to the provisions contained in this section, shall,
so far as concerns the form thereof, be effectual in law and binding
on the society and all other parties thereto, their heirs, executors,
or administrators as the case may be."
a

WARRANTS OP ATTORNEY.
The 24th section of the Debtors Act, 1869 , enacts,
that after its commencement (July 1st, 1870) —
" A warrant of attorney to confess judgment in any personal
action or cognovit actionem given by any person shall not be of
any force unless there is present some attorney of one of the
superior courts on behalf of such person expressly named by him
and attending at his request to inform him of the nature and effect
of such warrant or cognovit before the same is executed, which
attorney shall subscribe his name as a witness to the due execution
thereof, and thereby declare himself to be attorney for the person
executing the same, and state that he subscribes as such attorney."

STATUTE OF FRAUDS (o).

The chief object of this Statute was to lessen the
temptations to perjury which exist when a person is
permitted to give oral evidence of an agreement in
dispute between himself and another person ; it there
fore designates a number of cases in which none but
written evidence of such a disputed agreement shall
be received. Such agreements, when not proved
by writings which embody their terms, and unless
rendered void by the Statute, still exist in contem
plation of law, but are yet, virtually, non-existent,
because they cannot be established by the only species
of evidence, viz., written evidence, which the legislature
has declared to be admissible proof of their existence.

(») 32 & 33 Vict. c. 62. 0) 29 Car. 2, c. 3.

334 Law of Evidence.

The contract may still be good, and the relative legal

rights of the parties may have been constituted by
word of mouth ; but the statutory inadmissibility of
oral evidence to prove the contract leaves the right
unsupported by a legal remedy.
There is no branch of the law of evidence of more
constant and immediate importance than that which
regulates contracts which fall within this Statute and
the Sale of Goods Act, 1893, and which can generally
be proved only by written evidence. ' The cases are
endless on the subject ; but the limits of this work
permit only a careful selection of such as bear promi
nently upon it.

INTERESTS IN LAND.
{At affected by the Statute »f Frauds.)
Section 1. " All leases, estates, interests of freehold, or terras
of years, or any uncertain interest of, in, to, or out of any messu
ages, manors, lands, tenements, or hereditaments, made or created
by livery and seisin only, or by parol, and not put in writing and
signed by the parties so making or creating the same, or their
agents thereunto lawfully authorised by writing, shall have the
force and effect of leases or estates at will only ; and shall not,
either in law or equity, be deemed or taken to have any other or
greater force or effect, any consideration for making any such
parol leases or estates or any former law or usage to the contrary
notwithstanding."
Section 2. " Except, nevertheless, all leases not exceeding the
term of three years from the making thereof, whereupon the rent
reserved to the landlord during such term shall amount unto
two-third parts at the least of the full improved value of the thing
demised."
Under this section, any lease, extending not more
than three years from the time of its creation, and;
commencing from the date of the lease, and not from
a future date ; or, if commencing from a future date,
not extending more than three years from the date of
the lease ; may still be proved, as before the statute,
by evidence of an oral lease (p). It seems that such
O) Rawlins v. Turner, 1 Ld. l!aym. 7H0 ; Riley v. Hickt, 1 Stra. 651.
Matters which Must be Proved by Writing. 335

a lease confers a right of action against a lessee only

when he has entered, and not for a non-entry (q).
Section 3. " No leases, estates or interests, either of freehold or
terms of years, or any uncertain interest, not being copyhold or
customary interest, of, in, to, or out of any messuages, manors,
lands, tenements, or hereditaments, shall at any time be assigned,
granted, or surrendered, unless it be by deed or note in writing
signed by the party so assigning, granting or surrendering the same,
or their agents thereunto lawfully authorised by writing, or by act
or operation of law."

If a person enters into possession of land and pays

rent under a lease or agreement for a lease void under
these provisions, he becomes at common law tenant
from year to year, upon such of the terms of the lease
or agreement as are applicable to such a tenancy (r) ;
but since the Judicature Acts, a tenant holding under
an agreement for a lease, of which specific performance
would be decreed, stands in the same position as if
the lease had been executed (,s).
All the above interests in land, if created or assigned
since October 1st, 1845, are now required to be evidenced
by deed, for it is enacted by 8 & 9 Vict. c. 10(3, s. 3,
that—
" A "feoffment made after the said first day of October, one
thousand eight hundred and forty-five, other than a feoffment made
under a custom by an infant, shall be void at law, unless evidenced
by deed ; and a partition and an exchange of any tenements
or hereditaments, not being copyhold, and a lease, required by law
to be in writing, . . . made after the said first day of October,
one thousand eight hundred and forty-five, shall also bo void at
law, unless made by deed. . . ."

The 4th section enacts (inter alia) that—

" No action shall be brought whereby to charge any person upon
any contract or sale of lands, tenements or hereditaments, or any
interest in or concerning them unless the agreement upon which
such action shall be brought, or some memorandum or note
thereof, shall be in writing, and signed by the person to be charged
therewith, or some other person thereunto by him lawfully
authorised."
(?) Edge v. Strafford, 1 Tyr. 293.
(r) Xrm v. Saragr. 4 E. H. 86.
(*) WaUh v. Loiudale, 21 Ch. D. 9.
336 Law of Evidence.

The term "interest" in this section has been held

to cover the purchase of the building materials of a
house to be taken down by the purchaser (t).
The subject-matter, the terms, and the parties must
appear in the agreement (u) . The agreement need not
consist of a single paper, but may be gathered from
several connected papers (x).

As to connected documents.—The connection must

appear from the documents themselves, although parol
evidence is admissible to aid in establishing the con
nection but not to establish it (y). An envelope and
a letter, which is shown by evidence to have been
enclosed in it, are so connected that the envelope may
be used to supply the name of one of the parties to an
agreement (z). It is a rule that two documents,. one
of which refers to the other, can be read together (a).
Where a person seeks to prove the terms of a contract
by a series of letters, he must take the whole of each
letter, and cannot pick out part and reject the rest (6).
Correspondence and telegrams taken together may
constitute a contract (c) . Where a contract has to be
proved by a correspondence, the whole correspondence
must be taken into consideration (d) ; and—
" If in all the letters taken together you see that the parties did
not intend to make a contract, even though in two or three letters
there appeared to be a contract, you would hold that on the whole
correspondence there was none " (e).

(f) Littery v. Ihirsell, 39 Ch. D. 508.

(i/) William* v. Lake, 2 E. & E. 349.
• (a-) Ridgway v. Wharton, 6 II. L. Cas. 238 ; Bauman v. James, L. R.
3 Ch. 108.
(j0 Long v. Millar, 4 C. P. D. 450 ; Oliver v. Hunting, 44 Ch. I).
205; Sheers v. Thimbleby, 76 L. T. 709; Taylor v. Smith, [1893]
2 Q. B. 65.
(;) Pearce v. Gardner, [1897] 1 Q. B. 688.
(«) Per North, J., in Studds v. Watson, 28 Ch. D. 305.
(&) Nesham v. Selby, L. R. 7 Ch. 406.
(c) Coupland v. Arrowsmith, 18 L. T. (N.s.) 755 ; Godwin v. Francis.
L. R. 5 C. P. 295.
(rf) Hustey v. Home-Payne, 4 App. Cas. 311.
(e) Per .Iessel, M.R., Williams v. Jirisco, 22 Ch. D. 448.
Matters which Must be Proved by Writing. 337

If two letters standing alone would be evidence of a sufficient

contract, yet a negotiation for an important term of the purchase
and sale carried on afterwards is enough to show that the contract
was not complete" (/).

The mere reference to a future formal contract in a

correspondence will not prevent the correspondence
from constituting a binding agreement (g) ; but—
" If you find not an unqualified acceptance of a contract, but an
acceptance subject to the condition that an agreement is to be
prepared and agreed upon by the parties, and until that condition
is fulfilled no contract is to arise, then undoubtedly you cannot,
upon a correspondence of that kind, find a concluded contract " (h).

So in a case where there was a letter from the

plaintiffs offering to buy a business on certain terms,
and it stated that " this offer is made subject to our
approving a detailed contract to be entered into," and
went on to state that the purchase money was to be
paid as to part in cash and as to part in preference
stock and debenture stock of a company to be formed,
which offer was accepted by the defendants, it was
held by the Court of Appeal there was no concluded
agreement (i).
The parties need not be specified by name ; but an
adequate description is sufficient. Thus, if the vendor
is described in the contract as " proprietor," " owner,"
" mortgagee," or the like, the description is sufficient,
although he is not named ; but if he is described as
"vendor," or as "client," or "friend" of a named
agent, that is not sufficient ; the reason given being, in
the language of Lord Cairns, that the former descrip
tion is a statement of matter of fact as to which there

(/) Per Kay, J. : Brutal, etc. Bread Co. v. Maggt, 44 Ch. D. 625.
('/) Bonitewell v. Jenkiits, 8 Ch. D. 70 ; see Filby v. Hounnell, [1896 J
2 Ch. 737.
(A) Per Lord Caikns : Rontiter v. Miller, 3 App. Cas. 1138;
rf. Winn v. Hull. 7 Ch. D. 29.
(0 Page v. Norfolk, 70 L. T. 781.
 338 Law of Evidence.

can be perfect certainty, and none of the dangers struck

at by the Statute of Frauds can arise (see Rossiter v.
Miller (k) ; Sale v. Lambert (I) ; Potter v. Duffield (m) ) ;
the reason against the latter description being, that in
order to find out who is vendor, client, or friend you
must go into evidence on which there might possibly,
as in Potter v. Duffield, be a conflict, and that, as the
Master of the Rolls said in the last-named case, is
exactly what the Act says shall not be decided by parol
evidence. " I should be thrown," he continued, " on
parol evidence to decide who sold the estate, and who
was the party to the contract, this Act requiring that
fact to be in writing " («)■ Parol evidence is admis
sible to identify the property sold where there is only
a general description. Thus where there was a contract
to sell " at the price of £5,000 twenty-four acres of
. land, freehold, with the appurtenances at Totmonslow,
in the parish of Draycott, in the county of Stafford,"
parol evidence was held admissible to prove what were
the twenty-four acres referred to (o). It was observed
in the case under notice that a memorandum under
the Statute of Frauds must be construed in a reasonable
way. The written contract must show who are the
contracting parties, although they or one of them may
be agents or agent for others. Who are the principals
need not appear upon the document but may be proved
aliunde (p).
As to signature by an agent.—An authority to sign
need not be in writing ; but of course the agent only
binds the principal when acting within the scope of his
authority ; thus, where the defendant having verbally
agreed with the plaintiff to sell him a house, instructed
(*) 3 App. Cas. 1124.
(0 L. K. 18 Eq. 1. O) L. R. 18 Eq. 4.
O) Per KAY, J., in Jarrett v. Hunter, 34 Ch. 1). 182 ; cf. Gittliny v.
King, o Ch. D. 660.
(o) Plant v. Bourne, [1897] 2 Ch. 281.
(/>) See Filby v. Uoumell, [1896] 2 Ch. 740.
Matters which Must be Proved by Writing. 339

a solicitor to prepare a formal agreement, and the

solicitor sent a draft agreement to the plaintiff's
solicitor for approval, accompanied by a letter stating
the terms of the arrangement, but the agreement was
never signed by the parties, it was held that the letter
of the defendant's solicitor was not a memorandum of
the agreement within the statute, because the solicitor
had only authority to prepare a formal agreement and
nothing more (q). In a case where a telegram
accepting an offer to buy an estate was sent by the
vendors, Bovill, C.J., stated that he was prepared to
hold that the telegram written out and signed by the
telegraph clerk, with the authority of the vendors,
was a sufficient signature within the Statute of
Frauds (r).
The memorandum need only be signed by the party
charged ; and, if so signed, is good against him, though
not against the other party ; and where a written
proposal signed by one contracting party is verbally
assented to by the other, it is a memorandum within
the Statute sufficient to charge the party signing (s).
A printed signature may be sufficient (t) , and so may a
printed heading (u) ; for it is immaterial when the
signature is placed on the document or where it was
placed, provided it was placed there for the purpose of
affirming that the document contains the terms of the
offer or contract, as the case may be (x). But the
signature must be so placed as to show that it is
intended to refer to and does refer to every part of the
instrument. It follows, therefore, that if a signature
be found in an instrument incidentally only, or having

(?) Smith v. Webster, 3 Ch. D. 49.

(f) Godwin v. Francis, L. R. 5 C. P. 295.
00 Reuss v. Picksley, L. R. 1 Ex. 342 ; ef. Filby v. Hounsell. [1896]
2 Ch., at p. 740.
(0 Turret v. Cripps, 48 L. J. Ch. 567.
(«) Schneider v. Morris, 2 M. & S. 280.
(ar) Jones v. Victoria Dock Grat ing Co., 2 Q. B. I). 314.
7. 2
340 Law of Evidence.

relation and reference only to a portion of the instru

ment, the signature cannot have that legal effect and
force which it must have in order to comply with the
Statute and to give authenticity to the whole of the
memorandum (y) . It has been held that if the agent
of a party sued has laid before the party suing a
document containing the name of the party sued as
that of a party contracting, and the party suing signs
the document, that is sufficient within s. 4 of the
Statute (z). This is an extreme case, and the sound
ness of the decision is doubtful.
On a sale of real estate by public auction the
auctioneer is the agent of both parties, and has
authority to sign a memorandum of the sale, so as to
bind the purchaser as well as the vendor, provided he
does so at the time of the sale, and not subsequently.
He must sign himself, and the signature of his clerk
will not do unless the party who takes the objection to
the clerk's signature has by word, sign, or otherwise
authorised the clerk to sign for him (a).

Specific performance of a parol contract as to an i

interest in land which is within the Statute of Frauds)/ j
is, however, enforced, (1) where it is set out in thef'
plaintiff's pleadings and admitted by the defendant ;'j '
(2) where the reduction of the contract to writing was'
prevented by the fraud of one of the parties ; (3) where
it is a completed agreement, and has been partly carried
into execution, and is definite in its terms (b). But if'
in any particular case the acts of part performance of a
parol agreement as to an interest in land are to be held \
sufficient to exclude the operation of the Statute of

(y". Per Lord Westbury in Caton v. Caton, L. R. 2 E. & I. 143.

O) Evan* v. Hare, [1892] 1 Q. B. 593.
(«) Bell v. Ball*. [1897] 1 Ch. 669 ; and ef. Sims v. Landray, [1894]
2 Ch. 318, where the auctioneer's clerk signed while the purchaser
stood by.
(i) Smith's Manual of Equity, 13th cd., p. 279. As to what constitutes
part performance, tide id., p. 281.
Matters which Must be Proved by Writing. 341 /
/
Frauds, they must be such as are unequivocally refer
able to the agreement ; in other words, there must be
a necessary connection between the acts of part perfor
mance and the interest in the land, which is the alleged
subject-matter of the agreement ; and it is not sufficient I
that the acts are consistent with the existence of such j
an agreement, or that they suggest or indicate the
existence of some agreement, unless it is the agreement
alleged. As was said by Lord Hardwicke in the case
of Gunter v. Halsey (c), they must be such as could
have been done with no other view or design than to
perform the agreement (d). Payment of rent by a
tenant at an increased rate is evidence of a contract for
a new tenancy, as it could not apply to the old tenancy,
and is an unequivocal act referable to a new contract of
tenancy (e). The doctrine of part performance render
ing a parol contract enforceable in equity, is confined
to contracts as to interests in land (/).

CONTRACTS BY EXECUTORS, ETC.

Section 4.—" No action shall be brought whereby to charge any
executor or administrator, upon any special promise, to answer
damages out of his own estate . . . unless the agreement
upon which such action shall be brought, or some memorandum or
note thereof, shall be in writing, and signed by the party to be
charged therewith, or some other person thereunto by him lawfully
authorised."

The agreement must embody the consideration for

the promise, and be signed by the executor or the
administrator, or his agent (g).

(e) 2 Amb. 586.

(rf) Cited by Baggallay, L.J. : Humphreys v. Green, 10 Q. B. I).
154.
(?) Miller and Aldworth, Limited v. Sharp, [1899] 1 Ch. 622.
(j) Britain v. Bossiter, 11 Q. B. D. 123.
(y) Ilann v. Hughes, 7 Bro. P. C. 556.
342 Law of Evidence.

GUARANTEES.
Section 4. " No action shall be brought . . . whereby to
charge the defendant upon any special promise to answer for the
debt, default, or miscarriage of another person . . . unless
the agreement," etc. (as in the case of executors, supra).

The agreement must rest on a valid consideration (h) ,

which must be new and executory, except where it is
the embodiment of verbal terms on which the contract
has been executed, and the guarantee subsequently
given in writing (i). It is the essence of a guarantee
that the original debtor should continue liable ; and
therefore, if his liability is extinguished, and the surety
is the only party liable for the debt, his liability will
not require to be evidenced by writing. If the person
for whose use goods are furnished is liable at all, any
promise by a third person, upon sufficient consideration,
to pay that debt, must be in writing (k). Where there
is a contract, the main object of which is not to answer
for the debt of another, that contract is not within the
section even though incidentally it may result in a
liability to answer for the debt of another (I). It is
also held that the promise to pay the debt of another
person need be proved by writing only where the
promise is given to the original creditor, and not where
it is given to the debtor or a third person that the
promisor will be answerable to the creditor (m). There
fore a promise to indemnify is not within the statute («).
Consequently, it was held that a promise by a defendant
to keep a plaintiff indemnified against liability on

(A) Semple v. Pink, 1 Ex. 74.

(t) Eastwood v. Kenyon, 11 A. & E. 438.
(K) Mrktnyr v. Darnell, 1 Sm. L. C. 274 ; Fitzgerald v. Dressier,
7 C. B. (N.s.) 374.
(0 Harburg India Rubber Comb Co. v. Martin, [1902] 1 K. B. 778.
(m) Eastwood v. Kenyon. 11 A. Jc E. 446.
In) Per BYLE3, J. : Header v. Kingham, 13 C. B. (U.S.) 344 ;
cf. Wildes v. Dudloic, 44 L. J. Ch. 341. See also Harburg, etc. Co. v.
Martin, ubi supra.
Matters which Must be Proved by Writing. 343

certain bills which the defendant had asked him to

accept need not be in writing (o). Where the chairman
of a board of health virtually promised a contractor
that he would see him paid for certain extra work, it
was held by the House of Lords, affirming the Court of
Exchequer Chamber, that the chairman's words were
evidence to sustain a claim against him personally,
i.e., that they did not constitute a promise to pay the
debt of another within the Statute of Frauds (p). The
plaintiff's name must appear on the document (q).
Formerly, it was necessary that the guarantee should
disclose a consideration on the face of it; this is no
longer required (r), but though parol evidence is admis
sible to prove the consideration, it is inadmissible to
explain the promise («). Any document sufficiently
signed and containing the terms of the agreement may
constitute a memorandum or note to satisfy the Statute.
Thus an affidavit has been held sufficient, and so has a
letter to a third party, and so, in a recent case, has
a recital in a will (t). The agreement may be collected
in the case of a guarantee from two or more connected
documents (u).

MABRIAGE.
Section 4. " No action shall be brought whereby ... to
charge any person upon any agreement made upon consideration
of marriage, unless the agreement," etc. (as in the case of executors,
niijira).

This provision does not extend to promises to

marry (x) , but only to cases where something collateral

(«) Guild v. Conrad, [1S1M] 2 B. 885.

(j>) Lakehian v. Mount*tephen, L. K. 7 E. & I. 17.
(j) Williaiut v. Lake, 2 E. it £. 349.
Cr) 19 4i 20 Vict. c. 97, s. 3.
(*) Holme* v. Mitchell, 7 C. B. (N.6.) 361.
(0 Hoyle v. Hoyle, [1893] 1 Ch. 84.
Cm) Sheer* v. Thimbleby, 7tf L. T. 709.
C-r) Cock v. Baker, 1 Sfr. 34.
344 Law of Evidence.

to and dependent upon the event of the marriage is the

substance of the contract ; as, where A. promises B.
so much money in the event of B. marrying A.'s
daughter (y). An oral contract, however, if complete
and partly performed, will be enforced in equity ; but
marriage is not part performance of a contract of the
kind now under consideration (2).

CONTRACTS NOT TO BE PERFORMED WITHIN

A YEAR.
Section 4. " No action shall be brought whereby to charge . . .
any person upon any agreement that is not to be performed within
the space of one year from the making thereof, unless the agree
ment," etc. (as in the case of executors, supra).

The Statute does not apply where the contract is

capable of being performed by either party within a
year from the date of its making (a) ; but it applies to
a contract defeasible by a contingency which may occur
within that period (6). A contract to serve for a year,
the service to commence on the second day after that
on which the contract is made, is within the Statute-(c).
But where the service was to commence on the day
next after that on which the contract is made, it is not
within the Statute (d).

DECLARATIONS OR CREATIONS OF TRUSTS.

Section 7. "All declarations or creations of trust or confidence
of any lands (e), tenements, or hereditaments shall be manifested
and proved by some writing, signed by the party who is by law
enabled to declare such trust, or by his last will in writing, or else
they shall be utterly void and of none effect."

(y) Harrison v. Page, 1 Ld. Raym. 386.

(r) Lassenee v. Tierney, 1 Mac. & G. 551.
(a) Cherry v. Heming, 4 Ex. 631 ; Smith v. Neale, 2 C. B. (n.s.) 67.
(4) See Davey v. Shannon, 4 Ex. D. 81.
(c) Britain v. Rouiter, 11Q.B. I). 123.
(d) Smith v. Gold Coast, etc. Explorer*, [1903] 1 K. B. 285.
(e) This includes lands abroad (Rouchefouvauld v. Jionstcad, [1897]
1 Ch. 196).
Matters which Must be Proved by Writing. 345

The beneficial owner is the only person who is

enabled to declare the trust (/), and no person can
create a trust of land for any larger estate than that
which he possesses (g).
It is provided by s. 8—
" That when any conveyance shall be made of any lands or
tenements by which a trust or confidence shall or may arise
or result by the implication or construction of law or be trans
ferred or extinguished by an act or operation of law then and in
every such case such trust or confidence shall be of the like force
and effect as the same would have been if this statute had not
been made, anything hereinbefore contained to the contrary
notwithstanding."

When the plaintiff had conveyed an estate to the

defendant without consideration, on the understanding
that the defendant should in certain events re-convey
it to him, and on the plaintiff applying for a re
conveyance," the defendant pleaded the Statute of
Frauds, the court made a decree for re-conveyance,
on the ground that the Statute of Frauds was never
intended to prevent a court of equity from giving relief
in a case of a plain, clear and deliberate fraud (h). So
in a later case (i) an assignment absolute in form was
held subject to a trust for the plaintiff.
In Foster v. Hale (A), Lord Alvanley said :
" It is not required by the statute that a trust should be created
by writing, and the words of the statute are very particular in the
clause respecting declarations of trust. It does not by any means
require that all trusts shall be created only by writing, but that
they shall be manifested and proved by writing ; plainly meaning
that there should be evidence in writing proving that there was
such a trust. Therefore, unquestionably, it is not necessarily to
be created by writing, but it must be evidenced by writing, and
then the statute is complied with ; and indeed the great danger of
parol declarations, against which the statute was intended to guard,
is entirely taken away. I admit that it must be proved in toto not
only that there was a trust, but what it was."
(/) Kronhrim v. Johnxon, 7 Ch. D. 60.
(j) See Dye v. Dye, 13 Q. B. D. 147.
(A) Haigh v. Kaye, L. B. 7 Ch. 469.
(i) Daris v. Whitehead, [1894] 2 Ch. 133.
(J) 3 Vesey, 707 ; of. Smith v. Matthew*, 3 De G. F. &. J. 139.
346 Law of Evidence.

A good exposition of the law on the point under

consideration is to be found in the considered judgment
of the Court of Appeal in Bouchefoucauld v. Boustead (t) ,
which, after referring to Foster v. Hale and Smith v.
Matthews, proceeds :
" According to these authorities, it is necessary to prove by some
writing or writings signed by the defendant, not only that the
conveyance to him was subject to some trust, but also what that
trust was. But it is not necessary that the trust should have been
declared by such a writing in the first instance ; it is sufficient if
the trust can be proved by some writing signed by the defendant,
and the date of the writing is immaterial. It is further estab
lished by a series of cases, the propriety of which cannot now be
questioned, that the Statute of Frauds does not prevent the proof
of a fraud ; and that it is a fraud on the part of a person to whom
land is conveyed as a trustee, and who knows it was so conveyed,
to deny the trust and claim the land himself. Consequentlyr not
withstanding the statute, it is competent for a person claiming
land conveyed to another to prove by parol evidence that it was so
conveyed upon trust for the claimant, and that the grantee, knowing
the facts, is denying the trust and relying upon the form of
conveyance and the statute in order to keep the land himself."

CONTRACTS FOR THE SALE OF GOODS OF THE

VALUE OF £10 AND UPWARDS.
Section 4 of the Sale of Goods Act, 1893 (m), provides
that :
" (1) A contract for the sale of any goods («) of the value of ten
pounds or upwards shall not be enforceable by action unless the
buyer shall accept part of the goods so sold, and actually receive
the same, or give something in earnest to bind the contract, or in
part payment, or unless some note or memorandum in writing of
the contract be made and signed by the party to be charged or his
agent in that behalf.

(0 [1897] 1 Ch. 196.

(tit) 56 & 57 Vict. c. 71.
(«) "Goods" are defined as follows: "Goods include all chattels
personal other than things in action and money, and in Scotland all
corporeal moveables except money. The term includes emblements,
industrial growing crops, and things attached to or forming part of the
land which are agreed to be severed before sale or under the contract
of sale."
Matters which Must be Proved by Writing. 347

" (2) The provisions of this section apply to every such contract,
notwithstanding that the goods may be intended to be delivered
at some future time, or may not at the time of such contract be
actually made, procured, or provided, or fit or ready for delivery,
or some act may be requisite for the making or completing thereof,
or rendering the same fit for delivery.
" (3) There is an acceptance of goods within the meaning of
this section when the buyer does any act in relation to the goods
which recognises a pre-existing contract of sale, whether there be
an acceptance in performance of the contract or not."

Under this section there are three statutory modes

of proving a contract for the sale or purchase of goods
of the value of £10 and upwards : (1) By showing that
the buyer accepted, and actually received, part of the
goods. (2) By showing the giving of something in
earnest by the buyer or part payment of the purchase-
money by him. (3) By showing that a note or memo
randum in writing of the contract has been made and
signed by the party to be charged, or his agent autho
rised in that behalf.
This section re-enacts, with some modifications, the
provisions of s. 17 of the Statute of Frauds, as amended
by Lord Tenterden's Act. Under the old law the limit
was £10 or upwards in price, now it is £10 or upwards
in value. It may be supposed that the price of goods
may be taken to be their value for the purposes of s. 4,
otherwise the substitution of "value " for " price" is
obviously undesirable. Under this section the contract
is not void, but there is no right of action, if its
formalities are not observed (o).
The acceptance may (under sub-s. (3) ) be implied
from the buyer's conduct in dealing with the goods,
and it may precede the actual receipt (p) ; but it cannot
be implied without some consent (q). The acceptance

(<i) Tat/lor v. Great Eattern Rail. Co., [1901] 1 Q. B. 774.

(p) Cutaek v. Bobiium, 1 B. & S. 299.
(//) Smith v. Hudson, 6 B. & S. 431.
348 Law of Evidence.

need not, however, be absolute (r), and both the

acceptance (s) and the receipt (t) may be constructive.
The writing must be signed before the commence
ment of the action (u) by the party charged, or by his
agent, who need not be appointed in writing (x). Such
agent must be a third person, and not one of the
contracting parties (y). Under this section (as well as
under s. 4 of the Statute of Frauds) the contract may
be proved by several sufficiently connected writings.
But a connection must appear from the documents
themselves, although parol evidence is admissible to
aid in establishing the connection but not to establish
it {z). Where, after a long correspondence, the defen
dants wrote to the plaintiff offering to purchase at a
certain price, adding the words, " waiting your reply,"
and the plaintiff afterwards accepted the offer verbally,
it was held that there was a binding contract within
the Statute of Frauds (a) ; but where the defendant, in
reply to a letter from the plaintiff, wrote accepting the
offer therein contained, but saying " there are, how
ever, some details necessary to be introduced in the
contract which I will prepare," this was held insufficient
to satisfy the Statute of Frauds (6). A letter from the
purchaser, referring to the terms of the contract, but
declining to accept the goods because they were
damaged, has been held a sufficient memorandum (c) ;
and letters between the purchaser and his agent
employed to purchase, if they contain the terms of the
contract, have been held sufficient to support an action
(/•) Page v. Morgan, 15 Q. B. D. 228.
(*) Eltnar v. Stone, 1 Taunt. 45S.
(() Marshall v. Green, 1 C. P. D. 35.
(ti) Lucas v. Dixon, 22 Q. B. D. 357.
(x) Acebal v. Levy, 10 Bing. 378.
ty} Sharman v. Brandt, L. K. 6 Q. B. 720.
(z) Long v. Millar, 4 C. P. D. 450 ; Oliver t. Hunting, 44 Ch. D.
205 ; Taylor v. Smith, [1893] 2 Q. B. 65.
(«) Matt* v. Ainxworth, 1 H. J: C. 83.
(ft) Ball v. Bridges, 22 W. E. 552.
(<0 Bailey v. Sweeting, 9 C. B. (N.S.) 843 ; ef. Wilkinson v. Evans,
L. K. 7 C. P. 407.
Matters which Must be Proved by Writing. 349

by the vendor (d). The names of the parties or of

their agents must appear in the agreement ; and the
Court of Exchequer, in Vandenburgh v. Spooner(e),
held in effect that it must be collected from the agree
ment which of the parties is the seller ; but the same
court, in Newell v. Radford (/), held that parol evidence
was admissible to prove which of the parties named is
the seller. Contracts may be signed, either with both
the christian and surname, or with the initials of the
christian name prefixed to the whole surname {g), or
with the surname alone ; but not with merely the
initials of the christian and surname (h) .

WILLS.
Under s. 5 of the Statute of Frauds, which affected
all wills up to January 1st, 1838,
" all devises and bequests of any lands or tenements " are void,
unless " in writing and signed by the party so devising the
same, or by some other person in his presence, and by his express
directions . . . and attested and subscribed in the presence of the
devisor by three or four credible witnesses."
■>
Since January 1st, 1838, by the Wills Act (7 Will. 4 &
1 Vict. c. 26), all wills and testaments, except such
as fall within the few cases in which nuncupative wills
are allowed, must
" be in writing, and ... be signed at the foot or end thereof by
the testator, or by some other person in his presence and by his
direction ; and such signature shall be made or acknowledged (i)
by the testator in the presence of two or more witnesses present
at the same time, and such witnesses shall attest and shall subscribe
the will in the presence of the testator, but no form of attestation
shall be necessary."

(rf) Gilimn v. Holland, h. R. 1 C. P. 1.

(e) 4 H. & C. 519. (j) Lobb v. Stanley, 5 Q. B. 574.
(/) h. R. 3 C. P. 52. (A) Sweet v. Lee, 3 M. i: G. 452.
(<) As to what constitutes a sufficient acknowledgment, see Blake v.
Blake, 7 P. D. 102 : Daintree v. Butclier, 13 P. D. 102.
350 Law of Evidence.

A subsequent Act, 15 & 16 Vict. c. 24, regulates the

requisites of the signatures of wills, and substantially
provides that no will shall be invalidated by the mere
circumstance that the signature does not follow closely
on the end of the will, or that a blank intervenes
between the concluding words and the signature.
By the Wills Act, a will can*be revoked by codicil,
or other writing, but only when such codicil or writing
has been executed with the formalities prescribed in
the case of ordinary wills.
Where a will refers to another document it is incor
porated in the will, provided (1) it is in existence at
the date of the will ; and (2) it is clearly identified by
the description given of it in the will. Both these
requisites must be established (k). A memorandum
written after the date of a will cannot be incorporated
in a will although referring to it, and although signed
by the teRtator, if not attested, is not a codicil. But it
may be binding on those who claim under the will ;
and, if so, will be treated as if its contents had been
contained in the will (I) .

REVIVAL OF DEBTS BARRED BY THE STATUTES

OF LIMITATION.
Simple contract debts barred by the Statutes of
Limitation cannot be revived except by an acknow
ledgment or promise in writing, for by s. 1 of Lord
Tenterden's Act (m) it is enacted, that
" no acknowledgment or promise by words only shall be deemed
sufficient^evidence of a new or continuing contract, whereby to
take any case out of the operation of the said enactments or
either of them, or to deprive any party of the benefit thereof,
unless such acknowledgment or promise shall be made or con
tained by or in some writing to be signed by the party chargeable
thereby."
(*) In the Goods of Garnett, [1894] P. 05.
(0 Llewellyn v. Washington, [1902] 2 Ch. 220.
O) 9 Geo. 4, c. 14.
Matters which Must he Proved by Writing. 351

Under this Act it was held that signature by an

agent was insufficient, but now by s. 13 of the Mer
cantile Law Amendment Act, 1856 (n), signature by a
duly authorised agent has the same effect as the
signature of the party to be charged. The promise to'
pay must be express, or there must be an uncon
ditional acknowledgment sufficient to support a reason
able inference of a promise to pay, or a conditional
promise to pay with proof that the condition has been
performed (o). A letter written "without prejudice"
is insufficient (p). The amount due may be proved by
extrinsic oral evidence (q).
As to the liability of joint contractors, Lord Tenter-
den's Act, s. 1, enacts, that
" where there shall be two or more joint contractors, or executors
or administrators of any contractor, no such joint contractor,
executor, or administrator shall lose the benefit of the said enact
ments or either of them, so as to be chargeable in respect or
by reason only of any written acknowledgment or promise made
and signed by any other or others of them : Provided always, that
nothing herein contained shall alter or take away or lessen the
effect of any payment of any principal or interest made by any
person whatsoever " ;

and by s. 14 of the Mercantile Law Amendment Act,

1856 (r), it is provided, that
" no such co-contractor or co-debtor, executor or administrator
shall lose the benefits of the said enactments or any of them so as
to be chargeable, in respect or by reason only of payment of any
principal, interest, or other money, by any other or others of such
co-contractors or co-debtcrs, executors or administrators."

But where a simple contract debt is recoverable in

equity against the real estate of a debtor by virtue of
3 & 4 Will. 4, c. 104, payment of interest by the tenant

(«) 19 & 20 Vict. c. 97.

(») Tanner v. Smart, t> B. & C. 303 ; In Re Hirer .Steamer Co., L. H.
(i Vh. 822 ; Green v. Humphreyt,2G Ch. D. 474.
(it) In re Hirer Steamer Co., ubi supra.
',,) Clietlyn v. Dalby, 4 Y. ic Col. 238. (r) 19 & 20 Vict. c. 97.
352 Law of Evidence.

for life of the real estate will keep the debt alive (s).
An acknowledgment by one of two executors keeps the
debt alive against the assets of the testator, even after
the death of such executor (<).
In the case of specialty debts, 3 & 4 Will. 4, c. 42,
s. 5, enacts,
" that if any acknowledgment shall ha%'e been made either by
writing signed by the party liable by virtue of such indenture,
specialty, or recognisance, or his agent, or by part payment or part
satisfaction on account of any principal or interest being then due
thereon, it shall and may be lawful for the person or persons
entitled to such actions to bring his or their action for the money
remaining unpaid and so acknowledged to be due within twenty
years after such acknowledgment by writing or part payment
or part satisfaction as aforesaid."

This applies not only to cases where one person is

liable, but to cases where several persons are liable,
but part payment of principal or interest by one of
several debtors only keeps a specialty alive against the
payee since the Mercantile Law Amendment Act,
1856. Payment by a tenant for life of land of interest
on a specialty debt keeps that debt alive in equity as
against the land (u) . Payment by a debtor on the eve
of bankruptcy of part of a barred debt which is honestly
due, will revive the right to prove (x). An acknowledg
ment to be sufficient within s. 5 of the Act of Will. 4,
need not amount to a promise to pay, and need not be
made to the creditor (y) .

00 Hollingsh-ad v. Webster, 37 Ch. D. 651.

(t) Dick v. Fraser, [1897] 2 Ch. 181.
(w) Boddam v. Money, 1 De G. & J. 1 ; rf. Pears v. Laing, L. K.
12 Eq. 42.
O) Ex parte Gaze, 23 Q. B. D. 74.
Cy) Moudie v. Bannister, 4 Drewry, 432.
Matters which Must be Proved by Writing. 353

REVIVAL OF EIGHTS TO REAL PROPERTY BARRED

BY THE STATUTE OF LIMITATIONS.
As a general rule, title to land is barred after a lapse
of twelve years from the time when the right of action
accrued to the claimant or to the party through whom
he derives title (z) ; but by s. 14 of 3 & 4 Will. 4, c. 27,
it is enacted that
" when any acknowledgment of the title of the person entitled to
any land or rent shall have been given to him or his agent in
writing signed by the person in possession or in receipt of the
profits of such land, or in receipt of such rent, then such posses
sion or receipt of or by t!ie person by whom such acknowledgment
shall have been given shall be deemed, according to the meaning of
this Act, to have been the possession or receipt of or by the person
to whom or to whose agent such acknowledgment shall have been
given. at the time of giving the same, and the right of such last-
mentioned person, or any person claiming through him, to make
an entry or distress or bring an action to recover such land or rent
shall be deemed to have first accrued at and not before the time at
which such acknowledgment, or the last of such acknowledgments,
if more than one, was given."

In such a case the Statute runs again from the time

when the acknowledgment was executed or signed, and
not from the period at which it bears date (a) . The
acknowledgment, which must be made to the person
entitled or his agent (and not to any third person),
need not be in any particular form, provided an admis
sion of ownership can be fairly implied. The Statute
extinguishes the right of the party out of possession,
but does not transfer any estate to the party in
possession.

REVIVAL OF CHARGES AND LEGACIES.

Section 7 of the Real Property Limitation Act,
1874 (6), is as follows:
" When a mortgagee shall have obtained the possession or receipt
of the profits of any land or the receipt of any rent comprised in
(i) Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57), s. 1.
(A) 37 & 38 Vict. c. 57.
I..E.
 354 Law of Evidence.

his mortgage, the mortgagor, or any person claiming through him.

shall not bring any action or suit to redeem the mortgage but
within twelve years next after the time at which the mortgagee
obtained such possession or receipt, unless in the meantime an
acknowledgment in writing of the title of the mortgagor, or of
his right to redemption, shall have been given to the mortgagor or
some person claiming his estate, or to the agent of such mortgagor
or person, signed by the mortgagee or the person claiming through
him ; and in such case no such action or suit shall be brought but
within twelve years next after the time at which such acknowledg
ment, or the last of such acknowledgments, if more than one, was
given ; and when there shall be more than one mortgagor, or more
than one person claiming through the mortgagor or mortgagors,
such acknowledgment, if given to any of such mortgagors or per
sons, or his or their agent, shall be as effectual as if the same had
been given to all such mortgagors or persons ; but where there
shall be more than one mortgagee, or more than one person claim
ing the estate or interest of the mortgagee or mortgagees, such
acknowledgment, signed by one or more of such mortgagees or
persons, shall be effectual only as against the party or parties sign
ing as aforesaid, and the person or persons claiming any part of
the mortgage money or land or rent by, from, or under him or
them, and any person or persons entitled to any estate or estates,
interest or interests, to take effect after or in defeasance of his or
their estate or estates, interest or interests, and shall not operate to
give to the mortgagor or mortgagors a right to redeem the mortgage
as against the person or persons entitled to any other undivided or
divided part of the money or land or rent ; and where such of the
mortgagees or persons aforesaid as shall have given such acknow
ledgment shall be entitled to a divided part of the land or rent
comprised in the mortgage, or some estate or interest therein, and
not to any ascertained part of the mortgage money, the mortgagor
or mortgagors shall be entitled to redeem the same divided part of
the land or rent on payment, with interest, of the part of the
mortgage money which shall bear the same proportion to the whole
of the mortgage money as the value of such divided part of
the land or rent shall bear to the value of the whole of the land or
rent comprised in the mortgage."

Section 8 is as follows :
" No action (<•) or suit or other proceeding shall be brought to
recover any sum of money secured by any mortgage, judgment ((f),
or lien, or otherwise charged upon or payable out of any land or
(<•) This includes an action on a covenant in a mortgage deed to pay
the principal money (Sutton v. Sutton, 22 C'h. 1). 51 1), and an action on a
contemporaneous and collateral bond to secure the principal money due
under a mortgage (t'eriuide v. Flint, 22 Ch. D. 579).
(d) This includes all judgments, and not only tliose which operate as a
charge on land (Jay v. Johnstone, [1893] 1 Q. 13. 189).
Matters which Must be Proved by Writing. 355

rent, at law or in equity, or any legacy, but within twelve years

next after a present right to receive the same shall have accrued to
some person capable of giving a discharge for or release of the
same, unless in the meantime some part of the principal money, or
some interest thereon, shall have been paid (e), or some acknow
ledgment of the right thereto shall have been given in writing
signed by the person by whom the same shall be payable (/), or
his agent, to the person entitled thereto, or his agent ; and in such
case no such action or suit or proceeding shall be brought but
within twelve years after such payment or acknowledgment, or the
last of such payments or acknowledgments, if more than one, was
given."

By s. 13 of 23 & 24 Vict. c. 38, the same principles

are applicable to claims to the property of persons
dying intestate.
By s. 42 of 3 & 4 Will. 4, c. 27, it is enacted that :
" No arrears of rent or of interest in respect of any sum of money
charged upon or payable out of any land or rent, or in respect of
any legacy, or any damages in respect of such arrears of rent
or interest, shall be recovered by any distress, action, or suit, but
within six years next after the same respectively shall have
become due, or next after an acknowledgment of the same in
writing shall have been given to the person entitled thereto, or
his agent, signed by the person by whom the same was payable,
or his agent " (<?).

Section 10 of the Eeal Property Limitation Act,

1874 (37 & 38 Vict. c. 57), is as follows :
" No action, suit or other proceeding shall be brought to re
cover any sum of money or legacy charged upon or payable out
of any land or rent, at law or in equity, and secured by an express
trust, or to recover any arrears of rent or of interest in respect of
any sum of money or legacy so charged or payable and so secured,
or any damages in respect of such arrears, except within the. time
within which the same would be recoverable if there were not any
such trust."

(«) The payment must be one which amounts to acknowledgment of

liability : see "Taylor v. Bollard, [1902] 1 K. B. 67G.
(/) It is sufficient if the person who makes the payment is bound as
between herself and the debtor to make it ; he need not be bound as
between herself and the creditor (Bradthaw v.Widdringtou, [1902] 2 Ch.
430).
(</) It appears that one of two executors may give an acknowledgment
of a statute-barred debt so as to bind the other, but one of two trustees
cannot : see Atthury v. Astfatry, [1898] 2 Ch. 111.
2x2
356 Law of Evidence.

An " express trust " is a trust which has been

expressed either in writing, or by word of mouth, and
the term does not include a trust arising from the acts
of the parties, and therefore does not extend to a result
ing trust, or implied trust, or constructive trust (h).

PRESCRIPTIVE RIGHTS.
By s. 1 of 2 & 3 Will. 4, c. 71, it is provided, that no
claim by custom, prescription, or grant, to any right of
common or profit a prendre from or upon any lands
belonging to the Crown, or any corporation aggregate
or sole, shall, with certain exceptions, be defeated after
thirty years' uninterrupted enjoyment, by showing title
prior to that period ; and, after sixty years, such enjoy
ment shall constitute an indefeasible title, unless it be
proved to have been enjoyed by some consent or agree
ment expressly made or given by deed or in writing.
Section 2 provides that, in similar cases of disputed
easements issuing out of similar demesnes, a title shall
not be barred by evidence only that it began at a time
prior to twenty years previously ; and makes the pre
scription indefeasible after forty years of uninterrupted
enjoyment, unless it be shown to have been under an
agreement by deed or in writing.
Section 3 makes a right of user of light similarly
indefeasible after twenty years of actual enjoyment,
unless enjoyed by a consent or agreement expressly
made or given by deed or in writing.

REPRESENTATIONS OF CHARACTER.
(9 Geo. 4, c. 14, s. G.)
" No action shall be brought whereby to charge any person upon
or by reason of any representation or assurance made or given
concerning or relating to the character, conduct, credit, ability,

(A) Sec Sands to Thompson, 22 Ch. D. 614.

Matters which Must be Proved by Writing. 357

trade, or dealings of any other person, to the intent or purpose that

such other person may obtain credit, money, or goods upon, unless
such representation or assurance be made in writing, signed by the
party to be charged therewith."

The signature of an agent is insufficient (i). Joint

stock companies and other corporations are within the
purview of the statute (k) . •
Other instances might be cited, in which the legisla
ture has made written evidence the only admissible
kind of evidence, to the total exclusion of even the most
direct oral evidence ; but the above enactments are
those which are of the most constant practical recur
rence, and they have therefore been selected, on due
deliberation, as the most suitable for the dimensions of
the present work.

(0 Swift v. Jetrtbury, L. R. 9 Q. B. 301.

(A) Bishop v. Balltit Consolidated Co., 2.5 Q. B. I). 77 ; Hint y.Wett
Riding Union Banking Co., [1901] 2 K. B. 560.
 ( 358 )

CHAPTEK VI.

INADMISSIBILITY OF EXTRINSIC EVIDENCE TO ^

COJTTRADICT OE VARY WRITTEN EVIDENCE.

When written evidence is primary, and not merely

substitutionary, in character—or, in other words, when
it is made by statute or common law the best evidence
—it is clear that the principle of a fundamental rule
would be destroyed if a party were allowed to con
tradict such evidence, or to vary it substantially by the
introduction of oral or other extrinsic evidence. There
fore it is an established and inflexible rule that—

Extrinsic evidence is inadmissible to con

tradict, add to, subtract from, or vary, the
terms of a written instrument.

Thus, where a contract is required by Statute to be

in writing, or where it has been reduced to writing by
the voluntary act of the parties to it, as long as the
writing is producible, it is the only admissible evidence
of the terms of the contract. Neither party can show
that, before the contract was reduced to writing, the
parties agreed to a term which does not appear in the
writing, and which is clearly repugnant to its pro
visions ; for all such antecedent oral terms are merged
in the express language of the writing. Similarly,
neither party can show that, after the contract was
reduced to writing, the parties agreed to a now term,
which is also repugnant to the terms of the written
agreement, unless such subsequent agreement amount
to an entire or partial dissolution of the former contract,
or to a new contract founded on a new consideration.
 Inadmissibility of Extbinsic Evidence. 359

But a parol contract may exist collateral to a written

contract (a).
The general rule (&) operates thus :
A contract, which is valid without writing, will, if
put into writing, be construed strictly according to the
terms of such writing.—No new term can be annexed
to it, as impliedly contained in it before it was reduced
into writing, or while it was being reduced into writing,
if such parol term contradicts or varies a written term;
but the written contract may be wholly or partially
waived before breach, and a new written or verbal
contract substituted for the erased term of the original
contract ; and then the residue of the original contract
will be construed cumulatively with the new subsequent
contract. Thus, there will be no contradiction or
variance of the original contract, but merely, first, the
erasure of a term ; and, secondly, not the insertion, but
the annexation, of a new contract. In short, the
original contract does not suffer a contradiction, but
first loses a term, and then gains a consistent addition
and supplement.
Where the subsequent contract incorporates portions
of the original contract, and amounts to a waiver of the
rest, the subsequent contract is the only one subsisting
behveen the parties, and if dealing with a subject-
matter, where the law requires a writing, such subse
quent contract must be in writing. Thus, where the
plaintiffs agreed in writing with the defendant to let
him a public-house, as tenant from year to year, with
the option on his part to call for a lease for twenty-
eight years, upon the term, among others, that if he
sold the lease for more than £1,200 he was to give
the plaintiffs half the excess, and subsequently, by
verbal agreement, a lease was granted, the terms of
which differed materially from those stipulated for in
00 Tie Latmlle v. Guildford, [190f] 2 K. B. 215.
(i) Cf. Quit v. Lord Nugent, 5 B. & Ad. 64.
360 Law of Evidence.

the written agreement, but the parties never abandoned

the agreement as to the division of the excess of the
purchase-money, and the defendant having sold the
lease for £2,500 the plaintiff sued him for a moiety of
the £1,300, the excess of the purchase-money over the
£1,200, it was held by the Court of Exchequer that the
original agreement in writing was entirely superseded,
and that the agreement under which the lease was
taken was the verbal one of which one term was the
stipulation in the original contract as to the excess of
the purchase-money ; and that as the agreement was
not in writing, as required by the Statute of Frauds, j
the plaintiffs were not entitled to recover (c). Parol '
evidence is admissible to show that, after signing a
document, the defendant assented to certain alterations
made by the plaintiff before it was signed by the latter,
for such evidence does not vary the contract, but only
proves the condition of the document when it first
became a contract (d) .
It is an undoubted principle that extrinsic evidence
is inadmissible to contradict or vary a written instru
ment. It is, however, impossible to lay down as a
general rule that extrinsic oral evidence is inadmissible,
to prove either the entire or partial dissolution of the
original contract ; or the substitution or annexation of
a new verbal contract ; but wherever it is attempted to
superadd an oral to a written contract, there must be
clear evidence of the actual words used (e).

Contracts required by law to be in writing (/).—

The rule does not, however, apply in its integrity to
contracts which the law requires to be in writing, as to
(c) Sanderson v. Graven, L. R. 10 Kx. 234.
\d) Stewart v. Eddowes, L. R. 9 C. P. 311.
(e) Per James, L.J. : Thomson v. Simpson, IS W. R. 1091.
(/) Of which the following are some of the most important : (1) Sales
of ships or shares of ships ; (2) contracts falling within the Statute of
Frauds or the Sale of Goods Act, 1893 ; (X) contracts under the Merchant
Shipping Act ; (4) contracts under the Truck Acts.
 Inadmissibility of Extrinsic Evidence. 361

which it is generally necessary to consider the language

of the particular statutes which require them to be in
writing. With regard to contracts which the Statute
of Frauds requires to be in writing, Lindley, J., in
Hickman v. Haines (g), after referring to several well-
known cases, said :
" The result of these cases appears to be, that neither a plaintiff
nor a defendant can at law avail himself of a parol agreement to vary
or enlarge the time for performing a contract previously entered
into in writing, and required so to be by the Statute of Frauds."

And this is of course equally true of all attempted

variations. A parol variation of a written contract
may, however, be set up as a defence to an action for
specific performance of the contract ; and it depends on
the particular circumstances in each case whether the
variation is to defeat the plaintiff's title to have specific
performance, or whether the court will perform the
contract, taking care that the subject-matter of the
parol agreement or understanding is carried into effect,
so that all parties may have the benefit of what they
contracted for (h). It was long ago decided that a
contract in writing, and by the law required to be in
writing, might in equity be waived or wholly rescinded
by a parol agreement (i). It is now settled that this
rule applies at law as well as in equity. The important
question in many cases is what was the intention of
the parties in entering into the subsequent agreement—
was it to rescind or only to vary the original agree
ment (k). An agreement to waive or rescind may be
deduced from conduct (I), as well as from words ; but
there must be clear evidence of the alleged agreement ;
and therefore Lord St. Leonards refused to hold a loose

0/) L. R. 10 C. P. 605 ; ej. Noble v. Ward, L. R. 2 Ex. 135.

(A) See Smith v. Wheateroft, 9 Ch. U. 223 ; and Fry on Siiecific
Performance, 4th e<l., 337.
(/') Fry on Specific Performance, 4th ed., 444.
(*) Vezeyv.BaMeigh, [1U04] 1 Ch. <>34 ; cf. Noble v.Ward, ubi supra.
(0 Carter v. Dean of Ely, 7 Sim. 211.
362 Law op Evidence.

conversation by a tenant, in which he stated his interest

to be different to that which he claimed under a con
tract for a lease, to amount to an abandonment of the
contract (m).

Contracts voluntarily put into writing.—With regard

to any contract which the parties have voluntarily put
into writing, the rule is, that it is competent to them
at any time before breach of it, by a new contract not
in writing, either altogether to waive, dissolve, or annul
the former agreement, or in any manner to add to, or
subtract from, or vary, or qualify the terms of it, and
thus to make a new contract, which is to be proved partly
by the written agreement, and partly by the subsequent
verbal terms engrafted upon what will be thus left of
the written agreement («).
Rectification of deeds.—The doctrines of courts of
equity in rectifying mistakes in deeds, so as to make
them accord with the real agreement between the
parties, may here be alluded to as an exception to the
general rule under consideration. Thus, a lease which
contained a larger quantity of land than was intended
to be demised has been rectified as to the overplus (o).
Again, where a settlement purports to be in pursuance
of articles entered into before marriage, and there is
any variance, then no evidence is necessary in order to
have the settlement corrected ; and although the settle
ment contains no reference to the articles, yet if it can
be shown that the settlement was intended to be in
conformity with the articles, if there is clear and satis
factory evidence showing that the discrepancy had
arisen from a mistake, the court will re-form the settle
ment and make it conformable to the real intention of

(/«) Moore v. Cm/ton, 3 J. & L. 438.

(n) Gosx v. Lord Nugent, a 15. & Ad. 58.
(<») Mortimer v. Shortall, 2 Drn. & War. 363 ; Murray v. Parker,
19 Beav. 305.
 Inadmissibility of Extbinsic Evidence. 363

the parties (p). Even where there are no articles the

court will interfere to re-form a settlement so as to
make it correspond with the intention of the parties (q) ,
if there has been a mistake common to both, and if it
can be proved to the satisfaction of the court in what
the mistake consists. It has been said that the rectifi
cation of a settlement " is a question of evidence, and
evidence alone " (r) : and this applies equally to other
deeds. The real agreement between the parties must
be established by evidence, whether written or parol ;
if there be no previous agreement in writing, parol
evidence is admissible to show what the agreement
really was ; if there be a previous agreement in writing
which is unambiguous, the deed will be reformed
accordingly ; if ambiguous, parol evidence may be used
to explain it in the same manner as in other cases
where parol evidence is admitted to explain ambiguities
in a written instrument (.s). There is, however, a
disinclination to act upon parol evidence alone (<), and
an opinion has been expressed that it would be
dangerous to set aside a portion of a deed, which deed
has, as to the rest, been acted upon for a considerable
time, upon no other testimony than that of the persons
who are bound by the deed, who executed the deed, and
who are to benefit by the deed being altered (u). In
some more recent cases, however, marriage settlements
have been rectified after the death of the husband on
the uncorroborated evidence of the wife (.)•)• Although
extrinsic evidence is not admissible to raise a presump
tion, it is admissible to rebut a presumption, even if

(p) Per Lord Ckanworth : Bold v. Ilutehinson, 5 De G. M. & (i.

568.
(if) Marques* of Exeter v. Ma rchioness of Exeter, 3 M. & C. 321.
(r) Per Lord Homilly : Earl of Bradford v. Earl of Somney,
30 Beav. 438.
(t) Per Lord KOMILLY : Murray v. Parker, 19 Beav. 308.
(0 Mortimer v. Shortall, 2 I)ru. & War. 374.
(«) Bentley v. Mackay, 10 W. K. 595.
(x) Hartley v. Pearson, 13 Ch. D. 545 ; Loresy v. Smith, 15 Ch. D. 605.
364 Law of Evidence.

that presumption arises upon the construction of the

words of a will, and therefore in a case where the
question was whether a bequest in a will was in
satisfaction of a covenant in a settlement, it was held
that, upon the words of the will, the presumption arose
that the bequest was a satisfaction, and that evidence
of declarations of the testator rebutting the presumption
was admissible (y). Where there is a mistake in a
will caused by the inadvertence of those who prepared
it, and it consequently does not carry out the testator's
intentions, the court will not, in construing the will,
correct it (2) ; but the Court of Probate, on granting
probate, can do so (a).
In returning to the general question of the admissi
bility of extrinsic evidence to affect written instruments,
it is to be observed that a written instrument not under
seal may be released or avoided by evidence of an
intrinsically inferior nature ; but a deed must be released
by deed, and cannot be avoided by parol (b). An instru
ment revoking a will must be executed in manner
required to give validity to the will.

The completion of a contract under a written agree

ment may be proved by oral evidence of performance,
or of discharge from performance. The payment of
money, under such a contract, may be shown either
by a written receipt, or oral evidence of payment.
Both modes of proof are primary in their nature, and
therefore, in the absence of any rule which requires
written proof, are concurrently and equally admissible
forms of prima facie evidence. It is to be observed,
also, that performance of a contract under seal is
proveable by parol. Such evidence does not release

(y) Tustaud v. Tvssaud, 9 Cb. D. 363 ; 47 L. J. Ch. 849 ; 26 W. R.

874.
(r) Xewhurgh v. Neioburgh, 5 Mad. 364.
(<i) In tint Goods of Boehm, [1891] P. 247.
(ti) Uiinmquodque ligamen dinnoleitnr eodem ligamine qwo et ligatur.
 Inadmissibility of Extrinsic Evidence. 365

or avoid the original contract ; it merely shows that it

has been satisfied, and leaves its original validity
unimpeached.

Release of a debt in equity. —As a general rule there

is no release of a debt in equity unless released in law.
Mere voluntary declarations indicating the intention
of a creditor to forgive or release a debt, if they are
not evidence of a release at law, do not constitute a
release in equity (c). Nothing indeed amounts to a
release in equity which is not one at law, except an
agreement for valuable consideration to give a release
or not to sue (d). There may, however, be considera
tions which would prevent a debt from being enforced
in equity, although it might be subsisting at law (e).
Where a voluntary declaration by a creditor has been
acted upon by the debtor, the former may be bound
to make his representation good (/); i.e., a creditor
may so conduct himself as to preclude himself from
obtaining equitable relief or even from enforcing a
legal demand (g) . Conversely a release in law may not
operate as a release in equity. Thus if a debtor be
appointed executor by his creditor this releases the
debt in law but not in equity. Still there may be
some equitable considerations which would extinguish
the debt in equity ; thus it may be proved that the
testator intended to forgive the debt (h), but apparently
the intention must have been communicated to the
debtor in the lifetime of the testator (i).

Contract Yoid ab initio.—It is allowable to show that

a written contract, whether under seal or not, never

(_c) Croft v. Sprigg, 6 Hare, 552.

id) Per LIJJDLEY, L.J., in Edwards v. Walter*, [1896] 2 Ch. 168.
(«) Per Turner, L.J. : Taylor v. Manner*, L. li. 1 Ch. 56.
(A) Yeomans v. William*, L. K. 1 Eq. 184.
(g) /VrLlNDLEY, L.J., in Edward* v. Walters, [1896] 2 Ch. 169.
(A) Levesan v. Urates, [18911 8 Ch. 422.
(i) Hyslop v. Chamberlain, [1894] 3 Ch. 522.
3G6 Law of Evidence.

existed legally ; or that it was formed under circum

stances which rendered it void ab initio. Thus, a
defendant in an action on a written contract, may
plead that it was void, as being made under circum
stances of fraud, duress, or for illegal consideration ;
and he may prove such a plea by any species of parol
evidence (k). He may also show that a bill or promissory
note, on which he is liable primd fade, was obtained
from him without consideration, for the purpose of
being discounted by the plaintiff or by a third party,
between whom and the plaintiff there is a privity ; or
he may show any other similar failure of consideration ;
but he may not give parol evidence, which goes merely
to limit his liability (Z), As a general rule, upon all
written contracts not under seal extrinsic evidence will
be admissible to support a plea of failure, or want of
consideration ; but in a deed a consideration is, in the
absence of fraud, conclusively presumed.

Consideration.—Where it is distinctly stated in a

deed that it is made in consideration of a sum of money
paid down at the time of execution, a party is estopped
from showing that no money passed (m) ; although he
may show that a different consideration passed (re) ;
but, where the payment of the consideration is not
stated conclusively and unambiguously in the deed, the
non-payment may be proved by extrinsic evidence.
Thus, where a deed recited that a releasee had agreed
to pay a certain sum, and then referred to it as " the
said sum being now so paid as hereinbefore mentioned " ;
then followed words of reference which were equally
applicable to the sum in question and other sums men
tioned ; then an acknowledgment in the body of the

(4) Robinson v. Lord Vernon, 7 C. B. (N.S.) 231.

(/) Abrey v. Crux, 39 h. J. C. P. 9. See also Stott v. Fairlamb,
53 L. J. Q. B. 47.
(m) liowntree v. Jacob, 1 Taunt. 141.
(h) .Smith v. Battams, 26 L. J. Ex. 232.
 Inadmissibility of Extrinsic Evidence. 367

deed of the receipt of such sums, and a receipt for the

first sum was indorsed on the deed ; it was held that
the acknowledgment in the recital was ambiguous,
that the receipt in the body of the deed was equally
ambiguous, and that the indorsed receipt constituted
only primd facie evidence. On similar grounds, a
plaintiff in assumpsit was held not to be estopped by
the deed from showing by parol evidence that the sum
in question, the substantial consideration money, had
never been paid (o).
It is also allowable to prove, by extrinsic evidence, a
larger or supplementary consideration ; provided it be
not inconsistent with the consideration named in the
deed (p). Thus, a deed purporting to be founded on a
money consideration may be proved to have been
founded also on any other good consideration, such as
marriage (q) ; or, not purporting to be founded on any
consideration, it may be shown to have been founded
on a valuable consideration (?•) ; or, purporting to be
founded on natural affection, it may be shown to have
been founded also on a valuable consideration, at least
to rebut a charge of fraud (s). In all such cases the
rule which does not permit written evidence to be
contradicted or varied by extrinsic evidence remains
unaffected, because the extrinsic evidence is received
only to annex an incident which is not clearly excluded
by the written instrument.
In B. v. Scammonden (t), the court held it clear that
a " party might prove other considerations than those
expressed in the deed"; and allowed extrinsic parol
evidence to be given to show that the actual considera
tion paid was thirty pounds, although the consideration

(») La m win v. Corkr, 5 B. & Aid. 606.

Clifford v. Turrell, 1 Y. & C. (Ch.) 138.
(y) Villen v. Beaumont, 2 Dyer, 146 a.
(r) Peacock v. Monk, 1 Ves. sen. 128 ; see Townend v. Taker, L. K.
1 Ch. 446.
C<) Gale v. Williamson, 8 M. & W. 405. (0 3 T. R. 474.
368 Law of Evidence.

named in the deed and the indorsed receipt was twenty-

eight pounds. So, in B. v. InJiabitants of London (u),
the same court held that parol evidence was admissible
to import a consideration which converted an agree
ment of hiring as a servant into an agreement to serve
as an apprentice. In the former case, the parol con
sideration appears to have been treated as explanatory
of, and not as additional to, the expressed consideration ;
and in the latter case, Lord Kenyon stated that the
parol evidence was not offered to contradict the written
agreement, but to ascertain an independent fact. It
has been remarked that in both these cases the parol
evidence was received, not to contradict a written
agreement, but to ascertain an independent fact
explanatory of it (x).
A policy of insurance cannot be contradicted by an
antecedent written agreement, as where a defendant
attempts to show, by such an agreement, that the risk
was to begin at a place and date subsequent to those
which are named in the policy (y) ; nor can a charter-
party be varied by a parol agreement substituting one
place of destination for another (z), unless such an
agreement can be treated, not as a new term, but as a
new and distinct contract (a) ; nor can a release be
varied by evidence of verbal negotiations prior to such
release (b).
Where the fact sought to be added is formal, and not
of the essence of the contract, the rule does not appear
to apply. Thus, a deed may be proved to have been
delivered either before or after the day on which it
purports to have been delivered (c), and parol
evidence is admissible to show that there was a mistake
(a) 8 T. K. 379.
lx) Per Williams, J. : R. v. Stoke-upon-Trent, 5 Q. 13. 308.
(i/) A'ame v. Kaightley, Skin. 54.
(r) Leslie v. De hi Torre, cited in White v. Parker, 12 East, 383.
(«) White v. Parker, tupra.
(*) Mercantile Jianh of Sydney v. Taylor, [1893] A. C. 317.
(c) Goddard's Cute, 2 Hep. 4 b.
 Inadmissibility of Extrinsic Evidence. 369

in the date of a charter-party (d), a deed (e) or a

will (/) ; but the day appointed in a written contract
for the performance of a certain act, such as the com
pletion of a purchase, cannot be altered by extrinsic
evidence (g). Parol evidence is admissible to prove
that, owing to a subsequent agreement extending the
time for payment, there has been no default within the
meaning of a mortgage deed (h).
Where the printed conditions of sale at an auction,
signed by the auctioneer, described the time and place of
the sale, and the number and kind of timber sold, but
said nothing about the weight, evidence of the
auctioneer's statements at the sale was held inadmis
sible to prove that a certain weight had been warranted.
Lord Ellenborough said :
" There is no doubt that the parol evidence was properly-
rejected. The purchaser ought to have had it reduced into
writing at the time, if the representation then made as to the
quantity swayed him to bid for the lot. If the parol evidence
were admissible in this case, I know of no instance where a party-
may not by parol testimony superadd any term to a written agree
ment, which would be setting aside all written contracts, and
rendering them of no effect. There is no doubt that the warranty
as to the quality of the timber would vary the agreement contained
in the written conditions of sale " (/).

This case is general in its application ; but the rule

was probably stated and observed more inflexibly,
because the agreement was clearly within the Statute
of Frauds ; and it is distinguishable from a later case,
which decided that unsigned conditions of sale are only
in the nature of a personal memorandum, which may
be varied at any time before the sale by an express
notice to a purchaser (k).

(rf) Hull v. Casenon; 4 East, 476.

(e) Payne v. Hughes, 10 Ex. 430.
(/) Reffell v. Re/fell, L. K. 1 P. k D. 139.
(<7) Stowell v. Robinson, 3 Bing. N. C. 92d.
(A) Alhrrt v. Grotxenor Investment Co., L. R. 3 Q. B. 123.
(t) Powell v. Edmunds, 12 East, 6.
(A) Eden v. Blake, 13 M. & W. 614.
L. E.
370 Law of Evidence.

Where a contract for the sale of goods specified no

time for removing them, it was held that oral evidence
could not be given of a condition that they should be
removed immediately, because to admit the evidence
would vary the contract (/). A written contract to
supply flour of X. S. quality, cannot be varied by parol
evidence to show that by X. S. quality the parties
intended X. S. S. quality (to). So, a written contract
to supply foreign refined oil cannot be varied by oral
evidence that the parties agreed to consider an inferior
kind of oil a foreign refined oil (n) ; and a policy of
insurance cannot be varied by evidence of oral or
written declarations which were made to the insurer,
but not embodied in the policy (o). The valuation of a
ship in a valued policy is, in the absence of fraud or
wagering, conclusive between the parties for the
purposes of the contract (p).
Where a deed conveys Blackacre, as specified in a
schedule and map annexed, parol evidence will not be
received to show that Whiteacre, which is not men
tioned in the schedule or map, has always been part of
Blackacre (q). When several classes of goods, of
superior and inferior quality, are comprised under one
generic name, and a written contract is made to supply
goods of that name, the contract will be fulfilled by a
supply of any goods to which that name is applicable ;
and parol evidence will not be received to show that
the parties intended that goods of the superior quality
should be supplied (;•).
In order to avoid liability a person who appears on
the face of a written contract to have contracted as a

(0 Greaves v. A«hlia, 3 Camp. 426.

(;«) Harnor v. Grore*, 15 C. 15. 067.
(«) Niehol v. Godtt, 10 Ex. 191.
(<>) Halhead v. Young, 6 E. A: 13. 312.
North of England Ship Inmrance Co. v. Armttrong, L. U. 5 Q. B.
244 ; cf. linrnnnd v. llodocaimchi, 7 App. Cas. 333.
(?) Barton v. Bawet, 10 C. B. 261.
(/•) Smith v.Jeffryts, If, M. &; W. 561.
 Inadmissibility of Extrinsic Evidence. 371.

principal, cannot show by extrinsic evidence that he

contracted as an agent (s) ; nor can he show that a
contract, signed by him expressly as a principal, was
made by him as an agent for the party to the action (t) .
If the contract appears to have been made merely in
his own name, without addition, it may be shown that
he was in fact an agent for another in order to make
such other liable (?<), as this does not contradict the
contract, nor does it make any difference if the name
of the principal is disclosed at the time the contract is
made (x) .
Extrinsic evidence is inadmissible to show that a
person not a party to a written instrument on the face
of it, was, in fact, a party (y) ; but where a defendant
had signed an agreement under seal as agent for a firm,
whereby the firm agreed to make certain payments to
the plaintiffs, which agreement contained a clause to
the effect that the defendant guaranteed such payments,
although the defendant was not named as a party to the
agreement, extrinsic evidence was held admissible by
the Court of Appeal to prove that the defendant intended
to sign on his own behalf as well as for his principals
so as to make him liable as a guarantor (z) . It may,
however, be observed that this decision does not estab
lish any such principle as that the capacity in which a
man signs a document is always provable by extrinsic
evidence.
On similar grounds, evidence of a custom cannot be
received to vary the express language of a contract (a).
(*) Higgim v. Senior, 8 M. Sc W. 834.
(0 Humble v. Hunter, 12 Q. B. 310.
(«) Per Patteson, J. : ibid,
{.n) Colder v. Dobell, L. R. 6 C. P. 439.
(y) Jtubiiuim v. Rudkiiu, 26 L. J. Ex. 56.
(;) Young v. Schuler, 11 Q. B. D. 651.
(a) Hudton v. ClemeiUton, 18 C. B. 213.

2 b -2
 ( 372 )

CHAPTEE VII.

ADMISSIBILITY OF EXTRINSIC EVIDENCE TO

EXPLAIN WRITTEN EVIDENCE.

The second branch of the principle of evidence, which

was discussed in the preceding chapter, is contained in
the rule that—

Extrinsic evidence is admissible to explain

written evidence.
First, parol evidence is admissible to prove that that
which purports to be a deed or writing of a certain kind
has been made under circumstances which deprive it of
all such effect. Thus it may be shown that a written
instrument purporting to be a contract between the
parties was not so intended (a), or that it was made
subject to a condition through the non-fulfilment of
which no contract has ever arisen (b) ; and on the same
principle Lord Penzance held that it might be shown
that a duly executed codicil was not intended by the
testator to be operative (c) . So it may be shown that
an instrument, which purports to be a binding one to
take effect immediately, was delivered as an escrow,
and was not intended to operate until certain things
were done (d) . If an oral arrangement was made as a
mere suspension of a written agreement, it will be
admissible in evidence (e) ; and, on the same principle,
when an agreement does not declare the time from

(a) Clever v. Kirkman, 24 W. B. 159.

(b) Pym v. Campbell, 6 E. Sz ii. 370 ; followed in Puttie v. Hnrnibrook,
[1897] 1 Ch. 25.
(r) Lister v. Smith, 3 Sw. & Tr. 282.
(d) Darin v. Jones, 17 C. B. 625 ; ef, Pattle v. Hornibrooh, ubi supra.
(c) Wallit v. Littell, 11 C. B. (x.s.) 309.
 Admissibility of Extrinsic Evidence. 373

which and to which it is to operate, parol evidence is

receivable to supply the ambiguity (/). If a written
agreement has been treated as incomplete, parol
evidence of a subsequent further and fuller agreement
may be given (g) . Where the defendant had signed an
agreement as agent for a firm, whereby the firm agreed
to make certain payments to the plaintiffs, which agree
ment contained a clause to the effect that the defendant
guaranteed such payments, evidence was admitted to
show that the defendant intended to sign on his own
behalf, as well as for his principals, so as to make him
liable as a guarantor (h).

Collateral oral agreement.—Evidence is admissible

to show that immediately before the written agreement
was signed a distinct oral arrangement was made,
adding to, but not inconsistent with, the former (t) ;
and whether the oral agreement precede or be con
temporaneous with the written agreement is of no
consequence, provided it be on a distinct collateral
matter, although it is part of the same transaction.
Thus a consignor of goods may prove any additional
contract to carry which does not contradict or vary the
written one(i;). So, too, a tenant may prove the
existence of a warranty by his landlord, as to drains,
collateral to the lease (l). But in no case can a
collateral oral agreement be set up if it contradicts the
terms of the written one (m) .
The law recognises, according to the authority of
Lord Bacon, two kinds of ambiguity in written
instruments, viz., patent and latent.

(O Davit v. Jones, 17 C. B. 625.

(./) Johnson v. Appleby. L. R. 9 C. P. 158.
(/i) Young v. Schuler, 11 Q. B. 1). 651. As to which case, ride supra,
p. 371.
(0 Lindley v. Lam/, 17 C. B. (N.s.) 578.
(/<) Mal/'a* v. London and South Western Bail. Co., L. R. 1 C. V. 336.
(0 DeATeioLassalle
London v.Credit
Guildford. [1901]
Syndicate 2 K. B.[1898]
v. Neale, 215. 2 K. B. 487.
374 Law of Evidence.

Patent ambiguities.— A patent ambiguity is said to

exist when the instrument, on its face, is unintelligible,
as where a gift is made by will, and a blank appears in
the place of the name of the devisee or legatee. In
such a case, extrinsic evidence is wholly inadmissible
to show who was intended to be the devisee or legatee ;
for, if it were admissible, it would be tantamount to
permitting wills to be made verbally, and would also be
a violation of the principle, that where a contract, or
other substantial matter of issue, has been reduced
to writing, the writing is the only admissible proof of
such contract or transaction ; but intrinsic evidence is
admissible in the case of latent ambiguities (n). And
extrinsic evidence has been admitted to supplement
intrinsic evidence (o). Therefore, although, as stated
above, a blank in the place of the name of a devisee or
legatee cannot be filled up by extrinsic evidence, yet if
the christian name is stated in a will, followed by a
blank for the surname, extrinsic evidence will be
admitted to show whom the testator intended to
designate (p). Extrinsic evidence has been admitted
to rebut the presumption against an executor taking
the residue beneficially where a specific legacy is left
to him and also a presumption arising from the frame
of the will (q) .
Latent ambiguities.—Where a written instrument is
intelligible on its face, but a difficulty arises from
extrinsic circumstances in understanding and carrying
out its terms, the ambiguity is said to be latent, and
extrinsic evidence will be strictly admissible to explain
and apply those circumstances, so as to reconcile them
to the terms of the writing. Such evidence, however,
O) Turner v. Hellard, 30 Ch. D. 390.
(<>) Fiirnixs y. Phrar. 36 W. K. 521.
(p) In the Good* of De Rotaz, 2 P. I). 66.
(?) Vamp v. doe, 31 Ch. D. 460.
 Admissibility of Extrinsic Evidence. 375

is admissible only to explain, and not to vary. Thus,

in Goldshede v. Swan (r), Parke, B., said:
" You cannot vary the terms of a written instrument by parol
evidence ; that is a regular rule ; but if you can construe an
instrument by parol evidence, when that instrument is ambiguous,
in such a manner as not to contradict, you are at liberty to
do so."

These introductory remarks may be appropriately

closed by quoting the following remarks of Sir James
Wigram (s) :
'• A written instrument is not ambiguous because an ignorant
and uninformed person is unable to interpret it. It is ambiguous
only if found to be of uncertain meaning when persons of com
petent skill and information are unable to do so. Words cannot
be ambiguous because they are unintelligible to a man who cannot
read, nor can they be ambiguous merely because the court which
is called upon to explain them may be ignorant of a particular
fact, art, or science, which was familiar to the person who used
the words, and a knowledge of which is therefore necessary to
a right understanding of the words he has used."

The general principle is that if a written instrument

is plain and unambiguous, it must be construed accord
ing to the plain and unambiguous language of the
instrument itself ; and the fact that the parties to the
instrument have put a different construction on the
language to that which the words plainly bear, is
immaterial (t). Words which have a fixed meaning
cannot be shown by extrinsic evidence to have been
used by the parties to mean something different ; but
when words are capable of more than one meaning,
extrinsic evidence is admissible to prove what were the
facts the negotiating parties had in mind, so as to

(r) 1 Ex. 158.

(*) On Extrinsic Evidence in Aid of the Interpretation of Wills, 2nd ed.,
p. 130.
(0 Jfirrth Eastern Rail Co. v. Uattings, [ l'JOO] A. C. 260.
376 . Law of Evidence.

show the sense in which these parties used such

words (u). It has been stated as a general rule—
" That all facts are admissible which tend to show the sense the
words bear with reference to the surrounding circumstances of and
concerning which the words were used, but that such facts as only
tend to show that the writer intended to use words bearing a
particular sense are to be rejected " (jr).

The leading principles of the general rule now under

consideration may be treated under those subdivisions
which occur most frequently in practice.
(1) Foreign or technical words ;
(2) Difficulties created by extrinsic circumstances ;
(3) Usage or custom as explaining and controlling a
contract.

1. Foreign or technical words.—Where a written

instrument is in a foreign language, or where it con
tains technical words of trade or custom, the ambiguity
will be treated as latent ; and oral or other extrinsic
evidence will be received to inform the court of the
sense of the instrument. Thus, in Shore v. Wilson,
Pakke, B., said :
" I apprehend that there are two descriptions of evidence . . .
which are clearly admissible for the purpose of enabling a court
to construe any written instrument, and to apply it practically.
In the first, place, there is no doubt that not only when the
language of the instrument is such as the court does not under
stand, it is competent to receive evidence of the proper meaning
of that language, as when it is written in a foreign tongue ; but it
is also competent, where technical words or peculiar terms are
used, or, indeed, any expressions which at the time when the
instrument was written had acquired an appropriate meaning,
either generally or by local usage, or amongst particular classes. . . .
This description of evidence is admissible in order to enable the
court to understand the meaning of the words contained in the
instrument itself, by themselves, and without reference to the
extrinsic facts on which'the instrument is intended to operate " (y).

(«) fiank o/Xew Zealand v. Sinipwn, [1900] A. C. 182.

(a;) Per Blackburx, J. : Grant v. Grant, L. H. 5 C. P., p. 728.
(j0 9 C. & F. 555.
 Admissibility of Extrinsic Evidence. 377

When a document is in a foreign language the court

requires a translation by a competent translator ; and
if there are technical expressions in the document,
evidence of experts to explain to the court what
meaning those words would convey to people in whose
language the document is written (z). Before ad
mitting evidence of the secondary meaning of a word,
the court must be satisfied from the instrument itself,
or from the circumstances of the case, that the word
ought to be construed not in its popular or primary
signification, but according to its secondary inten
tion (a). Thus, extrinsic evidence was received to
explain the meaning of the phrase, " Godly preachers
of Christ's Holy Gospel," and to show that according
to the usage of a sect to which the grantor belonged,
the grant was intended for that sect. So, such evidence
has been received to explain the meaning of the phrase
"across a country" in a steeplechase transaction (b) ;
that " close," by local usage, signified " a farm " (c) ;
that " a thousand " meant a hundred dozen {d) ; and
that a contract to pay an actor so much a week was a
contract to pay only during the theatrical season (e).
So, also, it has been received to explain the local
meaning of " good " or " fine " barley (/) ; of a month,
whether lunar or calendar (g) ; the amount indicated
under a contract to buy " your wool " from a party (h) ;
and, generally, in all cases where the signification of a
particular phrase is unsettled and variable in its nature,
and where it is liable to have different senses attached
to it in different places. It is essential in all such
(.-) See Chatenay v. Brazilian Telegraph Co., [1891] 1 Q. B. 79 ; ef.
Jh Sora v. Phillips, 10 H. L. Cos. 633.
(rt) See the judgment of Fry. J., in Holt v. CnlUjer, 16 Ch. I). 718.
(/;) Erans v. Pratt, 3 M. & G. 759.
(<•) Richardson v. Watson, 4 B. k Ad. 799.
1<F) Smith v. Wilson, 3 B. & Ad. 278.
fVl Grant v. Madder, 15 M. & W. 737.
(/) Hutchinson v. Bowker, a M. & W. 545.
(17) Simpson v. Margitson, HQ. H. 32.
(A) M»cdonald v. Longbuttom. 29 L. J. Q. B. 256.
378 Law of Evidence.

cases that the peculiar sense should be of a public and

popular kind ; and it will not be allowable to show
that a party used the term in a sense opposed to its
local and conventional usage. Thus, where a testatrix
was in the habit of treating certain shares as " double
shares," evidence of this was not allowed to influence
the construction of her will, Lord Hatherley saying :
" I must take tilings to be as I find them, and cannot allow
particular expressions, said to have been made use of by this
testatrix, to prevail, when they are not the general language
universally applicable to the subject-matter ': (i).

Evidence is always admissible for the purpose of

explaining the meaning of words used by the testator
(as distinguished from evidence of the testator's inten
tion) ; and for the purpose of explaining the meaning of
the words used by the testator, evidence is admissible
of the circumstances surrounding the testator at the
time of making his will (k) .

2. Difficulties created by extrinsic circumstances. -

Extrinsic evidence is admissible to explain a latent
ambiguity which is raised, not by any intrinsic obscurity
of language, but by a difficulty created by extrinsic
circumstances in applying the terms of a written instru
ment to such extrinsic circumstances. Thus, where it
is shown that words apply equally to two different
things or subject-matters, extrinsic evidence is admis
sible to show which of them was the thing or subject-
matter intended (I). A familiar illustration of this
doctrine is cited from Lord Bacon, where a man
devises his manor of S. to J. F., and it turns out that
he has two manors answering the description, e.g.,
North S. and South S. In such cases it maybe shown
by extrinsic evidence, and even by declarations of the

CO Millard v. Bailey, L. R. 1 Eq. 382.

(*) Raynerv. Rayn'rr, [1904 j 1 Ch. 17(5.
CO Per Alderso's. B. : Smith v. Jeffrye*, 15 M. & W. 562.
 Admissibility of Extrinsic Evidence. 379

testator, which manor was intended to pass (m). In a

recent case, where a testatrix by her will bequeathed
£4,000 to C. "for the charitable purposes agreed upon
between us," the Court of Appeal (affirming Far-
well, J.) held that an affidavit by C. was admissible
to show what the charitable purposes were, but
(reversing Farwell, J.) not to show that only the
income of the £4,000 during his life was to be devoted
to the charitable purposes, as that would contradict
the will (n). In another case, about the same time,
a testator had given to his wife all his property for
life, and added : " I desire and empower her by her will,
or in her lifetime, to dispose of my estate in accordance
with my wishes verbally expressed by me to her."
Joyce, J., held that parol evidence was inadmissible to
show what those wishes were, and that the clause quoted
above was void for uncertainty (o). The distinction
between these two cases is that the. former was one
relating to a power, and the general rule is that
extrinsic evidence of a testator's intention is inadmis
sible to aid the construction of his will (p) ; but
where, on the construction of the words of the will,
a presumption arises, extrinsic evidence is admissible
to rebut such presumption {q).
Declarations of a testator.—When they are admis
sible, it is immaterial that they are made some time
after the execution of the will (r), or before it (s), and
they are admissible to prove the contents of a lost
will (t). In Quick v. Quick (w), Lord Penzance held
(»/) Bne v. Need*. 2 M.& W. 12!) ; RiehHt* v. Tu.-quand, 1 H. L. Cas. 472.
(«) HuxtaUe v. Crawford, [1902] 2 Ch. 793.
00 Hetley v. Hetley, [1002] 2 Ch. 866.
lp) Doe T. HUcoek. 5 M. A: VV. 369 ; cf. Stanley v. Stanley, 2 J. & H.
491 ; Bithop v. Holt, [11)00] 2 Ch. 620.
(g) Tvuxaud v. Turtaud, 1) Ch. J). 368.
()) Dot y. Allen, 12 A. & E. 455.
(*) Langham v. Sandford, 19 Vcs. 049.
(0 8ngden v. Lord St. Leonard!, 1 V. D. 154 ; Gould v. Lakes,
0 V. D. i.
(«) 3 Sw. & Tr. 442.
380 Law of Evidence.

that the declarations of a testator made after the

execution of a lost will were not admissible to prove its
contents. This case was, however, overruled by the
majority of the Court of Appeal in Sugden v. St.
Leonards, which held that the declarations of a testator,
written and oral, both before and after the execution of
his will, are, in the event of its loss, admissible as
secondary evidence of its contents, Mellish, L.J.,
dissenting as regards declarations made after execution.
A similar question was under consideration in the
House of Lords in Woodward v. Goulstone {x), but was
not decided. The learned lords present took the very
inconvenient course of saying that, under the circum
stances of that case, the question did not arise for
determination, but that they desired to leave the ques
tion open, should it hereafter come before the House
for decision ; and the Lord Chancellor in his judgment
expressed considerable doubts as to the correctness of
the decision of the majority of the judges of the Court
of Appeal in Sugden v. St. Leonards, The result is,
that the decision of the Court of Appeal stands, and is
binding on inferior courts, in spite of the cloud cast
over it by the House of Lords. But it has been held
that this case does not alter the old rule that the fact
of the execution of a will cannot be proved by the
declarations of the testator (y).
Verbal statements made by a testator, in and about
the making of his will, when accompanying acts done
by him in relation to that subject, have been held
admissible in evidence (z). A letter written to a
testator by a solicitor, whether by way of advice or
statement, is inadmissible for the purpose of construction
of the will (a).

(*) 11 A pp. Cas. 469.

(y) Atkinson v. Morris, [1897] P 40.
(r) Johnson v. Lyford, I,. K. 1 P. & 1). 54U.
(a) Per James, L.J. : Wilton v. O'Leary, L. ii. 7 Ch. 456.
 Admissibility of Extrinsic Evidence. 381

Extrinsic evidence is admissible to show the inten

tion with which an ambiguous instrument was
executed, i.e., to show whether an ambiguous instru
ment was executed as a deed poll or as a will (b).
A witness cannot be asked what a testator said about
property, not distinctly devised, in order to show it
was intended to pass with other property devised (c).
Where the testator was in the habit of calling persons
by nicknames or wrong names, and these names appear
in his will, they can only be explained and construed
by the aid of evidence to show the sense in which he
used them, just as if his will was written in cipher or
in a foreign language (d). Thus, a bequest to Mrs. G.
was upheld by evidence that the testator was in the
habit of calling a Mrs. Gregg, Mrs. G. (e). Here the
evidence was of a fact, not of a declaration. So, parol
evidence is admissible to show what lands of the
testator were reputed to lie in a parish, in order to
construe a devise of lands in the parish (/) ; but where
the testatrix, after a specific devise to " my niece,
A. B." (who was in fact her husband's niece), left her
residue to "all my nephews and nieces," Jessel, M.E.,
refused to admit A. B. to participate in the residue (g).
Where the testator appointed his " nephew, A. B.'*
executor, and his own nephew and his wife's nephew
both bore that name, extrinsic evidence was admitted
to show that the latter was the person designated (h).
But where a testator left a legacy to his " niece E. W.,"
and neither he nor his wife had any niece, but his wife
had a legitimate grandniece, E. W., and an illegitimate
grandniece, E. W., evidence to show that the testator

(b) In re Good* of Slinn, 15 P. D. 166.

(<•) Doe v. Hubbard, 15 B. 228.
(</) Prr Lord ABINQKB : Doe v. Hhcoclt, 5 M. ic W. 3H8.
(«) Abbott v. Morice, 3 Vcs. 148 ; of. Lee v. Pain, 4 Hare, 231.
(/) A niter v. Nclni*. 1 H. k N. 225.
(S) Writ* v. Well*, L. U. 18 Eq. 204.
(A) Grant v. Grant, L. B. 5 C. P. 727.
382 Law of Evidence.

intended the latter was rejected on the ground that,

under the circumstances, there was no latent ambiguity
as there would have been had both been legitimate (t).
To identify the person or thing intended as the object
or subject of the testator's bounty the court may
inquire into every material fact, and all extrinsic circum
stances known to the testator as to his family and
affairs ; but extrinsic evidence of the testator's intention
is admissible only in the event of there being more
than one person or thing answering to the description
he has used (k). It must be borne in mind that
" children " in a will always means legitimate children
unless, on the facts being ascertained and applied to
the words of the will, some repugnancy or inconsistency
would result from so interpreting it (I) . In cases such as
those under consideration the testator's own declara
tions are probably inadmissible (m). Punctuation in a
will must be disregarded (n).
In an action arising out of a contract to accept goods
which were to arrive by a particular ship, it appeared
that there were two ships of the same name, and parol
evidence was admitted to show which ship was
meant (o) . So it has been held that extrinsic evidence
was admissible to prove who was the buyer and who the
seller in a memorandum or note under s. 17 of the
Statute of Frauds (p), and what is the subject-matter
of a contract to sell twenty-four acres of land under
s. 4 of the same Act (q). And where the defendants
had by a deed covenanted to pay the plaintiff a royalty
on all articles manufactured or sold " under the powers
hereby granted," and the deed did not on the face of it
disclose what the powers were, it was held to create a

(£) Ingham v. Bayner, [1894] 2 Ch. 85.

(*.) Chartir v. Charter, L. R. 7 E. &. I. 364.
(/) Per Lord Selborne, in Dorin v. Dorin, L. H. 7 E. & I. 577.
Per Sir F. H. JEUNE : //( the Good* of ChappM, [1894] P. 98.
(h) Pt r Lord Westbury : Gordon v. -Gordon, L. K. 5 E. & I. 27G.
(<-) Baffin v. Wichelhans, 2 II. & C. 906.
Q>) Newell v. Radford, L. K. 3 C. P. 52.
(7) Plant v. Bourne, [KS97] 2 Ch. 281.
 Admissibility of Extbinsic Evidence. 383

latent ambiguity on the face of the deed, and extrinsic

evidence was admitted to prove what was intended by
the parties (r).
.In almost all cases where extrinsic evidence has been
received to explain written evidence, it will appear that
it had been received, not in the form of declarations of
intention by parties, but in the form of collateral and
surrounding facts, which, like every other species of
presumptive evidence, may reasonably be connected
with the substantial issue, and so form data to aid the
court or jury (s). They must be related to the written
evidence, and yet independent of it. They must not
be personal declarations of a party, but distinct inci
dents, which may be presumed to have been present to
the mind of the party, without wearing the suspicious
form of oral statements. The strict sense of a word is
its legal sense ; and if it be intelligible in this sense, it
cannot be varied or explained by evidence that it was
used by the party in a popular, still less in a peculiar,
sense. Thus, if a man devises to his " children " and
he has both legitimate and illegitimate children,
only the former will take ; extrinsic evidence can
not be received to show that he intended that his
illegitimate children should also take. But where there
are no legitimate children to take, the illegitimate will
take, or where there is a devise to children, and the
evidence shows only one legitimate child, and children
who are illegitimate, the latter will take equally with
the former (t). In such a case the extrinsic evidence of
a collateral fact is strictly admissible to explain a
written instrument which would otherwise be insensible.
Where a testator uses a " flexible " word such as
"issue" it must be gathered from the will in what
sense he has used it {u).

(;•) Bodeii v. London- Small Arum Co., 47 L. J. Q. B. 413.

(«) Smith v. Thompson. 8 C. B. 44.
(0 Gill v. Shelley, 2 Phill. 373.
(k) Kenyan v. Birkt, [1900] 1 Ch. 417.
384 Law of Evidence.

3. Usage or custom as explaining and controlling

a contract.—Usage or custom is also admissible to
explain and control, but not to contradict, a written
instrument, such as a contract. It may be admissible
to explain what is doubtful ; it is never admissible to
contradict what is plain (*). Thus, wherever the
language of a written instrument is so clear that there
can be no reasonable ground for construing it as
subject to a custom, or where, although the language
is ambiguous, the custom itself is uncertain, the
writing must be construed strictly according to its
literal terms (y).
On the general principle, it has been held allowable
to show that, by the custom of the country, a provision
in a lease as to ten thousand rabbits, signified twelve
hundred to the thousand (z) ; that " acre " and that
" perch " mean one quantity in one county, and
another quantity in another county (a). So usage is
admissible to explain the phrase " regular turns of
loading" (b). In such cases the customary meaning
of an ambiguous term is for the jury; and, unless such
a custom be proved, a judge ought not to leave it to
the jury to pronounce on the sense in which the term
was used, but should himself construe the term
according to its fixed legal or popular signification.
Thus, where an auctioneer sued for a sum which he
was to receive under a written contract, only if he sold
" within two months," it was held, that, in the
absence of admissible extrinsic evidence, this meant
in point of law two lunar months, and that, unless
the context, or the circumstances of the contract,
showed that the parties meant two calendar months,

(*) Per Lord Campbell : Hall v. Jantun, 4 E. & B. 500 ; see

T/teM/a, [1892] P. 411.
(y) In re Strand, S C. B. .".02 ; Hunt v. Utborne, 18 O. B. 144.
(--) Smith v. Wilton, 3 B. & Ad. 728.
(«) Barksdale v. Morgan, 4 Mod. 186.
(*) Leidemann v. Sehnltz, 14 C. Ii. 38.
 Admissibility of Extrinsic Evidence. 385

the conduct of the parties to the written contract alone

was not admissible to withdraw the construction of a
word therein, of a settled primary meaning, from the
judge and transfer it to the jury (c). In general, where
there are two alternative constructions, evidence of
usage will be received to determine which is the right
one (d). But in order to admit extrinsic evidence the
phrase need not be on the face of it ambiguous (e) .
Trade usage.—Where a doubt is raised by evidence
upon the meaning of a written contract, or where the
contract contains words which have more than one
meaning (/), extrinsic evidence is admissible of the
usage or course of trade at the place where the contract
is made, or where it is to be carried into effect, to
explain or remove such doubt. Again, where a similar
doubt arises as to the lex loci by which such a contract
is to be construed, evidence of usage will be received to
determine the place. Thus, where the question was
whether goods were to be liable to freight according to
their weight at the place of shipment, or according to
their expanded weight at the place of consignment, the
terms of the charter-party were construed by extrinsic
evidence that the usage was to measure the goods
according to their weight at the place of shipment (g) ;
and where the question was as to the date of the arrival
of the ship at the port named in the charter-party,
evidence was admitted to show what spot in the port
must be reached before, by the usage of the port, it
was considered that the ship had arrived {h).
Annexing incidents to a contract.—Extrinsic evidence
is also admissible to annex incidents to a written instru
ment, where such incidents are consistent with the
(c) Simpmm v. MargiUon, 11 Q. B. 23.
(rf) Blaekett v. Rival Exchange Auntranee Co., 2 C. & J. 250.
(«) Per Blackburn-, J. : Mi/em v. Sari, 3 E. & E. 319.
(./ ) Buckle v.Kmm/), L. U. 2 Ex. 125.
(}/) Bottomley v. Forbes, 5 Uing. N. C. 121.
(A) Steamship Co., Norden v. Dempsey, 1 C. P. I). G54.
L.E. 2C
386 Law of Evidence.

reasonable intention of the writing. Such incidents

fall generally within the definition of express or implied
usage. In such cases the notoriety of the usage makes
it an element of the writing. Thus, where a written
contract contained a stipulation that a party should
" lose no time on his own account, and do his work
well and behave himself in all respects as a good ser
vant," extrinsic evidence was received to show that, by
the custom of his trade, such a party was entitled to
certain holidays (i). As was once said by Parke, B. :
" It has long been settled that in commercial transactions
extrinsic evidence of custom and usage is admissible to annex
incidents to written contracts in matters with respect to which
they are silent. The same rule has also been applied to contracts
in other transactions of life, in which known usages have been
established and prevailed ; and this has been done upon the prin
ciple of presumption that in such transactions the parties did not
mean to express in writing the whole of the contract by which
they intended to be bound, but to contract with reference to those
known usages " (&). ,
" Mercantile contracts are very commonly framed in a language
peculiar to merchants ; the intention of the parties, though
perfectly well known to themselves, would often be defeated,
if the language were strictly construed according to its ordi
nary import in the world at large. Evidence, therefore, of
mercantile custom and usage is admitted in order to expound it,
and arrive at its true meaning. Again, in all contracts as to the
subject-matter of which a known usage prevails, parties are found
to proceed with the tacit assumption of those usages ; they com
monly reduce into writing the special particulars of their agreement,
but omit to specify those known usages which are included, how
ever, as of course, by mutual understanding : evidence, therefore,
of such incidents is receivable. The contract, in truth, is partly
express and in writing, partly implied or understood and unwritten ;
but in these cases a restriction is established on the soundest prin
ciple, that the evidence received must not be of a particular which
is repugnant to or inconsistent with the written contract. Merely
that it varies the apparent contract is not enough to exclude the
evidence ; for it is impossible to add any material incident to the
written terms of a contract without altering its eff«ct more or less ;
neither in the construction of a contract among merchants, trades
men, or others, will the evidence be excluded because the words
are in their ordinary meaning unambiguous ; for the principle of
admission is, that words, perfectly unambiguous in their ordinary
meaning, are used by the contractors in a different sense from that.
(0 B. v. Stoke-uvon-Trent, 5 Q. B. 303.
(i) Ilatton v. Warren, 1 M. & W. 475.
 Admissibility of Extrinsic Evidence. 387

What words more plain than ' a thousand,' ' a week,' ' a day ' ?
Yet the cases are familiar in which ' a thousand ' has been held to
mean twelve hundred ; ' a week ' only a week during the theatrical
season ; ' a day ' a working day. In such cases the evidence neither
adds to, nor qualifies, nor contradicts, the written contract—it only
ascertains it by expounding the language " (?)•

So, there being in every voyage policy of insurance

an implied warranty of seaworthiness, parol evidence
is admissible to show the amount of seaworthiness
required
A few more illustrations will complete the outline of
this doctrine. In Browne v. Byrne, a bill of lading
specified a certain sum as payable for freight, and it
was held that an indorsee, in an action for the amount,
might give evidence of a customary deduction. The
extrinsic evidence in this case, although bordering on
repugnancy, was received because the bill of lading
merely specified a sum certain for freight, without
stipulating that it was to be free of all deductions. If
the bill of lading had expressed, or if from the language
of it the intention of the parties could have been
collected, that the freight at the specified rate should
be paid free from all deductions, customary or other
wise, then it would have been repugnant to it to set up
the usage (»). Under a contract to carry a full and
complete cargo of molasses from London to Trinidad,
evidence has been received to qualify the contract by
showing that a cargo is full and complete, if the ship
be filled with casks of the standard size, although there
be smaller casks of other produce freighted in the same
vessel (o).
Where the defendants buy as brokers for a principal,
whose name they do not disclose at the time of con
tract, it has been held that evidence of a custom will

(0 Per Coleridge, .7. : Browne v. Byrne, 3 E. & B. 703.

(w) Surge* v. Wickham, 3 B. & S. 6f>9.
(«) 3 E. & B. 703 ; of. PhilUpps t. Briard, 1 H. & N. 21.
(«) Outhlert v. Gumming, 11 Ex. 405.
2 c2
388 Law of Evidence.

be admitted to show that in this case the broker is

personally liable on the contract (p). It maybe shown
that by the usage. of trade an inferior kind of palm oil
answers to the description of " best palm oil " [q) ; or
that by the custom of the building trade the words
" weekly accounts " refer to regular day work only (r) ;
or that credit " for six or eight weeks " does not neces
sarily give the whole eight weeks for payment for
goods (s). It is a leading principle that an agricultural
custom, as that a tenant shall have an away-going
crop, is good if not repugnant to the terms of a lease,
although the lease says nothing about it ; but not if
the custom be repugnant to the express or implied
terms of the lease (t). Evidence of surrounding cir
cumstances is admissible to show that a guarantee was
intended to be a continuing one (u).

Expressum facit cessare taciturn.—When the usage

is inconsistent with the express or implied terms of the
written contract, it will be inadmissible to control it,
on the principle expressum facit cessare taciturn (x) ;
and therefore evidence of a custom, inconsistent with
an arbitration clause in a bought note, was held inad
missible (y). In so far as parties have come to an
express contract, usage cannot be implied ; and there
fore, where a person contracts by writing in express
terms, he cannot sue on an implied contract (2). It
seems that no usage will be binding on a party unless
the circumstances raise a sufficient presumption that

(jp) Humfrey v. Dale, 7 E. & B. 261!.

lq~) Lucas v. Bristow, E. B. & E. 907.
()•) Myers v. Sari, 3 E. & E. 30<>.
(*) Ashforth v. Retford, L. K. 9 C. P. 20.
(0 J/rf/irtd v. Meadoivs, L. K. 4 C. 1'. 595 ; {Vigglesworth v. DalUttm,
1 Dougl. 201.
(«) HejHeld t. Meadows, L. R. 4 C. P. 595.
(») Blaekett v. Royal Exchange Assurance Co.,2 C. & .1.250; S«*c\.
Pompe, 8 C. B. (N.s.) 638.
(y) Barrow v. Dyster, 13 Q. B. 1). 633.
(I) Cutter v. Powell, 2 Sm. L. C. 1.
 Admissibility of Extrinsic Evidence. 389

he knew of its existence, and contracted with reference

to it (a) . The mere habit of affixing a special meaning
to words in one class of contracts cannot amount to a
custom of trade, so as to control a written agree
ment (b).

Alterations or interlineations.—Extrinsic evidence

is not only admissible, but necessary, to explain any
alteration or interlineation that may appear in a written
instrument. As a general rule the party tendering it
in evidence must account for the alteration (c)- If
it appears to have been made contemporaneously with
the instrument, or if it was made subsequently to its
execution, with the privity of the parties, and there is
no fraud upon, nor invasion of the stamp laws, its
validity may be maintained, provided it is an immaterial
alteration (d) ; but not if the alteration is material (e).
What is immaterial depends to a great extent upon the
nature of the particular instrument; but if the date (/),
or amount, or time of payment of a bill of exchange be
altered (q), or a joint responsibility is converted into a
joint and several responsibility (h), the instrument will
be void, unless the alteration was made by consent of
the parties ; and equally so, although made with
consent, if the stamp laws are infringed (i). Where
a bill has been altered with the privity of an indorser
and his indorsee, but without the privity of the acceptor,
the latter is discharged (k). The same rule holds when
the alteration is accidental (J), or by a stranger without

(«) Kircliner v. Venus, 12 Moo. P. C. 361.

(ft) Abbott v. Bates, 24 W. li. 101.
(c) Clifford v. Parker, 2 M. & G. 909.
(d) Ifowgate and Oxboni'* Contract, [1902] 1 Ch. 451.
(e) Suffell v. Bank of England, 9 Q. B. I). 555.
(/) Clifford v. Parker, 2 M. & G. 905.
(tj) Warrington v. Early, 2 E. & B. 763.
(It) Alderson v. Kangdalc, 3 B. & Ad. 660.
(/) Perring v. Hone, 4 Bing. 28.
(i) Master v. Miller, 1 Sra. L. C. 796.
(0 Burehfield v. Moore, E. & B. 683.
390 Law of Evidence.

the privity of either party (m). Parol evidence may be

called to show that a variation between a bought note
and a sold note is immaterial (n).
In the case of wills, s. 21 of the Wills Act, 1837,
provides that no obliteration, interlineation, or other
alteration made after execution shall have any effect
except so far as the words or effect of the will before
such alteration shall not be apparent unless such
alteration is executed as provided by the section.

(/«) Baridmm v. Cooper, 13 M. it W. 352 ; Crookwit v. Fletcher,

1 H. & N. 293.
(n) Ilolmet v. Mitchell, 7 C. B. (N.s.) 361.
 PART III.

CHAPTER I.

THE ATTENDANCE OF WITNESSES.

PROCESS.
The attendance of witnesses in the High Court (a),
and, when such process is necessary, in the criminal
courts, is obtained by serving the witness with a
subpoena ad testificandum. If the witness is required
to produce a document he is served with a subpoena
duces tecum. A subpoena can be issued without leave
of the court at any stage of the proceedings (b), but
must not be issued oppressively (c) or prematurely (d).
A subpoena duces tecum ought to specify the documents
required, and the court will not act upon a subpoena
which is too general ; but if a person served with a
subpoena admits that he has the documents required
with him, he must produce them (e). He may be
asked what documents he has with him, and he is
bound to answer the question without being sworn,
and produce the documents. The witness produces
the document to the court and not to the parties, and
the court decides whether it is to be used or not. The

(a) R. S. C. 1883. Order XXXVII., rr. 26—34. See also r. 20.

(A) Raymond v. Taptim, 22 Ch. D. 430.
(<•) Steele v. Sarory, W. N. (1891), 195.
(72) London and Globe Finance Corporation v. Kaufman, 69 L. J. Ch.
190.
(e) Lee v. Angat, L. R. 2 Eq. "»9.
392 Law of Evidence.

witness can, of course, take any legal objection to

producing the document. If a witness attends on a
subpoena duces tecum, with a document which he refuses
to produce on the ground of privilege, secondary evidence
will be admissible. If he does not attend on such a
subpoena or attends and refuses to produce the writing
on any other ground but that of privilege, secondary
evidence will not be admissible, but the witness will be
punishable for contempt (/). A person cannot, of
course, be compelled by subpoena to produce documents
which are not in his possession or under his control.
Thus, a secretary of a company served with a subpoena
to produce the books of the company was held not to
have disobeyed the subpoena by not producing the
books, they having been removed from him since the
service of the subpoena by the board of directors of
the company (9).

PENALTY FOR NON-ATTENDANCE.

(5 Eliz. c. 9, s. 6.)
" If any person upon whom any process out of a court of record
shall be served to testify concerning any cause or matter depending
there, and having tendered to him, according to his countenance or
calling, such reasonable sum of money for his costs and charges,
as with regard to the distance of the place is necessary to be
allowed, do not appear according to the tenor of the process, not
having a lawful and reasonable cause to the contrary, he shall
forfeit for every such offence £10, and yield such further recom
pense to the party aggrieved as by the discretion of the judge of
the court, out of which the process issues, shall be awarded."

If a witness does not attend on his subpoena he

may be proceeded against in either of three ways :
(1) Under the above statute he may be sued for the
penalty of £10, and further recompense ; or (2) in an

(O B. v. Lanftuthly, 2 E. & 15. 940.

(y) See Ji. v. Stuart, 2 T. L. R. 144.
 Attendance of Witnesses. 393

action for damages (h), but, of course, actual damage

must be proved ; or (3) he may be attached for con
tempt of court ; but, on the motion for an attachment,
it must be shown distinctly on affidavit that the
witness was served ; that his expenses were paid or
tendered to him at the time of service ; and that
everything reasonable has been done to secure his
attendance (i).

ATTENDANCE IN CRIMINAL PROCEEDINGS.

Generally the witnesses for a prosecution are bound
over, by the committing magistrate or coroner, on
recognizances conditioned to be forfeited if the witness
does not appear to give evidence on the trial of the
prisoner; but if a witness is not so bound over, his
attendance may, and ought to be, secured at the trial
by serving him previously with a subpoena to appear
and give evidence, on the prosecution of the prisoner,
at the trial. A magistrate or coroner may bind over a
person to appear as a witness at the trial, at any time
before the trial, and may commit him if he refuses to
be bound over. If the witness does not appear, the
recognizance is forfeited and the penalty levied. A
subpoena may be obtained at the Crown Office in
London, from . the clerk of assize at the assizes,
and the clerk of the peace at quarter sessions. If a
subpoenaed witness does not attend he may be attached
or indicted. A prisoner may subpoena witnesses for
his defence (&).. By 30 & 31 Vict. c. 35, s. 3, prisoners
are to be asked by magistrates if they wish to call
witnesses ; if they do, the depositions are to be taken,
and signed, and transmitted to the court of trial in the
same way as the depositions of the witnesses for the
prosecution ; and the magistrate may bind over by

(A) Pearxon v. Ides, Dongl. 561.

(i) Garden v. Crestwdl, i M. & W. 319. (A) 1 Anne, c. 9, s. :i.
394 Law of Evidence.

recognizance to give evidence at the trial such wit

nesses as in their opinion give evidence material to
the case, or tending to establish the innocence of the
accused ; and such witnesses are to be liable to all laws
in force relating to witnesses for the prosecution. This
provision does not extend to witnesses to character.
By s. 5, where witnesses are bound over to appear on
behalf of the prisoner at his trial, the court may allow
their expenses.

ATTENDANCE IN THE BANKRUPTCY COURTS

Is enforced by subpoena issued by the court at the

instance of an official receiver, trustee, creditor, debtor,
or respondent, in any matter (I). The subpoena may
be duces tecum. The names of three witnesses may be
inserted in the subpoena. The subpoena must be
served personally, and service may be proved by
affidavit. Wilful non-compliance with a subpoena is
punishable as a contempt of court.
With the view of facilitating the obtaining of infor
mation as to the debtor, his dealings, or his property,
the Bankruptcy Act, 1883 (46 &47 Vict. c. 52), contains
the following provisions :
Section 27. (1) The court may, on the application of the
official receiver or trustee, at any time after a receiving order has
been made against a debtor, summon before it the debtor or his
wife, or any person known or suspected to have in his possession
any of the estate or effects belonging to the debtor, or supposed to
be indebted to the debtor, or any person whom the court may
deem capable of giving information respecting the debtor, his
dealings or property, and the court may require any such person
to produce any documents in his custody or power relating to the
debtor, his dealings or property (in).
(2) If any person so summoned, after having been tendered a
reasonable sum, refuses to come before the court at the time

(0 Bankruptcy Rules, 1886, 61—71.

(.;;/) The deponent inav be cross-examined, lint lii< evidence cannot lie
contradicted (A> parte Tillry, 20 Q. B. 1J. 518).
 Attendance of Witnesses. 395

appointed, or refuses to produce any such document, having no

lawful impediment made known to the court at the time of its
sitting and allowed by it, the court may, by warrant, cause him to
be apprehended and brought up for examination.
(3) The court may examine on oath, either by word of mouth
or by written interrogatories, any person so brought before it con
cerning the debtor, his dealings or property.

(C) The court may. if it think fit, order that any person who if
in England would be liable to be brought before it under this
section shall be examined in Scotland or Ireland, or in any other
place out of England (w).

These provisions correspond with ss. 96—98 of the

Bankruptcy Act, 1869, under which the following
points were decided :
An irregularity in the summons will be waived by
the appearance of the witness (o). A witness summoned
is not entitled to any costs for the attendance of his
counsel or solicitor, unless he is charged with having
property of the bankrupt in his possession, and is sum
moned to give evidence with respect to it (p). If a
creditor establishes a prima facie case he can obtain
the examination of the debtor or any other person
under the above-mentioned provisions ; but the court
must be satisfied that some benefit will result to the
estate before it will issue a summons on the application
of any person other than an official receiver or a
trustee (7). A witness cannot be ordered to furnish
accounts (r), and is entitled to refuse to answer any
question on the ground that his answer would tend to
criminate himself, but this, of course, does not extend
to the bankrupt («).

00 By s. 3 (16) of the Bankruptcy Act, 1800, this section applies

mutatis m 11fundi* to a trustee appointed under or in pursuance of u
composition or scheme.
R. v. H'iddnp, L. K. 2 C. C. R. S.
(p) Re parte Waddell, 6 Ch. I). 328.
0/) AV parte Kirhohon, 14 Ch. D. 243.
(r) Ex parte Reynold; 21 Ch. 1). 601.
0<) E* parte Selmfield, 6 Ch. I). 230.
39(5 Law of Evidence.

The mere fact that there is an action pending between

the trustee and a third party relating to property
alleged to belong to a bankrupt's estate is not enough
to entitle the trustee to examine such third party
under s. 27 (<). The Begistrar must be personally
present during the examination of a witness (u) . When
a person summoned under s. 27 is too ill to attend the
court, an order may be made for his examination at
his own residence (.r).

ATTENDANCE IN THE COUNTY COUETS.

The County Courts Act, 1888 (y), provides (s. 110),
that—
" Either of the parties to any action or matter may obtain from
the registrar summonses to witnesses, with or without a clause
requiring the production of books, deeds, papers, and writings in
the possession or control of the person summoned as a witness "
[and provides how such summonses are to be served].
Section 111. Every person summoned as a witness, either
personally or in such other manner as shall be prescribed, to whom
at the same time payment or a tender of payment of his expenses
shall have been made on the prescribed scale of allowances and
who shall refuse or neglect, without sufficient cause, to appear, or
to produce any books, papers, or writings required by such sum
mons to be produced, or who shall refuse to be sworn or give
evidence, and also every person present in court who shall be
required to give evidence, and who shall refuse to be sworn or give
evidence, shall forfeit and pay such fine, not exceeding ten pounds,
as the judge shall direct ; and the whole or any part of such fine,
in the discretion of the judge, after deducting the costs, shall be
applicable towards indemnifying the part}- injured by such refusal
or neglect, and the remainder thereof shall be accounted for by
the registrar to the treasurer.
Section 112. A judge in any case where he shall think fit,
upon application on an affidavit by either party, may issue an
order under his hand and the seal of the court for bringing up before
such court any prisoner or person confined in any gaol, prison, or
place, under any sentence or under commitment for trial or other-

(t) Ex parte Oittewt, [1892] 1 Q. B. 046.

R. v. Lloyd, lit B. I). 213.
O) Ex parti- Hawkins, 23 Q. 15. 1). 226.
(y) 51 & 52 Vict. c. 43.
 Attendance of Witnesses. 397

wise, except under process in any civil action, or matter, to be

examined as a witness in any action or matter depending or to be
inquired of or determined in or before such court ; and the person
required by any such warrant or order to be brought before the
court shall be so brought under the same care and custody, and be
dealt with in like manner in all respects as a prisoner required by
any writ of habeas corpus awarded by the High Court to be
brought before such court to be examined as a witness in any
action or matter pending before such court is by law required to
be dealt with : Provided always, that the person having the custody
of such prisoner or person shall not be bound to obey such order
unless a tender be made to him of a reasonable sum for the con
veyance and maintenance of a proper officer or officers and of the
prisoner or person in going to, remaining at, and returning from
such court (2).

Where the witness is beyond the jurisdiction of the

court, the summons is sent by the bailiff to the bailiff
of the court of the district in which the witness
resides.

ATTENDANCE IN MAGISTERIAL PROCEEDINGS.

At common law magistrates may summon any person
to attend as a witness on a criminal charge, and, on
non-attendance, may issue a warrant for his appre
hension (a). When the proceeding is in the nature of
a civil proceeding, as in settlement cases, it appears
that the proper process is by writ of subpoena or sub
poena duces tecum, issuing from the Crown Office (b).
In cases within the 11 & 12 Vict. c. 43 (as explained
by 12 & 13 Vict. c. 103, s. 9), magistrates are empowered
by s. 7 either to issue a summons in the first instance
and a warrant for the apprehension of the witness in
the event of disobedience ; or, if the magistrate be
satisfied that it is probable the witness will not attend,
he may issue his warrant in the first instance. On
indictable charges magistrates have similar statutory
(;) The County Court Kulca as to evidence will be found in the
Appendix.
(a) Erum v. Iter*. 12 A. & E. 55. (J) R. v. Orion, 7 y. B. 120.
398 Law op Evidence.

powers to enforce the attendance of witnesses (c). The

Summary Jurisdiction Act, 1879 (d), empowers a court
of summary jurisdiction to summon witnesses who are
in any place in England which is not within the juris
diction of such court.

ATTENDANCE IN THE WINDING UP OF A COMPANY

FOR THE PURPOSE OF GIVING INFORMATION
AS TO THE AFFAIRS OF THE COMPANY.
Sections 115 and 117 of the Companies Act, 1862 (e),
give the court, after it has made an order to wind
up a company, power to summon before it and examine
upon oath, viva voce or by interrogatories, concerning
the affairs, dealings, estate or effects of the company,
any officer of the company or person known or suspected
to have in his possession any of the estate or effects of
the company, or supposed to he indebted to the com
pany, or any person whom the court may deem capable
of giving information concerning the trade, dealings,
estate or effects of the company ; and the court may
require any such officer or person to produce any books,
papers, deeds, writings, or other documents in his
custody or power relating to the company. An order
under s. 115 may be obtained by the liquidator of the
company, or by a contributory, on notice to the liqui
dator, as the latter has the prior right to the order. The
making or refusing of the order is entirely in the dis
cretion of the judge (/). The witness can refuse to
answer questions on the ground that his answers would
incriminate him or would involve a breach of profes
sional confidence, and he can appeal to the judge,
before whom the examination takes place, against

(c) 11 & 12 Vict. c. 42, s. 16.

(rf) 42 & 43 Vict. c. 49. (r) 25 & 26 Viet. c. 80. See Appendix.
(/) Be Imperial Continental Water Corporation, 33 Ch. D. 314.
 Attendance of Witnesses. 399

unnecessary or irrelevant questions ; the decision of the

judge in such a matter is final ig) .
The examination under this section is a private one,
although the court can authorise any particular person
to attend (h) . The depositions are not evidence against
other persons (i). But s. 8 of the Companies (Wind
ing-up) Act, 1890 (k) , provides for a public examination
on oath, before the court which has made an order for
winding up a company, on a day appointed for the
purpose, of any person who has taken any part in the
promotion or formation of the company, or has been a
director or officer of the company, as to the promotion
or formation of the company, or as to the conduct of
the business of the company, or as to his conduct and
dealings as director or officer of the company. A
person so examined is to answer all questions which
the court may put or allow to be put to him, and the
court may put such questions as it deems expedient.
The notes of the examination are to be read over to, or
by, and signed by, the person examined, and may be
afterwards used in evidence against him. But it would
seem that the statements made by the person examined,
even though the notes of his examination are not read
over to, or by him, and signed by him, may be proved
against him by the evidence of a shorthand writer,
or any other person who was present (I).
But no person can be directed to attend to be
examined under this section until the official receiver
has made his further report (if any) under sub.-s. (2) of
the section, stating the manner in which the company
was formed, and whether in his opinion any fraud has

(j) lie London Gas Meter Co., Limited, Ex parte Webber, 41 L. J.

Ch. 145 ; and Whitworth'i Case, 19 Ch. D. 118.
(A) Re Grey's Brewery Co., 2b Ch. 1). 400 ; ef. Re Norwich Equitable
Fire Insurance Co., 27 Ch. 1). 515.
(') Re Norwich Equitable, etc. Co., ubi supra.
(&) 53 Sc 54 Vict. c. 63. See Appendix.
(0 See R. v. Erdheim, [1896] 2 Q. B. 260. a decision upon the Bank
ruptcy Act, 1883.
400 Law op Evidence.

been committed by any person in the promotion or

formation of the company, or by any director or officer
of the company in relation to the company since the
formation thereof. It is only upon consideration of
such further report that the court has jurisdiction to
direct any person to attend to be examined, and
obviously it can only direct a person to attend who
is stated in such report to have committed fraud (m).
In addition the report must state facts showing a
basis for the official receiver's opinion sufficient to
warrant a judge in calling upon the person who has
in the opinion of the official receiver committed a fraud
to undergo a public examination (n). The order can
be made ex parte (o). It should be noticed that by
sub-s. (7) of the section, it is the " duty" of the person
examined "to answer all such questions as the court
may put or allow to be put to him " ; and, by sub-s. (G),
the court may put such questions as it deems expedient.
The question then arises,—can the person examined
refuse to answer a question which the court puts or
allows to be put to him on the ground of privilege, e.g.,
that the answer would criminate him ? It is the view
of Lord Halsbury (p) that he cannot ; but it is sub
mitted that this is an erroneous construction of the
section. If the legislature had intended to take away
the protection of privilege they would undoubtedly
have done so expressly, as has been done in several
statutes (q).

ATTENDANCE IN OTHER CASES.

Revising barristers may summon by writing an}r
person, assessor, or collector of taxes, to attend before
them and give evidence on oath (r). The attendance
(hi) Ex parte Burma, [1890] A. 0. 146.
(») Re Ciril, Naval, and Military Outfitter*, [1899] 1 Ch. 215.
(») Re Trutt and Investment Corporation o} South Africa, [1892]
K Ch. 332.
(?) See p. 97.
(;•) Parliamentary and Municipal Registration Act, 1878, 8. 36.
 Attendance of Witnesses. 481

of witnesses before arbitrators is enforced by sub

poena (s). A witness may be brought from a lunatic
asylum on a writ of habeas corpus ad testificandum, on
an affidavit that he is fit to be brought up and is not
dangerous (t) . In the House of Lords, the summons is
by an Order of the House, signed by the Clerk of the
Parliaments ; but in select committees attendance is
generally secured by notice from the clerk attending
the committee ; in the House of Commons, by an Order
of the House, signed by the Clerk ; in select com
mittees, by an order of the chairman. But if a witness
does not attend on such Order he will be summoned to
the Bar of the House (u). Provision is made for the
summoning, examination, expenses of and indemnity
to witnesses on Election Petitions by 31 & 32 Vict,
c. 125, ss. 31, 32 and 34; and 46 & 47 Vict. c. 51,
s. 59.

WHERE A WITNESS IS BEYOND THE JURISDICTION

OF THE C©URT.
In this case the process of the courts does not, as a
general rule, reach a witness ; and the examination
must be by means of a Commission, or Letter of
Request, the proceedings upon which will be regulated
by the law of the country to which it issues (x).
Where the Commission issues to a part of the realm
which is subject to different laws from that part in
which the Commission issues, the commissioner may.
by a written notice, signed by him, require the atten
dance of a witness, and, on his refusing to attend, may
apply to the local courts for an order to compel atten
dance ; and the witness will then be subject to the
ordinary penalty for disobeying a subpoena, or a writ in
0) Arbitration Act, 1889 (52 & 53 Vict. c. 49), s. 8.
It) Fenncll v. Tait, 1 C. M. & R. 584.
(a) See May's Parliamentary Practice, 10th cd.. pp. 401 et mq.
(at) Cf. Part III., Chap. VI.; Lumlnj v. Gyc, 3 El. & Bl. 114.
L. K.
402 . Law of Evidence.

the nature of a subpoena (//). This extends to the

examination of witnesses in any of his Majesty's
dominions, colonies, or possessions (z).
But, by 17 & 18 Vict. c. 34, s. 1, the judges, or a
judge of the superior courts of common law at West
minster or Dublin or the Court of Session of Exchequer
in Scotland, may, at discretion, in any action pending
in any such court, issue a subpoena ad testificandum, or
duces tecum, or warrant of citation, commanding a
witness in any part of the United Kingdom to attend
the trial ; and in default of attendance, after due
service of the writ and tender of travelling expenses,
the court from which the writ issued may certify the
default to the other superior courts, and so render the
defaulting witness liable to all the penalties which he
would have incurred by disobeying a similar writ issued
within the jurisdiction in which he resides. This Act
is not to affect the power of courts to issue commis
sions, and its operation is confined to process from the
superior courts of common law. Under this section a
rule has been granted to compel a plaintiff resident in
Ireland to appear as a witness for the defendant (a).
The jurisdiction can by virtue of s. 16 of the Judicature
Act, 1884, be now exercised by a judge in chambers
whether the High Court is sitting or not.

WHEN A WITNESS IS IN PRISON.

An application may be made to a judge of the High
Court at chambers, on affidavit, stating the imprison
ment of the witness if detained on civil process, that
his evidence is material to the applicant, and that he
cannot proceed safely to trial without securing his
attendance. The judge, if satisfied with the substance

(y) 6 & 7 Vict. c. 82, ss. 5, 6. 0) 22 Vict. c. 20, s. I.

(a) Harris v. Barber. 25 L. J. Q. B. 98.
 Attendance of Witnesses. 408

of the application, will then grant the applicant a writ

of habeas corpus ad testificandum directed to the
governor of the gaol in which the prisoner is confined,
and commanding him to bring up the prisoner for
examination at the trial (b). A Secretary of State or a
judge of the High Court or of a county court has
power, on a similar application, to issue a warrant, or
order to bring up, as a witness in any civil or criminal
proceeding, any prisoner in custody on a criminal
charge (c) . An order ought not to be drawn up until
the case is in the paper for trial (d). By the Prisons
Act, 1898, s. 11, a Secretary of State on proof to his
satisfaction that the presence of a prisoner at any
place is required in the interest of justice or for the
purpose of any public inquiry may, by writing under
his hand, order the prisoner to be taken thither.

MANNER AND TIME OF SERVICE.

The service must be on the witness personally (e) ;
and is effected by delivering a copy of the writ, and at
the same time producing the original. The service
must be a reasonable time before trial ; and, generally,
service on the day of trial, even when the witness
resides in the town, is insufficient (/) ; unless the
witness receives the service without objection (g).
During his attendance the witness is privileged from
arrest on civil process, and he is allowed a reasonable
time in going and returning from court (h). If he is
arrested during that time, it is a contempt of court (i).

(i) Graham v. Olover, 5 El. & Bl. 591 ; Marsden v. Overbury,

18 C. B. 34.
(>) 16 & 17 Vict. c. 30, 8. 9. (rf) Jt nks v. Dillon, 76 L, T. 591.
(e) In re Pyne, 1 D. & L. 703.
(/) Barber v. Wood, 2 M. & R. 172.
lg) Maunsell v. Ainiworth, 8 DowL 1'. C. 869.
(A) Montague v. Harrison, 3 0. B. (N.s.) 292.
(i) Kimpton v. London and North Western Hail. Co., 9 Ex. 7G6.
2D 2
404 Law of Evidence.

The privilege does not extend to an arrest on criminal

process (k), nor where the witness is retaken by his
bail, after he has finished his evidence. The privilege
exists whether the witness's attendance be compulsory
or voluntary (I) , but not in cases in which the witness
attends rather as an unprofessional adviser than as a
solicitor or witness (m) .
A witness may be arrested for a contempt of court if
the contempt is in its nature or by its incidents
criminal, but not where the contempt consists in the
breach of an order of a personal description if the
breach is not accompanied by criminal incidents, i.e.,
where the arrest is mere process privilege exists, where
it is punitive or disciplinary privilege does not
exist («). So. as a process of commitment for non
payment of rates is a mere civil process to enforce
payment, a witness cannot be arrested thereunder (o).

EXPENSES OF WITNESSES.
By 5 Eliz. c. 9, s. 6, a witness is substantially
rendered liable to penalties if he does not attend at the
trial, after having been served with process out of a
court of record, and having tendered to him, according
to his countenance or calling, such reasonable sum of
money for his costs and charges, as with regard to the
distance of the place is necessary to be allowed ; he
not having a lawful and reasonable cause to the con
trary. Therefore, in civil proceedings, no witness,
although served with a subpoena, is bound to attend at
trial unless his reasonable expenses are tendered to him

(It) la re Dovglas, 3 Q. B. 825.

(0 Meriting v. Smith, 1 II. HI. 636.
0») Jone* v. Marshall. 2 C. B. (N.S.) 615.
(») See Hi- Fretton, 11 Q. B. D. 515, approving Long Wellesley's Case.
2 R. & M. 639.
(«) Hubern v. Fowler, 62 L. J. Q. B. 4!).
 Attendance of Witnesses. 405

when he is served, or a reasonable time before trial.

The sum tendered should be a reasonable compensation
for his travelling expenses and subsistence during the
attendance (p). A witness will be entitled to his
expenses, although a party to the cause, if he is a
material and necessary witness (q). If the witness is
a married woman her expenses should be tendered to
her and not to her husband. If a witness is subpoenaed
by both parties he is entitled to be paid all his expenses
by the party calling him before giving evidence (r).
The witness may waive his right to demand payment
of his expenses either expressly or by implication (s).
The amounts which will be allowed on taxation for the
expenses of witnesses are at present entirely in the
discretion of the taxing masters under Order LXV.,
Kule 27 (9) of the R S. C. 1883, and the old common law
scale of allowances of 1853 is not binding on them even
in actions in the King's Bench Division (<). In
criminal cases a witness for the prosecution is not
entitled absolutely to his expenses, and he cannot refuse
to attend or give evidence on the ground that his
expenses have not been tendered or paid ; but in courts
of final jurisdiction they are generally allowed by the
court under various Acts. When the witness lives out
of the jurisdiction of the court, and in a distant part of
the United Kingdom, as in Scotland or Ireland, by the
45 Geo. 3, c. 92, s. 3, he is not bound to appear to give
evidence in a criminal prosecution unless his reasonable
expenses are paid or tendered to him at the time when
he is served with the subpcena (u). In any other case

(y>) Dowiiell v. Auttralian Royal Mail Co., 3 El. & Bl. 902 ; Brocae v.
Lloyd, 23 Beav. 129.
(?) Howet v. Barhn; 18 Q. B. 588.
O) Per Parke. B. : Allen v. Yoxall, 1C.4K. 316.
(*) See Newton v. ffarland, 1 M. & G. 95S.
(<) See Eatt Stonehoute Local Board v. Victoria Brewery Co., [1895]
2 Ch. 514. See also notes to O. 65, r. 27 (9) in the Yearly Practice, 1904.
p. 689.
(k) R, v. Brownell, 1 A. & E. 602.
406 Law op Evidence.

a witness, subpoenaed on a criminal trial, is bound to

attend without any tender of expenses, and will be
liable to attachment for non-attendance ; although if it
appeared that he could not defray the expenses of his
journey, the court would probably refuse to attach
him.
If a witness appears on his subpoena in a civil
proceeding, he will not be compellable to give evidence
until his reasonable expenses have been paid, or
tendered by the party who subpoenas him (x). If he
does not arrive before a cause has been referred, he
will be entitled to costs in the reference, but not in the
cause (y).
A successful party may pay a witness his costs, and
recover them from the defeated party (c) ; but an
immaterial witness who has been rejected by a judge or
arbitrator, cannot claim his costs as between party and
party (a). The reasonable expenses of qualifying a
witness to give evidence may now be allowed (b). If
the witness, after being subpoenaed, is not required to
attend, and has incurred no expense, he must refund
the money paid to him (c).

(*) Newton v. Harland, 1 M. & G. !>r»6.

(.y) Fryer v. Start, 16 C. B. 218.
(.-) Hale v. Hates, E. B. & E. 575.
(«) Galloway v. Kenworth, 15 C. B. 22S.
(A) Maekley v. ChiUingworth, 2 C. P. 1). 273.
(<?) Martin v. Andrew*, 7 El. & HI. 1.
 ( 407 )

CHAPTEB II.

THE EXAMINATION OF WITNESSES.

When a witness has been placed in the witness box,

and no objection is taken or sustained against his
competency by the adverse party, he must be sworn by
the officer of the court, or, when an affirmation is
allowed, he may declare on affirmation (a). He may
then be submitted to three distinct kinds of examina
tion as to his knowledge of the facts which he is called
to prove. (1) He may be examined in chief by the
party who calls him. (2) He may be cross-examined
by the adverse party. (3) He may then be re-examined
by the party who calls him. Although it is obvious
that the regulation of the examination of the witnesses
in any given trial must be left mainly to the discretion
of the presiding judge, yet certain general rules have
been established for the conduct of such examination,
and it is the purpose of this chapter to state and
explain them.

THE EXAMIXATION-IN-CHIEF.
The object of the examination-in-chief is to elicit
from the witness all the material facts which tend to
prove the case of the party who calls the witness. In
such a case, as the presumption and the ordinary fact
are that the witness, having been chosen by the party
who calls him, is favourable to his cause, and therefore
likely to overstate or misstate the circumstances which

(«) Vide mpra, p. 24.

408 Law of Evidence.

conduce to establish the party's case, it is a principal

rule that—

On an examination-in-chief, a witness must not

be asked leading questions.

The simple meaning of this rule is that a party, who

calls a witness to prove a case, must not suggest
answers to the witness, nor frame his questions in such
a manner that the witness by answering merely " Yes,"
or "No," shall give the reply and the evidence which
the party wishes to elicit. A question is said to be
leading when the words which the witness is expected
and required to utter are put into his mouth, or when
it suggests to the witness the answer which the
examiner wishes or expects to have ; and such a ques
tion is inadmissible, because the object of calling
witnesses and examining them viva voce in open court
is, that the judge and jury may hear them tell their
own unvarnished tale of the circumstances which they
are called to attest. If, therefore, a party or his counsel
were allowed to put a question to their own witness
which the latter might answer by a mere affirmative
or negative, it is apparent that the evidence would be
the statement of the party, and not that of the witness.
Such a course would strike radically at the credibility
of all oral evidence, and therefore it is a sound and
established rule that, on the examination-in-chief,
leading questions must not be asked.
The rule may be exemplified thus : A. B. is charged
with stealing a watch the property of C. D. E. F. saw
A. B. take the watch from the counter in C. D.'s shop.
Now, if the counsel for the prosecution, in order to
prove the theft, were to call E. F., and ask him whether
at such time he saw A. B. enter C. D.'s shop, and take
the watch from the counter, it is plain that such a
 Examination op Witnesses. 409

question would be leading, because it would at once

suggest to the witness the answer which he was
expected to make, and the prisoner would be convicted
by an answer simply in the affirmative. The answer
to the latter branch of the question involves the whole
question of guilt, and the substance of the charge.
The witness ought, therefore, to be asked, not whether
he saw the prisoner commit the offence, but what he
saw the prisoner do at the time when and at the place
where it is alleged that the offence was committed. It
is also to be noticed that questions are not objectionable
as leading questions while the examination is only
introductory to what is material. Thus, in the above
example, it would be quite proper, for the purpose of
saving the time of the court, to ask the witness whether
at a specified time he entered C. D.'s shop, and even
whether at that time he saw the prisoner there, and
near the counter. Such questions are quite immaterial,
and may therefore be put in the shortest and most
direct manner possible, because the answer cannot
inculpate the prisoner in any proximate degree, nor
even at all ; but when the real issue is approached,
and when it is sought to fix guilt on the prisoner, the
witness must be asked, not whether he saw the prisoner
do a certain act, but what he saw the prisoner do.
Such a course of examination is clearly necessary to
prevent, at least in some measure, the possibility of
collusion between a prosecutor, or a party, and his
witness.
It may be observed, that where an adverse party has
reason to suspect collusion between his opponent's
witnesses, or even where he is without any ground of
reasonable suspicion, he may apply to the court, in any
civil or criminal proceeding, to order all such witnesses,
or any of them, with the exception of the one under
examination, to leave the court ; and such an order,
410 Law of Evidence.

although apparently not absolutely a matter of right,

is never refused to the applicant (b) . The order does
not usually extend to a witness who is also a party, nor
to a solicitor in the action, nor to scientific witnesses.
If a witness remains in court after such an order, it
seems that he may be attached ; but his evidence will
be received although subject to strong observation (c).
Witnesses are only excluded while evidence is being
given viva voce, and not while affidavits are being
rgad (d).
The rule that leading questions must not be asked
on an examination-in-chief is neither inflexible nor
universal. The conduct of all viva voce examination is
at all times subject to the discretion and direction of
the judge : and, although he will enforce vigilantly the
general rule, yet there are also various cases in which
he will suffer it to be relaxed. The foundation of the
rule is, that the witness is favourable to the party who
calls him. Whenever, therefore, it appears that the
witness is hostile, or that his evidence cannot be ,
extracted by general questions as to his knowledge of
material facts, the judge may, and will, permit the
party, or his counsel, to put a leading question to him
point blank as to a material fact, and require him to j
answer it in the affirmative or negative. In such a
case an examination-in-chief generally assumes the
form of a cross-examination ; but it is in the absolute
discretion of the judge to allow this or not (e). A party
who calls his opponent as a witness, is not entitled to
treat him as hostile, and cross-examine him without
the leave of the court (/). Again, where a question
from its nature cannot be put except in a leading form,

(!/) Southey v. Nath, 7 C. 4c P. 632 ; H. v. Murphy, 8 C. ic P. 307 ;

of. R. v. Cook, 13 How. St. Tr. 348.
O) Chandler v. Home, 2 M. & K. 423.
(<2) Penniman v. Hill, 24 W. R. 245.
(e) Price v. Manning, 42 Ch. D. 372.
(/) Price v. Manning, vbi supra.
 Examination of Witnesses. 411

the judge will allow it to be put. Thus, where an

offence is proved, a prisoner may be pointed out to a
witness, and the latter may be asked whether the
prisoner was the man whom the witness saw commit
the offence (g). So where a witness has manifestly or
apparently forgotten a circumstance, and all indirect
attempts to recall it to his mind have failed, the cir
cumstance may be put to him in a leading form, and
he may be asked whether he remembers it. Thus,
where a witness stated that he could not remember the
names of certain persons, but that he should remember
and be able to identify them if they were read to him,
Lord Ellenborough allowed this to be done (/;).
On this principle it is allowable to hand a witness a
memorandum in his own writing, containing an account
of the disputed facts, and to ask him to peruse it and
give his evidence from his memory, as refreshed by his
own memorandum. Where such a memorandum is
used, the opposite counsel has a right to inspect it, and
to cross-examine the witness on it (i).
The next important rule, under the head of the
examination-in-chief, is that :

A witness must be asked only questions of

fact which are relevant and pertinent to the
issue ; and he cannot be asked irrelevant
questions, or questions as to his own in
ferences from, or personal opinion of, facta.
The latter part of this rule, and the exception to it in
the case of skilled or scientific witnesses, was considered
in the sixth chapter of the first part of this treatise ; and
it is sufficient in this place to refer to it.

0/) R. v. Watttm, 2 Stark. 128.

(A) Acerro v. Petroiti, 1 Shirk. 100.
(0 Doe v. Perkint, 8 T. K. 749 ; and see Part II.. ('Imp. IV.
412 Law of Evidence.

THE RIGHT OF A PAETY TO DISCREDIT HIS OWN

WITNESSES.
Sections 3 and 4 of the Criminal Procedure Act,
1865 (k), determine the conditions under which a
party to a civil proceeding may contradict by other
evidence the statement of a witness who has proved
unexpectedly adverse to the party who calls him.
Section 'A.—A party producing a witness shall not be allowed to
impeach his credit by general evidence of bad character; but he may,
in case the witness shall in the opinion of the judge prove adverse,
contradict him by other evidence, or, by leave of the judge, prove
that he has made at other times a statement inconsistent with his
present testimony ; but before such last-mentioned proof can be
given the circumstances of the supposed statement, sufficient to
designate the particular occasion, must be mentioned to the witness,
and he must be asked whether or not he has made such statement.
Section 4.—If a witness, upon cross-examination as to a former
statement made by him relative to the subject-matter of the indict
ment or proceeding, and inconsistent with his present testimony,
does not distinctly admit that he has made such statement, proof
may be given that he did in fact make it ; but before such proof
can be given, the circumstances of the supposed statement, sufficient
to designate the particular occasion, must be mentioned to the
witness, and he must be asked whether or not he has made such
statement.

In order that a party may have the benefit of these

sections, the evidence of the witness must not only be
unfavourable but hostile to the party who calls him.
In other words, the judge must hold not only that the
result of the evidence is unfavourable to the party who
calls the witness, but that the mode and tone in which
the evidence is given indicate that the witness has a
hostile feeling towards the party who has called him,
believing the witness to be friendly (I). The two state
ments need not be directly contradictory (m). These
provisions apply to every civil and criminal court in
England and Ireland.
(*) 2R Vict. c. 18.
(0 Greenkmtgh v. Ecclet, 5 C. B. (x.s.) 786.
(m) Jackson v. TKomaton, I B. & S. 745.
 Examination of Witnesses. 413

THE CROSS-EXAMINATION.
When a witness has been examined in chief by the
party who calls him, the opposite party, or his counsel,
has a right to cross-examine him. This right is discre
tionary, and when the examination-in-chief has resulted
in clear, conclusive, or unimpeachable evidence, it will
be prudent for the adverse party not to claim his
privilege ; for cross-examination in such a case, instead
of weakening the evidence, generally strengthens and
confirms it. So, where the adverse party does not
dispute the truth of his opponent's case, but relies on a
justification or an excuse, he will not think it desirable,
generally, to cross-examine a witness.
Objects of cross-examination. — As the object of
the examination-in-chief is to lay all the material
evidence of a case before the court, so the objects of
cross-examination are to impeach the accuracy, credi
bility, and general value, of that evidence ; to sift,
detect, and expose discrepancies, or to elicit suppressed
facts, which weaken or qualify the case of the examin
ing party, and support the case of the cross-examining
party. It is therefore, generally, a rule that on cross-
examination an adverse witness may be asked leading
questions («).
The reason for excluding leading questions on the
examination-in-chief, on which the witness is generally
favourable to the examiner, does not usually apply to
cross-examination, on which the witness is as generally
hostile to the cross-examiner. Accordingly, on cross-
examination, a witness may be asked in direct words as
to the truth or falsehood of a matter which bears sub
stantially on the issue. Thus, in debt for goods, when
the defence is an unexpired term of credit, a witness
who proves the sale and the debt cannot properly be

(«) R. v. Ilnnhj, 24 How. St. Tr. 7">f>.

414 Law of Evidence.

asked in chief whether he sold a particular description

of goods to the defendant at a certain price and for
present payment ; but he should be asked separately
whether he sold any goods at all, and, if so, what they
were, and what were the terms of payment. On the
other hand, in cross-examination he may be asked
about the goods specifically and by name, and whether
it was not understood between the parties that the
purchaser was to have a specific time, such as a year,
of credit ; but the rule under consideration appears to
be, and is practically, subject to the restriction that a
witness, even on cross-examination, can be asked lead
ing questions only if he is, or appears to be, adverse to
the cross-examiner ; and where the witness appears to
be favourable to him, the court will sometimes, and
even frequently, not suffer even a cross-examiner to
lead his opponent's witness. Thus, on Hardy's trial,
a witness for the prosecution, on evincing a favourable
disposition towards the prisoner, was asked by his
counsel, whether, at a meeting, certain persons had
not used certain specified expressions which, if uttered,
would have been favourable to the defence ; but the court
held that in such a case counsel could not put words
into the witness's mouth ; and Buller, J., said :
" You may lead a witness upon a cross-examination to bring him
directly to the point as to the answer ; but you cannot go the
length of putting into the witness's mouth the very words which
lie is to echo back again " (o).

In examining in chief, the object of the party should

be to elicit from the witness all the material facts
which he is called to prove, and to take especial care
that the witness does not stand down before the latter
has proved that part of the case which he is expected
to prove. Generally, it is desirable and proper to ask
him only such questions as will confine him to the

(») 24 How. St. Tr. 059.

 Examination of Witnesses. 415

matter in issue, and such as will elicit his own personal

and independent account of it. Unless he deviates
into hearsay or other inadmissible kinds of evidence,
or unless he rambles into utterly irrelevant matters, it
is always the right, as it is generally the prudent,
course not to interrupt a witness when examining him
in chief. If he is hostile or dishonest, a more stringent
style of examination may be adopted ; but if he is
favourable, or even adverse, but honest, a party will
seldom lose anything by suffering a witness to give his
own ungarbled version of a circumstance ; and such a r
course will always be most satisfactory to the court, /
and most conducive to the administration of justice.
In criminal cases, especially where a prisoner is not
defended, it is the practice, and probably the duty, of a
prosecuting counsel, to ask a witness questions which
are favourable in their object to the prisoner ; for the
duty of a prosecuting counsel is to lay all material
evidence impartially before the court, and not to press
for a conviction. In all such cases, and in cross-
examination as on the examination-in-chief, the court
will exercise its discretion as to how far it is desirable
and consistent with the ends of justice to allow a
question to be put in a leading form. It has been
stated, however, by Aldebson, B., that the right to
lead on cross-examination exists whether the witness
be favourable or not (p).
Great latitude is allowed as to the questions which
a party is permitted and entitled to ask on cross-
examination, and he will seldom be stopped by the
court unless the question is manifestly irrelevant to
the case, and calculated neither to qualify the exami
nation-in-chief nor to impeach the credit of the witness.
It is manifest that questions, which would be clearly
irrelevant on the examination-in-chief, may be of the

(;;) Parkin v. Mum, 7 C. & P. 408.

416 Law of Evidence.

highest importance when asked on cross-examination.

Generally speaking, in cross-examination a witness
may be asked any question, the answer to which inay
have a tendency to affect his credit ; but he will not
always be obliged to answer such questions ; and,
generally, he may be asked questions which affect his
veracity or his memory, such as, whether he has been
convicted on a trial on a criminal charge ; whether he
is a relation, or intimate friend, or under any special
obligation, to the party who calls him ; whether he is
not identified or connected with him in interest ;
whether he has not been on terms of enmity with
the adverse party ; and whether his memory is not
defective generally, or as to the particular transaction.
Such questions are within the circumference of the
issue, although not within that inner circle to which
the examination-in-chief is confined.
By the R. S. C. 1883, Order XXXVI., Rule 38—
" The judge may in all cases disallow any questions put in cross-
examination of any party or other witness which may appear to
him to be vexatious, and not relevant to any matter proper to be
inquired into in the cause or matter."

This provision was new ; but the court had always

power to stop a rambling, prolix, or irrelevant cross-
examination. Where the questions appear to be
irrelevant, but the cross-examiner undertakes to show
that they are material, they will not be disallowed (q).
Generally speaking, a cross-examination will be held
irrelevant where it tends neither to contradict nor to
qualify the result of the examination-in-chief, nor
to impeach the credit of the witness. It is also
irrelevant in civil proceedings, when it is sought to
infer an act of a party from his dealings with a third
party. Thus, in an action for a nuisance, the de
fendant's witness cannot be asked on cross-examination

(?) Hahjh v. Belchtr, 7 C. it P. 389.

 Examination of Witnesses. 417

whether compensation for a similar nuisance has not

been paid by the defendant to a third person in the
same position as the plaintiff (r). So, evidence of the
mode in which a party has contracted with third
parties is no evidence of the mode in which he con
tracted with the adverse party in a similar transaction ;
and the latter cannot ask a witness on cross-examination
as to the terms on which the party contracted with
such third parties (s). Again, a witness cannot be
asked as to the statement or admission of a third person
to show that a liability belongs to such third person,
and not to the party charged, for such evidence would
be hearsay (t) ; but he may be asked whether such a
third person is not the person to whom a credit was
given, or who was dealt with as the party originally
liable, and it seems that he may be asked such a
question as the foregoing, in order to test his memory
or credibility (s). ,
If a witness, after being sworn, is not examined in
chief, the counsel of the other party has a right to
cross-examine, unless the witness has been called under
a mistake, e.g., under the mistaken idea that he knew
something of the transaction he was called to prove,
when in fact he knew nothing («).
j A witness who has been called by neither party may
be called and examined by the judge, and then he is
the witness of the judge and not of either of the
parties. The rules as to the cross-examination of
such a witness have thus been stated by Lord
Esher, M.E. :
" The counsel of neither party has a right to cross-examine him
without the permission of the judge. The judge must exercise
his discretion whether he will allow the witness to be cross-
examined. If what the witness has said in answer to the questions

O) Tennant v. Hamilton, 7 C. & F. 122.

(*) HoUiHgham v. Head, 4 C. B. (N.S.) 38*.
(0 WatU v. Lynns, 6 M. & G. 1047.
(i/) Wood v. Machinson, 2 Moody & Hob. 27H.
I.. E.
418 Law of Evidence.

put to him by the judge is adverse to either of the parties, the

judge would no doubt allow, and he ought to allow, that party's
counsel to cross-examine the witness upon his answers. A general
fishing cross-examination ought not to be permitted " (x).

When a prisoner calls a witness who criminates

another prisoner, the latter has a right to cross-examine ;
but it seems there is no such right when the evidence
is not criminatory (y). When a prisoner elects to give
evidence on his own behalf under the Criminal
Evidence Act, 1898, and in so doing incriminates a
fellow prisoner, the latter has a right to cross-
examine (z).

IMPEACHING THE CHARACTER OF A WITNESS.

In order to impeach the character of a witness, he
may be asked, on cross-examination, whether he has
committed any crime, or been guilty of other immoral
conduct ; but generally, if he answers in the negative,
the fact cannot be proved by the cross-examiner unless
it be material to the issue. In other cases the answer
of the witness is conclusive (a). Generally, evidence
of bad character cannot be given ; but an exception to
this general rule in civil proceedings was instituted by
the Common Law Procedure Act, 1854, and now by
the Criminal Procedure Act, 1805 (b), s. 6, which ap
plies in all courts, criminal as well as civil, it is enacted
that—
" A witness may be questioned as to whether he has been con
victed of any felony or misdemeanor, and upon being so questioned,
if he either denies or does not admit the fact, or refuses to answer,
it shall be lawfnl for the cross-examining party to prove such
conviction ; and a certificate containing the substance and effect

O) Couhon v. DUhorough, [1891] •} Q. B. 316.

(y) R. v. Burdett, Dears. C. C. 431, followed It. v. Badueii, [1U02]
1 K. B. 886.
(:) Ii. v. Hadwen, nbi supra.
(i) 28 Vict. c. 18.
 Examination of Witnesses. 419

only (omitting the formal part) of the indictment and conviction

for such offence, purporting to be signed by the clerk of I he court
or other officer having the custody of the records of the court
where the offender was convicted, or by the deputy of such clerk
or officer (for which certificate a fee of five shillings and no more
shall be demanded or taken), shall, upon proof of the identity of
the person, be sufficient evidence of the said conviction, without
proof of the signature or official character of the person appearing
to have signed the same."
It has been held that a party to a cause, who gives
evidence on his own behalf, may be asked in cross-
examination if he has ever been convicted of any felony
or misdemeanor, and that if he denies or refuses to
answer, the opposite party may prove the conviction,
although the fact of the conviction may be altogether
irrelevant to the matter in issue in the cause (c).
If a witness is asked on cross-examination whether
he ever made, a former verbal statement, as to matters
connected with the issue, different to that which he
has made at the trial, and he answers in the negative,
evidence may be given that he has made such a former
statement ; but it is necessary to lay a foundation for
such evidence by first stating to the witness all the
circumstances under which he is supposed to have
made such a former and contradictory statement, in
order that he may have an opportunity of refreshing
his memory, and explaining the discrepancy (d). In
the words of Alderson, B. :
" A witness may be asked any question which, if answered,
would qualify or contradict some previous part of that witness's
testimony, given on the trial of the issue, and, if that question is
put to him and answered, the opposite party may then contradict
him. . . . You may ask him any question material to the
issue, and if he denies it you may prove that fact, as you are at
liberty to prove any fact material to the issue" («).
This principle has also been extended by s. 4 of
the Criminal Procedure Act, 1865 (/), which is
(p) Ward v. Siafield, 49 L. .T. C. P. 697.
(<0 Crawley v. Page, 7 C. k P. 791.
(V) Attorney- General v. Hitchcock, 1 Ex. 102.
2 E -1
420 Law op Evidence.

applicable in all courts, civil and criminal, and enacts

that—
" If a witness, upon cross-examination as to a former statement
made by him relative to the subject-matter of the indictment or
proceeding, and inconsistent with his present testimony, does not
distinctly admit that he has made such statement, proof may be
given that he did in fact make it ; but before such proof can be
given the circumstances of the supposed statement, sufficient to
designate the particular occasion, must be mentioned to the witness,
and he must be asked whether or not he has made such statement."

A witness may be recalled for the purpose of proving

an inconsistent statement made by a subsequent
witness (g).
In other cases, where a witness is asked on cross-
examination a question which is not material to the
subject-matter of the case, and which is intended
merely to impeach his veracity, it was long doubted,
and is still doubtful in some measure, how far evidence
can be given to contradict an answer to such an imma
terial question. There are authorities both ways ; but
the modern doctrine appears to be that, although such
evidence cannot be received to disprove a statement of
the witness as to an irrelevant fact, it may be given in
some cases to contradict an answer to a question which
tends to impeach his general veracity.
When it is sought to impeach the veracity of a
witness, evidence cannot be given of any particular
acts of falsehood or dishonesty, because it is presumed
that a witness does not attend prepared to rebut
particular charges nor to justify the whole course and
details of his private life. A witness, therefore, who
is called, as is allowable, to impeach the veracity of
another witness, cannot be asked as to particular acts
in the life of the impeached witness, but generally
only whether he would believe him on his oath (h).

(/) 28 Vict. c. 18.

(t/) Syke* v. Ilaig, 4i L. T. (N.8.) 67.
(/() 7?. v. Bropham, i C. & P. 392 ; S. v. Brown, 36 L. J. M. C. 5a.
 Examination of Witnesses. 421

In such a case the party calling the impeached witness

may re-establish his character by calling witnesses to
his general good character (i) . Questions may be put
to a witness which have a direct tendency to show
that he is not impartial, and his answers may be con
tradicted by other witnesses ; and therefore a witness
may be asked if he has accepted a bribe, and if he
denies it the acceptance of the bribe may be proved
aliunde (k) ; but if he is asked whether he has said
that he has been offered a bribe, and he denies it,
evidence to contradict him is inadmissible {I).
When it is proposed to contradict a former state
ment in writing by a witness, the existing rule for all
courts, civil and criminal, is, under the Criminal Pro
cedure Act, 1865, s. 5 (m), the following :
" A witness may be cross-examined as to previous statements
made by him in writing, or reduced into writing, relative to the
subject-matter of the indictment or proceeding, without such
writing being shown to him ; but if it is intended to contradict
such witness by the writing, his attention must, before such con
tradictory proof can be given, be called to those parts of the
writing which are to be used for the purpose of so contradicting
him : Provided always, that it shall be competent for the judge, at
any time during the trial, to require the production of the writing
for his inspection, and he may thereupon make such use of it for
the purposes of the trial as he may think fit " («).

In Criminal cases, where a prisoner calls witnesses

only to character, it is not usual for the prosecuting
counsel to cross-examine them, although strictly he
has the right to do so, and he may adduce evidence to
rebut such evidence of good character (o) .
In concluding the subject of impeaching a witness,
the remarks of Lord Herschell on this subject, in

(i) Anoetlcy v. Lord Angletea, 17 How. St. Tr. 1430.

(i) See if. v. Langhom, 7 How. St.Tr. 44G.
(0 Attorney. General v. Hitchcock, 1 Ex. 91.
(hi) 28 Vict. c. 18.
(a) See Darby v. Ouseley, 1 H. 4c N. 1.
(o) R. v. Rowton, L. k C. 520.
422 Law of Evidence.

the case of Browne v. Dunn (p), may be appropriately

quoted :
" I cannot help saying, that it seems to me to be absolutely
essential to the proper conduct of a cause, where it is intended to
be suggested that a witness is not speaking the truth on a particular
point, to direct his attention to the fact by some questions put in
cross-examination showing that that imputation is intended to be
made, and not to take his evidence and pass it by as a matter
altogether unchallenged, and then, when it is impossible for him
to explain, as possibly he might be able to do, the circumstances
which, it is suggested, indicate that his story is not to be believed,
to argue that he is a witness unworthy of credit. I have always
understood that if you intend to impeach a witness, you are bound,
while he is in the box, to give him an opportunity of making any
explanation which is open to him ; and, as it seems to me, that is
not only a rule of professional practice in the conduct of a case,
but it is essential to fair play and fair dealing with witnesses.
Sometimes complaint has been made of excessive cross-examina
tion of witnesses, and it has been complained of as undue ; but it
seems to me that a cross-examination of a witness which errs in
the direction of excess may be far more fair to him than to leave
him without cross-examination, and afterwards to suggest that he
is not a witness of truth : I mean upon a point on which it is not
otherwise perfectly clear that he has had full notice beforehand
that there is an intention to impeach the credibility of the story
he is telling. Of course, I do not deny for a moment that there
are cases in which that notice has been so distinctly and unmis-
takeably given, and the point on which he is impeached, and is to
be impeached, is so manifest, that it is not necessary to waste time
in putting questions to him upon it. All I am saying is, that it
will not do to impeach the credibility of a witness upon a matter
on which he has not had any opportunity of giving an explanation
by reason of there having been no suggestion whatever in the
course of the case that his story is not accepted."

THE RE-EXAMIXATION.
When the cross-examination of the witness is con
cluded, the party who called him has the right to
re-examine him on all matters arising out of the cross-
examination, for the purpose of reconciling any
discrepancies that may exist between the evidence on
the examination-in-chief, and that which has been

( p) G The Kqmrts, 07.

 1
Examination of Witnesses. 423

given on cross-examination, o/ for the purpose of

removing, or diminishing, an^ suspicion that the cross-
examination may have cast on the evidence-in-chief;
but the re-examining counsel cannot ask the witness as
to new matter ; or, in j>ther words, the questions which
may be asked must be exclusively such as are connected
with, and arise out of, the cross-examination ; and no
questions can be asked on re-examination tending to
introduce new evidence which might have been given
on the examination-in-chief (q). Thus, in The Queen's
Case (q), Lord Tenterden, in delivering the judgment
of the court, said :
" I think that counsel has a right upon re-examination to ask
all questions which may be 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
expressions; but I think he has no right to go further, and to
introduce matter new in itself, and not wanted for the purpose
of explaining either the expressions or the motives of the
witness."

It is therefore held that a witness who has been

cross-examined as to a conversation with a party,
cannot be re-examined as to parts of the conversation
not connected with the portion to which the cross-
examination referred (/•) ; but where a party has
omitted to put a question on the examination-in-chief,
a judge will usually put it, if requested to do so by
counsel. The judge has also a discretionary power to
recall a witness at any time for the purpose of putting
a question to him. The re-examination practically
closes the examination of a witness; although
occasionally witnesses are called to justify the
character of an impeached witness, or to impeach the
character of an impeaching witness.

0/) The Queen'* Cane, 2 B. & B. 297.

Qr) Prince v. Sumo, 7 A. & E. 627.
424 Law of Evidence.

The party who calls a witness, or who produces any

kind of evidence, gives the adverse party the right
of reply, and he will have no right to re-examine a
witness if the adverse party declines to cross-examine.

Privileges of Witnesses. —It may be noticed before

concluding this chapter, that no action will lie against
a witness for what he says or does in giving evidence
before a court of justice ; public policy requiring that
witnesses should give their testimony free from any
fear of being harassed by an action on an allegation,
whether true or false, that they acted from malice (s) .
This privilege has been held to extend to a witness
compellable and required to attend and give evidence
before a military court of inquiry, held under the
Queen's Begulations (t), and to a witness examined
before a Select Committee of the House of Commons (m).
Now, by the Witnesses (Public Inquiries) Protection
Act, 1892 (*), s. 2:
" Every person who commits any of the following acts, that
is to say, who threatens, or in any way punishes, damnifies, or
injures, or attempts to punish, damnify, or injure, any person for
having given evidence upon any inquiry, or on account of the
evidence which he has given upon any such inquiry, shall, unless
such evidence was given in bad faith, be guilty of a misdemeanor,
and be liable upon conviction thereof to a maximum penalty of
one hundred pounds, or to a maximum imprisonment of three
months " ;

and by s. 1 :
" In this Act the word ' inquiry ' shall mean any inquiry held
under the authority of any Royal Commission, or by any com
mittee of either House of Parliament, or pursuant to any
statutory authority, whether the evidence at such inquiry is or is
not given on oath, but shall not include any inquiry by any court
of justice."

(*) Seaman v. Netherelift, 2 C. P. D. 53.

(0 Dawkins v. Lord Rokrby. L. R. 7 E. & I. 744.
00 Baffin v. Donnelly, 6 Q.B. D. 307.
l«0 55 & 56 Vict. c. (!4.
 Examination of Witnesses. 425

What a man says before he enters, or after he has

left the witness box is not privileged ; and if a man
when in the witness box takes advantage of his position
to utter something having no reference to the cause or
matter of inquiry, in order to assail the character of
another, as if he were asked, " Were you at York on a
certain day? " and he were to answer " Yes, and A. B.
picked my pocket there," it certainly might well be
said in such a case that the statement was altogether
dehors the character of witness, and not within the
privilege (y) .

(y) Per CoCKBUBN, C.J. : Seaman v. Xetherclift, ubi supra.

 ( 426 )

CHAPTEE III.
THE SUBSTANCE OF THE ISSUE.

It is enough if only the substance of the issue

is proved.
In other words, a party will have sufficiently proved
his case if he substantially establishes his allegations ;
and he will not be prejudiced by failing to prove matter
which is unnecessary to support his claim, and may
therefore be disregarded as surplusage. Generally
speaking, allegations which are introductory and
explanatory may be treated as matter of mere induce
ment, and consequently as surplusage (a) ; but it is not
every unnecessary allegation which may be treated as
surplusage, for irrelevant matter may be so connected
and incorporated with essential matter, as to render
them legally inseparable ; and where this is so the
irrelevant matter must be proved.
If words which are without meaning, or which have
been introduced by mistake, are inserted in pleadings,
they could be struck out as surplusage at common
law {b). Thus, in tort involving a claim for a sum
certain, it is immaterial that the sum due, as proved, is
less than the sum claimed ; but where a contract is set
out by the plaintiff in his pleadings he cannot recover,
unless it is correctly stated ; and if he professes to set
out a title, he must do so correctly (c) . These prin
ciples are best illustrated by the leading case of
Bristow v. Wright (d), which was an action by a
landlord against sheriffs, for taking in execution the

(a) Ricketts v. Salway, 3 B. * AM. 323.

(ft) King v. Pippett, 1 T. R. 235.
(<•) Gwinnett v. Phillip*, 3 T. R. 643. (<f) Doug. 665
 The Substance of the Issue. 42T

goods of his tenant without paying a year's rent, which

was due to him ; and the declaration stated a demise
for a year on reservation of a rent payable quarterly ;
but there was no evidence of the times of payment.
It was urged that the contract was not the gist of the
action, and that the plaintiff was entitled to a verdict,
on showing that a year's rent was in arrear; but the
court directed a non-suit, and Lord Mansfield,
although he had at first thought the plaintiff's case
established, said :
" I am convinced that it is better for the sake of justice that the
strict rule should in this case prevail. I have always thought, and
often said, that the rules of pleading are founded on good sense.
Their objects are precision and brevity. It is easy for a party to
state his cause of action. If it is founded on a deed, he need not
set forth more than that part which is necessary to entitle him to
recover. . . . The distinction is between that which may bo
rejected as surplusage, and what cannot. When the declaration
contains impertinent matter, foreign to the cause, and which the
master on a reference to him would strike out (irrelevant covenants
for instance), that will be rejected by the court, and need not be
proved. But if the very ground of the action is misstated, as
where you undertake to recite that part of a deed on which the
action is founded, and it is misrecited, that will be fatal : for then
the case declared on is different from that which is proved, and
you must recover xectmduiu probata et allegata. ... In the
present case the plaintiff undertakes to state the lease, and states
it falsely."
i
This doctrine has been further stated by Lord
Ellenbokough :
" With respect to what averments are necessary to be proved, I
take the rule to be that, if the whole of an averment may be
struck out without destroying the plaintiff's right of action, it is
not necessary to prove it, but otherwise if the whole cannot be
struck out without getting rid of a part essential to the cause of
action, for then, though the averment may be more particular
than it need have been, the whole must be proved, or the plaintiff
cannot recover" («).

A plea of tender is proved by evidence of tender of a

larger sum than is alleged (/) ; but if the plaintiff
(c) Williamson v. Allison, 2 East, 342.
If) Dean v. James, 4 B. & Ad. 54H.
428 Law of Evidence.

replies that, after the cause of action accrued, but

before tender, he demanded the sum, a demand of the
precise sum tendered must be proved (g). So, a plea
of payment in accord and satisfaction is proved by
proof of payment of a sum sufficient to cover the
plaintiff's real demand (h).
In slander it is enough to prove the material words
on the record : and where there are several actionable
words, it is enough to prove some of them (i) ; but it is
not enough to prove merely equivalent words (k).
In an action for disturbing the plaintiff's commonable
rights by putting cattle on the land, the defendant
pleaded common appurtenant, and the plaintiff replied
that all the said cattle were not commonable, and it
was held that the plea was supported by proof that
some of the defendant's cattle on the land were com
monable, and that the plaintiff could not insist on a
surcharge (I). Where, in an action of trespass, the
defendant pleaded a licence to erect and maintain a
wall on the locus in quo, and proved a licence to erect
but not to maintain, the verdict was directed against
him (in).
In an action for an account, it is only necessary to
prove that the defendant is an accounting party, with
out any evidence as to the items of the account («) ;
and in seeking to reopen a settled account, proof of
one fraudulent item is sufficient to entitle a plaintiff to
reopen the whole account. Where an important error
is proved, which is not fraudulent, the court will not
reopen the whole account, but will give leave to
surcharge and falsify (o).
(?) River* v. Griffith*, 5 B. & Aid. 630.
(A) Faleon t. «mn, 2 Q. B. 314.
(O Cvmpagnol v. Martin, 2 W. Bl. 790.
(i) Per LAWRENCE, J. : Williamson v. Allison, 2 Enst, 447.
(0 Brown v. Jenkins, 6 A. Jc E. 911.
(»») Alexander v. Benin, 4 Bing. N. C. 799.
(n) Lato v. Hunter, 1 Rum. 100.
(c) See the judgment of JE88EI,, M.K. : Qething v. Keighley, 9 Ch. 1).
547.
 The Substance op the Issue. 429

The powers of amendment of the pleadings which

the courts now possess, and which are discussed in the
next chapter, render the question now under considera
tion of far less importance than it formerly was.
The rule that it is enough to prove the substance of
the issue holds still more strongly in criminal than in
civil cases. Thus, where the defendant was indicted
for composing, printing, and publishing a libel, and
only publication was proved, Lord Ellenbobough
said that this warranted a conviction, and added :
" If an indictment charges that a defendant did, and caused to
be done, a particular act, it is enough to prove either. This dis
tinction runs through the whole of the criminal law, and it is
invariably enough to prove so much of the indictment as shows
that the defendant has committed a substantive crime therein
specified " (p).

So, on an indictment for two connected felonies, the

prisoner may be acquitted of one and convicted of the
other; as, where he is charged with burglary and
stealing, he may be acquitted of the burglary and
convicted of the stealing, or vice versa {q) ; and on a
charge of murder, he may be convicted of manslaughter,
for the unlawful killing is the substance of the charge,
and the malice is only matter of aggravation (r). So,
if a prisoner is charged with killing with a dagger, it
will be sufficient if the evidence proved a killing with a
stick ; and so it will if he is charged with killing with one
kind of poison, and the evidence prove a killing with
another. If, however, the charge is one of killing by
poison, and the evidence proves death by a weapon or a
blow, this will be a fatal variance ; for a prisoner cannot
be expected to be prepared with evidence to refute a
charge totally distinct from that which is laid in the
indictment. So, where A. is charged with giving a
mortal blow; and B. and C. are charged, having been

GO if. v. Hunt, 2 Camp. 583.

{<[) 2 Hale, P. C. 302. (r) Maehalley't Case, 9 Kep. GTfi.
430 Law of Evidence.

present, with aiding and abetting, the indictment will

warrant a conviction, although the evidence proves B.
to have given the blow, and A. and C. to have been
present, aiding and abetting, since they all are prin
cipals, and the blow is the blow of them all ; but if two
are charged as principals, and one appears to be only
an accessory, he must be acquitted, for the legal
offences in this case are different. If an averment is
essentially descriptive of the substantial charge, it
must be proved. Thus, on an indictment for stealing
live turkeys, a prisoner cannot be convicted of stealing
dead turkeys (s) ; and on an indictment for obtaining
money or goods by false pretences, the pretence which
really operated on the prosecutor's mind must be
alleged in the indictment (t).
See further on this point, and also as to amendments
in criminal cases, infra, Chapter IV.
0) II. v. Eihninh. H. & K. 49".
(0 It. v. Buhner, L. & C. 476.
 ( 431 )

CHAPTER IV.

VARIANCES AND AMENDMENTS.

The case proved must be substantially the

same as that stated on the record.

When this rule is violated, the party on whom the

burden of proof lies must submit to an adverse decision;
for in such a case there is a variance between the
matter alleged and the matter proved. Now, almost
unlimited powers of amendment have been given to
the judges whenever they are of opinion that the
justice of the case requires it.
Amendments of pleadings are now governed by
Order XXVIII. of the E. S. C. 1883, the first six Eules
of which Order are as follows :
Rule 1. The. court or a judge may, at any stage of the pro
ceedings, allow either party to alter or amend his indorsement or
pleadings, in such manner and on such terms as may be just, and
all such amendments shall be made as may be necessary for the
purpose of determining the real questions in controversy between
the parties.
Rule 2. The plaintiff may, without any leave, amend his state
ment of claim, whether indorsed on the writ or not, once at any
time before the expiration of the time limited for reply and before
replying, or, where no defence is delivered, at any time before the
expiration of four weeks from the appearance of the defendant
who shall have last appeared.
Rule 3. A defendant who has set up any counterclaim or set
off may, without any leave, amend such counterclaim or set-off at
any time before the expiration of the time allowed him for answer
ing the reply and before such answer, or in case there be no reply
then at any time before the expiration of twenty-eight days from
defence.
Rule 4. Where any party has amended his pleading under
either of the last two preceding rules, the opposite party may.
within eight days after the delivery to him of the amended plead
ing apply to the court or a judge to disallow the amendment, or
any part thereof, and the court or judge may, if satisfied that the
 I

432 Law of Evidence.

justice of the case requires it, disallow the same, or allow it
subject to such terms as to costs or otherwise as may be just.
Bule 5. Where any party has amended his pleading under Bules 2
or 3, the opposite party shall plead to the amended pleading, or
amend his pleading, within the time he then has to plead or within
eight days from the delivery of the amendment, whichever shall
last expire ; and in case the opposite party has pleaded before the
delivery of the amendment, and does not plead again or amend
within the time above-mentioned, he shall be deemed to rely on
his original pleading in answer to such amendment.
Rule 6. In all cases not provided for by the preceding rules of
this Order, application for leave to amend may be made by either
party to the court or a judge or to the judge at the trial of the
action, and such amendment may be allowed upon such terms as
to costs or otherwise as may be just.

The Court of Appeal has, by virtue of Order LVIII.,

Rule 4, the same powers of amendment as the High
Court.
Under these provisions, the court will allow any
pleading to be amended at any stage of the action,
including the trial or hearing, unless the amendment
changes the whole nature of the action (a), or unless
the party applying has been acting maid fide, or by his
blunder has done some injury to the other side which
cannot be compensated by costs or otherwise (b). The
case of Laird v. Briggs (c) is an instructive one on this
subject. It was an action to restrain the removal of
shingle from, and the placing of bathing machines
upon, a part of the foreshore of the sea at M., the
plaintiff claiming to be tenant in possession of the
locus in quo under a building agreement granted to him
by the lord of the manor, who was tenant for life of the
property. By his statement of defence, the defendant
set up a forty years' uninterrupted user and enjoyment
of the locus in quo by himself and his predecessors in
title for the purposes complained of, and denied that

(o) Ifewhy v. Sharps, 8 Ch. D. 39.

(*) Per Bramwbli,, L.J. : Tildedey v. Harper, 10 Ch. ]). 396;
ef. Steward v. Xortk Metropolitan Tramway* Co., Hi Q. B. I). 556.
(<■) 19 Ch. 1). 22.
 Variances and Amendments. 433

the plaintiff was, or ever had been, in possession of the

foreshore in question, " save subject to the right of the
defendant" ; the defendant claimed by paragraph 11 of
his defence, a right on behalf of himself and his trustees,
who were entitled to an estate in fee simple in posses
sion of certain property, to enter upon the foreshore
fronting that property, and to place and keep bathing
machines thereon, and to carry away therefrom such
quantities of sand, shingle and chalk as might be neces
sary for the purpose of keeping such foreshore in order
for the purpose of sea bathing, and for the beneficial
enjoyment of the said property. At the trial the
defendant asked leave to amend his defence by striking
out the above-mentioned words between inverted
commas, and also by making the claim of the defen
dant and his trustees, in paragraph 11, a claim " to be
owners of and to enter upon the foreshore." Fry, J.,
refused both amendments. On appeal, the court held
that the amendment of paragraph 11 was rightly
refused, but that the other amendment must be
allowed. Brett, L.J., said :
" I think the decision in Newby v. Sharpe ((/) is a strong
authority against the second amendment which was asked for, but
was no authority against the first, which, I think, ought to have
been allowed."
The court is bound to allow any amendment which
would tend to the determination of the real question in
controversy, but not for the purpose of enabling a purely
technical objection to be raised (e).

AMENDMENTS IN CRIMINAL CASES.

The day and year on which facts are stated in an
indictment to have occurred, are not in general
(rf) h Ch. D. 3D.
('•) CoUette v. Good, 7 Ch. D. 842 ; cf. Australian Strum Navigation
Co. v. Smith, 14 App. Cas. 318.
434 Law of Evidence.

material : and the facts may be proved to have occurred

upon any other day previous to the finding of the bill
by the grand jury. So it is not generally necessary to
prove the offence to have been committed at the place
named in the indictment, but it is enough to show that
it was committed within the county, or within the
jurisdiction of the court. Such, at least, is the rule
where the offence is of a transitory nature, e.g., in
murder, larceny, treason, and even, it is said, in high
way robbery.
If, however, time or place are of the essence of the
offence, they must be strictly proved. Thus, burglary
may be proved to have been committed on any day
prior to that which is charged in the indictment ; but
it must be proved to have been committed between the
hours of 9 p.m. and 6 a.m. (/). So, where place is
stated as matter of local description, and not merely as
venue, a variance will be fatal at common law. Thus,
on indictments for burglary, housebreaking, setting fire
to a dwelling-house, stealing from a dwelling-house,
place is of the essence of the offence and must be proved ;
and, on an indictment against a parish for not repair
ing a road, the part of the road out of repair.must be
proved to be within the parish.
When there is a material variance between the
offence charged and the offence proved, it is fatal unless
amended ; but if the variance is only a matter of value
or aggravation, and does not vary the species of the
charge, the variance is, in many cases, immaterial,
either at common law or by statute. Thus, in murder,
the homicide is the substance of the crime ; and the
malice, which distinguishes it from manslaughter and
justifiable or excusable homicide, is merely matter of
aggravation, which does not vary the essence of the
charge, and cannot mislead a prisoner in his defence;

(/) 24 k 25 Vict. c. 96, 8. 1 .

 Variances and Amendments. 435

and therefore, on an indictment for the higher offence, he

may be convicted of either of the lower offences. So, in
larceny, it is sufficient to prove the species of the goods
stolen to correspond with the description in the indict
ment, without proving the amount or the value to be
the same. On an indictment, for stealing eight pairs
of shoes of the value of £4, two waistcoats of the value
of 30s., and three coats of the value of £5, it is not
necessary, in either case, to prove the value of any of
the articles to be more than nominal, nor to prove the
number of the goods assigned to each species, nor the
accumulative number of the different species. A con
viction will be warranted by evidence that any one
article, of any value, of any one distinct species, has
been stolen ; but a prisoner charged with one kind of
felony or misdemeanor cannot be convicted of another
kind of felony or misdemeanor ; still less, when he is
indicted for a felony, can he be convicted of a mis
demeanor ; nor when indicted for a misdemeanor can
he be convicted of a felony. Thus, a prisoner charged
with housebreaking cannot be convicted of burglary.
When charged with stealing boots or a coat, he can
not be found guilty of stealing shoes or a waistcoat.
So, when there is a variance in the name of the person
against whom the offence is committed, it is fatal at
common law, unless the name be idem sonans.
Although the variances, which are fatal at first sight,
in criminal cases are still numberless, practically their
amount is reduced to a very narrow compass by the
extensive powers of amendment which, as in civil cases,
have been vested in the judge at trial. The most recent
statute, and the only one which need be considered
here, as it virtually includes many which preceded it,
is the Criminal Procedure Act, 1851 (14 & 15 Vict,
c. 100), which enacts as follows :
Section 1. " Whenever on the trial of any indictment for any
felony or misdemeanor there shall appear to be any variance between
2 r 2
436 Law of Evidence.

the statement ... in the name of any county, riding, division,

city, borough, town corporate, parish, township, or place mentioned
or described in any such indictment, or in the name or description of
any person or persons, or body politic or corporate, therein stated or
alleged to be the owner or owners of any property, real or personal,
which shall form the subject of any offence charged therein, or in the
name or description of any person or persons, body politic or cor
porate, therein stated or alleged to be injured or damaged or intended
to be injured or damaged by the commission of such offence, or in
the christian name or surname, or both christian name and surname,
or other description whatsoever, of any person or persons whomso
ever therein named or described, or in the name or description of
any matter or thing whatsoever therein named or described, or in the
ownership of any property named or described therein, it shall
and may be lawful for the court before which the trial shall be
had, if it shall consider such variance not material to the merits of
the case, and that the defendant cannot be prejudiced thereby in
his defence on such merits, to order such indictment to be amended,
according to the proof, by some officer of the court or other person,
both in that part of the indictment where such variance occurs
and in every other part of the indictment which it may become
necessary to amend, on such terms as to postponing the trial to
be had before the same or another jury as such court shall think
reasonable ; and after any such amendment the trial shall proceed,
whenever the same shall be proceeded with, in the same manner
in all respects, and with the same consequences, both with respect
to the liability of witnesses to be indicted for perjury and other
wise, as if no such variance had occurred ; and in case such trial
shall be had at Nisi Prius, the order for the amendment shall be
indorsed on the postea, and returned together with the record
and thereupon such papers, rolls, or other records of the court
from which such record issued as it may be necessary to amend
shall be amended accordingly by the proper officer ; and in all
other cases the order for the amendment shall either be indorsed
on the indictment, or shall be engrossed on parchment, and filed,
together with the indictment, among the records of the court :
Provided that in all such cases where the trial shall be so post
poned as aforesaid, it shall be lawful for such court to respite the
recognizances of the prosecutor and witnesses, and of the defendant,
and his surety or sureties, if any, accordingly ; in which case the
prosecutor and witnesses shall be bound to attend to prosecute and
give evidence respectively, and the defendant shall be bound to
attend to be tried, at the time and place to which such trial shall be
postponed, without entering into any fresh recognizances for that
purpose, in such and the same manner as if they were originally
bound by their recognizances to appear and prosecute or give
evidence at the time and place to which such trial shall have been
so postponed : Provided also, that where any such trial shall be to
be had before another jury, the Crown and the defendant shall
respectively be entitled to the same challenges as they were
respectively entitled to before the first jury were sworn."
 Variances and Amendments. 437

Section 2. " Every verdict and judgment, which shall be given

after the making of any amendment under the provisions of this
Act, shall be of the same force and effect in all respects as if the
indictment had originally been in the same form in which it was
after such amendment was made."

By the. interpretation clause of this Act (s. 30),

the word " indictment " is declared to include an
"information," "inquisition," "presentment," and
" also any plea, replication or other pleading, and any
Nisi Prius record," and therefore in all these cases
amendments will be allowed.
Under s. 1 of this Act, the ownership of property in
larceny may be altered at trial. Where the indictment
was for stealing the goods of C, and the proof was that
D. was a special bailee of similar property belonging to
C. and B. severally, and had delivered by mistake the
goods in question to the prisoner as belonging to C,
although they really belonged to B., the court supported
an amendment which laid the property in D. (g). It
is doubtful, however, whether, in every case, the power
of amendment at trial extends so far as to allow a
charge of stealing goods from A. B. to be converted
into a charge of stealing them from C. D. In an Irish
case (h), such an amendment has been allowed even
after the prisoner's counsel had addressed the jury ;
and the ruling of Williams, J., in R. v. Rymers (i)
was disapproved. Where such an amendment was not
made, the court, without deciding whether it might
have been made, held that an acquittal on a charge
of stealing goods from A. B. would not sustain a plea
of autrefois acquit on a charge against the prisoner of
stealing the same goods from C. D. (k).
In perjury alleged to have been committed on the
trial of B. "for setting fire to the barn of P.," the

(?) R. v. Vincent., 2 Den. 464.

(A) R. v. Fullarton, 6 Cox, C. C. 194.
(0 3 C. & K. 326. (*) R. v. Green, lD.iB. 113.
 438 Law of Evidence.

certificate of the trial and conviction of B. stated it to

be " for setting fire to a stack of barley." It appeared
that the barn and stack of barley were burning at the
same time ; and Williams, J., directed the indictment
to be amended according to the certificate, considering
the case within the words of s. 1, "in the name or
description of any matter or thing whatsoever," and
observing that this was one of the very cases for which
the statute was passed (Z) ; but where a prisoner was
charged with obtaining money on a false pretence, that
he had served an order of affiliation on A., which he
had not served, and the evidence proved only a state-
• ment by him that he had left it with a third person for
A., it was held that this was a material variance which
could not be amended (to). So, where the indictment
charged the concealment of a birth by placing the body
in and among a heap of carrots, and the evidence
was that it was placed on the back of the heap,
Crompton, J., held the variance material, and refused
an amendment (n). A material omission in an indict
ment cannot be supplied. Thus, on a charge of perjury,
an omission to state a material allegation in the indict
ment is a defect of substance, and not of form, which
ought not to be amended (<>).
If the evidence proves a variance as to the christian
name of a person named in an indictment as matter of
description, the court may amend by striking out all
the names ; but not by striking out merely some of the
names which have been inserted, and not proved.
Where the indictment charged an assault on a game
keeper of George William Frederic Charles, Duke of
Cambridge, and the first two names alone were proved,
it was held that the court of quarter sessions might
have amended by striking out all the names except that

(0 R. v. Kerille, 6 Cox, C. C. 69.

(») R. v. Bailey, 6 Cox, C. C. 29. (») 6 Cox, C. C. 391.
(«) Per Byles, J. : It. v. Harvey, 8 Cox, C. C. 99.
 Variances and Amendments. 439

of " Duke of Cambridge," but that they were not

bound so to amend ; and that therefore the allegations,
although unnecessary, ought to have been proved (p).
Where, however, the prisoner was indicted for forgery
as a statutable felony, but the offence proved was
holden to be a misdemeanor, Hill, J., refused an
amendment, on the ground that the Statute does not
permit an alteration of the nature or quality of the
offence charged (q).
Section 9 of the Act enacts that a prisoner charged
with a felony may be convicted of an attempt to
commit a felony, if it shall appear on the evidence that
he did not complete the offence charged ; and in like
manner, if charged with a misdemeanor, he may be
convicted of an attempt to commit a misdemeanor.
Section 12 enacts, that if on a trial for misdemeanor
the evidence proves a felony, the prisoner may either
be convicted of the misdemeanor, and prove the con
viction in bar of a subsequent trial for the same offence,
on a charge of felony, or the court may discharge the
jury from giving a verdict, and direct the prisoner to be
indicted for the felony.
This Act is intended to apply to all cases where
amendments may be made in furtherance of justice,
and where the defendant cannot be prejudiced in his
defence, on the merits, by such amendment (r).
It has been ruled that an amendment will not be
allowed after the counsel for the prisoner has addressed
the jury. The proper course is that, where the counsel
for the prosecution has given all the evidence that he
means to give, he should, if he wishes for an amend
ment, ask for it before he closes his case ; and then, if
the amendment is allowed, the counsel for the prisoner
will address the jury on the indictment as amended (s).

(/)) R. v. Frott, 1 Dears. 474. II. v. Wriqht, 2 F. fc F. 320.

(;•) Per Lord CAMPBELL : R. v. Stunje, 3 E. & B. 734.
(*) R. v. Rymert, 3 C. & K. 326.
440 Law of Evidence.

The effect of the Criminal Procedure Act, 1851, has

been virtually to abolish the multitude of technical
subtleties, which were formerly the means of defeating
justice, and procuring unreasonable verdicts of acquittal
after the substance of the charge had been proved. The
responsibility of letting loose on society a criminal, of
whose guilt no reasonable auditor has entertained a
doubt, no longer rests on the shortcomings of the legis
lature, but on the discretion of the judge ; but, as it is
his duty to amend a defective indictment, when the
prisoner cannot fairly complain that he is required
suddenly to meet a charge for which he is not prepared,
so it is equally the duty of a judge not to endanger the
liberty of the subject, nor to encourage the carelessness
of prosecutors, by permitting the form of an indictment
to be altered substantially from what it was when the
prisoner was called on to plead to it. On this head, it
has been said by a learned writer, that no general rule
can be laid down for the guidance of the court in all
cases. It is possible that an amendment, which in one
case would not prejudice a prisoner, might in another
case prejudice him materially. The inclination of the
court will still be in favorem vita. The court will
look at all the circumstances of the case to ascertain
whether the transaction would be changed by the
amendment, and will not forget that the protection of
the weak from oppression, and of the presumptively
innocent from injustice, are higher objects, even in the
estimation of positive law, than the detection and
punishment of the guilty.
 ( 441 )

CHAPTER V.

THE RELEVANCY OF EVIDENCE.

Since it is the object of pleading to reduce the case of

each litigating party to one or more substantial issues
which involve the merits of the question, and since,
for this purpose, none but material allegations which
tend to the raising of such issues are admissible, so it
is the object of evidence to provide that, when such
allegations have been made, and such issues selected,
they shall be supported by strictly relevant proof.
The rule is that—

The evidence must correspond with the allega

tions, and be confined to the points in issue.

Or as it is sometimes stated that—

The evidence must be relevant to the issue—

On this subject the Judicial Committee of the Privy
Council once said :
" This case is one of considerable importance, and their lordships
desire to take advantage of it for the purpose of pointing out the
absolute necessity that the determination in a cause should be
founded upon a case either to be found in the pleadings, or involved
in or consistent with the case made thereby " (a).

Evidence may be rejected as irrelevant for one of

two reasons : 1st, that the connection between the
principal and evidentiary facts is too remote and con
jectural ; 2nd, that it is excluded by the state of the
pleadings, or what is analogous to the pleadings ; or

(«) Ethenchuiider Singh v. Shamachurn Bhutto, 1 1 Moo. Ind. App. 20.

442 Law of Evidence.

is rendered superfluous by the admissions of the party

against whom it is offered (b).
As to the second of these reasons, it is by Order XIX.,
Rule 4, of the rules of the Supreme Court, 1883, pro
vided that every pleading shall contain, and contain
only, a statement in a summary form of the material
facts on which the party pleading relies for his claim
or defence, as the case may be, but not the evidence
by which they are to be proved. Any facts on which
a party can rely at the trial are material within the
meaning of this rule (c). No evidence can be received
to prove facts alleged by a party to be material but not
stated or referred to in his pleadings (d).
, ' For the first of the above reasons, no presumption
as to the conduct, intention, or course of dealing
between two parties arises from evidence of the conduct,
intention, or course of dealing between one of them
and a third party. Such evidence is said to be res
inter alios acta, and will be rejected as irrelevant to
the is-me, unless, indeed, it is part of the res gestw, and
so tends to throw any light upon the question at
xissue (e). The fact that A. contracted, or dealt in a
particular manner with B., is no evidence that he
meant to contract, or deal in the same manner with C.
Thus, in an action for goods sold and delivered, in
which the defence is that the plaintiff sold them to
the defendant on certain terms, the defendant cannot
show that the plaintiff had sold the same quality of
goods to other persons on the same terms, for the fact
that a man has once or more acted in a particular way
does not make it probable that he so acted on a given
occasion ; and the admission of such evidence would
be fraught with the greatest inconvenience (/). But
(6) See Best on Evidence, 7th ed., 253.
(c) Millington v. Lin ing, <> Q. B. D. 190.
(d) Scott v. Snmptim, 8 ^. B. 1). 491.
(,) Milne v. Leuler. 7 H. & N. 786.
(/) Tlollingham v. Head, 4 C. B. (N.S.) 388 ; of. Howard v. Slu-ward,
L. K. 2 C. P. 148.
 The Kelevancy of Evidence. 443

where in an action for work done to some houses the

defendant denied that he was personally interested in
the property, the plaintiff was allowed to call other
persons as witnesses who had done work or supplied
materials on the personal order of the defendant (g).
In an action by a brewer against a publican, where
the issue was as to the quality of beer supplied by the
former to the latter, Lord Ellenbokodgh refused to
let the plaintiff call witnesses to show that he supplied
them, at the time in question, with good beer. His
lordship said :
" This is rex inter alios acta. We cannot here inquire into the
quality of different beer furnished to different persons. The
plaintiff might deal well with one, and not with the others " (A).

Hence, where the issue was whether the plaintiff, a

tradesman, had given credit to A.'s father, evidence
that other tradesmen had given credit to the father
was rejected (i). So, in an action for slander alleging
maltreatment of boys at a school, evidence of the treat
ment of boys at other schools, offered to prove what is
proper treatment, was rejected (j) ; and where the
action was for withdrawing scholars without a quarter's
notice, according to a prospectus of terms, which the
defendant was proved to have received, it was held that
a witness might state that she had never received any
prospectus while her children had been at the school,
because this evidence bore on the usual course of the
plaintiff's dealing, but that she could not prove that
she had taken her children away without notice, and
without being called on to pay a quarter's salary ;
apparently because this might have been merely a
matter of peculiar arrangement (k). So, the terms on
which one tenant holds are no evidence of the terms
(j) Woodward v. Buchanan, L. B. 5 Q. B. 285.
(A) Ifolcombe v. Hewton, 2 Camp. 391.
(i) Smith v. Wilkin*, C, C. k Y. 180.
(/) Boldron v. Widdow*. 1 C. & Y. 65.
(A) Dclamotte v. Lam; <J C. k Y. 261.
444 Law of Evidence.

on which another tenant holds under the same land

lord (I) ; and an award in favour of a party to a former
action is not evidence for a party to a subsequent action,
claiming by paramount title, as against a party claim
ing through the person against whom the award was
made (to) ; and in an action to recover money paid to
a third party, the receipt given by the latter to the
plaintiff is not per se evidence against the defendant (»).
Where, however, the extraneous transaction contains
the principle of a reasonable and credible inference as
to the motive or conduct of the party, the judge, in
his discretion, will admit evidence of it. Thus, where
a letter from the defendant, in answer to a letter
written on the plaintiff's behalf, was proved to have
been seen by the plaintiff, it was admitted in evidence
against the latter (o). But, in an action for false im
prisonment on a charge of felony, where the defence
was a bond fide belief that the plaintiff had committed
the felony, the defendant was not allowed to give in
evidence the record of a conviction of another person
for a similar felony which he had not seen, although
if he had seen it it would have been admissible as
evidence of bona fides (p). In an action against a
company to recover a sum of money obtained by them
from the plaintiff through a fraud of the defendant's
agent, committed with their knowledge and for their
benelit, evidence of similar frauds committed on per
sons other than the plaintiff, by the same agent, in
the same manner, with the knowledge and for the
benefit of the defendant, is admissible on behalf of
the plaintiff (q).

(Z) Carter v. Pryke, Peake, 95.

(»«) Lady Wenman v. Mackenzie. 5 E. & B. 447.
(n) Carmarthen and Cardigan Hail Co. v. Manchester and Milford
Hail. Co., L. R. 8 C. P. 685.
(o) Came v. Steer, 5 H. & N. 628.
(;;) Thomas v. Hussell, 9 Ex. 764.
(7) Blake v. Albion- Life Assurance Society, 4 C. P. D. 94 ; Barnes v.
Merritt, 15 T. L. B. 419.
 The Kelevancy of Evidence. 445

The customs of one manor are not evidence of the

customs of another manor (r), unless a connection
between them is first established, as by showing that
they belong to the same lord, that the same description
of tenants has existed in each, and that their leases
have been granted in the same terms. In such a case,
the usage which has prevailed in one part, and which
is therefore evidence to explain the meaning of a grant
there, is evidence to explain a grant expressed in similar
terms as to any other part of the district (s) ; but the
unity or original identity of the manors must be clearly
shown, and the mere fact of their being in the same
leet, or parish, is not sufficient (t).
A custom of trade may be proved by showing what
is the custom of the same trade in a different place.
Thus, evidence of the custom of fisheries off Newfound
land is evidence of the custom of similar fisheries off
the coast of Labrador (u) ; and evidence of an usage in
the colonial market, under which a broker contract
ing on behalf of an undisclosed principal is personally
liable unless he discloses such principal within three
days from the date of the contract, has been admitted
as relevant to show a similar custom in the fruit
trade (x). So, parish books were held to be evidence
against a member of the vestry of the practice of the
parish, although they related to proceedings of the
vestry before he became a member (y).
When the issue involves a question of manorial right
as between a lord and an adverse claimant, evidence of
the exercise of such right over part of a waste has been
held to be evidence of title to other parts which, from
their local situation, may be deemed to belong to it.

(/•) ifarqnu of Anglenea v. Lard Hatherton, 10 M. & W. 233.

(») Per Hatlky, j. : Howe v. Brenton, 8 B. k C. 764.
it) Per Lord ABINGEB : 10 M. Jt W. 236.
(k) Xohle v. Krnaaway, 2 Doug. 510.
(jt) Flert v. Murtmt, L. K. 7 Q. B. 126.
(y) Omper v. Ward, 6 C. B. (N.s.) 50.
446 Law of Evidence.

Thus, on a question whether a piece of waste land,

between a highway and the plaintiff's inclosure, be
longed to the plaintiff, or to the lord of the manor, it
was held that the latter might support his claim by
evidence of grants of similar pieces between the same
road and the inclosure of other persons. Lord Den-
man, C.J., said :
" If the lord has a right to one piece of waste, it affords no
inference, even the most remote, that he has a right to another
in the same manor, although both may be similarly situated with
respect to the highway. Assuming that all were originally the
property of the same person, as lord of the manor, which is all
that the fact of their being in the same manor proves, no pre
sumption arises, from his retaining one part in his hands, that lie
retained another ; nor, if in one part of the manor the lord has
dedicated a portion of the waste to the use of the public, and
granted out the adjoining land to individuals, does it by any means
follow, nor does it raise any probability, that in another part he
may not have granted the whole out to private individuals, and
they afterwards have dedicated part as a public road ; but the case
is very different with regard to those parcels which, from their
local situation, may be deemed part of one waste or common; acts
of ownership, in one part of the same field, are evidence of title to
the whole ; and the like may be said of similar acts on part of one
large waste or common (z).

In all these cases it will be observed that the act

between third parties, which has, nevertheless, been
received, has been either connected presumptively with
the party who is to be affected by it, or has been in
vested with a prima, facie credibility by evidence of an
original unity of nature or title. It seems to be a safe
general rule that transactions with third parties are
inadmissible, unless their privity or connection with
the party against whom they are tendered is first
proved extrinsically, so as to make such intermediate
transactions operate in the nature of an admission or
estoppel (a).

(2) Doe v. Kemp, 2 Bing. N. C. 102 ; of. Denthj v. Simptim, 18 C. B.

831.
(a) Per Maule and BoSASQUET, JJ. : Taylor v. Parry, 1 M. & G.
614 ; Petrie v. Nuttal, 11 Ex. 569.
 The Relevancy of Evidence. 447

In an action for trespass to a several fishery in a

navigable tidal river, the defendants justified on the
ground that the public had the right of fishing : as
evidence of possession and user the plaintiff tendered
{inter alia) the proceedings and decree in 1687 in a
" possessory suit " brought in the Court of Chancery in
Ireland by C. (the plaintiff's predecessor in title) against
strangers to the present action, by which decree an
injunction was awarded to quiet C. and his under
tenants in such possession of their fishing as they had
at the time of exhibiting the bill, and three years
before, to continue until evicted by due course of law,
both parties being at liberty to take proceedings at law
against each other for ascertaining their titles : it was
held, that, as the decree was a solemn and final
adjudication and not collusive, and as it could not have
been made except upon proof of unbroken user and
enjoyment for at least three years before the bill,
inconsistent with any actual exercise at that time of a
public right of fishing, the proceedings and decree were
admissible (b).
Evidence of good or bad character is generally irrele
vant and inadmissible in civil cases, unless character is
of the substance of the issue (c). In actions for
seduction, evidence of the real plaintiff's bad character
is admitted in reduction of damages ; but the evidence
must refer to a time prior to that when the seduction
took place. In divorce suits the court will receive
evidence of adultery committed after the latest act
charged in the petition, to show the character and
tendency of the earlier acts of familiarity (d).
In actions for defamation, evidence of the plaintiff's
general good character is held irrelevant, even on a
plea of justification (e). In such cases, however, the
(ft) Xi ill v. Bulie of Devotithire, 8 App. Cas. 135.
('•) Eham v. i'ancett, 2 lisp. 563.
(d) Buddy v. Bodily, 30 L. J. V. M. A. 23.
(c) Cornwall v. Riehardton, K. & M. 305.
448 Law of Evidence.

plaintiff may give in evidence any words, as well as any

act, of the defendant, to show the malice or animus of
the words which are the subject of the action (/) ; but
the mere abandonment of a plea of justification ought
not to weigh with a jury, where the actual defence sets
up only a privileged communication {g). Where the
libel charged the plaintiff with incompetency as a
surveyor, he was not allowed to travel out of the record
by showing that he had, at other times, acted com
petently in that capacity (h).
The defendant in an action for defamation can give
general evidence of the plaintiff's bad character, subject
to the provisions of Order XXXVI., Bule 37, of the
E. S. C. 1883, which is as follows :
" In actions for libel or slander, in which the defendant does
not by his defence assert the truth of the statement complained of,
the defendant shall not be entitled on the trial to give evidence-in-
chief, with a view to mitigation of damages, as to the circum
stances under which the libel or slander was published, or as to the
character of the plaintiff, without the leave of the judge, unless
seven days at least before the trial he furnishes particulars to the
plaintiff of the matters as to which he intends to give evidence."

Although general evidence of reputation is admissible,

evidence of rumours and suspicions to the same effect
as the defamatory matter complained of is not admis
sible ; nor is evidence of particular facts or circum
stances tending to show the disposition of the
plaintiff (i).
Section 29 of the Patents, Designs and Trade Marks
Act, 1883 (J), enacts that :
" (1) In an action for infringement of a patent, the plaintiff
must deliver with his statement of claim, or by order of the
court or the judge, at any subsequent time, particulars of the
breaches complained of. (2) The defendant must deliver with his
statement of defence, or, by order of the court or a judge, at any

(/) Pearson v. Lemaitre, "> M. & G. 700.

(17) Wilson v. Robinson, 7 Q. B. 68.
(A) Brine v. Bazalgettc, 3 Kxch. 692.
(0 Scott v. Sampson, 8 Q. B. 1). 491. (f) 46 & 47 Vict. c. 57.
 The Relevancy of Evidence. 449

subsequent time, particulars of any objections on which he relies

in support thereof. (3) If the defendant disputes the validity of
the patent, the particulars delivered by him must state on what
grounds he disputes it, and if one of those grounds is want of
novelty must state the time and place of the previous publication
or user alleged by him. (4) At the hearing no evidence shall,
except by leave of the court or a judge (&), be admitted in proof
of any alleged infringement or objection of which particulars are
not so delivered. (5) Particulars delivered may be from time to
time amended, by leave of the court or a judge " (J).

Evidence cannot be given by a party to an infringe

ment action of any fact not referred to in his
particulars, although such fact may have come to his
knowledge after the delivery of his particulars (to).
His proper course in such a case is to apply to amend
his particulars. When, however, evidence is within
the literal meaning of the words of the particulars,
however general the statement, the evidence will be
received at the trial (n). Section 26 of the last-men
tioned Act makes similar provisions as to particulars
of objections on a petition for revocation of a patent.
By the Rivers Pollution Prevention Act, 1876 (o),
s. 2, it is for the purposes of the Act provided that in
proving interference with the due flow of any stream,
or in proving the pollution of any stream, evidence may
be given of repeated acts which, together, cause such
interference or pollution, although each act taken by
itself may not be sufficient for that purpose.
In criminal cases the strict rule is that no evidence
can be admitted which does not tend directly to the
proof, or disproof, of the matter in issue ; and therefore,
as a general rule, evidence that a prisoner has com
mitted a similar crime before, or that he has a

(/<) Leave was given in Hill v. Adams, 10 II. P. C. 102.

(/) The Court of Appeal can give leave (.S/ioe Mark inert/ Co. v. Cutlan,
[1896] 1 Ch. 108.
(»») Daw v. Eley, L. K. 1 Eq. 38.
(«) Per Pollock, C. B. : Hull v. Bollard, 1 II. k N. 134.
(<0 39 & 40 Vict. c. 75.
I..K.
450 Law of Evidence.

disposition to commit such crimes, is inadmissible (/>).

A fortiori, evidence that a prisoner charged with felony
of one kind has committed a felony of another kind is
inadmissible (q). On a charge of burglary and larceny
on a particular day, evidence of a larceny in the same
house on a previous day was rejected (r) ; and on a
charge of obtaining money under false pretences,
evidence that the prisoner had within a week
previously obtained another sum of money under the
same false pretence was rejected (s). In the last case
the question seems to have been as to the prisoner's
authority to obtain the money. If the question had
been as to his knowledge of the falseness of the
pretence, the decision would doubtless have been
different ; for where a man was indicted for attempting
to obtain an advance from a pawnbroker by falsely
asserting that a certain ring contained diamonds,
evidence of a similar attempt two days before was held
to have been rightly admitted as proof of his knowledge
that the pretence was false (t). So where a brewer
was charged with applying a false trade description to
goods, under the Merchandise Marks Act, 1887, the
offence consisting in delivering six barrels of beer,
invoiced as such, when one of such barrels was of the
capacity of thirty-four gallons, in lieu of thirty-six, as it
should have been, evidence of previous deliveries of
casks of beer of less than thirty-six gallons capacity,
with invoices describing them as barrels, was held
admissible (u). When the animus or intent of an act
has to be shown, previous and subsequent conduct will
be evidence of it. Thus, the animus or intent in
uttering counterfeit coin may be proved by evidence of

(p) R. v. Cole, I Phil. Ev. 508.

f{) R. v. Oddy, 2 Den. C. C. 2<>5.
(r) R. v. Vandercomb, 2 Leach, 816.
Or) R. v. J/,ilt, Bell, 280.
(0 R. v. Franch, L. R. 2 C. C. R. 128 ; cf. R. v. Roiburk, 1). & B. 24.
O) llvdd v. Lucas, [1891] 1 Q. B. 408.
 The Eelevancy of Evidence. 451

previous or subsequent utterings (v) ; and the posses

sion alone of several pieces of counterfeit coin is
evidence of guilty knowledge (x). On an indictment
for knowingly and unlawfully having possession of
coining instruments, proof is admissible that the
prisoner had previously uttered counterfeit coin (y) ;
and the strictness of the rule is also, as previously
stated, relaxed in cases of false pretence, where the
prisoner's guilty knowledge or intent is in question (ar).
In B. v. Geering (a), on a charge of murder, by
administering arsenic in food, evidence that two other
members of the same family, for whom also the
prisoner cooked, had died of poison, was admitted (a),
inasmuch as it tended to show whether the taking of
the arsenic was accidental. This case was approved
by the Judicial Committee in Makin v. Attorney-
General for New South Wales (b), where, on an
indictment for murder of an infant by baby farmers,
evidence that several other infants had been received on
similar terms from their mothers, and that the bodies
of infants had been found buried in a similar manner
in the gardens of several houses occupied by the
prisoners, was held admissible. So, too, where a
prisoner was charged with obtaining credit by fraud and
false pretences, and it was proved that he hired apart
ments from the prosecutrix and left after three days
without paying for them or for food supplied to him,
evidence was held admissible to prove that a short time
before the commission of the offence the prisoner had
done the same thing at other lodging-houses (c).
In this case Lord Alvekstone, L.C.J., quoted the
following statement of the law by Lord Herschell

(*) R. v. Foster, 1 Dears. C. C. 456.

(*) It. v. Jartit, Dears. C. C. 552. (y) It. v. Weeks, L. & C. 18.
(2) It. v. Francis, L. U. 2 C. C. R. 128.
(o) 18 L. J. M. C. 215.
(*) [1894] A. C. 57.
(c) R. v. Wyatt, [1904] 1 K. B. 188.
2 ti 2
452 Law of Evidence.

in Mmkin v. Attorney-General for New South

Wales (d) :
" It is undoubtedly not competent for the prosecution to adduce
evidence tending to show that the accused has been guilty of
criminal acts other than those covered by the indictment, for the
purpose of leading to the conclusion that the accused is a person
likely from his criminal conduct or character to have committed
the offence for which he is being tried. On the other hand, the
mere fact that the evidence adduced tends to show the commission
of other crimes does not render it inadmissible if it be relevant to
an isBue before the jury, and it may be so relevant if it bears upon
the question whether the acts alleged to constitute the crime
charged in the indictment were designed or accidental, or to rebut
a defence which would otherwise be open to the accused."

Where a prisoner was tried for obtaining a cheque

from E. by false pretences by means of a cheque which
was dishonoured, and he was acquitted, and subsequently
was tried for obtaining money from other persons by
false pretences on three other cheques which were
dishonoured, R. gave evidence at the second trial of
the facts as to the dishonouring of the first cheque.
This evidence was the same as that which he gave at
the first trial. It was held that the evidence was
admissible on the second trial, notwithstanding that it
had been used on the first trial, because it was not used
at the second trial to get the prisoner convicted of the
offence for which he had been already acquitted, but
as showing a course of conduct by the prisoner and his
belief that the cheques in question on the second trial
would not be met (e).
Again, when several felonies are so connected as to
form one transaction, evidence of all may be given in
order to convict of one. Thus, where the indictment
charged stealing from the prosecutor's till, and the
evidence showed different takings, by which the whole
deficit was caused, it was held that the fact might be

(«Q [1894] A. C. 57. (•) v. Ollit, [1900] 2 Q. B. 758.

 The Relevancy of Evidence. 453

shown by proof of the results of different inspections of

the till (/). So, in conspiracies, since the act of one is
in law the act of all, when complicity has been proved,
the act of one conspirator is evidence on an indictment
against another.
The most important exceptions, however, to the
last-stated general rule arise under s. 19 of the Pre
vention of Crimes Act, 1871 (g) , which provides, that—

" Where proceedings are taken against any person for having
received goods knowing them to be stolen, or for having in his
possession stolen property, evidence may be given at any stage of
the proceedings that there was found in the possession of such
person other property stolen within the preceding period of twelve
months, and such evidence may be taken into consideration for the
purpose of proving that such person knew the property to be
stolen which forms the subject of the proceedings taken against
him. Where proceedings are taken against any person for having
received goods knowing them to be stolen, or for having in his
possession stolen property, and evidence has been given that the
stolen property has been found in his possession, then if such
person has within five years immediately preceding been convicted
of any offence involving fraud or dishonesty, evidence of such
previous conviction may be given at any stage of the proceedings,
and may be taken into consideration for the purpose of proving
that the person accused knew the property which was proved to be
in his possession to have been stolen ; provided that not less than
seven days' notice in writing shall have been given to the person
accused that proof is intended to be given of such previous con
viction ; and it shall not be necessary for the purposes of this
section to charge in the indictment the previous conviction of the
person so accused."

" Found," in the first part of the section, means

found at the same time as the property the subject of
the indictment (h). When a person is charged with
an offence under s. 7 of this Act, a previous conviction
is an ingredient of the offence, and such previous con
viction must be put in evidence by the prosecution at
starting (i).

( f) It. v. EllU, 6 B. & C. 145. (//) U & 35 Vict. c. 112.

(A) //. v. Carter, I2Q.B. 1). 522.
(i) It. v. Prnfold, [1!)02] 1 K. B. 547.
454 ' Law of Evidence.

In larceny, to prove the identity of the prisoner, it

may be shown that other goods not included in the
indictment, which were stolen at the same time, were
found in his possession ; and on the same principle, on
a trial for riot and conspiracy, resolutions passed at a
meeting, prior and avowedly preliminary to that named
in the indictment, were held to be relevant evidence to
show the objects of the second meeting ; and the
general conduct of the members on their way to it,
their military order and threatening language to people
on the road, were held strictly relevant to show the
character of the meeting. On the other hand, it was
held that the defendant could not go into evidence of
the conduct of the military who dispersed the meeting,
because that could have no bearing upon the intention
and object of the assembly, as these must have existed
before the dispersion, and were in their nature perfectly
distinct from the conduct of those who dispersed the
assembly (k).

(*) It v. Hunt, 3 13. & Aid. 566.

 ( 455 )

CHAPTER VI.

DEPOSITIONS.

We propose to consider first—

DEPOSITIONS IN CEIMINAL CASES.

The admissibility of these depositions is subject to
the Indictable Offences Act, 1848 (11 & 12 Vict. c. 42),
s. 17, by which it is enacted, that in all cases where
any person shall be charged before any justice of the
peace with any indictable offence—
" Such justice or justices, before he or they shall commit such
accused person to prison for trial, or before he or they shall admit
him to bail, shall, in the presence of such accused person, who
shall be at liberty to put questions to any witness produced against
him. take the statement on oath or affirmation of those who shall
know the facts and circumstances of the case, and shall put the
same into writing, and such depositions shall be read over to and
signed respectively by the witnesses who shall have been so
examined, and shall be signed also by the justice or justices taking
the same ; and the justice or justices before whom any such witness
shall appear to be examined as aforesaid shall, before such witness
is examined, administer to such witness the usual oath or affirma
tion, which such justice or justices shall have full power and
authority to do ; and if upon the trial of the person so accused as
first aforesaid it shall be proved, by the oath or affirmation of any
credible witness, that any person whose deposition shall have been
taken as aforesaid is dead, or so ill as not to be able to travel,
and if also it bo proved that such deposition was taken in the
presence of the person so accused, and that he or his counsel or
attorney had a full opportunity of cross-examining the witness,
then, if such deposition purport to be signed by the justice by or
before whom the same purports to have been taken, it shall be
lawful to read such deposition as evidence in such prosecution,
without further proof thereof, unless it shall be proved that such
deposition was not in fact signed by the justice purporting to sign
the same."
Before a deposition can be received under this section
it must therefore appear : (1) That it was taken in the
45(5 Law of Evidence.

presence of the magistrate and of the prisoner (a), and

that the latter either cross-examined, or had an oppor
tunity of cross-examining, the deponent. (2) That it
has been signed by the witness and also by the magis
trate. The christian name of the witness may be
proved by any one who saw the witness sign (&).
(3) That it was made on oath by the witness, or on
affirmation, in such cases only in which an affirmation
is allowed. (4) That the deponent is either dead (c),
or so ill as not to be able to travel.
Only the first and last of these conditions are required
to be distinctly proved, and the last is usually proved
first. The signatures, purporting to be authentic, are
presumed to be so until proved to be otherwise ; and
the deposition is declared on the face of it to be taken
on oath. It is not enough to show that the deposition
purports to be signed by the magistrate, but it must
also be shown affirmatively by the prosecutor that the
deposition was taken in the presence of the prisoner,
and that he or his counsel or attorney had a full oppor
tunity of cross-examining the witness ; and when the
prisoner is not attended by counsel or attorney, it
ought also to appear that the magistrate had asked
him whether he would like to cross-examine, and that
he had allowed the prisoner sufficient time to consider
what questions he would put (d).
As to the last condition, it is to be observed that it
does not contain all the circumstances in which a
deposition is generally admissible. Thus, before the
statute, the deposition was received at common law,
not merely on proof that the deponent was either dead,
or so ill as to be unable to travel, but if he was proved
to have become permanently insane (c), or to be actually

(a) It. v. Watts, & C. 339 ; Ji. v. Holhncay, 65 J. P. 712.

(*) R. v. Foot*, 26 I,. J. M. C. 79.
(r) R. v. Butclur, 64 J. V. 808.
(,/) Per 1'latt, B. : R. v. I)ny, 19 L. T. 35.
(c) R. v. L'Hsu ell, 3 T. R. 707.
 Depositions. 457

insane at the time of trial with a possibility of re

covery (/). It neither was nor is necessary to show
that the illness under which a deponent is suffei-ing is
of a permanent, or of more than a temporary, nature ;
but where the illness of the witness is proved not to
be serious, the judge may and will, in his discretion,
postpone the trial until he has recovered ; and this is
the proper course whenever such postponement does
not clearly clash with public convenience.
The illness must be real and serious, and there must
either be a physical incapability of locomotion, or a
probability that it might dangerously affect the witness's
health (g). It is desirable, when it is possible, to prove
this fact by a medical attendant, but it may be proved
by any one who has seen and examined the deponent
recently. The court will inquire scrupulously and even
suspiciously into all these circumstances before receiving
the deposition ; and will reject it when the alleged
illness appears to be not dangerous or serious enough
to excuse the absence of the deponent. It is for the
court, in its discretion, to determine whether the
alleged illness brings the case within the Act of Parlia
ment (h). Pregnancy may or may not be a source of
such illness (i) : insanity obviously is. Where a witness
had an attack of paralysis, his deposition was read,
although it would not have endangered his life to come
into court. In that case, however, the deponent could
neither hear nor speak (k). The fact that a female
witness was seventy-four years of age, and nervous,
and (in the opinion of a medical witness) likely to faint
under cross-examination, has been held not to amount
to such inability to travel as to make her deposition
admissible (I).
(/") R. v. Ma ruinII, C. k M. 147.
00 H- v. Day, l'J L. T. 85.
(/<) R. v. Welling; 3 CJ. B. 1). 416.
(A) R. v. Corkburii, I). 4: B. 202.
458 Law of Evidence.

It is also settled that a deposition will be received if

the deponent is proved to have been kept out of the
way and prevented from appearing at the trial by the
act of the prisoner or his agents, or by collusion with
him or his friends (?«). It is necessary to create by
evidence a reasonable presumption that the prisoner's
agents have been authorised or sanctioned by him to
procure the absence of the witness. In such a case the
deposition is evidence only against the prisoner who
procured the absence of the deponent, and not against
other prisoners in the same indictment who are not
implicated in the collusion (»). Unless the absence of
the witness is accounted for in some one of these ways,
his deposition cannot be received, because it will retain
all its original and unsatisfactory incidents as hearsay
evidence. When the deponent is in a foreign country,
his deposition cannot be read (o). «
Each deposition must be separately signed by the
committing magistrate (see s. 17 of 11 & 12 Vict. c. 42),
but it is sufficient if the signature or signatures be
placed at the end of the depositions, even though they
are written on different sheets of paper, which are only
connected by a pin (p). The depositions must be
taken in the presence both of the magistrate and of the
prisoner (q) ; and nothing should be returned as a
deposition against the prisoner unless the prisoner had
an opportunity of knowing what was said, and an
opportunity of cross-examining the persons making the
deposition.
Section 6 of the 30 & 31 Vict. c. 35, providing for
cases of witnesses dangerously ill and unable to travel,
enacts that :
" Whenever it shall be made to appear to the satisfaction of any
justice of the peace that any person dangerously ill, and in the
(;») R. v. Gntteridgc, 9 C. & P. 471 ; R. v. Seaife, 2 Denisou, 281.
(«) R. v. Scaifr, tibi supra.
00 R. v. Avutiii, Dears. C. C. 612.
(j/) R. v. Parker, L. R. 1 C. C. K. 225. (Vy) R. v. Watt*, L. & C. 339.
 Depositions. 459

opinion of some registered medical practitioner not likely to

recover from such illness, is able and willing to give material infor
mation relating to any indictable offence, or relating to any
person accused of any such offence, and it shall not bo practicable
for any justice or justices of the peace to take an examination or
deposition in accordance with the provisions of the said Act [i.e.
11 & 12 Vict. c. 42, s. 17] of the person so being ill, it shall be law
ful for the said justice to take in writing the statement on oath or
affirmation of such person so being ill, and such justice shall there
upon subscribe the same, and shall add thereto by way of caption
a statement of his reason for taking the same, and of the day and
place when and where the same was taken, and of the names of the
persons (if any) present at the taking thereof, and, if the same
shall relate to any indictable offence for which any accused person
is already committed or bailed to appear for trial, shall transmit
the same with the said addition to the proper officer of the court
for trial at which such accused person shall have been so com
mitted or bailed ; and in all other cases ho shall transmit the same
to the clerk of the peace of the county, division, city, or borough
in which he shall have taken the same, who is hereby required to
preserve the same, and file it of record ; and if afterwards, upon
the trial of any offender or offence to which the same may relate,
the person who made the same statement shall be proved to be
dead, or if it shall be proved that there is no reasonable probability
that such person will ever be able to travel or to give evidence, it
shall be lawful to read such statement in evidence, either for or
against the accused, without further proof thereof, if the same pur
ports to be signed by the justice by or before whom it purports to
be taken, and provided it be proved to the satisfaction of the
court that reasonable notice of the intention to take such statement
has been served upon the person (whether prosecutor or accused)
against whom it is proposed to be read in evidence, and that such
person, or his counsel or attorney, had or might have had, if he
had chosen to be present, full opportunity of cross-examining the
deceased person who made the same."

If the depositions are lost without fraud or gross

negligence before trial, and cannot be found after
diligent search, they may be proved by a copy produced
and certified by the magistrate's clerk (r) ; and, prob
ably, under 14 & 15 Vict. c. 99, s. 14, any duly examined
copy would be admissible. Every deposition against a
prisoner ought to be taken down in writing, whether
any case is made out or not ; and it has been declared
to be "a practice quite illegal and highly improper"

00 R. v. Shellard, 9 C. & P. 277.

460 Law of Evidence.

not to take down in writing every such deposition.

Accordingly, the court will require distinct evidence
that it has not been so taken down, before it will admit
secondary parol evidence of anything that was said on
an examination before a magistrate (s).
The prisoner's statement will be limited, as to its
admissibility in the first instance, by the principles
laid down in the chapter on Confessions, and the statu
tory provisions which are there mentioned (t). A
voluntary statement made by a prisoner before a magis
trate ought to be reduced into writing, and read as
evidence against or for him by the counsel for the
prosecution at the trial. It is desirable, but not neces
sary, that the prisoner should sign the statement ; and
it is said not to be necessary that the magistrate should
sign it, if the prisoner signs or admits the statement to
be true when it is read over to him ; but a statement
not signed by the magistrate, and neither signed nor
admitted by the prisoner, is clearly inadmissible («). If
it is clearly proved that the prisoner made a statement
before the magistrate which was not taken down in
writing, it may be proved by any one who heard it (x).
A prisoner's statement is only evidence against him
self, and not against others who are implicated in the
same charge (y). It has been held that a statement
will not be inadmissible because a magistrate has not
given the prisoner the statutory caution that he has
nothing to hope from any promise of favour, or to fear
from any threat of punishment (z).
Section 3 of 30 & 31 Vict. c. 35, provides, that if an
accused person calls, or desires to call witnesses, the
•' Justice or justices shall, in the presence of such accused per
son, take the statement on oath, both examination and cross-
examination, of those who shall bo so called as witnesses by such
(*) Per JEBVI8, C.J. : J'lirtmu v. llroicn, 3 C. & K. 295.
(f) Supra, p. 24fi.
(«) Lambe't One, 2 Leach, 625. (y) X. v. Appleby. 3 Stark. 33.
It. v. Jacobs, 1 Leach, 309. (z) R. v. Sansome, 1 Den. 515.
 Depositions. 401

accused person, and who shall know anything relating to the

facts and circumstances of the case, or anything tending to prove
the innocence of such accused person, and shall put the same into
writing ; and such depositions of such witnesses shall be read over
to and signed respectively by the witnesses who shall have been
so examined, and shall be signed also by the justice or justices
taking the same, and transmitted in due course of law with the
depositions."

The depositions of a child may, under the Prevention

of Cruelty to Children Act, 1894, be taken, in certain
proceedings thereunder, when its attendance is proved
by the evidence of a registered medical practitioner to
involve serious danger to its life or health, in manner
prescribed by the Act, and can be used in evidence as
mentioned in the Act (a) .

DEPOSITIONS BEFORE CORONERS.

These are not within the 11 & 12 Vict. c. 42, but are
practically admissible under similar restrictions. It is
not necessary that they should have been taken in the
presence of the prisoner (b) ; but they must be signed
by the coroner, and the handwriting must be proved (c).
A coroner's inquisition is admissible between third
parties to show that there has been such a judicial
inquiry into the matters to which it refers {d).

DEPOSITIONS IN CIVIL CASES.

These are now governed by Order XXXVII. of the
K.S.C., 1883. Before the Judicature Acts the prac
tice, so far as the Court of Chancery was concerned,
was that provided by the 15 & 16 Vict. c. 86, s. 28,
and Kule 11 of the Order of February 5th, 1861 (which

(«) 57 Jc 58 Vict. c. 41, rs. 13, 14.

(A) Hull. N. P. 248. (c) R. v. England, 2 Leach, 770.
Id) H. v. Gregory, 15 L. J. M. C. 38.
462 Law of Evidence.

was made in pursuance of that Act, and of 23 &

24 Vict. c. 128). This Order provided :
" Notwithstanding .any of these rules the court or the judge in
chambers may direct that the oral examination and cross-examina
tion of any witness (whether a party or not), or the cross-
examination of any person who has been examined ex parte before
an examiner, or made an affidavit, shall be taken before an
examiner of the court or a special examiner in the manner pre
scribed by the statute 15 <& 10 Vict. c. 86, as if these rules had not
been made, in case it shall appear to the judge that owing to the
age, infirmity or absence out of the jurisdiction of such witness or
person, or for any other cause which to the judge shall appear
sufficient, it is expedient that such direction should be given.
Such direction may be obtained on application to the court or the
judge in chambers on notice."

In practice, all examinations of witnesses who were

old, ill, or out of the jurisdiction were taken before
examiners.
At common law, whenever a witness was beyond the
jurisdiction of the courts, or likely to be so at the time
of trial, or when he was likely to be unable to attend
the trial, owing to approaching dissolution, or perma
nent infirmity, the courts had power to grant a
commission to examine such witness, either in Great
Britain or abroad, at any time after the commencement
of the action (e) ; and to permit his written deposition,
as certified by the commissioner, to be read in evidence
at the trial, on proof that the deponent was at that time
beyond the jurisdiction of the court, or dead, or unable
from permanent sickness, or other permanent infirmity,
to attend the trial.
The present practice is regulated by Rules 5 to 25 of
Order XXXVII. of the R.S.C., 1883. Rule 5 is as
follows :
"The court or a judge may, in any cause or matter (/) whore it
shall appear necessary for the purposes of justice, make any order
for the examination upon oath before the court or judge or any
(e) Fymiry v. hcaxley. 17 Q. 1$. 86.
( f) This does not include fin arbitration under an agreement (/« re
Shaw and Ronaldion, [1892] 1 Q. B.
 Depositions. 463

officer of the court, or any other person and at any place of any
witness or person, and may empower any party to any such cause
or matter to give such deposition in evidence therein on such
terms, if any, as the court or a judge may direct."

Under this rule (and the corresponding Rule 4 of the

E.S.C., 1875) it has been held that orders will be made
where " necessary for the purposes of justice," i.e., in
the interests of all parties to the litigation, and riot
merely in the interest of the applicant (g) ; and there
fore orders can be made to examine witnesses de bene
esse, including the parties to the proceedings (h), when
they are going abroad, or when from age, illness, or
other infirmity they are likely to be unable to attend at
the trial (i). The order may be made ex parte, but
in such a case it is liable to be discharged if it can be
shown to be improper as not being necessary for the
purposes of justice (k). When the ground for the
application is the age of the witnesses, those above
seventy-five will be examined as a matter of course ;
as to those between seventy and seventy-five, it will
depend on the nature of the evidence they can give,
and the number of other witnesses who can give
similar evidence (I), but age alone is not a sufficient
ground where the witness is under seventy. If there is
only one witness who can depose to an important fact,
an order will, following the practice of the Court of
Chancery, be made to examine such witness (m). It
should be observed, that Rule 5 of Order XXXVII.
does not apply to cases in which the parties have
agreed that the evidence in an action shall be taken by
affidavit, and it afterwards transpires that one of the
proposed witnesses will not make an affidavit (»).

O) Berdan v. Greenwood. 20 Ch. 1). 764 n.

(A) Nadin v. Baxxett, 25 Ch. I). 21.
(0 Per Jessel. M.K. : Warner v. Mottet, 16 Ch. I). 103.
(i) Bidder v. Bridge*, 26 Ch. }). 1. (/) Ibid.
(/«) Shirley v. Earl Ferrer*, 3 V'. Wms. 77.
(«) Nadin v. Baxxett, 25 Ch. 1). 21
464 Law of Evidence.

Rule 18 is as follows :
" Except where by this Order otherwise provided, or directed by
the court or a judge, no deposition shall be given in evidence at the
hearing or trial of the cause or matter without the consent of the
party against whom the same may be offered, unless the court or
judge is satisfied that the deponent is dead, or beyond the jurisdic
tion of the court, or unable from sickness or other infirmity to
attend the hearing or trial, in any of which cases the depositions
certified under the hand of the person taking the examination
shall be admissible in evidence saving all just exceptions without
proof of the signature to such certificate."

The very extensive power of ordering depositions to

be given in evidence without the consent of the party
against whom they are to be used conferred by this
rule, is one which ought seldom, if ever, to be
exercised, except in the cases specially mentioned, viz.,
where the deponent is dead or out of the jurisdiction,
or unable from sickness or other infirmity to attend at
the trial. Still there are possible cases in which it
might properly be exercised, e.g., where the deposition
is that of a witness to prove pro forma a relevant fact,
and also when the consent of the opposite party is
withheld mala fide. It will be noticed that the sick
ness or infirmity mentioned in the rule is not necessarily
permanent or incurable (o) .
Where the witness is in England it is, by "Rule 39 of
Order XXXVII., provided that his examination shall,
in any cause or matter in any division of the High
Court, unless the court or a judge shall otherwise
direct, be taken before one of the examiners of the
court ; provided that nothing in the rule is to interfere
with the practice as to examinations in the Admiralty
Division.
In cases where the witness is not examined before
one of the examiners of the court, a special examiner
has to be appointed, who is usually, though not
necessarily, a barrister. All persons interested have a
(<>) See Dulte of Iieavfort v. Crawtkay, L. K. 1 C. P. 699.
 Depositions. 465

right to be heard on the question who shall be appointed

special examiner, and if they cannot agree the judge
appoints (p). A mere witness, however, has no voice
in the matter (q).
When the witness is to be examined abroad (and a
letter of request is not resorted to) a special examiner
has of course to be appointed (r) ; and such special
examiner need not be a barrister. In one case the
British Minister at Teheran was appointed (,s), and,
as previously stated, a commission may issue to the
judges of a foreign court, if willing to act. Bule 6a of
Order XXXVII. authorises the court or a judge to issue
a letter of request to the judges of a foreign court to
examine witnesses for the purposes of an English
action. It is as follows :
" If in any case the court or a judge shall so order, there shall be
issued a request to examine witnesses in lieu of a commission.
The Forms 1 and 2 in the Appendix hereto shall be used for such
order and request respectively, with such variation as circumstances
may require, and may be cited as Forms 37a and 37n in Appen
dix K."

This procedure is now very generally adopted, and,

in some cases, it is the only procedure that is feasible.
An application for a commission to take evidence
abroad will be refused where there has been undue
delay (f), or where it is not made bond fide ; and there
fore, where the court was satisfied that the reason alleged
for the plaintiff not coming to England was a pretence,
and that the real reason was that he desired to avoid
cross-examination in court, a commission to take his
evidence abroad was refused («). In a later case, how
ever, where the Court of Appeal was of opinion that it

O) In re Smith, Knight .(• Gh, L. R. 8 Eq. 23.

(y) In re Contract Corporation. L. K. 13 Eq. 27.
(c) Ongley v. Hill, W. N. (1874), 157.
(*) Banqne Franco-Etjij/itienne v. Liittcher, 28 W. It. 133.
(f) Stcuart v. Gladstone, 7 Ch. D. 394.
(w) Berdan v. Greenwood, 20 Ch. 1). 764 n.
L. K.
466 Law of Evidence.

was not necessary for the purposes of justice that the

plaintiffs should be examined in court, a commission
was granted to examine them in America, where they
resided (x). In another case the Court of Appeal quali
fied an order appointing a commission to take the
plaintiff's evidence in New Zealand, where he resided,
by inserting a proviso that the depositions of the
plaintiff were not to be read if the defendant required
him to appear at the trial to be examined and cross-
examined (y). No general rule can be extracted from
the cases, but it seems that the court will in each case
be guided by the nature of the action, the importance
to be attached to the plaintiff's cross-examination, and
the circumstances under which it is asked to dispense
with the plaintiff's personal attendance in court, in
deciding whether it will or will not grant a commission
to take his evidence abroad. The matter is entirely
one within the discretion of the court (z). But an
application by a defendant to take his evidence abroad
will be more favourably regarded than an application
by a plaintiff (a).
Here it may be mentioned that when, in a divorce
suit, the petitioner, having obtained a commission to
examine witnesses in Vienna, which was suspended
pending the hearing of the act on the petition, sum
moned certain witnesses before a court in Vienna to
take their evidence for the perpetuation of testimony
under the Austrian law, he was restrained by injun-
tion from prosecuting these proceedings before the
Vienna court (b).
With regard to a proposed witness who is abroad,
the court must in all cases be satisfied that he can give
material evidence before it will issue a commission (c),
O) Armour v. Walker, 25 Ch. I). 673.
00 Nadin v. Bassett, 25 Ch. D. 21.
(.-) Coch v. Allcock, 21 Q. B. D. 178.
(a) J?i>*jt v. Woodford, [1894] 1 Ch. 38.
(*) Armstrong v. Armstrong, [1892 J P. 98.
(<•) Langen v. Tate, 24 Ch. D. 522.
 Depositions. 467

and the evidence must be directly material to the case

and not merely evidence which incidentally might be
useful for the purpose of corroborating a Witness or the
like (d). Subject to this the rule is that a commission
will issue if the applicant satisfies the court that it is
impracticable or unreasonable to bring the witness to
England for the trial. In one case the Court of Appeal
affirmed a decision refusing a commission to examine a
witness in America, on the ground that there was not
enough to show that the witness could not be brought
or would not come to England (e), Cotton, L.J.,
observing :
" This ia not the case of a plaintiff but of a witness, and
undoubtedly a most material witness—a witness who is coming to
give evidence on the part of the plaintiff to assist the plaintiff in
upsetting for fraud a scheme in which the witness had himself
been one of the principal actors. It is most desirable that such a
witness should be examined in open court. If, however, it could
be shown that he could not be induced to come here, or that the
plaintiff could not reasonably be expected to bring him here, I
think it would be right to give leave to examine him abroad, and
it would be for the court or the jury at the trial to determine how
far the weight of his evidence was affected by their not having
seen or heard him ; but I think that in a case of this sort, where
it is important that the witness should be examined in court, a
heavy burden lies on the party who wishes to examine him abroad
to show clearly that he cannot be reasonably expected to come
here. On that point the plaintiff has failed. In my opinion there
is not sufficient evidence to satisfy me that this witness cannot be
brought here or will not come here. It is true we are told he is
in the service of some company, but we do not know what is the
character of his occupation, or whether he would not be able, at
comparatively small expense, to leave for a time his position there
and come over to this country."

It may here be observed that of course a commission

can be applied for to examine witnesses in a foreign
country for the purpose of proving what is the law of
that country on any point. The granting of such com
mission will depend entirely on the question whether

(rf) Ehrmann v. Ehrmann, [1896] 2 Ch. 611.

(e) Lawton v. Vacuum Jirake ('»., 27 Ch. I). 137.
2 H 2
468 Law of Evidence.

competent witnesses can be called to prove the law in

question at the trial. If they can be called, the com
mission will be refused (/). If they probably cannot,
the commission will generally be granted (g), but the
matter is entirely within the discretion of the court (h) .
Any objection to the evidence taken before a com
mission ought to be made at the time the evidence is
taken, and not afterwards, and this is especially the
case with an objection which could be removed at the
time ; and therefore, where upon the face of the deposi
tions it appeared that the witness had affirmed, an
application to take the depositions off the file, on the
ground that the witness's evidence could not under the
circumstances have been legally taken on affirmation,
no objection having been made thereto at the time,
was refused (t) ; and where copies of certain documents
and answers of the witnesses with regard to such copies
were received by the commissioners without objection
by the defendant at the time, and the copies were
appended to the depositions, it was held that the
defendant could not afterwards object to such copies
being used in evidence (k).
Where an order has been made for the examination
of a witness under Rule 5 of Order XXXVII., it is not
an order on him to attend for examination, and there
fore if he is unwilling to attend he must be served with
a subpoena. If he then fails to attend, or attends and
refuses to be sworn, or refuses to answer a lawful ques
tion, the party requiring his evidence must apply to the
court or a judge under Rule 13 of Order XXXVII. In
such a case the court will order a recalcitrant witness to
attend at his own expense (I), and can make him pay
the costs of the order (m). A witness who refuses to
(/) The Moxham, 1 P. 1). 116.
(g) Armour v. Walker, 25 Ch. I). 677.
(A) Coch v. Alloock, 21 Q. B. 1). 178.
(0 Richirdt v. Hough, 51 L. J. Q. B. 361.
(A) Robinson v. Dariex. 5 Q. B. I). 26.
(7) Steuart v. Balku Co., 32 W. R. 676.
(;») Under Order XXXVII., Rule 15.
 Depositions. 469

answer a lawful question when ordered so to do by the

court or a judge can be committed for contempt of
court, but an examiner has no power to compel a
witness to answer. All that he can do is to take down
the question and the objection for the purpose of the
matter being brought before the court or a judge by
the party who desires to have the witness's answer (n).
A commission may be issued to the judges of any
foreign court if willing to act (o). So a commission
may issue to the judges of the High Court of Justice
in England, and of the Court of Session in Scotland,
and of any supreme court in any of her Majesty's
colonies or possessions abroad, and to any judge in any
such colony or possession appointed for the purpose by
Order in Council, with respect to whom it is provided
by 22 & 23 Vict. c. 20, s. 1, as follows :
" Where upon an application for this purpose it is made to
appear to any court or judge having authority under this Act that
any court or tribunal of competent jurisdiction in her Majesty's
dominions has duly authorised, by commission, order, or other
process, the obtaining the testimony in or in relation to any action,
suit, or proceeding pending in or before such court or tribunal of
any witness or witnesses out of the jurisdiction of such court
or tribunal, and within the jurisdiction of such first-mentioned
court, or of the court to which such judge belongs, or of such
judge, it shall be lawful for such court or judge to order the
examination before the person or persons appointed, and in
manner and form directed by such commission, order, or other
process as aforesaid, of such witness or witnesses accordingly; and
it shall be lawful for the said court or judge by the same order, or
for such court or judge, or any other judge having authority under
this Act, by any subsequent order, to command the attendance of
any person to be named in such order for the purpose of being
examined, or the production of any writings or other documents to
be mentioned in such order, and to give all such directions as to
the time, place, and manner of such examination, and all other
matters connected therewith, as may appear reasonable and just ;
and any such order may be enforced, and any disobedience thereof
punished, in like manner as in case of an order made by such
court or judge in a cause depending in such court or before such
judge."

(«) Under Order XXXVII., Kule 14.

(«) Fischer v. Sztaray, E. B. Si E. 321. Now, however, the practice is
to issue a letter o£ request, ante, p. 465.
470 Law of Evidence.

Section 2 provides, that every person examined as a

witness under any such commission, order, or other
process as aforesaid, who shall upon any such exami
nation wilfully and corruptly give any false evidence,
shall be deemed and taken to be guilty of perjury.
Section 4 provides—
" That every person examined under any such commission,
order, or other process as aforesaid, shall have the like right to
refuse to answer questions tending to criminate himself, and other
questions which a witness in any cause pending in the court by
which, or by a judge whereof, or before the judge by whom the
order for examination was made, would be entitled to; and that no
person shall be compelled to produce under any such order as
aforesaid any writing or other document that he would not be
compellable to produce at a trial of such a cause."
Section 5 provides, that her Majesty's superior courts
of common law at Westminster and in Dublin respec
tively, the Court of Session in Scotland, and any
supreme court in any of her Majesty's colonies or
possessions abroad, and any judge of any such court,
and every judge in any such colony or possession who
by any order of her Majesty in Council may be
appointed for this purpose, shall respectively be courts
and judges having authority under the Act.
Under this Act the attendance of witnesses before a
special examiner can be enforced by the court having
jurisdiction where the examination is to take place ;
and in such case it is the duty of such court, and not
of the court that appoints the special examination, to
determine what witnesses are to be summoned, and
what documents they are to produce, as well as to
decide all questions of privilege on the evidence which
may arise in the examination (p).
Under s. 2 of the Evidence by Commission Act,
1885 (q), it is provided that—
" Where in any civil proceeding in any court of competent
jurisdiction an order for the examination of any witness or person
(/)) Campbell v. Att.-Gen., L. R. 2 Ch. 571.
(</) 48 & 49 Vict. c. 74.
 Depositions. 471

has been made, and a commission, mandamus, order, or request for

the examination of such witness or person is addressed to any
court, or to any judge of a court, in India or the colonies, or else
where in her Majesty's dominions, beyond the jurisdiction of the
court ordering the examination, it shall be lawful for such court,
or the chief judge thereof, or such judge, to nominate some fit
person to take such examination, and any deposition or examination
taken before an examiner so nominated shall be admissible in
evidence to the same extent as if it had been taken by or before
such court or judge."

Section 5 of 6 & 7 Vict. c. 82 (r), provides machinery

for the execution in any part of the United Kingdom
of commissions issued in any other part (s).

DEPOSITIONS IN COUNTY COURTS.

Eule 18 of Order XVIII. of the County Court Rules,
1903 (t), provides that the court (which term includes
a judge or registrar exercising the powers of the court
in chambers as well as in open court) —
" May in any action or matter, where it appears necessary for
the purposes of justice, make an order for the examination upon
oath before the court or any officer of the court, or any other
person, and at any place in England or Wales, of any witness
or person, and may empower any party to any such action or
matter to give such deposition in evidence therein on such terms,
if any, as the court may direct."

DEPOSITIONS UNDER THE EXTRADITION ACTS AND

THE FUGITIVE OFFENDERS ACT.
Depositions taken in foreign countries may be used
in proceedings taken under the Extradition Act,
1870 (it) , s. 14 of which provides, that—
'• Depositions or statements on oath, taken in a foreign state, and
copies of such original depositions or statements, and foreign

(r) See Appendix.

(*) As to the jurisdiction conferred by this Act, see Burcliard v.
Macfarlane, [1891] 2 Q. B. 241 .
(A) See Appendix for the other Rules on the sabject.
(») 33 & 34 Vict. c. 52. See Appendix.
472 Law of Evidence.

certificates of or judicial documents stating the fact of conviction,

may, if duly authenticated (a'), be received in evidence in proceed
ings under this Act."

It has been held to be unnecessary that the accused

should have been present at the taking of the deposi
tions (y) ; and the Extradition Act of 1873 (z), s. 4,
enables a magistrate of this country, when acting
under an order bearing the seal of a Secretary of State,
to take evidence for the purpose of any criminal matter
pending in a foreign court or tribunal, whether the
accused be present or not, but his presence or absence
must be stated in the deposition.
For the test whether an offence is "of a political
character " within s. 3 (1) of the Extradition Act, 1870,
see the judgment of Cave, J., in B. v. Meunier (a).
By the Fugitive Offenders Act, 1881 (b), s. 29, a
magistrate may take depositions for the purposes of
this Act in the absence of a person accused of an
offence, in like manner as he might take the same if
such person were present and accused of the offence
before him. Depositions (whether taken in the absence
of the fugitive or otherwise) and copies thereof, and
official certificates of, or judicial documents stating
facts, may, if duly authenticated, be received in evi
dence in proceedings under the Act. Provided that
nothing under this Act is to authorise the reception of
any such depositions, copies, certificates, or documents
in evidence against a person upon his trial for an
offence.
(j) Authentication is governed by s. 15.
(y) See JR. v. (fanz, 9 Q. B. D. 93.
(r) 86 & 37 Vict. c. 60. See Appendix.
(a) [1894] 2 Q. 13. 415.
(A) 44 & 45 Vict. c. 69. See Appendix.
 ( 473 )

CHAPTEK VII.

DISCOVERY—INTERROGATORIES.

Discovert at the instance of one litigant of the docu

ments in possession or power of the other, and hy
means of interrogatories of facts within the other's
knowledge, information and belief, and the Rules of
Court regulating the same, will be discussed in this
and the succeeding chapter. It may here be observed
that discovery is not a matter of right, and that the
tendency of the judges is to curtail and not to extend
the discovery that will be granted.
The Crown is entitled to discovery against a subject,
but a subject is not entitled to discovery against the
Crown (a). A foreign sovereign and a foreign state
suing here are on the same footing as regards discovery
as a private individual or corporation (b).
It is proposed first to deal with interrogatories which
were imported into the superior courts of common law
from the equity courts, and have been adopted in the
new practice. By means thereof a party is able to
acquire evidence necessary to enable him to succeed in
court, which he can only obtain, or most easily procure,
by extracting it from his adversary.
The present practice relative to interrogatories is
governed by Order XXXI. of the E. S. C, 1883, which
provides :
Rule 1. In any cause or matter the plaintiff or defendant by
leave of the court or a judge may deliver interrogatories in
writing for the examination of the opposite parties, or any one or

(«) Att.-Oen. v. Newetntle-on-Tyne Corporation, [1897] 2 Q. B. 384.

(4) See South African lie/ntblic v. La Compatjnie Franco Beige du
Chimin tie Fer du Xord, [1898] 1 Ch. 190 ; J'riolean v. United State*,
L. K. 2 Eq. 659.
474 Law of Evidence.

more of such parties, and such interrogatories when delivered

shall have a note at the foot thereof, stating which of such inter
rogatories each of such persons is required to answer : Provided
that no party shall deliver more than one set of interrogatories to
the same party without an order for that purpose : Provided also
that interrogatories which do not relate to any matters in question
in the cause or matter shall be deemed irrelevant, notwithstanding
that they might be admissible on the oral cross-examination of a
witness.
Rule 2. On an application for leave to deliver interrogatories,
the particular interrogatories proposed to be delivered shall be
submitted to the court or judge. In deciding upon such applica
tion, the court or judge shall take into account any offer, which
may be made by the party sought to bo interrogated, to deliver
particulars, or to make admissions, or to produce documents
relating to the matter in question, or any of them, and leave shall
be given as to such only of the interrogatories submitted as the
court or judge shall consider necessary either for disposing fairly
of the cause or matter or for saving costs.
Rule 5. If any party to a cause or matter be a body corporate
or a joint stock company, whether incorporated or not, or any
other body of persons, empowered by law to sue or to be sued,
whether ui its own name or in the name of any officer or other
person, any opposite party may apply for an order allowing him to
deliver interrogatories to any member or officer of such corpora
tion, company or body and an order may be made accordingly.
Rule 6. Any objection to answering any one or more of several
interrogatories on the ground that it or they is or are scandalous
or irrelevant, or not bnini fide for the purpose of the cause or
matter, or that the matters inquired into are not sufficiently
material at that stage, or on any other ground, may be taken in
the affidavit in answer.
Rule 7. Any interrogatories may be set aside on the ground
that they have been exhibited unreasonably or vexatiously, or
struck out on the ground that they are prolix, oppressive, unneces
sary, or scandalous ; and any application for this purpose may be
made within seven days after service of the interrogatories.

Kules 8 and 10 provide that interrogatories shall be

answered by affidavit, and that the sufficiency or other
wise of any such affidavit objected to as insufficient
shall be determined by the court or a judge on motion
or summons.
Rule 11 provides that if any person interrogated
omits to answer, or answers insufficiently, an order
may be made requiring him to answer, or answer
 Discovery—Interrogatories. 475

further, either by affidavit or by viva voce examination,

as the judge may direct.
Rule 20. If the party from whom discovery of any kind or
inspection is sought objects to the same, or any part thereof, the
court or a judge may, if satisfied that the right to the discovery or
inspection sought depends on the determination of any issue or
question in dispute in the cause or matter, or that for any other
reason it is desirable that any issue or question in dispute in the
cause or matter should be determined before deciding upon the
right to the discovery or inspection, order that such issue or ques
tion be determined first, and reserve the question as to the discovery
or inspection.

Interrogatories cannot be delivered without leave.

On the application for leave (c), the particular inter
rogatories sought to be delivered must be submitted to
the judge, and he is only to give leave to deliver such
of them as he considers necessary for disposing fairly
of the cause or matter, or for saving costs. He may
give leave or refuse leave as to all or any of such inter
rogatories, or any part of any particular interrogatory,
at his discretion, and unless there has been any error
of principle on his part the Court of Appeal will not
interfere with the exercise of his discretion (d). He
may also under Kule 20 postpone the decision of the
question of giving leave. The leave, when granted,
does not preclude any objections by the party inter
rogated to answer the interrogatories under Rule (5,
or prevent any subsequent application to set aside the
interrogatories under Rule 7 (e).

Object of interrogating.— Interrogatories are used

for three purposes— (a) to support the case of the party
interrogating ; (b) to ascertain the nature of the case of
the opponent ; (c) to destroy the case of the opponent.

(c) When a summons for directions is taken out by the plaintiff under
Order XXX., Kule I, interrogatories are one of the matters which by
Rule 2 are to be dealt with upon this summons.
(rf) See on these points Peek v. Bay, [18i>4] 3 Ch. 282.
(e) Oppenheim v. Sheffield, [1893] 1 O.. B. 5.
476 Law of Evidence.

In order to support his own case a party may

(by leave) interrogate for the purpose of getting his
opponent to admit on oath any fact which such party
would have to prove at the trial (/) ; and thus obtaining
admissions which will make it unnecessary to enter
into evidence as to the facts admitted (g) ; but leave to
interrogate for this purpose only will not now be
generally granted, having regard to Kule 2, unless the
party seeking leave has first applied to his opponent to
admit the facts under Order XXXII., Eule 4, and the
latter has neglected or refused to make the admission
nor is it permissible to interrogate for the purpose o
fishing out a case, but only to establish a case set up ;
and therefore, as a general rule, a plaintiff cannot
deliver interrogatories before delivering his statement
of claim, nor can a defendant do so before delivering his
defence. Actions for the recovery of land stand on no
different footing in this respect to other actions (h),
and a plaintiff in such an action is entitled to inter
rogate the defendant (as he would be to call him as a
witness) to prove his title.
In order to ascertain what is the nature of the case
of his opponent a party may interrogate as to the facts
on which he relies, but not as to the evidence by which
those facts are to be established (i). A party cannot
by interrogatories compel his opponent to disclose the
names of his witnesses as such : yet, if the name of a
person is a relevant fact in the case, the right that
would otherwise exist to information with regard to
that fact is not displaced by the assertion that such
information involves the disclosure of the name of

(/) Tipping t. Clarke, 2 Hare, 391.

O) Att.-Gen. v. 0atkill,2O Ch. I). 519.
(A) Lyell v. Kennedy, 8 App. Cos. 217.
(0 Eade v. Jacobs, 3 Ex. U. 335 ; cf. Att.-Gen. v. Gatltill, 20 Ch. D.
 Discovery—Interrogatories. 477

a witness (k). Here may be appropriately quoted the

words of Lord Langdale in Storey v. Lord Lennox (I) :
" The defence here is that the letters may disclose the names
of the witnesses and the evidence ; and so indeed may every
discovery which the defendant may be required to give. In
telling the truth, as he is bound to do. he may incidentally disclose
to the plaintiff that which will enable the plaintiff to learn the
names of the witnesses and the nature of the evidence ; and, if
this consequence could be used as a ground for resisting a dis
covery, one of the most extensively useful parts of the jurisdiction
of the courts of equity would be lost."

A party may interrogate for the purpose of destroying

his opponent's case (in), and it has been held that this
extends even to enabling a plaintiff to interrogate for
the purpose of defeating a case that he anticipates may
be made against him by the defendant (n).
A party answering an interrogatory must answer not
only as to his personal knowledge, but also as to his
information and belief (o), and when he is bound to
state his belief he is bound to state the grounds of
it (p). In order to answer fully, he is bound, if neces
sary, to search documents in his possession or power (q) ;
and where he has only a right to inspect documents in
the possession of others he must either inspect them,
or prove that he has been unable to enforce his right
to inspection (r). Since the knowledge of the agent,
in agency matters, is the knowledge of the principal
when the acts inquired into are those which would be
done by or would be known to the agent of the party
interrogated in the ordinary course of business, he is
bound to obtain from such agent information to enable

(*) See Marriott v. Chamberlain, 17 Q. B. D. 154. (/) 1 Keen, 341.

(m) See Orumbreeht v. Parry, H2 W. H. 558 ; Ilinetsey v. Wright,
24 Q. B. 1). 445.
(«) Att.-Gen. v. Girporation of London, 2 Mac. & G. 260.
(o) See the judgments in Lyell v. Kennedy, 9 App. Cas. 81.
(/>) Per I^ord WATSON, ibid.
(?) Att.-Gen. v. Retford, 2 M. & K. 35.
(r) Taylor v. Bundell, Cr. & Ph. 104.
478 Law of Evidence.

him to answer the interrogatory, i.e., if the agent is

still in his employment, or under his control, and in
such a position that the party interrogated might
reasonably be required to communicate with him (s).
But there is a limit to the enforcement of inquiry ; and
if a party can show that, in order to answer the
questions put, it would be wholly unreasonable to
require him to make the necessary inquiries, that is
to say, that it would cause him an unreasonable
expense, or that the questions are such that an unrea
sonable amount of detail is asked, there might be
ground for saying that, although he had not answered
specifically every part of the interrogatories, he had
nevertheless answered sufficiently (t). When a contract
has been entered into with an agent of a foreign
principal as agent, and the agent brings an action in
his own name, the defendant can obtain discovery to
the same extent as if the principal were a party to the
action, and though the court cannot make an order for
discovery on the principle, it can say, and will say,
that the nominal plaintiff shall not proceed with the
action until the real plaintiff has done that which, if a
party to the action, he would have been ordered to do («■).
It is, of course, legitimate in answering interrogatories
to explain or otherwise qualify any answer; but an
answer which introduces irrelevant topics is in
sufficient (x) ; and if an answer is couched in a form
which makes it embarrassing—i.e., which prevents the
person interrogating from using it without having
thrust upon him irrelevant matter as part of it—such
an answer is insufficient (y).
A defendant wishing to pay into court in satisfaction
of the plaintiff's claim is entitled to interrogate a
0) BoleUtnD v. Fither, 10 Q. B. I). 161.1
(f) Per Hrett, L.J., ibid.
(it) Willi* v. Baddeley, [1892] 2 Q. B. 324.
(*) See Pegler v. King, L. R. '.I C. P. 9.
(y) Per Bowen, L.J.," in Lyell v. Kennedy, 27 Ch. D. 28.
 Discovery—Interrogatories. 479

plaintiff as to actual damage sustained, in order to

guide him as to the amount to be paid in (z). So, too,
in actions for libel or slander, where the defendant has
given particulars, under Order XXXVI., Eule 37, of
matters as to which he intends to give evidence in
mitigation of damages, he will be allowed to interrogate
the plaintiff as to such matters (a).
Irrelevancy.—Under Eule 0 an objection may be
taken to answer an interrogatory on the ground that
it is irrelevant, and at the end of Eule 1 is a proviso
that interrogatories which do not relate to any matters
in question in the cause or matter shall be deemed
irrelevant, notwithstanding that they might be ad
missible on the oral cross-examination of a witness.
This proviso was under consideration by the Court of
Appeal in Be Morgan, Owen v. Morgan {b), where the
majority of the court (Fry and Lopes, L.JJ.) held
that its effect was to confine interrogatories to matters
at issue in the action or material to the issues in the
action; whereas Cotton, L.J., was of opinion that
matters not directly relevant to the issues in the action,
but tending to show the defence set up was not a real
defence, could be inquired after. The view of
Cotton, L.J., seems to be the more correct. The
words of the proviso are, "matters in question," not
"matters in issue," and the object of the proviso is
probably to exclude interrogatories tending solely to
impeach the credibility of the person interrogated.
Scandal.— Under Eule (5 objection may be taken to
answer an interrogatory on the ground that it is
scandalous. Scandal consists in the allegation of any
thing which it is 'unbecoming the dignity of the court
to hear, or which is contrary to good manners, or

(i) f'rott v. Brook, 23 W. R. 260 : Home v. Hough, L. R. 9 C. P. 133.

(a) Scaife v. Kemp, [1892] 2 Q. B. 319.
(*) 39 Ch. 1). 316.
 Law of Evidence.

\ some person with a crime not necessary to be

uaum in the action. Any unnecessary allegation
bearing cruelly on the moral character of an indi
vidual is scandalous ; but nothing that is material is
scandalous, and therefore the language of the record
is often, though literally scandalous, not legally
so (c). The sole test is whether the matter alleged to
be scandalous has a tendency, or, in other words,
would be admissible in evidence, to show the truth of
any allegation in the bill that is material with reference
to the relief that is prayed (d).
Stage of action.—Another ground for objecting to
answer an interrogatory is that the subject of inquiry
is not sufficiently material at that stage of the action.
The court is always unwilling, before the right to
relief is established, to make an order for discovery
which may be injurious to the defendant, and will
only be useful to the plaintiff if he succeeds in estab
lishing his title to relief (e). Thus, in an action for
an infringement of a patent, where the defendant denied
the infringement, he was held not bound to answer any
interrogatory inquiring after matters irrelevant to that
question (/) ; but where the plaintiff filed a bill to
establish that a business carried on by three of the
defendants in partnership belonged to the estate of her
late husband, and the interrogatories required these
defendants to set forth whether they, or any of them,
had drawn out of the business any money for their or
his account in respect of capital advanced, profits, or
otherwise, and to set forth the particulars of the
moneys so drawn out, and the third defendant declined
to answer this interrogatory, submitting that the
plaintiff was not entitled to this discovery till she had

(c) Finher v. Owen, 8 Ch. I). 645.

(rf) Per Lord SELBOKNE : Christie v. Christie, L. R. 8 Ch. App. 503.
fe) Per Cotton, L. J., in Fennetty v. Clarh, 37 Ch. D. 187.
(/) Delarue v. Dickinson, 3 K. & J. 388.
 Discovery—Interrogatories. 481

established her right to a decree, the Court of Appeal in

Chancery held, affirming the decision of the Master of
the Rolls, that the interrogatory must be answered (g).
An executor must, if required, set out his accounts in
his answer (h), and a mortgagee in possession admit
ting himself to be redeemable has been held to be
bound to answer interrogatories as to the state and
particulars of the account which it is one of the objects
of the suit to take (i). In the same case, the Court of
Appeal in Chancery laid down that the true rule is,
that in an ordinary suit for accounts, a defendant sub
mitting to answer (even when he altogether denies the
plaintiff's title) must answer fully, not only as to other
matters, but also as to consequential matters of account ;
but the court may be trusted to exercise a proper
control over any attempt on the plaintiff's part to press
for any such minuteness of discovery as would be
either vexatious or unreasonable, as, indeed, it can do
in every case in which it is satisfied that any kind of
discovery is required vexatiously or oppressively. The
same court, in a subsequent case (k), on the ground
that it was vexatious or unreasonable, within the
meaning of the above-quoted words, refused, where
the plaintiff had filed a bill, founded on the alleged
agency of the defendant, which was the question in the
suit, to compel the defendant to answer interrogatories
as to what appeared to be his private transactions,
saying that—
" It would be monstrous that a man, by merely alleging that he
had a share in the concern, which allegation was denied and had
not been established, and whilst it was doubtful whether it would
be established, could get the accounts of the defendant's private
business and of his dealings with other people."

0/) Sautl v. Browne, L. R. !» Ch. 364.

(A) Thompttm v. Dunn, 18 W. R. 854 ; Alison v. Aliton, 50 L. J. Ch.
574.
(0 Elmer v. Creamy, L. R. 9 Ch. 69.
(ft) Great Western Colliery Co. v. Tucker, L. R. 9 Ch. 376.
L.K.
482 Law of Evidence.

The Rules of the Court as to discovery now apply to

infant plaintiffs and defendants, and their next friends
and guardians ad litem, in the same way as to other
litigants (I).
Of course a person interrogated may refuse to
answer on the ground of privilege, for which see ante,
Part I., Chap. VII.
The answers to interrogatories, although not
evidence, may be used against the party answering by
way of admissions. The whole of the answers, or any
one or more answers, or any part of an answer may be
so used; but Rule 24 of Order XXXI. provides that the
judge may look at the whole of the answers, and, if he
shall be of opinion that any others of them are so
connected with those put in that the last-mentioned
answers ought not to be used without them, he may
direct them to be put in.
The Rules of the Supreme Court do not (by
Order LXVIII., Rule 1 (d) affect the procedure in
proceedings for divorce or other matrimonial causes ;
but the Probate, Divorce and Admiralty Division of
the High Court has, by the operation of the Judicature
Act, 1873, the same powers as to discovery that were
formerly possessed by the courts of law and equity (m) ,
and in such matters this Division now follows the
analogy of the Rules of the Supreme Court.
The procedure as to interrogatories in county courts
is governed by the County Court Rules, 1903 («), and
is substantially the same as that in the High Court.

(0 Order XXXI., r. 29.

(»«) See llarxey v. LoxcHn, 10 1'. L). 122,
(/() See Appendix.
 ( 483 )

CHAPTER VIII.

PRODUCTION AND INSPECTION OF DOCUMENTS

AND NOTICE TO PRODUCE.

When private writings contain a contract, or otherwise

embody, or are material to the substance of the issue,
they are not only admissible, but also, when pro
ducible, indispensable evidence. In such cases a party
who relies upon them must either produce them, or
account satisfactorily for their non-production. Such
writings are frequently in the hands of an adverse
party, who will not voluntarily produce them either
before or at the trial. The important practical ques
tions, then, on this subject are, how can a party
ascertain what documents are in his opponent's posses
sion? how can he get these documents produced for
his inspection previous to the trial ? and, lastly, how
can he get them produced at the trial, or put himself in
a position, by reason of their non-production, to give
secondary evidence of their contents ?
The practice as to discovery of documents, produc
tion previous to the trial, and inspection, is now
regulated by Order XXXI. of the E. S. C. 1883, the
portions of which, material for the present purpose,
are as follows :
Rule 12. Any party may, without filing any affidavit, apply to
the court or a judge for an order directing any other party to any
cause or matter to make discovery on oath of the documents which
are or have been in his possession or power, relating to any matter
in question therein (o). On the hearing of such application the
court or judge may either refuse or adjourn the same, if satisfied
that such discovery is not necessary, or not necessary at that stage

(«) This is one of the matters to be dealt with on the plaintiff's summons
for directions under Old. XXX., r. 1.
484 Law of Evidence.

of the cause or matter, or make such order, either generally or

limited to certain classes of documents, as may in their or his
discretion be thought fit. Provided that discovery shall not be
ordered when and so far as the court or judge shall be of opinion
that it is not necessary either for disposing fairly of the cause or*
matter or for saving costs (6).
Rule 13. The affidavit, to be made by a party against whom
such order as is mentioned in the last preceding rule has been
made, shall specify which, if any, of the documents therein men
tioned he objects to produce. . . .
Kule 14. It shall be lawful for the court or a judge, at any
time during the pendency. of any cause or matter, to order the
production by any party thereto, upon oath, of such of the docu
ments in his possession or power, relating to any matter in
question in such cause or matter as the court or judge shall think
right ; and the court may deal with such documents, when pro
duced, in such matter as shall appear just.
Rule 15. Every party to a cause or matter shall be entitled, at
any time, by notice in writing to give notice to any other party in
whose pleadings or affidavits (c) reference is made to any docu
ment, to produce such document for the inspection of the party-
giving such notice, or of his solicitor, and to permit him or them
to take copies thereof ; and any party not complying with such
notice shall not afterwards be at liberty to put any such document
in evidence on his behalf in such cause or matter, unless he shall
satisfy the court or a judge that such document relates only to his
own title, he being a defendant to the cause or matter, or that he
had some other cause or excuse which the court or judge shall
deem sufficient for not complying with such notice : in which case
the court or judge may allow the same to be put in evidence on
such terms as to costs and otherwise as the court or judge shall
think fit.
Rule 17. The party to whom such notice is given shall, within
two days from the receipt of such notice, if all the documents
therein referred to have been set forth by him in such affidavit as
is mentioned in Rule 13, or if any of the documents referred to in
such notice have not been set forth by him in any such affidavit,
then within four days from the receipt of such notice, deliver to
the party giving the same a notice stating a time within three days
from the delivery thereof at which the documents, or such of them
as he does not object to produce, may be inspected at the office of
his solicitor, or in the case of bankers' books or other books of
account, or books in constant use for the purposes of any trade or
business, at their usual place of custody, and stating which (if any)
of the documents he objects to produce, and on what ground. . . .

(ft) See as to this rule, Atlnrtiry-Geueral v. Kortlt Met ropn'itaH Tram

way* Co., [1892] 3 Oh. 70, and Be Willi' Trade Marl/*, [KS1I2] SCh.207.
(p) An exhibit to an affidavit is, for the purposes of discovery, a pnrt of
the affidavit (He Ninc/tlifr, []89:>] 1 Ch. 117).
Pboduction 'xfw Inspection of Documents, etc. 485

Eule 18 provides that (1) if the party served with

notice under Eule 17 omits to give such notice of a
time for inspection, or objects to give inspection, or
offers inspection elsewhere than at the office of his
solicitor, the court or judge may make an order for
inspection in such place and in such manner as they may
think fit ; and (2) that any application to inspect docu
ments, except such as are referred to in the pleadings,
particulars, or affidavits of the party against whom the
application is made, or disclosed in his affidavit of docu
ments, shall be founded upon an affidavit showing of
what document inspection is sought, that the party
applying is entitled to inspect them, and that they are
in the possession or power of the other party.
Rule 19a. (1.) Where inspection of any business books is
applied for, the court or a judge may, if they or he shall think fit,
instead of ordering inspection of the original books, order a copy
of any entries therein to be furnished and verified by the affidavit
of some person who has examined the copy with the original
entries, and such affidavit shall state whether or not there are in
the original book any and what erasures, interlineations, or altera
tions. Provided that notwithstanding that such copy has been
supplied, the court or a judge may order inspection of the book
from which the copy was made.
(2.) Where, on an application for an order for inspection,
privilege is claimed for any document, it shall be lawful for the
court or a judge to inspect the document for the purpose of deciding
as to the validity of the claim of privilege (rf).
(3). The court or a judge may, on the application of any party
to a cause or matter at any time, and whether an affidavit of docu
ments shall or shall not have already been ordered or made, make
an order requiring any other party to state by affidavit whether
any one or more specific documents, to be specified in the applica
tion, is or are, or has or have at any time been in his possession
or power ; and, if not then in his possession, when he parted with
the same, and what has become thereof. Such application shall
be made on an affidavit stating that in the belief of the deponent
the party against whom the application is made has, or has at some
time had in his possession or power the document or documents
specified in the application, and that they relate to the matters in
question in the cause or matter, or to some of them.
(</) " Privilege " here means any ground on which inspection is sought
to be resisted, and the judge is entitled to inspect sealed, as well as unsealed,
portions of documents (Ehrmann v. Ehrmann, [18it6] 2 Ch. 826).
486 Law of Evidence.

The principles embodied in these rules are taken

(though with some differences) from those embodied in
15 & 16 Vict. c. 86, s. 18, which regulated the practice
in the Court of Chancery, and in 14 & 15 Vict. c. 99,
s. 6, and 17 & 18 Vict. c. 125 (Common Law Procedure
Act, 1854), s. 50, which regulated the practice of the
courts of common law. The decisions on these Acts
are, therefore, still of some practical importance ; but
it must be borne in mind that although now, when there
is any conflict between the rules of law and equity with
reference to the same matter, the rules of equity are to
prevail, this, though true of rules of legal principle,
is not considered to be true of mere rules of practice,
as to which the more convenient practice will be
adopted (e).
What documents are producible.—In the first place,
then, it has been held that all relevant documents are
prima facie producible, but that production of privileged
documents cannot be enforced (/) ; and although a
party has a right to the production of all documents
that relate to his own case alone, or to his case con
jointly with that of his adversary, he has no right to
the production of documents that are irrelevant to the
issue, or that relate exclusively to the title of his
adversary (g) ; but it will not be sufficient merely to
allege that the documents relate exclusively to the title
of the party resisting production, if that conclusion is
opposed to the character of the documents. Knight-
Bruce, V.-C, in Combe v. Corporation of London (h),
said :
" If it be, with distinctness and positiveness, stated in an answer
that a document forms or supports the defendant's title, and is

(c) Ni whiijgin Gag Co. v. Armstrong, 13 Oh. 1). 310.

(J")Clegg v. Ethnondson, 22 Beav. 125, 1(>7. As to privilege, see
Part I., Chap. VII.
(<?) Ingilby y. Shafto. 33 Beav. 31 ; cf.<Mhiet v. Morgan, L. K. 8 Ch.
361.
(A) 1 Y. & Coll. C. C. 631.
Production and Inspection of Documents, etc. 487

intended to be or may be used by him in evidence accordingly, and

does not contain anything impeaching his defence or forming or
supporting the plaintiff's title or the plaintiff's case, that document
is, I conceive, protected from production, unless the court sees
upon the answer itself that the defendant erroneously represents
or misconceives its nature ; but where it is consistent with the
answer that the document may form the plaintiff's title or part of
it, may contain matter supporting the plaintiff's title or the
plaintiff's case, or may contain matter impeaching the defence, then
I apprehend the document is not protected ; nor I apprehend is it
protected if the character ascribed to it by the defendant is not
averred by him with a reasonable and sufficient degree of positive-
ness and distinctness."

It has been held that a defendant can only avoid

production of documents, the possession and relevancy
of which he admits, by giving a reason for alleging that
the production is unnecessary for the decision of the
issue, or that the discovery would be injurious to him
self (i) . Although the court may now inspect any docu
ments or portion of a document, sealed or unsealed
(ante, p. 485), for which privilege from production is
claimed, yet as a general rule the court will accept the
oath of a litigant whether documents are relevant or
not, and whether they relate exclusively to his own
title, unless the court is satisfied from the litigant's
own description of the documents, or from other
admissions and documents before it, that the litigant
has misconceived or erroneously represented the nature
of the documents in question, or that the litigant's
oath is not to be relied on, and then the court will give
effect to its own views (k). If a litigant swears that
documents relate solely to his own case and do not tend
to prove or support his adversary's case, he need not
allege that they do not tend to impeach his own
case (I). According to previous practice a party
was held entitled to the production of all relevant

(0 Ileugh v. Garrett, U L. J. Ch. 365.

(/() Attorney-General v. Kmerton, 10 Q. B. D. 191 ; approved in
Frankenxtein v. Garrin'» Cycle Cleaning Co., [1897] 2 Q. B. 02.
(I) Morris v. Edwardt, 15 App. Cas. 309.
488 Law of Evidence.

documents except such as were privileged as a matter of

course (m) ; but now it has been decided by the Court
of Appeal that, under the present Rules of Court, it is
in the discretion of the court to make an order for pro
duction or not (») , and in the case under notice an order
was refused.

Relevancy of documents.— Every document which

will throw any light on the case is prima facie relevant,
and will, therefore, be open to inspection (o) ; and
relevant documents for this purpose are not simply
those which would be evidence to prove or disprove
any matter in question in the action, but they include
every document which may (although not necessarily
must) either directly or indirectly enable either party
to advance his own case or to damage the case of his
adversary (p).

The right to deal with documents will warrant an

order for their production ; and therefore a party will
be ordered to produce documents of his which are in
the possession of his agent or of his solicitor past or
present. But in such a case the order will contain
liberty to apply in case the party cannot obtain the
documents, so that the order may not be made a means
of oppression (q). That the party makes a claim for
negligence against his solicitor causes no difference (r) :
and a solicitor's ordinary lien is no defence to an order
for production (s). Where a contract has been entered
into with an agent of a foreign principal as agent and
the latter brings an action in his own name, the
defendant can obtain discovery to the same extent as

OO Buttrot v. White, 1 Q. B. I). 423.

(h) Hope v. Brush, [1897J 2 Q. B. 188.
(«) Per Blackburn, J. : Hutehinnon v. Glorer, I Q. B. 1). HI.
Per Bkett, L.J. : Coinpaijuie Fiiunwierc du Pacijique v. Peruvian
amnio Co.. \\ Q. B. 1). 63.
(if) Lewi* v. Powell. [18U7] 1 Ch. 678.
(r) Ibid. (*) Hope v. Liddell, 20 Bear. 438.
Production and Inspection of Documents, etc. 489

if the principal were a party to the action ; and though

the court cannot make an order for discovery on the
principal, it can say, and will say, that the nominal
plaintiff shall not proceed with the action until the
real plaintiff has done that which, if a party to the
action, he would have been ordered to do (t). But a
party cannot be ordered to produce the private books
of his agent («) or solicitor (x). Where the documents
are in the possession of an agent for the party against
whom the application is made jointly with other per
sons, no order to produce will be made, but the party
will be compelled to discover by answer any knowledge
he may be able to obtain by inspecting such docu
ments. A fortiori, these principles apply to cases
where the documents sought are in the possession of
the party jointly with others. Lord Cottenham, in
Taylor v. Bundell (y), said :
" It is true that the rule of court, adopted from necessity, with
reference to the production of documents, is, that if a defendant
has a joint possession of a document with somebody else who is
not before the court, the court will not order him to produce it,
and that for two reasons : one is, that a party will not be ordered
to do that which he cannot or may not be able to do ; the other is,
that another party not present has an interest in the document
which the court cannot deal with. But that rule does not apply
to discovery, in which the only question is, whether as between
the plaintiff and the defendant the plaintiff is entitled to an answer
to the question he asks ; for if he is, the defendant is bound to
answer it satisfactorily, or, at least, show the court that he has
done so far as his means of information will permit."

When privilege is claimed on this ground the party

claiming it must show enough to satisfy the court what
the nature of the joint ownership is (z). The mere fact
that a person not before the court has an interest in

(0 Willi* v. Jiaddcley, [1892] 2 Q. B. 321.

(?t) Airey v. Hall, 2 Ue G. k S. 481).
O'Sliea v. Wood, [1891] P. 287.
(//) Cr. & Ph. 10-1 ; <■/. Clinch v. Financial Corjinratiun, L. B. 2 Eq.
271.
(;) Bovill v. Cowan, L. R. 5 Ch. 49:..
490 Law of Evidence.

documents is no ground for resisting production (a) ;

but where a defendant in a suit relating to transactions
in which he was engaged on his own account had made
entries of such transactions in the books of a partner
ship, it was held that he could not be compelled to
produce such books without the consent of his co
partner, and that the plaintiff should interrogate him
so as to compel him to set forth the entries, and then
enforce production of the originals at the hearing by-
serving a subpoena duces tecum on the co-partner (b).

Production of a mortgagee's deeds.—A mortgagee

cannot (except as hereinafter mentioned) be compelled
to produce his security (including title deeds deposited
with him) except on payment of his principal interest
and costs (c) ; nor, if he purchases the equity of
redemption, can he be compelled to produce the con
veyance to him (d). Where, however, a mortgagee
purchased the equity of redemption from a trustee,
with notice of the trust, he was held not entitled to
refuse production of the conveyance to him in a suit by
the cestui que trust for redemption and reconveyance (e) .
Where a mortgage security is impeached, the security
must be produced, although the mere fact of charging
a mortgagee with fraud will not entitle a mortgagor to
production (/) ; and this applies to all deeds (which
are impeached, and not only to mortgages {g). Where
a mortgage has been made since the Conveyancing
and Law of Property Act, 1881, came into operation, then
s. 16 (1) of that Act applies, which is as follows :
■' A mortgagor, as long as his right to redeem subsists, shall, by
virtue of this Act, be entitled from time to time, at reasonable

(a) Kettlewell v. Barstow, L. R. 7 Ch. 693.

(*) Hadley v. M'Buugall, L. R. 7 Ch. 312.
(c) Chichester v. Marquis of Donegal. L. R. 5 Ch. 502.
(fl") Greenwood v. Rothwell.'l Heav. 291.
(e) Smith v. Barnes, L. R. 1 Eq. 65.
(/) Cf. Republic of Costa Rica v. Erlanger, L. R. 19 Eq. 44.
(//) Bassford v. Blakesley, l> Heav. 131.
Production and Inspection of Documents, etc. 491

times, on his request, and at his own cost, and on payment of the
mortgagee's costs and expenses in this behalf, to inspect and
make copies or abstracts of or extracts from the documents of
title relating to the mortgaged property in the custody or power of
the mortgagee."

Confidential documents. Letters written to and in

the possession of a party to the suit will, if material,
be ordered to be produced, although marked " private
and confidential," and although the writer objects to
their production ; but the party claiming their pro
duction must enter into an undertaking not to use
such letters for any collateral object (h). The mere
heading "confidential " cannot protect a document from
production (i). Where documents are confidential,
whether so headed or not, it would seem to be the true
principle that a prima facie case for production must
be made out to justify the court in ordering production,
but wherever fraud is pleaded, all documents which
would throw any light on the alleged fraud ought to be
produced (k).
When privilege is claimed for a document as crimi
nating, the objection must be taken on oath, and the
objection must be taken to the order for production
and not to the order for discovery (/) .

Sealing up.—When documents contain partly privi

leged or irrelevant matter and partly unprivileged or
relevant, the privileged or irrelevant parts may be
sealed up on production. Thus a part of a pedigree
was allowed to be sealed up on an affidavit by the
defendants that it related to their title and not to
the plaintiffs' (w) ; but when the parts which might be

(7») Hopkinson v. Lord Burghley, L. K. 2 Cli. 417.

(_») Per BoviLL, C.J. : Mahoney v. National Widow*' Lift- Insuranee
Fund, L. R. 6 C. 1J. 256.
(£) Mahoney v. National Widows' Life Insurance Fund, L. It. 6 C. P.
252.
(t) Spokes v. Orosvenor Hotel Co.. [1897] 2 Q. B. 124.
(»0 Kettlewell v. Baritow, L. It. 7 Ch. 603.
492 Law of Evidence.

thus concealed are so interspersed with those parts

which are producible that sealing up is impossible, it
seems that, except in extraordinary cases, no order to
produce will be made («). Where actual sealing up
would interfere with the conduct of his business, or be
otherwise oppressive, the party producing documents
may cover up (in lieu of sealing up) irrelevant portions,
provided he states upon oath that no relevant portions
have been covered up (o).
The order usually made is for the party, his solicitors
and agents, to inspect the documents. This form of
order has been held to include a confidential agent
whose assistance is necessary to carry on the suit,
although he was a witness in the cause (p), and the
usual rule of the Court of Chancery was that witnesses
were not allowed to inspect documents before the
hearing (q). When Y. was named in a bill as the agent
of the plaintiffs (a foreign republic) in this country, the
defendants were required to produce their documents to
S., who was stated in the affidavit of the plaintiffs'
solicitor to be their agent for the purposes of the
suit (r). A special order may be made on special
grounds for any other person (besides the solicitor or
agent of the party) to inspect (s). Thus the assistance
of surveyors will be allowed in mining actions (t), of
scientific persons in patent actions («), and of account
ants when complicated accounts are involved (x).
Again, it must be observed that, where the plaintiffs
title to relief is denied by the defendant, the defendant
ought not to be compelled to produce all documents,
but only those which are necessary or material to the
(») Cliurhm v. Frewen, 2 Dr. & Sm. 394.
00 Graham v. Sutton, [1897J 1 Ch. 761.
(;0 Attorney- General v.Whitwood Local Board, 40 L. J. Ch. 592.
0/) Boyd v. Petrie, L. R. 3 Ch. 818.
(r) Republic of Costa Rica v. Frlanger, L. K. 19 Eq. 44.
O; Boyd v. Petrie, L. R. 3 Ch. 818.
(0 Swansea Rail. Co. v. Budd, L. K. 2 Eq. 274.
(«) Bonnardet v. Taylor, 1 J. & A. 386.
(x) Lindsay v. Gladstone, L. R. 9 Eq. 132.
Production and Inspection op Documents, etc. 493

question to be decided at the hearing or trial. This

principle was acted upon by the Court of Chancery,
and has been substantially adopted in Rule 20 of
Order XXXI. of R. S. C, 1888, and is constantly
applied by the High Court (//).
A defendant has been held entitled to production of
documents, although in contempt (z).
A defendant cannot obtain discovery of documents
from a co-defendant (a) ; nor, it would appear, can a
plaintiff obtain discovery of documents from a third
party brought in by the defendants, unless the third
party has liberty to oppose the plaintiff's claim (b).
The rules of court as to discovery now apply to
infant plaintiffs and defendants and their next friends
and guardians ad litem, in the same way as to other
litigants (Order XXXI., Rule 29).

Documents referred to in pleadings and affidavits.—

It will be noticed that, as regards documents, other
than those referred to in pleadings and affidavits, pro
duction before trial can only be obtained by means of
an order, but that, as regards documents referred to in
a party's pleadings or affidavits, his opponent can,
under Rule 15, give a notice for their production, and
need only apply for an order for production if such
notice is disregarded, or not properly complied with.
An important question then is, does the term "pleadings
or affidavits" in Rule 15 include an affidavit of docu
ments made under Rule 12 ? This point cannot even
yet be considered as finally settled. Seeing that in
Rule 18 the same term clearly does not include an
affidavit of documents, because the term affidavit of
documents is used in contradistinction thereto, it may
be supposed that it was not intended to include it in
(y) Itowcliffe v. Leigh, 6 Ch. D. 256 ; Vrrminck v. Edward*, 29 W. B.
189.
(z) Haldant v. Eckfurd, L. R. 7 Eq. 425.
{a) Brown T.Watkitu, 16 Q. B. ]). 125.
(») Eden v. Weardale, etc Co., 34 Ch. D. 223.
494 Law of Evidence.

Rule 15. The practice of the King's Bench Division

is to treat affidavits of documents as included in the
word "affidavits" in Rule 15. In the Chancery
Division the old form of order is followed, i.e., where
an order for an affidavit of documents is made it goes
on to order production, so that the question would
seldom arise ; but in a recent case it was held that
Rule 15 does include an affidavit of documents (c).
Then comes a further question : Is an affidavit in
answer to interrogatories within the rule ? Moore v.
Peachey {d) is an authority that it is. Particulars are
"pleadings" within this rule; and an affidavit sworn,
but not filed, is an affidavit within the rule (e).
All documents coming within Rule 15 must be pro
duced, and an order to inspect them will be made as a
matter of course at any stage of the proceedings before
the trial, unless good cause to the contrary is shown (/),
the intention being to give the opposite party the same
advantage as if the documents were fully set out in the
pleadings (/). Of course the claim of privilege is not
lost in respect of a document by mentioning or setting
it out in a pleading or affidavit (g) ; but if it is claimed
and the document is not produced, it cannot be given
in evidence at the trial without the leave of the court
or judge, unless it falls within one of the exceptions
mentioned in Rule 15. The documents need not be
referred to with any particularity to come within the
rule; a general reference is quite sufficient (h). The
production of copies of documents referred to in plead
ings or affidavits cannot be claimed under this rule,
but if the documents referred to are copies their
production can be enforced ( /) ; and where entries in

(p) Partly'* Mozambique Syndicate v. Alexander. [1903] 1 Ch. 191.

(d) [1891] 2 Q. 15. 707.
(c) lie Frnncr and Lloyd. [1897] 1 Q. 15. 067.
(/') Qvilter v. J/eatly, 23 Oh. 1). 42.
(j/) Hubert* v. Oppenheim, 26 Ch. 1). 724.
(A) Smith v. HarrU, 48 L. T. (N.B.) 868.
Production and Inspection of Documents, etc. 495

books are referred to, inspection can be had of such

entries only and not of the entire books (i). An
exhibit is part of an affidavit, and therefore any person
entitled to see the affidavit is entitled to see the
exhibit (j). But where the exhibit is a document
brought into existence for the information of the court
and for that purpose only, its production cannot be
claimed. Therefore, when a plaintiff was suing in
forma, pauperis, the defendant was held not entitled
to inspect the case laid by the plaintiff before counsel
under Order XVI., Eule 23, and his opinion
thereon, although made exhibits to the affidavit filed
in accordance with Order XVI., Eule 24 (k).
A party who has made an affidavit of documents
under Eule 12 cannot be cross-examined upon it, nor
can evidence be adduced to contradict the allegations
therein ; but if an affidavit be insufficient a further
affidavit can be ordered. As an affidavit of documents
cannot be contradicted, it ought to be full (1), and will
be construed strictly. In claiming protection for a
document on the ground of privilege the facts upon
which the privilege is claimed ought to be set out (/).
If an affidavit is technically sufficient, but the party
seeking discovery believes that the party who has made
the affidavit has in his possession documents which are
not referred to in the affidavit, the latter may be inter
rogated as to such documents (to) ; but the interrogatory
must be as to specific documents, and must not be
general in its terms, and leave to deliver such an
interrogatory must be obtained on a special appli
cation (»). It will hardly be necessary to adopt this

(»') Quitter v. Neatly, 23 Ch. 1). 42.

(;) He Ilinehliffe, [189.1] 1 Ch. 117.
(i) Sloane v. Britain Sttamthip Co., [1897] 1 Q. IS. 185.
(I) Per COTTON, L.J. : Gardner v. Irvin, 4 Ex. I). 53.
(m) See judgment of Brett, L.J. : Janet v. Maitte Video Out C'a.,
5 Q. B. ]). 556.
(«) Hall v. Truman, 2i) Ch. 1). 307 ; but sec Morrit v. Edwardx,
15 App. Cm. 31U.
 496 Law of Evidence.

procedure now that Bule 19a (3) {ante, p. 485) can be

resorted to. Before that rule was introduced an
affidavit of documents was conclusive against the
person seeking the discovery unless it could be shows
either from the affidavit itself or from the documents
therein referred to, or from an admission in the
pleading of the party swearing the affidavit, that other
documents existed in his possession or power which
were material and relevant to the action. The object
A)i the rule is that a litigant who can point to specific
* documents, which he is able to name and specify in his
affidavit, and who is in a position to swear that in
his belief they are or have been in the possession of his
opponent, and that they relate to the matters in question
in the action, shall have a right to discovery of those
particular documents. But the key of the position is
this, that there must be an affidavit of his belief as
to specific documents capable of being named and
specified. The rule applies only where these conditions
are fulfilled (o).
An inspection ought not, of course, to be granted
when it appears to be sought, not bond fide for the
pending action, but to assist the applicant in an action
against a third person (p) ; nor will a party be permitted
to make public, information which he has obtained from
the inspection of his opponent's documents (q).
The court will not compel a person, not a party to
the suit, to produce a document for inspection (r),
unless he has obtained it from a party to the suit, or
holds it in the nature of a trust for such party («)•
Where such a person holds independently, and by s
title paramount to the title of the party, he will not be

(«) White v. Spafford r,,., [1901] 2 K. B. 241.

(y;) Tempcrley v. Willet, 6 K. & U. 380.
(<y) William* v. Prince of Walls' Life Atturanee Co., 23 Bear. SJ8 i
rf. Hopkinton v. Lord Burijhley, L. R. 2 Ch. 447.
(r) Corks v. Nath, 9 Biiig. 721.
0) Dor v. Roe, 1 M. & VV. 207.
Production and Inspection of Documents, etc. 497

subject to an order for inspection (s). In one case,

Stuart, V.-C, refused to order an executor to produce
certain cheques of his testator which were at the date
of the application in the possession of the banker on
whom they were drawn (t). The production of docu
ments at a trial (or under Order XXXVII., Kule 20,
before an officer of the court, or other person appointed
to take evidence) by a person not a party to the
action is enforced by issuing a subpoena duces tecum.
The person subpoenaed is bound to attend with the
documents specified, but he can then raise any
legal objection to the production of all or any of the
documents.
Eule 7 of Order XXXVII. of the E. S. C, 1883,
provides that—
The court or a judge may in any cause or matter at any stage
of the proceedings order the attendance of any person for the
purpose of producing any writings or other documents named in
the order which the court or judge may think fit to be produced :
Provided that no person shall be compelled to produce under any
such order any writing or other document which he could not be
compelled to produce at the hearing or trial («).

This Eule does not give a litigant the right to obtain

discovery which he did not previously possess against
persons who are not parties to the action. Its object
is to facilitate the production of documents on the
hearing of motions, petitions, etc. (x). An order under
this Eule is in fact equivalent to a subpoena duces
tecum, and has the same effect ; the person on whom
it is made must attend with the documents specified,
but he can then raise any legal objection to the pro
duction of all or any of the documents (y). An order
under this Eule may be made ex parte (z).

(0 Bayley v. Cant, 10 W. R. 370.

(k) See as to Hankers' Hooks, ante, i>. 117.
\x) Elder v. Carter, 25 Q. B. D. 194.
(y) See William) v. Frere, [1891] 1 Ch.82S.
(:) Williams v. Frere, nhi supra.
L.E. 2 K
498 Law of Evidence.

The County Courts have powers of granting and

enforcing inspection and production of documents.
The County Court Eules dealing with these subjects
will be found in the Appendix.

PRODUCTION AT THE TRIAL AND NOTICE

TO PRODUCE.
The court can, under Order XXXI., Rule 14, compel
the production by a party of any document at the trial.
A party cannot, except by getting an order, compel his
opponent to produce any document at the trial ; but if
he wishes to be in a position to give secondary evidence
of the contents of any document in the possession of
his opponent, he must, as a general rule, give his
opponent written notice to produce such document at
the trial. If after proof that such notice has been
given, and that the original is in the hands of the
adverse party, the latter will not produce it, the party
requiring it may resort to secondary evidence of it.
Before this can be done, the party tendering it must
prove, or raise at least a reasonable presumption, that
the original is in the hands of the adverse party, or of
a third person in privity with him (a). Slight evidence
of this fact will be sufficient, when the document
naturally, necessarily, or probably, might be expected
to be in the custody, or under the control, of such
adverse party. Thus, it has been presumed that a
bankruptcy certificate came into the hands of a bank
rupt who was proved to have applied for it, and to
have been charged for it by his solicitor (b). Generally,
where documents have been traced into a party's pos
session, it lies upon him to show what has become of
them, before he can object, after notice to produce, to

(n) Sharp v. Lamb, 11 A. & E. 805.

(hj Henri/ v. Leigh, 3 Camp. 502.
Production and Inspection of Documents, etc. 499

the substitution of secondary evidence (c) ; and where

there is a privity of title between the adverse party and
a third person who holds the original, the former is
equally compellable to produce. In such a case the
question is, whether the custody was virtually, although
not actually, the custody of the adverse party ; or
whether he had such a control over the holding by
the third party as made it virtually a personal holding.
Thus, generally, where the holding is by an agent, he
may either be served with a subpoena duces tecum, or
the principal may be served with notice to produce.
Where a notice was given to an owner of a vessel to
produce a document which appeared to be in the pos
session of the captain (d) ; where it was given to the
drawer to produce a cheque which was proved to have
been delivered to the drawer's banker (e) ; and to a
sheriff to produce a warrant which had been returned
to the under-sheriff (/), secondary evidence has been
received ; but where the possession was independent of
the adverse party, as where he had assigned a lease (g) ;
or where the writing was held as a security by a third
party (h) ; or where it has been traced by a party
satisfactorily into the possession of a stranger with
whom he is unconnected, and over whom he has no
control, a litigant will not be affected by notice unless
he has wilfully parted with the document after receiving
the notice (i).
A party may produce an original document at any
time when secondary evidence is tendered ; and then
the latter becomes inadmissible. If there is any ques
tion as to the originality of the document, such question

(f) R. v. Thistle-wood, 33 How. St. Tr. 757.

(rf) Baldney v. Ritchie, 1 Stark. 338.
(i) Partridge v. Coatet, Ry. & M. 156.
(/) Taplin y. Atty, A Bing. 164.
(j) Knight v. Martin, Gow, 103.
(A) Parry v. May, 1 M. 4c R. 279.
(/') Knight v. Martin, Gow, 103.
2 k 2
500 Law of Evidence.

is for the judge (k) ; but where the existence of a duly

stamped document is denied upon the pleadings, and
the plaintiff, after giving notice to produce, tenders a
copy of it, the judge cannot hear evidence to decide the
question of the existence of the stamped original as a
question preliminary to that of the admissibility of the
copy, because he would be thereby determining an
issue which is in the province of the jury (I).
A notice to produce might formerly have been given
to the adverse party or his agent, either verbally or in
writing (to) ; but it must now in civil cases be given
in writing (»). It must be proved to have been given
before secondary evidence is admissible. It may be
served either on the party or on his solicitor (o), and it
will be sufficient to leave it with a servant at the
residence of the former, or with a clerk at the office of
the latter (p). If a new trial is ordered fresh notices
to produce are not necessary (q).
The notice to produce is (by Order XXXII., Rule 8)
required to be in the form given by Appendix B., No. 14,
to the E. S. C, 1883, with such variations as circum
stances may require. It need not be minutely descrip
tive, and the courts will not entertain frivolous or
technical objections to its validity, if it points out, with
general distinctness, to the adverse party the docu
ments which he is required to produce (r). Notices to
produce " all letters written by the plaintiff to the
defendant, relating to the matters in dispute in the
action " (s) ; and—
" All letters written to and received by the plaintiff between
the years 1837 and 1841, both inclusive, by and from the defen
ce Boyle v. Wiseman, L. R. 11 Ex. 360.
(?) Stowe v. Querner, L. R. 5 Kx. 155.
((«) Smith v. Young, 1 Camp. 440 ; Sitter v. liurrdJ, 2 H. fc S. 8G7.
(«) By Order XXXII., r. 8.
(o) Ilughct v. Jiudd. 8 Dowl. 315.
(]>) Erans v. Sweet, Ry. & M. 84.
tj) Hope. v. lieadon, 1 7 Q. B. 509.
(c) Lawrence v. Clark, 14 M. k W. 251.
(*) Jacob v. Lee, 2 M. & Bob. 33.
Production and Inspection of Documents, etc. 501

dants, or either of them, or any person on their behalf ; and also

all books, papers, etc., relating to the subject-matter of this
cause " (I).

And also " all accounts relating to the matters in

question in this cause " («) ; have been held sufficient
notice to produce any document reasonably included in
the description. Notice to produce a letter purporting
to enclose an account has been held sufficient notice to
produce the account (x).
The notice ought to be given within a reasonable
time before the trial comes on ; and it will be for the
judge to determine, on the circumstances of the case,
whether the notice has been served within a reasonable
time previously to the trial (y).
In town causes, and also in country causes, where
the solicitor lives in the assize town, if the documents
are such as from the nature of the case may reasonably
be presumed to be in his hands, notice may be served
not later than early in the evening of the day preceding
the trial (z) ; but if they are not such as are immedi
ately connected with the cause, or are such as would
presumably be in the hands of a client or other person,
the notice must be proportionately earlier, according
to an estimate of the time necessary to obtain them (a).
In such a case, and especially in country causes, where
the adverse solicitor does not live in the assize town,
the notice ought to be served on him before the com
mission day, and within a reasonable time before he is
required to leave home for the assize town (b) ; but if
he has the document with him at the assize town,
service there will be sufficient (c).
(0 Morrit v. Han*er, 2 M. & Hob. 392.
(u) Boijert v. Guttanee, 2 M. & Rob. 171*.
(*) KnguU v. Bruce, 9 W. U. 536.
(y) Per l'AKKU. a. : Lloyd v. Monlyn. 10 M. k \V. 483.
(i) Atkynt v. Meredith, 4 Dowl. 658.
(«) Byrne v. Ilarrey, 2 M. & R. 89.
(p) George v. Tltompxon, 4 Dowl. 656.
(<•) B. v. Hawkiiu, 2 C. Jt K. 823.
502 Law of Evidence.

Where the adverse holder is abroad, or beyond the

jurisdiction of the court, and leaves his solicitor to
conduct his case, it will be presumed that he has also
left with him all papers naturally connected with his
case ; and the courts, under such circumstances, have
been inclined to maintain the validity of a notice to the
solicitor {d) ; but the circumstances must be such as to
support a supposition that the papers are producible,
and the notice must be sufficient. Thus, a three days"
notice to produce letters written by a defendant to
his partners in New South Wales, was held sufficient,
on its appearing that there had been litigation between
the same parties some years previously, for the purposes
of which it was reasonable to suppose that the letters
must have been remitted to England (e).
If a party, on being served with notice to produce,
states that the document does not exist, secondary
evidence will be admissible, and the adverse party
cannot object to the lateness of the notice (/).
Rule 8 of Order XXXII. provides, that an affidavit of
the solicitor, or his clerk, of the service of any notice to
produce, and of the time when it was served, with a
copy of the notice to produce, shall, in all cases, be
sufficient evidence of the service of the notice, and of
the time when it was served. Sufficient evidence in
this Rule means prima facie and not conclusive
evidence (g).
Notice to produce is unnecessary—-
(1) Where a party holds a duplicate original, or a
counterpart of his adversary's document (h).
Such duplicate or counterpart must not be a mere
copy, but in all respects of equal and co-extensive
character and validity with the adversary's document.

00 Bryan v. Wagstaff, Uy. & M. 47.

(e) Sturge v. Buchanan, 10 A. & E. 598.
(/) Foster v. Pointer. 9 C. k P. 720.
(7) ^ee Barraclough v. Oreenhnugh, L. R. 2 Q. B. 612.
(A) Colling v. Treveek, 6 1$. & C.39S.
Production and Inspection of Documents, etc. 503

In such a case it is receivable as being itself primary

evidence.
(2) When the nature of the case and proceedings
sufficiently inform the adverse party that he will be
required to produce the document.
Thus, in an action of trover for a bond or other
instrument (i), or on an indictment for stealing a
writing (k), the plaintiff or prosecutor may give secon
dary evidence without proving notice to produce.
" Where the nature of the action or indictment is such that the
defendant must know that he is charged with the possession of
the document, and is called upon to produce it, notice is not
necessary, and such is the case in an action of trover or on an
indictment for stealing ; but if the matter is collateral, it is
necessary to give notice (/). Hence, where on an indictment for
perjury, the prisoner having sworn that a certain draft did not
exist, and the materiality of its existence depended on its contents
and certain alleged alterations in it, it was held that no parol
evidence was admissible, either of its existence or of its contents,
without notice to produce " (/«)■

The general rule stated above is subject to several

special limitations. Thus, in forgery, the prosecutor
must give notice to the prisoner to produce the original
instrument (n) ; in arson, for setting fire to a dwelling-
house with intent to defraud an insurance company,
notice must be given to produce the policy (o). In
civil cases, in an action on a cheque or a bill, if the
defendant does not traverse the making or acceptance,
but only avoids, the plaintiff need not produce without
notice (p).
(3) A notice to produce a notice is not required (q),
e.g., a notice to quit, a notice of action, notice of

(0 Scott v. Junes, 1 Taunt. 865.

(£) R. v. Aiekles, 1 Leach, 2!M.
(0 See R. v. Elworthy, L. R. 1 C. C. R. 103.
O) R. v. Elmorthy, L. R. 1 C. C. R. 103.
(n) R. v. iralworih, 4 C. & P. 254.
(<>) R. v. EUievmbe, 5 C. k P. 254.
(j>) Ooodercd v. Armorer, 3 Q. B. 956.
(5) Philipxon v. Chase, 2 Camp. 111.
504 Law of Evidence.

dishonour of a bill, notice to produce a signed solicitor's

bill in an action on it (r).
The principle of this rule is that the service of the
original notice is in itself a sufficient notice to produce
it at the trial if required. It does not apply where the
notice has been given to one who is not a party to the
action, nor where it contains the terms of a contract ;
as where a carrier, relying upon a notice served on the
plaintiff to limit his liability, was held bound to give
notice to produce it (s).
(4) If a party or his solicitor is shown to have an
original with him in court, and refuses to produce it,
secondary evidence will be received, notwithstanding
the want of a notice to produce {t).
(5) Notice will not be required when the adverse party
has admitted the loss of the original ; or where it is
absolutely impossible or highly inconvenient to produce
it in court, as in the case of a mural inscription («),
but not a removable and portable notice or inscrip
tion (x).
(6) Merchant seamen (y) are permitted to prove
orally an agreement with the master of a ship, without
producing the original, or giving notice to produce
it.
O) Colling v. Treweek. 6 15. & C. 394.
(*) Jones v. Tarleton, 9 M. & W. 675.
CO Dwyer v. Collin*, 7 Ex. 739.
(«) Bartholomew v. Stephens, SC.&P, 728.
(.r) Jones v. Tarleton, 9 M. 4: W. 675.
(ij) Merchant Shipping Act, 18H4, s. 123.
 ( 505 )

CHAPTEE IX.

STAMPS.

In this chapter only the leading principles of the law

relating to stamps will be stated, so far as they affect
the admissibility in evidence of written documents.
The general rule is, that no instrument executed in
any part of the United Kingdom, or relating, whereso
ever executed, to any property situate, or to any matter
or thing done or to be done, in any part of the
United Kingdom, shall (except in criminal proceedings)
be pleaded or given in evidence, or admitted to be
good, useful, or available in law or equity, unless it is
duly stamped in accordance with the law in force at the
time when it was first executed.
Section 14 of the Stamp Act, 1891 (a) (which con
solidates the previous enactments) , provides that :
"(1) Upon the production of an instrument chargeable with
any duty as evidence in any court of civil judicature in any part of
the United Kingdom, or before any arbitrator or referee, notice
shall be taken by the judge, arbitrator, or referee of any omission
or insufficiency of the stamp thereon, and if the instrument is one
which may legally be stamped after the execution thereof, it may,
on payment to the officer of the court whose duty it is to read the
instrument, or to the arbitrator or referee, of the amount of
the unpaid duty, and the penalty payable on stamping the same,
and of a further sum of one pound, be received in evidence, saving
all just exceptions on other grounds. (2) The officer, or arbi
trator, or referee receiving the duty and penalty shall give a receipt
for the same, and make an entry in a book kept for that purpose
of the payment and of the amount thereof, and shall communicate
to the commissioners the name or title of the proceeding in which,
and of the party from whom, he received the duty and penalty,
and the date and description of the instrument, and shall pay
over to such person as the commissioners may appoint the money
received by him for the duty and penalty. (3) On production to

(a) 54 & 55 Vict. c. 39.

506 Law of Evidence.

the commissioners of any instrument in respect of which any duty

or penalty has been paid, together with the receipt, the payment
of the duty and penalty shall be denoted on the instrument.
(4) Save as aforesaid, an instrument executed in any part of tht
United Kingdom, or relating, wheresoever executed, to any
property situate, or to any matter or thing done or to be done, in
any part of the United Kingdom, shall not, except in criminal
proceedings, be given in evidence, or be available for any pur
pose whatever, unless it is duly stamped in accordance with the
law in force at the time when it was first executed."

It will be noticed that the above provisions only

apply to instruments which can legally be stamped
after execution.
Section 15 of the Stamp Act, 1891, provides, by
sub-s. (1), that :
" Save where other express provision is in this Act made, any
unstamped or insufficiently stamped instrument may be stamped
after the execution thereof, on payment of the unpaid duty and a
penalty of ton pounds, and also by way of further penalty, where
the unpaid duty exceeds ten pounds, of interest on such duty, at
the rate of five pounds per centum per annum, from the day upon
which the instrument was first executed up to the time when the
amount of interest is equal to the unpaid duty."

For " other express provision" the Statute must be

consulted.
The party who objects to the want or sufficiency of a
stamp must prove it (b) ; and the judge will determine
the question before the instrument can be shown to the
jury (c) ; but by s. 12 of the Stamp Act, 1891, provision
is made for taking the opinion of the Commissioners of
Inland Revenue on the liability of any instrument to
duty, and for stamping such instrument in accordance
with such opinion ; and it is enacted that—
" Every instrument stamped with the particular stamp denoting
either that it is not chargeable with any duty, or is duly stamped,
shall be admissible in evidence, and available for all purposes
notwithstanding any objection relating to duty."

(ft) Doe v. Coomb*, 3 Q. B. 687.

(f) Per Ixinl Tenterdex : Jardine v. Payne, 1 B. & Ad. 670.
 Stamps. 507

If an agreement is no more than a proposal, it does

not require a stamp ; but when it is either an agree
ment strictly, or evidence of one, it must be stamped,
if the subject-matter is above ±'5 (d). Where an
agreement, which appears to be in writing, is in dis
pute between parties, it must, according to the rule
which requires the best evidence, be produced ; and,
when produced, if it appears to require a stamp, it will
be inadmissible unless it be properly stamped. Thus,
where it appears in the course of a party's case that
there is a written agreement, bearing directly on the
points at issue, he must produce it duly stamped (e).
Such an agreement cannot be treated as a nullity, if it
is produced and appears to be unstamped; and therefore
it was held in Delay v. Alcock (/), that a county court
judge was wrong in allowing parol evidence to be given
of an agreement contained in an unstamped writing.
Where, however, a party succeeds in establishing his
case by oral evidence, the opposite party cannot defeat
it by merely producing an unstamped written agree
ment. Thus, in Magnay v. Knight (g), where the
plaintiff closed her case without anything appearing to
show that there was a written agreement between her
and the defendant as to the subject-matter of the
action, the defendant was held not entitled to call for a
nonsuit by producing a paper purporting to be an
agreement, but unstamped. This case, although
apparently contradicted by Delay v. Alcock, will be
reconciled with it by presuming that, in the latter case,
the defendant was called as a witness by the plaintiff,
and that the existence of the unstamped agreement
was disclosed in the course of the plaintiff's case. If
that had closed without evidence of an agreement in
writing, it appears, on the authority of Magnay v.

(d) Cf. Ilegarty v. Milne, 14 C. B. 627.

(f) iitixton v. Cornish, 12 M. k W. 426.
(/) 4 E. & B. 660. (/j) 1 M. k G. 944.
508 Law of Evidence.

Knight, that the defendant could not have nonsuited the

plaintiff by producing an unstamped written agreement.
When it is necessary to produce a writing, or to
account for its absence, secondary evidence will not be
received if it appears that the original required a stamp,
and that it was unstamped (h) ; but a writing requir
ing a stamp will be presumed to have been properly
stamped (0 ; and as against a party refusing to produce
a document after notice there is a similar presump
tion ; but such a presumption may be rebutted by
evidence that the writing was not stamped (0- If it is
shown that a lost document was at one time un
stamped, this fact alone will raise a presumption that
it continued without a stamp (to). The court will not
sanction an agreement to waive the objection for want
of a stamp («).
When an instrument purports to have been stamped,
but no stamp appears, or one partially effaced, the
judge may receive the writing, if the want of the stamp
or its erasures is satisfactorily explained to him (o).
Where an instrument, so far as appears on the face of
it, is properly stamped, the court is entitled to look
outside the instrument in order to settle whether it is
properly stamped or not (p) ; except, of course, when
it bears a denoting stamp under s. 12 of the Stamp
Act, 1891.
An unstamped instrument, inadmissible as an agree
ment, may yet be admissible to prove a collateral or
independent fact. Thus, a cheque, drawn beyond the
legal limits, has been received to prove the receipt of

(Ji) Vide supra, p. 313.

(») Hurt y. Hart. 1 Hare, 1 : cf. Pauley v. Goodwin, 4 A. k E. 94.
(i) Crisp v. Anderson, 1 Stark. 85.
(i) Crowther v. Solomon*, 0 C. B. 758.
(/«) Marine In rentment Co. v. Hariside, L. R. 5 E. k I. 624.
(») Owen v. Thomas, 3 M. k K. 353.
(») Hoe v. Coomb*. 3 Q. B. 687.
(/>) Maynard v. Consolidated Kent Collieries Corporation, [1903]
2 K. B. 121.
 Stamps. 509

money by a holder, but not to discharge the banker (q) ;

an unstamped receipt to show that goods were sold to
a third person, and not to the defendant (r) ; an
unstamped agreement to show an illegal consideration
for a debt (s) ; but it cannot be presented to a jury as
evidence of any part of the substantial claim of a
party (t). An unstamped document may be handed
to a witness to refresh his memory, or to challenge
it (u) ; and a document which requires a stamp for
some purposes but not for others, will be strictly
admissible for such latter purposes. Where a docu
ment is void as a receipt for want of a proper
stamp, it may be made evidence of an account stated,
or other outstanding accounts (x), or of a contract (y).
An unstamped and unregistered assignment of a
debtor's whole property may be given in evidence
as an act of bankruptcy, although until stamped it
cannot be received for the purpose of giving it effect
or supporting any claim under it (z). A 10s. deed
stamp on a mortgage is, however, insufficient to render
it admissible as a deed for the purpose of showing that
it passed the legal estate in the mortgaged property (a) ;
and a promissory note insufficiently stamped with
a penny receipt stamp cannot be given in evidence to
prove the receipt of the money for which it is given (b).
When an instrument is inadmissible by reason of the
stamp laws it is allowable to resort to other admissible
evidence. Thus, when a promissory note is defectively
stamped, a holder may give evidence of the original
consideration ; as by showing on a count for money
(//) lihiir v. Bromley, 11 .lur. til 7.
(/•) Miller v. Dent, 10 Q. B. 840.
(*) Copjmck v. Bourr. 4 M. & W. 301.
(0 Jardine v. Payne, 1 B. & Ad. 670.
(w) Birehall v. Bvllough, [1896] 1 Q. B. 325.
(j-) Matheson v. lion, 2 H. L. Cas. 301.
(y) Evans v. Prothero, 1 De G. M. & G. 572.
00 Ex parte Squire, L. R. 4 Oh. 47.
(a) Whiting to Loonies. 17 Ch. I). 10.
(*) Ashling v. Boon, [1891] 1 Ch. 568.
510 Law of Evidence.

lent that the defendant has acknowledged the debt for

which the note was given (c) ; and when a receipt
is unstamped, payment may be proved by oral
evidence (d).

APPROPRIATED STAMPS.
Section 10 of the Stamp Act, 1891, provides :
" (1) A stamp which by any word or words on the face of it is
appropriated to any particular description of instrument is not to
be used, or, if used, is not to be available, for an instrument of
any other description. (2) An instrument falling under the par
ticular description to which any stamp is so appropriated as afore
said is not to be deemed duly stamped, unless it is stamped with
the stamp so appropriated."

ALTERATION OF A STAMPED DOCUMENT.

A material alteration in a writing requiring a stamp,
after it has been made or executed, avoids the stamp,
and renders a fresh stamp necessary ; but it is other
wise if the alteration is immaterial, or according to the
original intent of the parties (c). Thus, when the
defect is unintentional, and the alteration makes the
writing merely what it was intended originally to have
been, it will not require to be restamped (/). Where
a promissory note was made originally payable to the
plaintiff, who complained that it ought to have been
payable to order, it was held that, as between the
parties to the note, the interlineation of the words, " or
to order," did not render a new stamp necessary (g).
So, when a bill is altered by the consent of parties
before the bill has been issued, it will not require to be
restamped ; but when the bill has been issued, and the

(f) Farr v. Price. 1 East, 56.

(rf) Humbert v. Cohen, i Esp. 213.
(r) Matter v. Miller, 1 Sm. L. C. 796.
(/) Cole v. Parkin, 12 East, 471.
(j) Byron v. Thompson, 1 A. & E. 31.
 Stamps. sn

alteration is material and varies the essential character

of the writing, so as to amount to a new contract, a
new stamp will be required, notwithstanding the con
sent of the parties to the alteration (h).

TIME OF OBJECTING TO THE WANT OF STAMP.

Where an objection is raised to an instrument for
want of a stamp, the objection should be taken as soon
as the instrument is tendered, and before it is received
in evidence. If the instrument is received, and read
without objection, it cannot afterwards be objected to
for want of a stamp (i). It is doubtful whether a judge
has not at least a discretionary power to reject a docu
ment which, after being put in, subsequently appears to
be unstamped, or insufficiently stamped (k). Where a
judge rules that a document is inadmissible on account
of the insufficiency of the stamp, it was formerly held
that his decision is open to review (I) ; but by Order
XXXIX., Eule 8, of the R. S. C. 1883, it is provided
that a new trial shall not be granted by reason of the
ruling of any judge that the stamp on any document is
sufficient, or that the document does not require a
stamp. No appeal lies to the Court of Appeal from
a similar ruling by the judge trying an action without
a jury (m) ; nor is there any appeal to the High Court
from the ruling of a county court judge that a docu
ment tendered in evidence is sufficiently stamped (n).

(A) Bowman v. Nicholl, 5 T. R. 537.

(i) ltnbinnun v. Lnrtl I ernvit, 7 0. B. (X.S.) 235.
(//) Field v. Woodt, 7 A. & E. 114.
(0 Sharplrt v. Rickard, 2 H. k N. 57.
(m) Jilewett v. Tritton, [1892] 2 Q. B. 327.
(h) lUandtr v. Ridgway, [1898] 1 Q. B. 501.
 ( 512 )

CHAPTER X.

AFFIDAVITS—NEW TRIALS—APPEALS-
PERPETUATING TESTIMONY.

Eule 1 of Order LXVIII. of the E. S. C. 1883,

provides that—
" Subject to the provisions of this Order, nothing in these Rules,
save as expressly provided, shall affect the procedure or practice in
any of the following causes or matters : Criminal proceedings ;
proceedings on the Crown side of the Queen's Bench Division ; pro
ceedings on the revenue side of the Queen's Bench Division :
proceedings for divorce or other matrimonial causes."

Eule 2 of the same Order provides that several Orders

specified in such rule, including Order XXXVIII., shall,
as far as applicable, apply to all civil proceedings on
the Crown side and revenue side of the Queen's Bench
Division. Section 20 of the Judicature Act, 1875 (a),
provides, that—
" Nothing in this Act ... or in any rules of court to be made under
this Act, save as far as relates to the power of the court for special
reasons to allow depositions or affidavits to be read, shall affect the
mode of giving evidence by the oral examination of witnesses in
trials by jury, or the rules of evidence, or the law relating to
jurymen or juries."

Although the principles of evidence are not altered

by the Act, nevertheless that considerable alteration
has been introduced into procedure, so far as it affects
the mode of giving evidence in various cases, will be
apparent from the allusions to and quotations from the
rules made in other portions of this work.
By Eule 1 of Order XXXVII. (b), discretionary
powers are vested in the court : (1) to order any

(«) 38 39 Vict. c. 77. (i) For which see the Appendix.

 Affidavits, New Trials, etc. 513

particular fact or facts to be proved by affidavit ; (2) to

allow the affidavit of any witness to be read at a
hearing or trial on such conditions as it may think
reasonable, with this proviso, that when the opposite
party bond fide desires to cross-examine a witness, and
the witness can be produced, such witness's evidence
shall not be allowed to be given by affidavit. The first
of these powers, which can be exercised by the court
even against the wishes of both parties, can be advan
tageously employed to the manifest saving of expense
in proof of formal matters, even in trials by jury. The
second, which, subject to the proviso, can be exercised
by the court at the instance of one party, but against
the wish of the other, enables, in proper cases, the
evidence of an absent witness to be brought before
the court without the expensive interposition of a
commissioner or examiner.
Subject to these powers, and to the rules that upon
any motion, petition ors summons (c), and in default
actions in rem, and in references in Admiralty actions (d),
evidence may be given by affidavit, and subject to any
statutory rule creating an exception (e), every witness,
at the trial of any action or at any assessment of
damages, must be examined viva voce and in open
court ; although if the solicitors of all parties to an
action agree, the evidence therein may be taken by
affidavit. That such an agreement ought to be entered
into in the majority of actions for partition and the
like, as well as in all actions where the object of all the
parties is to obtain a judicial decision upon facts as to
which there is little if any dispute, is tolerably certain ;
but in all actions where the parties are at arm's length,
it obviously is theoretically right that the witnesses
should be examined viva voce and in open court. That

(<0 Knle 1 of Order 38. (</) Kulc 2 of Order 37.

(«) E.g., the Bankers' Books Evidence Act, 1879, for whu-h vide tupra,
p. 117.
L.E.
514 Law of Evidence.

affidavit evidence has its merits as well as demerits

may be conceded; but the latter certainly outweigh
the former. The two chief defects in affidavit evidence
are, that the court has no opportunity of observing the
demeanour of the witness while under examination,
and that the version given of the story is too often that
of the lawyer who prepares the affidavit rather than
that of the deponent. The agreement to take the
evidence by affidavit must be a formal one, and cannot
be gathered from correspondence (/). If one of the
parties to the agreement finds himself afterwards
unable to procure affidavits by reason of the reluctance
of his witnesses to make them, or from any other good
cause, he must take out a summons to be relieved from
the agreement, and the court can make an order that
the reluctant witnesses be examined at the trial, or at
the option of the other party discharge the agreement,
and direct all the evidence to be taken vivd voce (g).
In one case where the agreement was that the evidence
should be taken by affidavit, but the word " only " was
not used, the plaintiffs gave notice to cross-examine
some of the deponents, and failed to cross-examine one
of them, the defendant's counsel claimed and was
allowed to examine such deponent vivd voce (h).
Where the opposite party is entitled to cross-examine
a witness his affidavit cannot be used for any purpose
if the cross-examining party objects (i). An affidavit
once filed cannot be withdrawn for the purpose of
preventing the deponent's cross-examination thereon (k).
Even where the parties have agreed that the evidence
shall be taken by affidavit, the court can, if it thinks it
necessary for the purposes of justice, decide that the
evidence shall be taken vivd voce (I).
(/") New Westminster Brewery Co. v. Hannah, 1 Ch. D. 278.
(#~) Warner v. Mosses, lfi Ch. 1). 100.
(A) Glosson v. Ileston Loral Board, 2G W. R. 433.
(i) Blackburn Guardians v. Brook*. 7 Ch. 1). 68.
(4) Rr parte Young, 21 Ch. D. 642.
(0 Lurell v. Wallit, 53 L. J. Ch. 494.
 Affidavits, New Trials, etc. 515

Affidavits must (according to Eule 3 of Order

XXXVIII.) be confined to such facts as the witness
is able of his own knowledge to prove, except on inter
locutory motions, on which statements as to his belief,
with the grounds thereof, maybe admitted. The words
in italics have been very frequently disregarded in
practice, but unless they are acted upon, statements
on information and belief ought to be disregarded in
toto (m). In a recent case in the Court of Appeal (w),
Eigby, L.J., dealing with this subject, stated that he
never paid the slightest attention to such defective
affidavits, and said :
" In the present day, in utter defiance of the order, solicitors
have got into a practice of filing affidavits in which the deponent
speaks not only of what he knows, but also of what he believes,
without giving the slightest intimation with regard to what his
belief is founded on. Or he says, ' I am informed ' without giving
the slightest intimation where he has got his information. Now
every affidavit of that kind is utterly irregular, and, in my opinion,
the only way to bring about a change in that irregular practice is
for the judge, in every case of the kind, to give a direction that
the costs of the affidavit, so far as it relates to matters of mere
information or belief, shall be paid by the person responsible for
the affidavit."

NEW TRIALS AND APPEALS.

It is open to a defeated party (1) to appeal in all
cases ; (2) to move for a new trial, or to set aside the
verdict, finding, or judgment (o).
It is, however, provided by the Rules (p), that—
"A new trial shall not be granted on the ground of misdirection
or of the improper admission or rejection of evidence, or because
the verdict of the jury was not taken upon a question which the
judge at the trial was not asked to leave to them, unless in
the opinion of the court to which the application is made some
substantial wrong or miscarriage has been thereby occasioned in

(hi) Cf. judgment of .Iessel, M.K., in the Quartz Hill, etc. Co. v.
Brail, 20 Ch. 1). 508.
(«) Young v. Young Manufacturing Co., Limited, [1900] 2 Ch. 753.
00 Order 39, r. 1.
(y>) Ibid., r. 6.
516 Law of Evidence.

the trial (q) ; and if it appear to such court that such wrong
or miscarriage affects part only of the matter in controversy, or
some or one only of the parties, the court may give final judgment
as to part thereof, or some or one only of the parties, and direct a
new trial as to the other part only, or as to the other party or
parties."

When inadmissible evidence is left to the jury their

verdict is vitiated both in civil and criminal cases (r) .
Where an appeal is preferred, it is provided by the
E. S. C. 1883 {s), that—
" The Court of Appeal shall have all the powers and duties as
to amendment and otherwise of the High Court., together with
full discretionary power to receive further evidence upon questions
of fact, such evidence to be either by oral examination in court, by-
affidavit, or by deposition taken before an examiner or commis
sioner. Such further evidence may be given without special leave
upon interlocutory applications, or in any case as to matters which
have occurred after the date of the decision from which the appeal
is brought. Upon appeals from a judgment after trial or hearing
of any cause or matter upon the merits, such further evidence
(save as to matters subsequent as aforesaid) shall be admitted
on special grounds only, and not without special leave of the
court."

On this subject, Jessel, M.R., in delivering judgment

in the Court of Appeal in Sanders v. Sanders (t), said :
" The appellant has applied for leave to adduce fresh evidence,
but I am of opinion that it ought not to be granted. The appli
cation is for an indulgence. He might have adduced the evidence
in the court below. That he might have shaped his case better in
the court below is no ground for leave to adduce fresh evidence
before the Court of Appeal. As it has often been said, nothing is
more dangerous than to allow fresh oral evidence to be introduced
after a case has been discussed in court. The exact point on
which evidence is wanted having thus been discovered, to allow
fresh evidence to be introduced at that stage would offer a strong
temptation to perjury."

As a general rule, the Court of Appeal will not give

leave to adduce any fresh evidence on an appeal which

(?) See on this point Dray v. Ford, [1896] A. C. 44.

(r) Cf. R. v. Gibton, 18 Q. B. 1). 537.
(*) Order 58. r. 4. (0 14 Ch. I). 881.
 Affidavits, New Trials, etc. 517

the party applying for leave might, if he had thought

fit, and could, if he had used due diligence, have
adduced in the court below (w). Of course, the Court
of Appeal can admit fresh evidence by the consent of
both parties (x).
The E. S. C, 1883, also provide (y) that—
" When any question of fact is involved in an appeal, the
evidence taken in the court below bearing on such question shall,
subject to any special order, be brought before the Court of Appeal
as follows : (a) As to any evidence taken by affidavit, by the
production of printed copies of such of the affidavits as have been
printed, and office copies of such of them as have not been printed ;
(b) as to any evidence given orally, by the production of a copy
of the judge's notes, or such other materials as the court may deem
expedient."

It is also provided, that—

•' Where evidence has not been printed in the court below, the
court below or a judge thereof, or the Court of Appeal or a judge
thereof, may order the whole or any part thereof to be printed for
the purpose of the appeal. Any party printing evidence for the
purpose of an appeal without such , order shall bear the costs
thereof, unless the Court of Appeal or a judge thereof shall other
wise order" (z).

Finally, it is provided, that—

" If, upon the hearing of an appeal, a question arise as to the
ruling or direction of the judge to a jury or assessors, the court
shall have regard to verified notes or other evidence, and to such
other materials as the court may deem expedient " (a).

(if) See Exam v. lienyon, 37 Cb. D. 345, in which leave was given.
(x~) Snccluirin Corporation v. Wild, 20 K. I'. C. 243.
(y) Order 58, r. 11.
(i) Order 58, r. 12. (a) Ibid., r. 13.
518 Law of Evidence.

PEKPETUATING TESTIMONY.
When there was a danger that testimony might be
lost before the question to which it related could be
made the subject of judicial investigation, the Court
of Chancery, following the practice of the civil law,
lent its aid to preserve and perpetuate such testimony.
A bill was filed, stating the matter respecting which
the plaintiff desired to take evidence, and showing that
he had an interest in the matter which could not be
barred by the defendant, that the defendant claimed an
interest adverse to the plaintiff in the matter, and that
the matter could not be made the subject of present
judicial investigation (6). An affidavit of the circum
stances by which the evidence desired to be preserved
was in danger of being lost was filed with the bill.
The plaintiff could only require an answer from the
defendant as to the facts and circumstances alleged by
the bill as entitling him to examine the witnesses (c) ;
and the bill could not be set down for hearing. The
witnesses were examined before an examiner, according
to the provisions of ss. 31 — 33 of 15 & 16 Vict. c. 86,
and by the defendant as well as by the plaintiff (d) .
An order might be obtained to use the depositions so
taken, either after the death of the witness (e), or in
case he were too infirm (/), or could not be compelled
to attend (/). A case for the perpetuation of testimony
is not confined to aged and infirm witnesses, or to a
single witness who can alone speak to the matter ; but
Lord Eomtlly said (g) :
" You may examine everybody, and all the evidence is sealed
up and only brought out when occasion requires it, and if the
witnesses are alive it cannot be used, and the evidence must be
taken all over again."
(J) Earl Spencer v. Peek, L. R. 3 Eq. 415.
(f) mien v. Roupell, 32 Beav. 308.
(d~) Earl of Abergavenny v. Powell, 1 Meri. 434.
(,;) Barnidale v. Low, 2 R. & M. 142.
(O Biddnlph v. Lord Camoys, 20 Beav. 402.
(j) Earl Spencer v. Peek, L. R. 3 Eq. 415.
 Affidavits, New Tbials, etc. 519

Actions to perpetuate testimony are now governed

by Order XXXVII., Eules 35—38, of the E. S. C,
1883. They are as follows :
"35. Any person who would under the circumstances alleged
by him to exist become entitled, upon the happening of any future
event, to any honour, title, dignity, or office, or to any estate or
interest in any property, real or personal, the right or claim to
which cannot by him be brought to trial before the happening of
such event, may commence an action to perpetuate any testimony
which may be material for establishing such right or claim,
" 36. In all actions to perpetuate testimony touching any honour,
title, dignity, or office, or any other matter or thing in which the
Crown may have any estate or interest, the Attorney-General may
be made a defendant, and in all proceedings in which the deposi
tions taken in any such action, in which the Attorney-General was
so made a defendant, may be offered in evidence, such depositions
shall be admissible notwithstanding any objection to such deposi
tions upon the ground that the Crown was not a party to the action
in which such depositions were taken.
" 37. Witnesses shall not be examined to perpetuate testimony
unless an action has been commenced for the purpose.
" 38. No action to perpetuate the testimony of witnesses shall
be set down for trial."

The practice under these Eules is, the plaintiff

having commenced his action in the ordinary way, and
having in his statement of claim set out the facts
which entitle him to commence the action under
Eule 35, and the pleadings having been closed or
the defendant having made default in delivering a
defence Qi), an order (i) will be made for the examina
tion of the witnesses before an examiner of the court,
and the depositions will be filed in the ordinary way.
These depositions will not be sealed up, as was the
former practice, but copies will be obtainable in the
ordinary way as soon as they are filed ; and they will
be admissible in evidence in any subsequent action
against the parties to the original action or their privies
if the attendance of the witnesses themselves cannot

(/() Marque** of Bute v. Jamea, 33 Ch. D. 157.

(<) Ah to the form of the order, see Burton v. Xarth Staffordthire
Bail. Co., 35 W. K. 336.
520 Law of Evidence.

be procured. A defendant can, as stated above, examine

witnesses in an action to perpetuate testimony, as well
as the plaintiff. The making of an order is a matter in
which the court has a discretion, and, therefore, where
the matter in controversy was the legitimacy of the
plaintiff, and this could be at once disposed of by an
action under the Legitimacy Declaration Act, 1658,
the court refused to make an order in an action to
perpetuate testimony (k).

(4) Weft r. Lord Sackrille, [1903] 2 Ch. 378.

 ( 521 )

APPENDIX.

DOCUMENTARY EVIDENCE ACT, 1845.

(8 & 9 Vict. c. 113.)

An Act to facilitate the Admission in Evidence of certain Official

and other Documents. [8th August 1845.]
[1]. Whenever by any Act now in force or hereafter to be in
force any certificate, official or public document, or document or
proceeding of any corporation or joint-stock or other company,
or any certified copy of any document, byelaw, entry in any
register or other book, or of any other proceeding, shall be
receivable in evidence of any particular in any court of justice,
or before any legal tribunal, or either house of parliament, or
any committee of either house, or in any judicial proceeding, the
same shall respectively be admitted in evidence, provided they
respectively purport to be sealed or impressed with a stamp, or
sealed and signed, or signed alone, as required, or impressed with
a stamp and signed, as directed by the respective Acts made or to
be hereafter made, without any proof of the seal or stamp, where
a seal or stamp is necessary, or of the signature or of the official
character of the person appearing to have signed the same,
and without any further proof thereof, in every case in which the
original record could have been received in evidence.
2. All courts, judges, justices, masters in Chancery, masters
of courts, commissioners judicially acting, and other judicial
officers, shall henceforth take judicial notice of the signature of
any of the equity or common law judges of the superior courts
at Westminster, provided such signature be attached or appended
to any decree, order, certificate, or other judicial or official
document. i
3. All copies of private and local and personal Acts of
Parliament, not public Acts, if purporting to be printed by the
T.. E.
522 Appendix.

Queen's printers, and all copies of the journals of either house

of parliament, and of royal proclamations, purporting to be
printed by the printers to the Crown or by the printers to
either house of parliament, or by any or either of them, shall be
admitted as evidence thereof by all courts, judges, justices,
and others without any proof being given that such copies were so
printed.
4. Provided always, that if any person shall forge the seal,
stamp, or signature of any such certificate, official or public
document, or document or proceeding of any corporation or joint-
stock or other company, or of any certified copy of any document,
byelaw, entry, in any register or other book, or other proceeding
as aforesaid, or shall tender in evidence any such certificate,
official or public document, or document or proceeding of any
corporation or joint-stock or other company, or any certified copy
of any document, byelaw, entry in any register or other book,
or of any other proceeding, with a false or counterfeit seal,
stamp, or signature thereto, knowing the same to be false or
counterfeit, whether such seal, stamp, or signature be those of
or relating to any corporation or company already established,
or to any corporation or company to be hereafter established, or
if any person shall forge the signature of any such jndge as afore
said to any order, decree, certificate, or other judicial or official
document, or shall tender in evidence any order, decree, certifi
cate, or other judicial or official document, with a false or
counterfeit signature of any such judge as aforesaid thereto,
knowing the same to be false or counterfeit, or if any person shall
print any copy of any private Act or of the journals of either
house of parliament, which copy shall falsely purport to have
been printed by the printers to the Crown, or by the printers
to either house of parliament, or by any or either of them, or
if any person shall tender in evidence any such copy, knowing
that the same was not printed by the person or persons by whom
it so purports to have been printed, every such person shall lie
guilty of felony, and shall upon conviction be liable to trans
portation for seven years : Provided also, that whenever any such
document as before mentioned shall have been received in
evidence by virtue of this Act, the court, judge, commissioner,
or other person officiating judicially who shall have admitted the
same, shall, on the request of any party against whom the same is
so received, be authorised, at its or at his own discretion, to direct
that the same shall be impounded, and be kept in the custody of
some officer of the court or other proper person, until further
order touching the same shall be given, either by such court,
or the court to which such master or other officer belonged,
or by the persons or person who constituted such court, or
by some one of the equity or common law judges of the superior
courts at Westminster on application being made for that pur
pose.
 Documentary Evidence Act, 1868. 523

DOCUMENTARY EVIDENCE ACT, 1868.

(31 & 32 Vict. c. 37.)

An Act to amend the Law relating to Documentary Evidence in

certain cases. [25th June 1868.]
e o o e e
2. Prima facie evidence of any proclamation, order or regulation
issued before or after the passing of this Act by her Majesty,
or by the Privy Council, also of any proclamation, order, or
regulation issued before or after the passing of this Act by or
under the authority of any such department of the Government
or officer as is mentioned in the first column of the schedule
hereto, may be given in all courts of justice, and in all legal
proceedings whatsoever, in all or any of the modes hereinafter
mentioned ; that is to say :
(I.) By the production of a copy of the Gazette purporting to
contain such proclamation, order, or regulation.
(2.) By the production of a copy of such proclamation, order,
or regulation, purporting to be printed by the Govern
ment printer, or, where the question arises in a court
in any British colony or possession, of a copy purporting
to be printed under the authority of the legislature of
such British colony or possession.
(3.) By the production, in the case of any proclamation, order,
or regulation issued by her Majesty or by the Privy
Council, of a copy or extract purporting to be certified
to be true by the clerk of the Privy Council, or by any
one of the lords or others of the Privy Council ; and, in
the case of any proclamation, order, or regulation issued
by or under the authority of any of the said departments
or officers, by the production of a copy or extract pur
porting to be certified to be true by the person or
persons specified in the second column of the said
schedule in connection with such department or officer.
Any copy or extract made in pursuance of this Act may be
in print or in writing, or partly in print and partly in writing.
No proof shall be required of the handwriting or official position
of any person certifying, in pursuance of this Act, to the truth
of any copy of or extract from any proclamation, order, or
regulation.
524 Appendix.

3. Subject to any law that may be from time to time made by

the legislature of any British colony or possession, this Act shall
be in force in every such colony and possession.
o o o o o
6. The provisions of this Act shall be deemed to be in
addition to, and not in derogation of, any powers of proving
documents given by any existing statute, or existing at common
law.

Schedule (a).

Column 1. Column 2.
Name of Department or Officer. Xavtet of Certifying Officer*.
The Treasury. Any Commissioner, Secretary, or Assis
tant Secretary of the Treasury.

The Commissioners for execu Any of the Commissioners for executing

ting the office of Lord High the office of Lord High Admiral, or
Admiral. either of the Secretaries to the said
Commissioners.

Secretaries of State. Any Secretary or Under Secretary of

State.

Committee of Privy Council for Any Member of the Committee of Privy

Trade. Council for Trade, or any Secretary
or Assistant Secretary of the said
Committee.

The Poor Law Board. Any Commissioner of the Poor Law

Board, or any Secretary or Assistant
Secretary of the said Board.

(a) The Board of Agriculture has been in effect added to the schedule
by the Documentary Evidence Act, 1895 (58 Vict c. 9).
 Documentary Evidence Act, 1882. 525

DOCUMENTARY EVIDENCE ACT, 1882.

(45 & 46 Vict. c. 9.)

An Act to amend the Documentary Evidence Act, 1868, and

other Eyiactments relating to the Evidence of Documents by
means of Copies printed by the Government Printers.
[19th June 1882.]
"Whereas by the Documentary Evidence Act, 1868, and
enactments applying that Act, divers proclamations, orders,
regulations, rules, and other documents may be proved by the
production of copies thereof purporting to be printed by the
government printer, and the government printer is thereby
defined to mean and include the printer to her Majesty :
And whereas divers other enactments provide that copies of
Acts of Parliament, regulations, warrants, circulars, gazettes,
and other documents shall be admissible in evidence if pur
porting to be printed by the government printer, or the
Queen's printer, or a printer authorised by her Majesty, or
otherwise under the authority of her Majesty :
And whereas it is expedient to make further provision
respecting the printing of the copies aforesaid :
Be it therefore enacted by the Queen's most excellent
Majesty, by and with the advice and consent of the lords
spiritual and temporal, and commons, in this present parlia
ment assembled, and by the authority of the same, as follows :
1. This Act may be cited as the Documentary Evidence Act.
1882.
2. Where any enactment, whether passed before or after
the passing of this Act, provides that a copy of any Act of
Parliament, proclamation, order, regulation, rule, warrant,
circular, list, gazette, or document shall be conclusive evidence,
or be evidence, or have any other effect, when purporting to
be printed by the government printer, or the Queen's printer,
or a printer authorised by her Majesty, or otherwise under her
Majesty's authority, whatever may be the precise expression
used, such copy shall also be conclusive evidence, or evidence,
or have the said effect (as the case may be) if it purports to be
printed under the superintendence or authority of her Majesty's
stationery office.
3. If any person prints any copy of any Act, proclamation,
order, regulation, royal warrant, circular, list, gazette, or docu
ment which falsely purports to have been printed under the
superintendence or authority of her Majesty's stationery office
526 Appendix.

or tenders in evidence any copy which falsely purports to have

been printed as aforesaid, knowing that the same was not so
printed, he shall be guilty of felony, and shall, on conviction,
be liable to penal servitude for a term not exceeding seven
years, or to be imprisoned for a term not exceeding two years,
with or without hard labour.
4. The Documentary Evidence Act, 1868, as amended by
this Act, shall apply to proclamations, orders, and regulations
issued by the Lord Lieutenant, either alone or acting with
the advice of the Privy Council in Ireland, as fully as it applies
to proclamations, orders, and regulations issued by her Majesty.
In the same Act, the term " the Privy Council " shall include
the Privy Council in Ireland, or any committee thereof.
In the same Act, and in this Act, the term " the Government
Printer" shall include any printer to her Majesty in Ireland and
any printer printing in Ireland under the superintendence or
authority of her Majesty's stationery office.

CRIMINAL PROCEDURE ACT, 1865.

(28 & 29 Vict. c. 18.)

An Act for amending the Law of Evidence and Practice on Criniitutl

Trials. [9th May 1865.]
o o o o o
3. A party producing a witness shall not be allowed to impeach
his credit by general evidence of bad character ; but he may, in
case the witness shall in the opinion of the judge prove adverse,
contradict him by other evidence, or, by leave of the judge, prove
that he has made at other times a statement inconsistent with his
present testimony ; but before such last-mentioned proof can be
given the circumstances of the supposed statement, sufficient to
designate the particular occasion, must be mentioned to the
witness, and he must be asked whether or not he has made such
statement.
4. If a witness, upon cross-examination as to a former statement
made by him relative to the subject-matter of the indictment or
proceeding, and inconsistent with his present testimony, does not
distinctly admit that he has made such statement, proof may
be given that he did in fact make it ; but before such proof can
be given the circumstances of the supposed statement, sufficient
to designate the particular occasion, must be mentioned to the
witness, and he must be asked whether or not he has made such
statement.
 Criminal Procedure Act, 1865. 527

5. A witness may be cross-examined as to previous statements

made by him in writing, or reduced into writing, relative to the
subject-matter of the indictment or proceeding, without such
writing being shown to him ; but if it is intended to contradict
such witness by the writing, his attention must, before such
contradictory proof can be given, be called to those parts of the
writing which are to be used for the purpose of so contradicting
him : Provided always, that it shall be competent for the judge,
at any time during the trial, to require the production of the
writing for his inspection, and he may thereupon make such use of
it for the purposes of the trial as he may think fit.
6. A witness may be questioned as to whether he has been
convicted of any felony or misdemeanor, and upon being so
questioned, if he either denies or does not admit the fact, or
refuses to answer, it shall be lawful for the cross-examining
party to prove such conviction ; and a certificate containing
the substance and effect only (omitting the formal part) of the
indictment and conviction for such offence, purporting to be
signed by the clerk of the court or other officer having the
custody of the records of the court where the offender was
convicted, or by the deputy of such clerk or officer (for which
certificate a fee of five shillings and no more shall be demanded or
taken), shall, upon proof of the identity of the person, be sufficient
evidence of the said conviction, without proof of the signature
or official character of the person appearing to have signed the
same.
7. It shall not be necessary to prove by the attesting witness
any instrument to the validity of which attestation is not requisite,
and such instrument may be proved as if there had been no
attesting witness thereto.
8. Comparison of a disputed writing with any writing proved to
the satisfaction of the judge to be genuine shall be permitted to
be made by witnesses ; and such writings, and the evidence of
witnesses respecting the same, may be submitted to the court and
jury as evidence of the genuineness or otherwise of the writing in
dispute.
9. The word " counsel " in this Act shall be construed to apply
to attorneys in all cases where attorneys are allowed by law or by
the practice of any court to appear as advocates.
10. This Act shall not apply to Scotland.
528 Appendix.

EVIDENCE ACT, 1851.

(14 & 15 Vict. c. 99.)

An Act to amend the Law of Eridstire. [7th August 1851.]

Whereas it is expedient to amend the law of evidence in divers
particulars : Be it therefore enacted as follows :
1. [RepealedJ]
2. On the trial of any issue joined, or of any matter or
question, or on any inquiry arising in 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 in 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 viva 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.
3. But nothing herein contained shall render any person who in
any criminal proceeding is charged with the commission of am-
indictable offence, or any offence punishable on summary con
viction, 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.
4. [Re2>e«led.~\
5. Nothing herein contained shall repeal any provision contained
in the Wills Act, 1837.
6. Whenever any action or other legal proceeding shall
henceforth be pending in any of the superior courts of common
law at Westminster or Dublin, such court may, on application
made for such purpose by either of the litigants, compel the
opposite party to allow the party making the application to
inspect all documents in the custody or under the control of
such opposite party relating to such action or other legal pro
ceeding, and, if necessary, to take examined copies of the same,
or to procure the same to be duly stamped, in all cases in
which previous to the passing of this Act a discovery might
 Evidence Act, 1851. 529

have been obtained by filing a bill or by any other proceeding

in a court of equity at the instance of the party so making
application as aforesaid to the said court.

7. All proclamations, treaties, and other acts of state of any

foreign state or of any British colony, and all judgments,
decrees, orders, and other judicial proceedings of any court of
justice in any foreign state or in any British colony, and all
affidavits, pleadings, and other legal documents filed or
deposited in any such court, may be proved in any court of
justice, or before any person having by law or by consent of
parties authority to hear, receive, and examine evidence, either
by examined copies or by copies authenticated as hereinafter
mentioned ; that is to say, if the document sought to be proved
be a proclamation, treaty, or other act of state, the authenti
cated copy to be admissible in evidence must purport to be
sealed with the seal of the foreign state or British colony to
which the original document belongs ; and if the document
sought to be proved be a judgment, decree, order, or other
judicial proceeding of any foreign or colonial court, or an affi
davit, pleading, or other legal document filed or deposited in
any such court, the authenticated copy to be admissible in
evidence must purport either to be sealed with the seal of the
foreign or colonial court to which the original document
belongs, or, in the event of such court having no seal, to be
signed by the judge, or, if there be more than one judge, by
any one of the judges of the said court ; and such judge shall
attach to his signature a statement in writing on the said copy
that the court whereof he is a judge has no seal ; but if any of
the aforesaid authenticated copies shall purport to be sealed or
signed as hereinbefore respectively directed, the same shall
respectively be admitted in evidence in every case in which the
original document could have been received in evidence, with
out any proof of the seal where a seal is necessary, or of the
signature, or of the truth of the statement attached thereto,
where such signature and statement are necessary, or of the
judicial character of the person appearing to have made such
signature and statement.
8. Every certificate of the qualification of an apothecary
which shall purport to be under the common seal of the society
of the art and mystery of apothecaries of the city of London
shall be received in evidence in any court of justice, and before
any person having by law or by consent of parties authority
to hear, receive, and examine evidence, without any proof of
the said seal or of the authenticity of the said certificate, and
shall be deemed sufficient proof that the person named therein
has been from the date of the said certificate duly qualified
to practise as an apothecary in any part of England or Wales.
530 Appendix.

9. Every document which by any law now in force or here

after to be in force is or shall be admissible in evidence of any
particular in any court of justice in England or Wales without
proof of the seal or stamp or signature authenticating the same,
or of the judicial or official character of the person appearing
to have signed the same, shall be admitted in evidence to the same
extent and for the same purposes in any court of justice in
Ireland, or before any person having in Ireland by law or by
consent of parties authority to hear, receive, and examine evi
dence, without proof of the seal or stamp or signature authenti
cating the same, or of the judicial or official character of the
person appearing to have signed the same.

10. Every document which by any law now in 'force or here

after to be in force is or shall be admissible in evidence of any
particular in any court of justice in Ireland, without proof of the
seal or stamp or signature authenticating the same, or of the
judicial or official character of the person appearing to have signed
the same, shall be admitted in evidence to the same extent and for
the same purposes in any court of justice in England or Wales, or
before any person having in England or Wales by law or by con
sent of parties authority to hear, receive, and examine evidence,
without proof of the seal or stamp or signature authenticating the
same, or of the judicial or official character of the person appear
ing to have signed the same.

11. Every document which by any law now in force or here

after to be in force is or shall be admissible in evidence of any
particular in any court of justice in England or Wales or Ireland
without proof of the seal or stamp or signature authenticating the
same, or of the judicial or official character of the person appear
ing to have signed the same, shall be admitted in evidence to
the same extent and for the same purposes in any court of justice
of any of the British colonies, or before any person having in
any of such colonies by law or by consent of parties authority
to hear, receive, and examine evidence, without proof of the
seal or stamp or signature authenticating the same, or of the
judicial or official character of the person appearing to have signed
the same.

12. [Repealed.]
13. And whereas it is expedient, as far as possible, to reduce
the expense attendant upon the proof of criminal proceedings ;
be it enacted, that whenever in any proceeding whatever it may
be necessary to prove the trial and conviction or acquittal of any
person charged with any indictable offence, it shall not be neces
sary to produce the record of the conviction or acquittal of such
 Evidence Act, 1851. 531

person, or a copy thereof ; but it shall be sufficient that it be

certified or purport to be certified under the hand of the clerk
of the court or other officer having the custody of the records of
the court where such conviction or acquittal took place, or by
the deputy of such clerk or other officer, that the paper pro
duced is a copy of the record of the indictment, trial, conviction,
and judgment or acquittal, as the case may be, omitting the formal
parts thereof.
14. Whenever any book or other document is of such a public
nature as to be admissible in evidence on its mere production
from the proper custody, and no statute exists which renders
its contents provable by means of a copy, any copy thereof
or extract therefrom shall be admissible in evidence in any court
of justice, or before any person now or hereafter having by
law or by consent of parties authority to hear, receive, and
examine evidence, provided it be proved to be an examined
copy or extract, or provided it purport to be signed and certi
fied as a true copy or extract by the officer to whose custody
the original is intrusted, and which officer is hereby required to
furnish such certified copy or extract to any person applying
at a reasonable time for the same, upon payment of a reasonable
sum for the same, not exceeding fourpence for every folio of
ninety words.
15. If any officer authorised or required by this Act to furnish
any certified copies or extracts shall wilfully certify any document
as being a true copy or extract, knowing that the same is not a
true copy or extract, as the case may be, he shall be guilty of a
misdemeanor, and be liable, upon conviction, to imprisonment
for any term not exceeding eighteen months.
16. Every court, judge, justice, officer, commissioner, arbitrator,
or other person, now or hereafter having by law or by consent of
parties authority to hear, receive, and examine evidence, is hereby
empowered to administer an oath to all such witnesses as are
legally called before them respectively.

17. If any person shall forge the seal, stamp, or signature of

any document in this Act mentioned or referred to, or shall
tender in evidence any such document with a false or counter
feit seal, stamp, or signature thereto, knowing the same to be
false or counterfeit, he shall be guilty of felony, and shall upon
conviction be liable to transportation for seven years, and when
ever any such document shall have been admitted in evidence
by virtue of this Act, the court or the person who shall have
admitted the same may, at the request of any party against
whom the same is so admitted in evidence, direct that the same
shall be impounded and be kept in the custody of some officer
532 Appendix.

of the court or other proper person for such period and subject to
such conditions as to the said court or person shall seem meet ;
and every person who shall be charged with committing any
felony under this Act, or under the Act of the eighth and ninth
years of her present Majesty, chapter one hundred and thirteen,
may be dealt with, indicted, tried, and, if convicted, sentenced,
and his offence may be laid and charged to have been committed,
in the county, district, or place in which he shall be apprehended
or be in custody ; and every accessory before or after the fact to
any such offence may be dealt with, indicted, tried, and, if con
victed, sentenced, and his offence laid and charged to have been
committed, in any county, district, or place in which the principal
offender may be tried.
18. This Act shall not extend to Scotland.
19. The words " British colony " as used in this Act shall apply
to the islands of Guernsey, Jersey, Alderney, Sark, and Man, and
to all other possessions of the British crown, wheresoever and
whatsoever.

EVIDENCE AMENDMENT ACT, l«53.

(16 & 17 Vict. c. 83.)
Aii Act to amend an Art of the Fourteenth and Fifteenth Victoria,
Chapter Ninety-nine. [20th August 1853.]
Whkkeas the law touching evidence requires further amend
ment : Be it therefore declared and enacted as follows :
1. [Oh the trio! of any issue joined, or of any matter or question,
or on any inquiry arising in any suit, action, or other proceeding
in any court of justice, or before any /jercon having by law or by
consent of parties authority to hear, receive, and examine evidence,
the husbands and wires of the parties thereto, and of the persons
in whose behalf any such suit, action, or other proceeding may be
brought or instituted, or opposed or defended, shall, except «■»
hereinafter excepted, be competent and compellable to give evidence,
either viva 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.']
2. Nothing herein shall 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
 Evidence Amendment Act, 1853. 533

husband, in any criminal proceeding [or in any proceeding instituted

in consequence of adultery].
3. No husband shall be compellable to disclose any communica
tion made to him by his wife during the marriage, and no wife
shall be compellable to disclose any communication made to her
by her husband during the marriage.
4. [Repealed.]
5. In citing this Act in other Acts of Parliament, or in any
instrument, document, or proceeding, it shall be sufficient to use
the expression, "the Evidence Amendment Act, 1853."
6. This Act shall commence on the l\th day «f July, 1853.
N.U.—The portions of this Act printed in italics were regaled by
32 k 33 Vict. c. 68, o. 1, and by 38 k 39 Vict. c. 66.

EVIDENCE FURTHER AMENDMENT ACT, 18Gt».

(32 & 33 Vict. c. 68.)
An Act fur the further Amendment of the Law of Evidence.
[9th August 1809.]
Whkreas the discovery of truth in courts of justice has been
signally promoted by the removal of restrictions on the admis
sibility of witnesses, and it is expedient to amend the law of
evidence with the object of still further promoting such dis
covery : Be it enacted by the Queen's most excellent Majesty, by
and with the advice and consent of the lords spiritual and
temporal, and commons, in this present parliament assembled, and
by the authority of the same, as follows :
1. [Repealed.]
2. The parties to any action for breach of promise of marriage
shall be competent to give evidence in such action : Provided
always, that no plaintiff in any action for breach of promise of
marriage shall recover a verdict unless his or her testimony
shall be corroborated by some other material evidence in support
of such promise.
3. The parties to any proceeding instituted in consequence
of adultery, and the husbands and wives of such parties, shall
be competent to give evidence in such proceeding : Provided
that no witness in any proceeding, whether a party to the suit
or not, shall be liable to be asked or bound to answer any
question tending to show that lie or she has been guilty of
534 Appendix.

adultery, unless such witness shall have already given en

dence in the same proceeding in disproof of his or her alleged
adultery.
4. [Repealed.]
5. This Act may be cited for all purposes as the Evidence
Further Amendment Act, 1869.
6. This Act shall not extend to Scotland.

EVIDENCE BY COMMISSION ACT, 1843.

(6 & 7 Vict. c. 82.)

An Act . . . for amending the Law relating to Commissions

the Examination of Witnesses. [22nd August 1843.1
o o o o o
5. And whereas there are at present no means of compelling the
attendance of persons to be examined under any commission for
the examination of witnesses issued by the courts of law or equity
in England or Ireland, or by the courts of law in Scotland, to In-
executed in a part of the realm subject to different laws from that
in which such commissions are issued, and great inconvenience
may arise by reason thereof : Be it therefore enacted, that if any
person, after being served with a written notice to attend anj
commissioner or commissioners appointed to execute any such
commission for the examination of witnesses as aforesaid (such
notice being signed by the commissioner or commissioners, ami
specifying the time and place of attendance), shall refuse or fail to
appear and be examined under such commission, such refusal or
failure to appear shall be certified by such commissioner or com
missioners, and it shall thereupon be competent, to or on behalf
of any party suing out such commission, to apply to any of
the superior courts of law in that part of the kingdom within
which such commission is to be executed, or any one of the judge*
of such courts, for a rule or order to compel the person or person*
so refusing or failing as aforesaid to appear before such commis
sioner or commissioners, and to be examined under such com
mission, and it shall be lawful for the court or a judge to whom
such application shall be made by rule or order to command the
attendance and examination of any person to be named or the
production of any writings or documents to be mentioned in such
rule or order.
o o o o o
 Bankers' Books Evidence Act, 1879. 535

BANKERS' BOOKS EVIDENCE ACT, 1879.

(42 Vict. c. 11.)
An Act to amend the Law of Evidence with respect to Bankers'
Books. [23rd May 1879.]
1. This Act may be cited as the Bankers' Books Evidence Act,
1879.
2. The Bankers' Books Evidence Act, 1876, shall be repealed
as from the passing of this Act, but such repeal shall not affect
anything which has been done or happened before such repeal
takes effect.
3. Subject to the provisions of this Act, a copy of any entry in a
banker's book shall in all legal proceedings be received as prima
facie evidence of such entry, and of the matters, transactions, and
accounts therein recorded.
4. A copy of an entry in a banker's book shall not be received
in evidence under this Act unless it be first proved that the book
was at the time of the making of the entry one of the ordinary
books of the bank, and that the entry was made in the usual and
ordinary course of business, and that the book is in the custody or
control of the bank.
Such proof may be given by a partner or officer of the bank,
and may be given orally or by an affidavit sworn before any
commissioner or person authorised to take affidavits.
5. A copy of an entry in a banker's book shall not be
received in evidence under this Act unless it be further proved
that the copy has been examined with the original entry and is
correct.
Such proof shall be given by some person who has examined the
copy with the original entry, and may be given either orally or by
an affidavit sworn before any commissioner or person authorised
to take affidavits.
6. A banker or officer of a bank shall not, in any legal proceed
ing to which the bank is not a party, be compellable to produce
any banker's book the contents of which can be proved under this
Act, or to appear as a witness to prove the matters, transactions,
and accounts therein recorded, unless by order of a judge made for
special cause.
7. On the application of any party to a legal proceeding a
court or judge may order that such party be at liberty to
inspect and take copies of any entries in a banker's book for any
of the purposes of such proceedings. An order under this section
536 Appendix.

may be made either with or without summoning the bank or

any other party, and shall be served on the bank three clear days
before the same is to be obeyed, unless the court or judge other
wise directs.
8. The costs of any application to a court or judge under or
for the purposes of this Act, and the costs of anything done or to
be done under an order of a court or judge made under or for
the purposes of this Act shall be in the discretion of the court or
judge, who may order the same or any part thereof to be paid to
any party by the bank where the same have been occasioned by any
default or delay on the part of the bank. Any such order
against a bank may be enforced as if the bank was a party to the
proceeding.
9. In this Act the expressions " bank " and " banker " mean
any person, persons, partnership, or company carrying on the
business of bankers and having duly made a return to the
Commissioners of Inland Revenue, and also any savings bank
certified under the Acts relating to savings banks, and also any
post office savings bank.
The fact of any such bank having duly made a return to the
Commissioners of Inland Revenue may be proved in any legal
proceeding by production of a copy of its return verified by the
affidavit of a partner or officer of the bank, or by the production
of a copy of a newspaper purporting to contain a copy of such
return published by the Commissioners of Inland Revenue : the
fact that any such savings bank is certified under the Acts
relating to savings banks may be proved by an office or examined
copy of its certificate ; the fact that any such bank is a post office
savings bank may be proved by a certificate purporting to be
under the hand of Her Majesty's Postmaster-General or one of the
secretaries of the post office.
Expressions in this Act relating to " bankers' books " include
ledgers, day books, cash books, account books, and all other books
used in the ordinary business of the bank.
10. In this Act—
The expression " legal proceeding " means any civil or criminal
proceeding or inquiry in which evidence is or may be given,
and includes an arbitration ;
. The expression " the court " means the court, judge, arbitrator,
persons or person before whom a legal proceeding is held or
taken ;
The expression " a judge " means with respect to England a
judge of the High Court, and with respect to Scotland a
lord ordinary of the Outer House of the Court of Session,
and with respect to Ireland a judge of the High Court in
Ireland ;
The judge of a county court may with respect to any action in
such court exercise the powers of a judge under this Act.
 Revenue, etc. Act, 1882. 537

11. Sunday, Christmas Day, Good Friday, and any bank

holiday shall be excluded from the computation of time under
this Act.

REVENUE, FRIENDLY SOCIETIES, AND

NATIONAL DEBT ACT, 1882.
(45 & 46 Vict. c. 72.)
An Act for a mending the Lairs relating to Custom* and Inland
Revenue, and Postage and other Stamps, and for making further
provision respecting the National Debt and charges payable out of
the public revenue or by the Commissioners for the Reduction of
the National Debt, and for other purposes.
[18th August 1882.]
e e e e a
11.—(2.) The expressions " bank " and " bankers " in the
Bankers' Books Evidence Act, 1879, shall include any company
carrying on the business of bankers to which the provisions of
the Companies Acts, 1862 to 1880, are applicable, and having
duly furnished to the registrar of joint stock companies a list
and summary with the addition specified by this Act, and the
fact of such list and summary having been duly furnished may
be proved in any legal proceedings by the certificate of the
registrar or any assistant registrar for the time being of joint
stock companies.
o o o o o

CRIMINAL EVIDENCE ACT, 1898.

(Gl Sc. 62 Vict. c. 30.)
An Act to Amend the Law of Evidence. [12th August 1898.]
Be it enacted by the Queen's most excellent Majesty, by and with
the advice and consent of the Lords spiritual and temporal, and
Commons, in this present Parliament assembled, and by the
authority of the same, as follows :
1. Every person charged with an offence, and the wife or
husband, as the case may be. of the person so charged, shall
be a competent witness for the defence at every stage of the
proceedings (a), whether the person so charged is charged
(a) A perron charged cannot give evidence before the grand jury (i?. v.
Rhodes, [1899] 1 y. B. 77). Proceedings for extradition have been held
within the Act {R. v. Kami, Times, 28th April, 1900). It has been held
by Dakling. J., that o prisoner after plea of guilty cannot give evidence
on oath in mitigation of sentence (tf. v. Hodgkinson, 61 J. P. 808).
l.e. 2 N
538 Appendix.

solely or jointly with any other person (6). Provided as

follows :
(a) A person so charged shall not be called as a witness
in pursuance of this Act except upon his own appli
cation (c) :
(b) The failure of any person charged with an offence, or of
the wife or husband, as the case may be, of the person so
charged, to give evidence shall not be made the subject
of any comment by the prosecution (d) :
(c) The wife or husband of the person charged shall not, save
as in this Act mentioned, be called as a witness in
pursuance of this Act except upon the application of the
person so charged :
(d) Nothing in this Act shall make a husband compellable to
disclose any communication made to him by his wife
during the marriage, or a wife compellable to disclose
any communication made to her by her husband during
the marriage :
(e) A person charged and being a witness in pursuance of this
Act may be asked any question in cross-examination
notwithstanding that it would tend to criminate him as
to the offence charged :
(f) A person charged and called as a witness in pursuance of
this Act shall not be asked, and if asked shall not be
required to answer, any question tending to show that he
has committed or been convicted of or been charged with
any offence other than that wherewith he is then charged,
or is of bad character, unless—
(i) the proof that he has committed or been convicted of
such other offence is admissible evidence to show
that he is guilty of the offence wherewith he is
then charged (e) ; or
(ii) he has personally or by his advocate asked questions
of the witnesses for the prosecution with a view to'
establish his own good character, or has given

(i) Where a person charged has given evidence before the committing
magistrate his deposition is evidence against him at the trial : see Ii. v.
Bird, 79 L. T. 359. This is on the principle that in criminal proceedings
any statement made by a party thereto may be given in evidence against
him except where the statement is not voluntary, or is made on oath
improperly administered : see II. v. Erdheiiu, [1896] 2 Q. B. at p. 270.
(c) No time is fixed for making this application. It can therefore be
made at any time before the evidence for the defence is closed. If other
witnesses besides the person charged are called for the defence, such person
need not be called as the first witness, but it is proper, and in most cases
desirable in his own interest, that he should be called first.
(rf) But any evidence given may be commented on by the prosecution ;
see ante, p. 33 ; and the failure to give evidence may be commented on by
the presiding judge or magistrate : if. v. Rhodes, [1899] 1 Q. B. 77.
f>) See ante, p. 460.
 Criminal Evidence Act, 1898. 539

evidence of his good character, or the nature or

conduct of the defence is such as to involve
imputations on the character of the prosecutor or
the witnesses for the prosecution (/) ; or
(iii) he has given evidence against any other person
charged with the same offence (g) :
(g) Every person called as a witness in pursuance of this Act
shall, unless otherwise ordered by the court, give his
evidence from the witness box or other place from which
the other witnesses give their evidence :
(h) Nothing in this Act shall affect the provisions of section
eighteen of the Indictable Offences Act, 1848, or any
right of the person charged to make a statement without
being sworn.
2. Where the only witness to the facts of the case called by
the defence is the person charged, he shall be called as a
witness immediately after the close of the evidence for the
prosecution (/().
3. In cases where the right of reply depends upon the question
whether evidence has been called for the defence, the fact that the
person charged has been called as a witness shall not of itself
confer on the prosecution the right of reply.

(/) In the latter part of this sub-section " conduct of the defence "
means not only the method of conducting by the advocate of the person
charged, but includes statements made by the person charged himself.
" Character " does not apparently include credibility, but means moral
character in other respects. Therefore the mere fact of its being stated
liy the person charged or his advocate that the evidence of the prosecutor
or any of his witnesses is not to be believed is not an "imputation" within
the sub-section. To say of a witness " He is a liar," does not " involve an
imputation" (i?. v. Rouxe, [1904] 1 K. B. 184), but for the prisoner to
suggest that a witness for the Crown had himself committed the orfence
with which the prisoner was charged, has been held to " involve an impu
tation" within the meaning of the sub-section (R. v. Marshall, 63 J. P,
36). As this sub-section (f) is inserted in favour of the person charged, it
ought, as far as ambiguous, to be construed in his favour. It is important
to observe that the earlier statutes (now superseded, though not repealed,
by the present Act), under which a person charged could give evidence,
contained no provisions limiting his cross-examination. But by a. 0 of
the Act of 1898 it is provided that it shall apply to all criminal pro
ceedings, notwithstanding any enactment in force at the commencement
of this Act, except thit it is not to affect the Evidence Act, 1877. The
right of cross-examination is therefore regulated by this section, even in
cases covered by the earlier statutes (Juharnook v. Merchant, [1900]
1 (J. B. 474).
(>/) If a prisoner in giving evidence incriminates a fellow prisoner,
the latter has the right to cross-examine (if. v. Hadwen, [1902] 1 K. B.
886).
(/<) In such a case counsel for the prosecution is entitled to sum up
for the prosecution after the person charged has given evidence : R. v.
(rardner, [1899] 1 Q. B. 150. When other witnesses are called for the
defence, see ante, note («).
2N 2
540 Appendix.

4.—(1.) The wife or husband of a person charged with an

offence under any enactment mentioned in the schedule to this
Act may be called as a witness either for the prosecution or
defence and without the consent of the person charged.
(2.) Nothing in this Act shall affect a case where the wife or
husband of a person charged with an offence may at common law
be called as a witness without the consent of that person («).
5. In Scotland, in a case where a list of witnesses is required,
the husband or wife of a person charged shall not be called as a
witness for the defence, unless notice be given in the terms pre
scribed by section thirty-six of the Criminal Procedure (Scotland)
Act, 1887.
6.—(1.) This Act shall apply to all criminal proceedings, not
withstanding any enactment in force at the commencement of this
Act (fc), except that nothing in this Act shall affect the Evidence
Act, 1877 (0-
(2.) But this Act shall not apply to proceedings in courts
martial unless so applied—
(a) as to courts martial under the Naval Discipline Act, by
general orders made in pursuance of section sixty-five of
that Act ; and
(b) as to courts martial under the Army Act by rules made in
pursuance of section seventy of that Act.
7.—(1.) This Act shall not extend to Ireland.
(2.) This Act shall come into operation on the expiration of
two months from the passing thereof.
(3.) This Act may be cited as the Criminal Evidence Act, 1898.
SCHEDULE.
Enactments referred to.
Session and Chapter. Short Title. Enactments referred to.

5 Geo. 4, c. 83. The Vagrancy Act, 1824. The enactment punishing

a man for neglecting
to maintain or desert
ing his wife or any of
his family.
8 & 9 Vict. c. 83 The Poor Law (Scotland) Section eighty.
I Act, 1845.
24 & 25 Vict. c. 100 I The Offences against the Sections forty-eight to
Person Act, 1861. fifty-fire.
45 k 46 Vict. c. 75.. The Married Women's Section twelve and sec
Property Act, 1882. tion sixteen.
48 & 49 Vict. c. 69.. The Criminal Law The whole Act.
Amendment Act, 1885.
57 & 58 Vict. c.41.. The Prevention of The whole Act.
Cruelty to Children
Act, 1894.
(i) See ante, p. 37. (A) See ante, p. 33. (7) For which see ante, p. 33.
 Mebchant Shipping Act, 1894. 541

MERCHANT SHIPPING ACT, 1894.

(57 & 58 Vict. c. 60.)

An Act to consolidate Enactments relating to Merchant Shipping.

[25th August 1894.]
o o o o o
64.—(1.) A person, on payment of a fee not exceeding one
shilling, to be fixed by the Commissioners of Customs, may on
application to the registrar at a reasonable time during the hours
of his official attendance, inspect any register book.
(2.) The following documents shall be admissible in evidence
in manner provided by this Act ; namely,—
(a) Any register book under this part of this Act on its produc
tion from the custody of the registrar or other person
having the lawful custody thereof ;
(b) A certificate of registry under this Act purporting to be
signed by the registrar or other proper officer ;
(c) An indorsement on a certificate of registry purporting to be
signed by the registrar or other proper officer ;
(d) Every declaration made in pursuance of this part of this
Act in respect of a British ship.
(3.) A copy or transcript of the register of British ships kept
by the Registrar-General of Shipping and Seamen under the
direction of the Board of Trade shall be admissible in evidence
in manner provided by this Act, and have the same effect to
all intents as the original register of which it is a copy or
transcript.
o o o o o
239.—(6-) Every entry made in an official log-book in manner
provided by this Act shall be admissible in evidence.
o o o o o
256.—(1.) All superintendents and all officers of customs shall
take charge of all documents which are delivered or transmitted
to or retained by them in pursuance of this Act, and shall keep
them for such time (if any) as may be necessary for the purpose
of settling any business arising at the place where the documents
come into their hands, or for any other proper purpose, and shall,
if required, produce them for any of those purposes, and shall
then transmit them to the Registrar-General of Shipping and
Seamen, and he shall record and preserve them, and they shall be
admissible in evidence in manner provided by this Act, and they
shall, on payment of a moderate fee fixed by the Board of Trade,
or without payment if the Board so direct, be open to the inspec
tion of any person.
542 Appendix.

(2.) The documents aforesaid shall be public records and

documents within the meaning of the Public Record Offices
Acts, 1838 and 1877, and those Acts shall, where applicable,
apply to those documents in all respects, as if specifically referred
to therein. i
o o o o c
695.—(1.) Where a document is by this Act declared to be
admissible in evidence, such document shall, on its production
from the proper custody, be admissible in evidence in any court or
before any person having by law or consent of parties authority to
receive evidence, and, subject to all just exceptions, shall be evi
dence of the matters stated therein in pursuance of this Act or by
any officer in pursuance of his duties as such officer.
(2.) A copy of any such document or extract therefrom shall
also be so admissible in evidence if proved to be an examined
copy or extract, or if it purports to be signed and certified as a
true copy or extract by the officer to whose custody the original
document was entrusted, and that officer shall furnish such certi
fied copy or extract to any person applying at a reasonable time
for the same, upon payment of a reasonable sum for the same, not
exceeding fourpence for every folio of ninety words, but a person
shall be entitled to have—
(a) a certified copy of the particulars entered by the registrar
in the register book on the registry of the ship, together
with a certified statement showing the ownership of the
ship at the time being ; and
(b) a certified copy of any declaration, or document, a copy
of which is made evidence by this Act, on payment of
one shilling for each copy.
(3.) If any such officer wilfully certifies any document as being
a true copy or extract knowing the same not to be a true copy or
extract, he shall for each offence be guilty of a misdemeanor, and
be liable on conviction to imprisonment for any term not exceed
ing eighteen months.
(4.) If any person forges the seal, stamp, or signature of any
document to which this section applies, or tenders in evidence
any such document with a false or counterfeit seal, stamp, or
signature thereto, knowing the same to be false or counterfeit,
he shall for each offence be guilty of felony, and be liable to penal
servitude for a term not exceeding seven years, or to imprison
ment for a term not exceeding two years, with or without hard
labour, and whenever any such document has been admitted in
evidence, the court or the person who admitted the same may
on request direct that the same shall be impounded, and be kept
in the custody of some officer of the court or other proper person,
for such period or subject to such conditions as the court or
person thinks fit.
 Companies Act, 1862. 543

696.—(1.) Where for the purposes of this Act any document is

to be served on any person, that document may be served—
(a) in any case by delivering a copy thereof personally to the
person to be served, or by leaving the same at his last
place of abode ; and
(b) if the document is to be served on the master of a ship,
where there is one, or on a person belonging to a ship,
by leaving the same for him on board that ship with the
person being or appearing to be in command or charge
of the ship ; and
(c) if the document is to be served on the master of a ship,
where there is no master, and the ship is in the United
Kingdom, on the managing owner of the ship, or, if
there is no managing owner, on some agent of the owner
residing in the United Kingdom, or where no such agent
is known or can be found, by affixing a copy thereof to
the mast of the ship.
(2.) If any person obstructs the service on the master of a
ship of any document under the provisions of this Act relating
to the detention of ships as unseaworthy, that person shall for
each offence be liable to a fine not exceeding ten pounds, and,
if the owner or master of the ship is party or privy to the
obstruction, he shall in respect of each offence be guilty of a
misdemeanor.
o o o o o
719. All documents purporting to be made, issued, or written
by or under the direction of the Board of Trade, and to be sealed
with the seal of the Board, or to be signed by their secretary or
one of their assistant secretaries, or, if a certificate, by one of the
officers of the Marine Department, shall be admissible in evidence
in manner provided by this Act.
o o o c o

COMPANIES ACT, 1862.

(25 & 26 Vict. c. 89.)

An Art for the Incorporation, Regulation, and Winding-up of Trading

Companies and other Associations. [7th August 1862.]
ooooo
18. ■ A certificate of the incorporation of any company
given by the registrar shall be conclusive evidence that all the
requisitions of this Act in respect of registration have been
complied with.
 Appendix.

31. A certificate, under the common seal of the company,

specifying any share or shares or stock held by any member of »
company, shall be prima facie evidence of the title of the member
to the share or shares or stock therein specified.
o o o o o
37. The register of members (<;) shall be prima facie evidence
of any matters by this Act directed or authorised to be inserted
therein.
o a a o o
61. A copy of the report of any inspectors appointed under this
Act, authenticated by the seal of the company into whose affairs
they have made inspection, shall be admissible in any legal pro
ceeding, as evidence of the opinion of the inspectors in relation to
any matter contained in such report.
o o o o o
67. Every company under this Act shall cause minutes of all
resolutions and proceedings of general meetings of the company,
and of the directors or managers of the company, in cases where
there are directors or managers, to be duly entered in books to
be from time to time provided for the purpose ; and any such
minute as aforesaid, if purporting to be signed by the chairman
of the meeting at which such resolutions were passed or pro
ceedings had, or by the chairman of the next succeeding meeting,
shall be received as evidence in all legal proceedings ; and until
the contrary is proved, every general meeting of the company
or meeting of directors or managers in respect of the proceed
ings of which minutes have been so made shall be deemed to
have been duly held and convened, and all resolutions passed
thereat, or proceedings had, to have been duly passed and had ;
and all appointments of directors, managers, or liquidators shall
be deemed to be valid, and all acts done by such directors,
managers, or liquidators shall be valid notwithstanding any defect
that may afterwards be discovered in their appointments or quali
fications (J).
o 0 o e o
106. Any order made by the court in pursuance of this
Act upon any contributory shall, subject to the provisions
herein contained for appealing against such order, be con
clusive evidence that the moneys, if any, thereby appearing
to be due or ordered to be paid are due ; and all other perti
nent matters stated in such order are to be taken to be truly
stated as against all persons, and in all proceedings whatsoever,

(a) Kept under s. 25 of this Act.

(*) All acts done, etc., means done l>efore the invalidity is shown, and
does not cover subsequent acts {He Bridjiort Old Brewery Co., L. R.
2 Ch. 194.)
 Companies Act, 1862. 545

with the exception of proceedings taken against the real estate of

any deceased contributory, in which case such order shall only be
prima facie evidence for the purpose of charging his real estate,
unless his heirs or devisees were on the list of contributories at the
time of the order being made.
o o o o o
115. The court may, after it has made an order for winding
up the company, summon before it any officer of the company
or person known or suspected to have in his possession any of the
estate or effects of the company, or supposed to be indebted to the
company, or any person whom the court may deem capable of
giving information concerning the trade, dealings, estate, or effects
of the company ; and the court may require any such officer or
person to produce any books, papers, deeds, writings, or other
documents in his custody or power relating to the company ; and
if any person so summoned, after being tendered a reasonable sum
for his expenses, refuses to come before the court at the time
appointed, having no lawful impediment (made known to the court
at the time of its sitting, and allowed by it), the court may cause
such person to be apprehended, and brought before the court for
examination ; nevertheless, in cases where any person claims any
lien on papers, deeds, or writings or documents produced by him,
such production shall be without prejudice to such lien, and the
court shall have jurisdiction in the winding up to determine all
questions relating to such lien.
o o o o o
117. The court may examine upon oath, either by word of
mouth or upon written interrogatories, any person appearing or
brought before them in manner aforesaid concerning the affairs,
dealings, estate, or effects of the company, and may reduce into
writing the answers of every such person, and require him to
subscribe the same.
o o o o o
154. Where any company is being wound up, all books, accounts,
and documents of the company and of the liquidators shall,
as between the contributories of the company, be prima facie
evidence of the truth of all piatters purporting to be therein
recorded (<■).
o o o o o
192- A certificate of incorporation given at any time to any
company registered in pursuance of this part of this Act, shall
be conclusive evidence that all the requisitions herein contained
in respect of registration under this Act have been complied
with, and that the company is authorised to be registered under

(«) Re Great Northern Salt, etc. Work, U Ch. I). 472.

546 Appendix.

this Act as a limited or unlimited company, as the case may

be ; and the date of incorporation mentioned in such certificate
shall be deemed to be the date at which the company is incor
porated under this Act.

COMPANIES ACT, 1877.

(40 & 41 Vict. c. 26.)
An Act to amend the Companies Acts of 1862 and 1867.
[23rd July 1877.]
o o o o o
6. And whereas it is expedient to make provision for the
reception as legal evidence of certificates of incorporation other
than the original certificates, and of certified copies of, or extracts
from, any documents filed and registered under the Companies
Acts, 1862 to 1877 : Be it enacted, that any certificate of the
incorporation of any company given by the registrar or by any
assistant registrar for the time being shall be received in
evidence as if it were the original certificate ; and any copy of
or extract from any of the documents or part of the documents
kept and registered at any of the offices for the registration of
joint stock companies in England, Scotland, or Ireland, if duly
certified to be a true copy under the hand of the registrar or one
of the assistant registrars for the time being, and whom it shall
not be necessary to prove to be the registrar or assistant registrar,
shall, in all legal proceedings, civil or criminal, and in all cases
whatsoever, be received in evidence as of equal validity with the
original document.

COMPANIES (WINDING UP) ACT, 1890.

(53 & 54 Vict. c. 63.)
An Act to amend the Law relating to the Winding up of Companits
in England and Wales. ^ [18th August 1890.1
o o o o o
8.—(1.) Where the court has made an order for winding up a
company, the official receiver shall, as soon as practicable after
receipt of the statement of the company's affairs, submit a pre
liminary report to the court—
(a) as to the amount of capital issued, subscribed, and paid
up, and the estimated amount of assets and liabilities ;
and
(b) if the company has failed, as to the causes of the failure ;
and
 Companies (Winding up) Act, 1890. 547

(c) whether in his opinion further inquiry is desirable as to

any matter relating to the promotion, formation, or
failure of the company, or the conduct of the business
thereof.
(2.) The official receiver may also, if he thinks fit, make a
further report, or further reports, stating the manner in which
the company was formed and whether in his opinion any fraud has
been committed by any person in the promotion or formation
of the company or by any director or other officer of the company
in relation to the company since the formation thereof, and any
other matters which in his opinion it is desirable to bring to the
notice of the court.
(3.) The court may, after consideration of any such report,
direct that any person who has taken any part in the promotion or
formation of the company, or has been a director or officer of the
company, shall attend before the court on a day appointed by the
court for that purpose, and be publicly examined as to the promo
tion or formation of the company, or as to the conduct of the
business of the company, or as to his conduct and dealings as
director or officer of the company.
(4.) The official receiver shall take part in the examination,
and for that purpose may, if specially authorised by the Board
of Trade in that behalf, employ a solicitor with or without
counsel.
(5.) The liquidator where the official receiver is not the liqui
dator and any creditor or contributory of the company may also
take part in the examination either personally or by solicitor or
counsel.
(6.) The court may put such questions to the person examined
as to the court may seem expedient.
(7.) The person examined shall be examined on oath, and it
shall be his duty to answer all such questions as the court may
put or allow to be put to him. The person examined shall at
his own cost prior to such examination, be furnished with a
copy of the official receiver's report, and shall also at his own
cost be entitled to employ at such examination a solicitor with
or without counsel, who shall be at liberty to put such questions
to the person examined as the court may deem just for the
purpose of enabling that person to explain or qualify any
answers given by him. Provided always, that if such person
is, in the opinion of the court, exculpated from any charges
made or suggested against him, the court may allow him such
costs as the court in its discretion may think fit. Notes of the
examination shall be taken down in writing, and shall be read over
to or by, and signed by, the person examined, and may thereafter
be used in evidence against him. They shall also be open to the
inspection of any creditor or contributory of the company at all
reasonable times.
548 Appendix.

(8.) The court may, if it thinks fit, adjourn the examination from
time to time.
• (9.) A public examination under this section may, if the
court so directs, and subject to general rules, be held before
any judge of county courts, or before any officer of the Supreme
Court, being an official referee, master, registrar in bankruptcy,
or chief clerk, or before any district registrar of the High Court
named for the purpose by the Lord Chancellor, or in the
case of companies being wound up by a palatine court, before a
registrar of that court, and the powers of the court under sub
sections six, seven, and eight of this section may (except as to
costs) be exercised by the person before whom the examination is
held.
O O O O 0

BANKRUPTCY ACT, 1883.

(46 & 47 Vict. c. 52.)

An Act to amend and consolidate the Law of Bankruptcy.

[25th August 1883.]
0 o o o o
17.—(1.) Where the court makes a receiving order it shall
hold a public sitting, on a day to be appointed by the court, for
the examination of the debtor, and the debtor shall attend
thereat, and shall be examined as to his conduct, dealings, and
property.
(2.) The examination shall be held as soon as conveniently may
be after the expiration of the time for the submission of the
debtor's statement of affairs.
(3.) The court may adjourn the examination from time to
time.
(4.) Any creditor who has tendered a proof, or his representative
authorised in writing, may question the debtor concerning his
affairs and the causes of his failure.
(5.) The official receiver shall take part in the examination of
the debtor ; and for the purpose thereof, if specially authorised
by the Board of Trade, may employ a solicitor with or without
counsel.
(6.) If a trustee is appointed before the conclusion of the
examination he may take part therein.
(7.) The court may put such questions to the debtor as it may
think expedient.
(8.) The debtor shall be examined upon oath, and it shall be
his duty to answer all such questions as the court may put or
allow to be put to him. Such notes of the examination as the
 Bankruptcy Act, 1883. 549

court thinks proper shall be taken down in writing, and shall

be read over to and signed by the debtor, and may thereafter be
used in evidence against him ; they shall also be open to the
inspection of any creditor at all reasonable times.
(9.) When the court is of opinion that the affairs of the
debtor have been sufficiently investigated, it shall, by order,
declare that his examination is concluded, but such order shall
not be made until after the day appointed for the first meeting of
creditors (a).
o o o c o
27.—(For this section see ante, p. 98.)
o o o o o
105.—(5.) Subject to general rules, the court may in any
matter take the whole or any part of the evidence, either vivA
voce or by interrogatories, or upon affidavit, or by commission
abroad.
o o o o o
132.—(1.) A copy of the London Gazette containing any
notice inserted therein in pursuance of this Act shall be evidence
of the facts stated in the notice.
(2.) The production of a copy of the London Gazette con
taining any notice of a receiving order, or of an order adjudging
a debtor bankrupt, shall be conclusive evidence in all legal
proceedings of the order having been duly made, and of its date.
133.—(1.) A minute of proceedings at a meeting of creditors
under this Act, signed at the same or the next ensuing meeting,
by a person describing himself as, or appearing to be, chairman
of the meeting at which the minute is signed, shall be received in
evidence without further proof.
(2.) Until the contrary is proved, every meeting of creditors in
respect of the proceedings whereof a minute has been so signed
shall be deemed to have been duly convened and held, and all
resolutions passed or proceedings had thereat to have been duly
passed or had.
134. Any petition or copy of a petition in bankruptcy, any
order or certificate or copy of an order or certificate made by any

(a) By s. 2 of the Bankruptcy Act, 1890 (53 6: 54 Vict. c. 71), it is

enacted—"(1) The notes taken of a debtor's public examination in pur
suance of section seventeen of the principal Act shall be read over either
to or by the debtor.
"(2) Where the debtor is a lunatic or suffers from any such mental or
physical affliction or disability as in the opinion of the court makes him
unfit to attend his public examination, the court may make an order
dispensing with such examination, or directing that the debtor be
examined on such terms, in such manner, and at such place as to the court
seems expedient."
550 Appendix.

court having jurisdiction in bankruptcy, any instrument or

copy of an instrument, affidavit, or document made or used
in the course of any bankruptcy proceedings, or other proceedings
had under this Act, shall, if it appears to be sealed with the
seal of any court having jurisdiction in bankruptcy, or purports
to be signed by any judge thereof, or is certified as a true copy
by any registrar thereof, be receivable in evidence in all legal
proceedings whatever.
135. Subject to general rules, any affidavit to be used in a
bankruptcy court may be sworn before any person authorised to
administer oaths in the High Court, or in the Court of Chancery
of the county palatine of Lancaster, or before any registrar of
a bankruptcy court, or before any officer of a bankruptcy court
authorised in writing on that behalf by the judge of the court,
or, in the case of a person residing in Scotland or in Ireland,
before a judge ordinary, magistrate or justice of the peace, or,
in the case of a person who is out of the kingdom of Great
Britain and Ireland, before a magistrate or justice of the peace or
other person qualified to administer oaths in the country where
he resides (he being certified to be a magistrate or justice of the
peace, or qualified as aforesaid by a British minister or British
consul, or by a notary public).
136. In case of the death of the debtor or his wife, or of a
witness whose evidence has been received by any court in any
proceeding under this Act, the deposition of the person so
deceased, purporting to be sealed with the seal of the court, or a
copy thereof purporting to be so sealed, shall be admitted as
evidence of the matters therein deposed to.
137. Every court having jurisdiction in bankruptcy under this
Act shall have a seal describing the court in such manner as may
be directed by order of the Lord Chancellor, and judicial notice
shall be taken of the seal, and of the signature of the judge or
registrar of any such court, in all legal proceedings.

138. A certificate of the Board of Trade that a person has been

appointed trustee under this Act, shall be conclusive evidence of
his appointment.
o o o o o
140.—(1-) All documents purporting to be orders or certifi
cates made or issued by the Board of Trade, and to be sealed with
the seal of the board, or to be signed by a secretary or assistant
secretary of the board, or any person authorised in that behalf by
the president of the board, shall be received in evidence, and
deemed to be such orders or certificates without further proof
unless the contrary is shown.
 Bankruptcy Eules, 1886 and 1890. 551

(2.) A certificate signed by the president of the Board of Trade

that any order made, certificate issued, or act done, is the order,
certificate, or act of the Board of Trade shall be conclusive
evidence of the fact so certified.
o o o o o
142. AH notices and other documents for the service of
which no special mode is directed may be sent by prepaid post
letter to the last known address of the person to be served
therewith.
143.—(1.) No proceeding in bankruptcy shall be invalidated
by any formal defect or by any irregularity, unless the court
before which an objection is made to the proceeding is of opinion
that substantial injustice has been caused by the defect or
irregularity, and that the injustice cannot be remedied by any
order of that court.
o o o o o

The Bankruptcy Rules, 1886 and 1890.

17.—(1.) In the high court the senior bankruptcy registrar,
and in a county court the registrar shall file a copy of each
issue of the " London Gazette," and whenever the Gazette con
tain.'* any advertisement relating to any matter under the Act
in such court, he shall at the same time file with the proceedings
in the matter a memorandum referring to and giving the date of
such advertisement.
(2.) In the case of an advertisement in a local paper, the
registrar shall in like manner file a copy of the paper
and a memorandum (which shall be in the Form Xo. 175 in
the Appendix) referring to and giving the date of such
advertisement.
(3.) For this purpose one copy of each local paper, in which any
advertisement relating to any matter under the Act in such court
is inserted, shall be left with the registrar by the person inserting
the advertisement.
(4.) The memorandum by the registrar shall be prima facie
evidence that the advertisement to which it refers was duly
inserted in the issue of the Gazette or paper mentioned in it.
17a. Where in the exercise of their functions under the Acts
or Rules, the Board of Trade or the official receiver require to
inspect or use the file of proceedings in any matter, the registrar
tdiall (unless the file is at the time required for use in court or by
him) on request transmit the file of proceedings to the Board
of Trade or official receiver, as the case may be.
552 Appendix.

Gl. A subpoena for the attendance of a witness shall be

issued by the court at the instance of an official receiver, a
trustee, a creditor, a debtor, or any applicant or respondent in
any matter, with or without a clause requiring the production of
books, deeds, papers, documents, and writings in his possession or
control, and in such subpoena the names of three witnesses may be
inserted.
66. The court may, in any matter where it shall appear
necessary for the purposes of justice, make an order for the
examination upon oath before the court or any officer of the
court, or any other person, and at any place, of any witness or
person, and may empower any party to any such matter to give
such deposition in evidence therein on such terms (if any) as the
court may direct.
69. The court may, in any matter, at any stage of the proceed
ings, order the attendance of any person for the purpose of
producing any writings or other documents named in the order,
which the court may think fit to be produced.
70. Any person wilfully disobeying any subpoena or order
requiring his attendance for the purpose of being examined or
producing any document shall be deemed guilty of contempt of
court, and may be dealt with accordingly.
71. Any witness (other than the debtor) required to attend
for the purpose of being examined, or of producing any docu
ment, shall be entitled to the like conduct money and payment for
expenses and loss of time, as upon attendance at a trial in
court.
72. Any party to any proceeding in court may, with the leave
of the court, administer interrogatories to, or obtain discovery of
documents from, any other party to such proceeding. Proceedings
under this rule shall be regulated as nearly as may be by the
Rules of the Supreme Court for the time being in force in
relation to discovery and inspection. An application for leave
under this rule may be made e.r parte. •

PREVENTION OF CRIMES ACT, 1871.

(34 & 35 Vict. c. 112.)

An Act for the more effectual Prevention of Crime.

[21st August 1871.]
o o e o e
18. A previous conviction may be proved in any legal pro
ceeding whatever against any person by producing a record or
extract of such conviction, and by giving proof of the identity of
the person against whom the conviction is sought to be proved
 Prevention of Crimes Act, 1871. 553

with the person appearing in the record or extract of conviction

to have been convicted.
A record or extract of a conviction shall in the case of an in
dictable offence consist of a certificate containing the substance
and effect only (omitting the formal part of the indictment and
conviction), and purporting to be signed by the clerk of the court
or other officer having the custody of the records of the court by
which such conviction was made, or purporting to be signed by
the deputy of such clerk or officer ; and in the case of a sum
mary conviction shall consist of a copy of such conviction pur
porting to be signed by any justice of the peace having jurisdic
tion over the offence in respect of which such conviction was
made, or to be signed by the proper officer of the court by which
such conviction was made, or by the clerk or other officer of any
court to which such conviction has been returned.
A record or extract of any conviction made in pursuance of
this section shall be admissible in evidence without proof of the
signature or official character of the person appearing to have
signed the same.
A previous conviction in any one part of the United Kingdom
may be proved against a prisoner in any other part of the United
Kingdom ; and a conviction before the passing of this Act shall
be admissible in the same manner as if it had taken place after the
passing thereof.
A fee not exceeding five shillings may be charged for a record
of a conviction given in pursuance of this section.
The mode of proving a previous conviction authorised by this
section shall be in addition to and not in exclusion of any other
authorised mode of proving such conviction.

19. Where proceedings are taken against any person for

having received goods knowing them to be stolen, or for having
in his possession stolen property, evidence may be given at any
stage of the proceedings that there was found in the possession
of such person other property stolen within the preceding period
of twelve months, and such evidence may be taken into con
sideration for the purpose of proving that such person knew the
property to be stolen which forms the subject of the proceedings
taken against him.
Where proceedings are taken against any person for having
received goods knowing them to be stolen, or for having in his
possession stolen property, and evidence has been given that the
stolen property has been found in his possession, then if such
person has within five years immediately preceding been con
victed of any offence involving fraud or dishonesty, evidence of
such previous conviction may be given at any stage of the pro
ceedings, and may be taken into consideration for the purpose
of proving that the person accused knew the property which was
proved to be in his possession to have been stolen : provided
that not less than seven days' notice in writing shall have been
l.e. 2 o
554 Appendix.

given to the person accused that proof is intended to be given

of such previous conviction ; and it shall not be necessary for the
purposes of this section to charge in the indictment the previous
conviction of the person so accused.
c o o o o

NATURALIZATION ACT, 1870.

(33 & 34 Vict. c. 140

An Act to amend the Lav) relating to the legal condition of Aliem

and British Subjects. [12th May 1870.]
o o o o o
12. The following regulations shall be made with respect to
evidence under this Act :
(1.) Any declaration authorized to be made under this Act
may be proved in any legal proceeding by the produc
tion of the original declaration, or of any copy thereof
certified to be a true copy by one of her Majesty's
principal Secretaries of State, or by any person autho
rized by regulations of one of her Majesty's principal
Secretaries of State to give certified copies of such
declaration, and the production of such declaration or
copy shall be evidence of the person therein named
as declarant having made the same at the date in the
said declaration mentioned :
(2.) A certificate of naturalization may be proved in any legal
proceeding by the production of the original certificate,
or of any copy thereof certified to be a true copy by one
of her Majesty's principal Secretaries of State, or bv
any person authorized by regulations of one of her
Majesty's principal Secretaries of State to give certified
copies of such certificate :
(3.) A certificate of re-admission to British nationality may be
proved in any legal proceeding by the production of the
original certificate, or of any copy thereof certified to be
a true copy by one of her Majesty's principal Secretaries
of State, or by any person authorized by regulations of
one of her Majesty's principal Secretaries of State to
give certified copies of such certificate :
(4.) Entries in any register authorized to be made in pursuance
of this Act shall be proved by such copies and certified
in such manner as may be directed by one of her
 Extradition Act, 1870. 555

Majesty's principal Secretaries of State, and the copies

of such entries shall be evidence of any matters by this
Act or by any regulation of the said Secretary of State
authorized to be inserted in the register :
(5.) The Documentary Evidence Act, 1868, shall apply to
any regulation made by a Secretary of State, in pur
suance of or for the purpose of carrying into effect any
of the provisions of this Act.
0 o o o o

EXTRADITION ACT, 1870.

(33 & 34 Vict. c. 52.)
An Act for amending the Lair relating to the Extradition of
Criminals. [9th August 1870.]
o o o o o
14. Depositions or statements on oath, taken in a foreign
state, and copies of such original depositions or statements, and
foreign certificates of or judicial documents stating the fact of
conviction, may, if duly authenticated, be received in evidence in
proceedings under this Act.
15. Foreign warrants and depositions or statements on oath,
and copies thereof, and certificates of or judicial documents
stating the fact of a conviction, shall be deemed duly authenti
cated for the purposes of this Act if authenticated in manner
provided for the time being by law, or authenticated as
follows :
(1.) If the warrant purports to be signed by a judge, magis
trate, or officer of the foreign state where the same was
issued ;
(2.) If the depositions or statements or the copies thereof
purport to be certified under the hand of a judge, magis
trate, or officer of the foreign state where the same were
taken to be the original depositions or statements, or to be
true copies thereof, as the case may require ; and
(3.) If the certificate of or judicial document stating the fact
of conviction purports to be certified by a judge, magis
trate, or officer of the foreign state where the conviction
took place ; and
if in every case the warrants, depositions, statements, copies,
certificates, and judicial documents (as the case may be) are
authenticated by the oath of some witness or by being sealed
with the official seal of the minister of justice, or some other
2 o 2
556 Appendix.

minister of state : And all courts of justice, justices, and magis

trates shall take judicial notice of such official seal, and shall
admit the documents so authenticated by it to be received in
evidence without further proof.
o o o o o

EXTRADITION ACT, 1873.

(36 & 37 Vict. c. 60.)
An Act to amend the Extradition Act, 1870. [5th August 1873.]
o o o o o
4. The provisions of the principal Act relating to depositions
and statements on oath taken in a foreign state, and copies of
such original depositions and statements, do and shall extend
to affirmations taken in a foreign state, and copies of such
affirmations.
o o o o o

FRIENDLY SOCIETIES ACT, 1875.

(38 & 39 Vict. c. 60.)
o o o o o
39. Every instrument or document, copy or extract of an
instrument or document, bearing the seal or stamp of the central
office shall be received in evidence without further proof, and
every document purporting to be signed by the chief or any
assistant registrar, or any inspector or public auditor or valuer
under this Act, shall, in the absence of any evidence to the
contrary, be received in evidence without proof of the signature.

INDUSTRIAL AND PROVIDENT SOCIETIES

ACT, 1893.
(56 & 57 Vict. c. 39.)
An Act to consolidate and amend the Laics relating to Industrial
and Provident Societies. [12th September 1893.]
O 0 O O O
34. Any register or list of members or shares kept by any
society shall be prima facie evidence of any of the following
particulars entered therein :
(a) The names, addresses, and occupations of the members,
the number of shares held by them respectively, the
 Fugitive Offendeks Act, 1881. 557

numbers of such shares, if they are distinguished by

numbers, and the amount paid or agreed to be considered
as paid on any such shares ;
(b) The date at which the name of any person, company, or
society was entered in such register or list as a member ;
(c) The date at which any such person, company, or society
ceased to be a member.
o o o o o
75. Every copy of rules or other instrument or document,
copy or extract of an instrument or document, bearing the seal or
stamp of the central office, shall be received in evidence without
further proof ; and every document purporting to be signed by
the chief or any assistant registrar, or any inspector or public
auditor under this Act, shall, in the absence of any evidence
to the contrary, be received in evidence without proof of the
signature.
o o o o o

FUGITIVE OFFENDERS ACT, 1881.

(44 & 45 Vict. c. 69.)

An Act to amend the Law with respect to Fugitive Offenders in Her

Majesty's Dominions, and for other pm-poses connected v'ith the
Trial of Offenders. [27th August 1881.]
o o o o o
29. A magistrate may take depositions for the purposes of this
Act, in the absence of a person accused of an offence in like
manner as he might take the same if such person were present and
accused of the offence before him.
Depositions (whether taken in the absence of the fugitive or
otherwise) and copies thereof, and official certificates of or judicial
documents stating facts, may, if duly authenticated, be received in
evidence in proceedings under this Act.
Provided that nothing in this Act shall authorise the reception
of any such depositions, copies, certificates, or documents in
evidence against a person upon his trial for an offence.
Warrants and depositions, and copies thereof, and official
certificates of or judicial documents stating facts, shall be
deemed duly authenticated for the purposes of this Act if they
are authenticated in manner provided for the time being by
law, or if they purport to be signed by or authenticated by the
signature of a judge, magistrate, or officer of the part of her
558 Appendix.

Majesty's dominions in which the same are issued, taken, or

made ; and are authenticated either by the oath of some
witness, or by being sealed with the official seal of a Secretary
of State, or with the public seal of a British possession, or
with the official seal of a governor of a British possession, or
of a colonial secretary, or of some secretary or minister
administering a department of the government of a British
possession.
And all courts and magistrates shall take judicial notice of
every such seal as is in this section mentioned, and shall admit
in evidence, without further proof, the documents authenticated
by it.
o o o o o

PARTNERSHIP ACT, 1890.

(53 & 54 Vict. c. 39.)

An Act to declare and amend the Law of Partnership.

[14th August 1890.]
e e o o e
5. Every partner is an agent of the firm and his other partners
for the purpose of the business of the partnership ; and the acts
of every partner who does any act for carrying on in the usual
way business of the kind carried on by the firm of which he is a
member bind the firm and his partners, unless the partner so
acting has in fact no authority to act for the firm in the particular
matter, and the person with whom he is dealing either knows
that he has no authority, or does not know or believe him to be a
partner.
6. An act or instrument relating to the business of the firm
and done or executed in the firm-name, or in any other manner
showing an intention to bind the firm, by any person thereto
authorised, whether a partner or not, is binding on the firm and all
the partners. Provided that this section shall not affect any
general rule of law relating to the execution of deeds or
negotiable instruments.
7. Where one partner pledges the credit of the firm for a
purpose apparently not connected with the firm's ordinary
course of business, the firm is not bound, unless he is in fact
specially authorised by the other partners ; but this section
does not affect any personal liability incurred by an individual
partner.
 Stamp Act, 1891. 559

8. If it has been agreed between the partners that any restriction

shall be placed on the power of any one or more of them to
bind the firm, no act done in contravention of the agreement is
binding on the firm with respect to persons having notice of the
agreement.
14. (See ante, p. 223.)
15. An admission or representation made by any partner con
cerning the partnership affairs, and in the ordinary course of its
business, is evidence against the firm.
16. Notice to any partner who habitually acts in the partnership
business of any matter relating to partnership affairs operates as
notice to the firm, except in the case of a fraud on the firm
committed by or with the consent of that partner.
o o o o o

STAMP ACT, 1891.

(54 & 55 Vict. c. 39.)

An Act to consolidate the Enactment* granting and relating to the

Stamp Duties upon Instruments and certain other Enactments
relating to Stamp Duties. [21st July 1891.]
o o o o o
15.—(1.) Save where other express provision is in this Act
made, any unstamped or insufficiently stamped instrument may be
stamped after the execution thereof, on payment of the unpaid
duty and a penalty of ten pounds, and also by way of further
penalty, where the unpaid duty exceeds ten pounds, of interest
on such duty, at the rate of five pounds per centum per annum,
from the day upon which the instrument was first executed up
to the time when the amount of interest is equal to the unpaid
duty.
(2.) In the case of such instruments hereinafter mentioned as
are chargeable with ad valorem duty, the following provisions
shall have effect :
(a) The instrument, unless it is written upon duly stamped
material, shall be duly stamped with the proper ad
valorem duty before the expiration of thirty days
after it is first executed, or after it has been first
received in the United Kingdom in case it is first
executed at any place out of the United Kingdom,
unless the opinion of the Commissioners with respect
to the amount of duty with which the instrument is
560 Appendix.

chargeable, has, before such expiration, been required

under the provisions of this Act :
(b) If the opinion of the Commissioners with respect to any
such instrument has been required, the instrument shall
be stamped in accordance with the assessment of the
Commissioners within fourteen days after notice of the
assessment :
(c) If any such instrument executed after the sixteenth day of
May one thousand eight hundred and eighty-eight has
not been or is not duly stamped in conformity with the
foregoing provisions of this sub-section, the person in
that behalf hereinafter specified shall incur a fine of ten
pounds, and in addition to the penalty payable on
stamping the instrument there shall be paid a further
penalty equivalent to the stamp duty thereon, unless a
reasonable excuse for the delay in stamping, or the
omission to stamp, or the insufficiency of stamp, be
afforded to the satisfaction of the Commissioners, or of
the court, judge, arbitrator, or referee before whom it is
produced :
(d) The instruments and persons to which the provisions of
this sub-section are to apply are as follows :

Title ofFirst
Instrument
Scheduleastodescribed
this Act. In the i ptm). ■■„•.,. w
per"°n "ame ... renalt>
p„n,i,v •

Bond, covenant, or instrument of The obligee, covenantee, or other

any kind whatsoever. ! person taking the security.
Conveyance on sale The vendee or transferee.
Lease or tack The lessee.
Mortgage, bond, debenture, cove- The mortgagee or obligee ; in the
nant, and warrant of attorney to case of a transfer or reconvey
confess and enter up judgment. ance, the transferee, assignee, or
disponee, or the person redeeming
the security.
Settlement.. The settlor.

(3.) Provided that save where other express provision is made

by this Act in relation to any particular instrument :
(a) Any unstamped or insufficiently stamped instrument which
has been first executed at any place out of the United
Kingdom, may be stamped, at any time within thirty
days after it has been first received in the United
Kingdom, on payment of the unpaid duty only : and
(b) The Commissioners may, if they think fit, [«( any time
within three tntmths] (a), after the first execution of any

(a) The words in italics are now repealed by r>N & 59 Vict. c. 6.
 Betting and Loans (Infants) Act, 1892. 561

instrument, mitigate or remit any penalty payable on

stamping.
(4.) The payment of any penalty payable on stamping is to be
denoted on the instrument by a particular stamp.
o o o o o

BETTING AND LOANS (INFANTS) ACT, 1892.

• (55 Vict. c. 4.)

An Act to render Penal the inciting Infants to Betting or Wagering

or to Borrowing Money. [29th March 1892.]
1.—(1.) If anyone, for the purpose of earning commission,
reward, or other profit, sends or causes to be sent to a person
whom he knows to be an infant any circular, notice, advertise
ment, letter, telegram, or other document which invites or may
reasonably be implied to invite the person receiving it to make
any bet or wager, or to enter into or take any share or interest
in any betting or wagering transaction, or to apply to any
person or at any place, with a view to obtaining information or
advice for the purpose of any bet or wager, or for information
as to any race, fight, game, sport, or other contingency upon
which betting or wagering is generally carried on, he shall be
guilty of a misdemeanor, and shall be liable, if convicted on
indictment, to imprisonment, with or without hard labour, for
a term not exceeding three months, or to a fine not exceeding
one hundred pounds, or to both imprisonment and fine, and if
convicted on summary conviction, to imprisonment, with or with
out hard labour, for a term not exceeding one month, or to a
fine not exceeding twenty pounds, or to both imprisonment and
fine.
(2.) If any such circular, notice, advertisement, letter, tele
gram, or other document as in this section mentioned, names
or refers to anyone as a person to whom any payment may
be made, or from whom information may be obtained, for the
purpose of or in relation to betting or wagering, the person so
named or referred to shall be deemed to have sent or caused to
be sent such document as aforesaid, unless he proves that he
had not consented to be so named, and that he was not in any
way a party to, and was wholly ignorant of, the sending of such
document.
2.—(1.) If anyone, for the purpose of earning interest, com
mission, reward, or other profit, sends or causes to be sent to a
person whom he knows to be an infant any circular, notice,
advertisement, letter, telegram, or other document which invites
562 Appendix.

or may reasonably be implied to invite the person receiving it to

borrow money, or to enter into any transaction involving the
borrowing of money, or to apply to any person or at any place
with a view to obtaining information or advice as to borrowing
money, he shall be guilty of a misdemeanor, and shall be liable,
if convicted on indictment, to imprisonment, with or without
hard labour, for a term not exceeding three months, or to a fine
not exceeding one hundred pounds, or to both imprisonment and
fine, and if convicted on summary conviction, to imprisonment,
with or without hard labour, for a term not exceeding one month,
or to a fine not exceeding twenty pounds, or to both imprisonment
and fine.
(2.) If any such document as above in -this section mentioned
sent to an infant purports to issue from any address named
therein, or indicates any address as the place at which application
is to be made with reference to the subject-matter of the docu
ment, and at that place there is carried on any business connected
with loans, whether making or procuring loans or otherwise,
every person who attends at such place for the purpose of taking
part in or who takes part in or assists in the carrying on of
such business shall be deemed to have sent or caused to be sent
such document as aforesaid, unless he proves that he was not in
any way a party to and was wholly ignorant of the sending of
such document.
3. If any such circular, notice, advertisement, letter, telegram,
or other document as in the preceding sections or either of them
mentioned is sent to any person at any university, college, school,
or other place of education, and such person is an infant, the
person sending or causing the same to be sent shall be deemed
to have known that such person was an infant, unless he proves
that he had reasonable ground for believing such person to be of
full age.
o o o o o
6. In any proceeding against any person for an offence under
this Act such person and his wife or husband, as the case may be,
may, if such person thinks fit, be called, sworn, examined, and
cross-examined as an ordinary witness in the case.
7. In the application of this Act to Scotland :
The word " infant " means and includes any minor or
pupil :
The word " indictment " has the same meaning as in the
Criminal Procedure (Scotland) Act, 1887 :
The expression " summary conviction " means a conviction
under the Summary Jurisdiction (Scotland) Acts.
 Colonial Probates Act, 1892. % 563

COLONIAL PROBATES ACT, 1892.

(55 Vict. c. 6.)

An Act to provide for the Recognition in the United Kingdom of

Probates and Letters of Administration granted in British
Possessions. ' [20th May 1892.]
1. Her Majesty the Queen may, on being satisfied that the
legislature of any British possession has made adequate provision
for the recognition in that possession of probates and letters of
administration granted by the courts of the United Kingdom,
direct by Order in Council that this Act shall, subject to any
exceptions and modifications specified in the Order, apply to that
possession, and thereupon, while the Order is in force, this Act
shall apply accordingly.
i
2.—(1.) Where a court of probate in a British possession to
which this Act applies has granted probate or letters of administra
tion in respect of the estate of a deceased person, the probate or
letters so granted may, on being produced to, and a copy thereof
deposited with, a court of probate in the United Kingdom, be
sealed with the seal of that court, and, thereupon, shall be of the
like force and effect, and have the same operation in the United
Kingdom, as if granted by that court.
o o o o o
6. In this Act—
The expression " court of probate " means any court or autho
rity, by whatever name designated, having jurisdiction in
matters of probate, and in Scotland means the sheriff court
of the county of Edinburgh :
The expressions " probate " and " letters of administration "
include confirmation in Scotland, and any instrument having
in a British possession the same effect which under English
law is given to probate and letters of administration respec
tively :
The expression " probate duty " includes any duty payable on
the value of the estate and effects for which probate or letters
of administration is or are granted :
The expression " British court in a foreign country " means any
British court having jurisdiction out of the Queen's dominions
in pursuance of an Order in Council, whether made under any
Act or otherwise.
7. This Act may be cited as the Colonial Probates Act, 1892.
564 . Appendix.

WITNESSES (PUBLIC INQUIRIES) PROTECTION

ACT, 1892.
(55 & 56 Vict. c. 64.)

An Act for the better Protection of Witnesses giving Evidence before

any Royal Commission or any Committee of either House of
Parliament, or on other Public Inquiries.
[28th June, 1892.]
Be it enacted by the Queen's most Excellent Majesty, by and
with the advice and consent of the lords spiritual and temporal,
and commons, in this present Parliament assembled, and by the
authority of the same, as follows :

1. In this Act the word " inquiry " shall mean any inquiry
held under the authority of any royal commission or by any
committee of either house of parliament, or pursuant to any
statutory authority, whether the evidence at such inquiry is or is
not given on oath, but shall not include any inquiry by any court
of justice.

2. Every person who commits any of the following acts, that

is to say, who threatens, or in any way punishes, damnifies, or
injures, or attempts to punish, damnify, or injure, any person
for having given evidence upon any inquiry, or on account of
the evidence which he has given upon any such inquiry, shall,
unless such evidence was given in bad faith, be guilty of a mis
demeanor, and be liable upon conviction thereof to a maximum
penalty of one hundred pounds, or to a maximum imprisonment
of three months.
o o o o e
4. It shall be lawful for any court before which any person
may be convicted of any offence under this Act, if it thinks fit,
in addition to sentence or punishment by way of fine or imprison
ment, to condemn such person to pay the whole or any part
of the costs and expenses incurred in and about the prosecution
and conviction for the offence of which he shall be convicted,
and, upon the application of the complainant, and immediately
after such conviction, to award to complainant any sum of
money which it may think reasonable, having regard to all the
circumstances of the case, by way of satisfaction or compensa
tion for any loss of situation, wages, status, or other damnification
or injury suffered by the complainant through or by means of
the offence of which such person shall be so convicted, provided
that where the case is tried before a jury, such jury shall deter
mine what amount, if any, is to be paid by way of satisfaction or
compensation.
 Rules of the Supreme Court, 1883. 565

5. The amount awarded for such satisfaction or compensation,

together with such costs, to be taxed by the proper officer of the
court, shall be deemed a judgment debt due to the person entitled
to receive the same from the person so convicted, and be recover
able accordingly.
o o o o e
7. Nothing in this Act contained shall in any way lessen or
affect any power or privilege possessed by either house of parlia
ment, or any power given by statute in the premises.
8. This Act may be cited as the Witnesses (Public Inquiries)
Protection Act, 1892.

RULES OF THE SUPREME COURT, 1883.

ORDER XXX.
Summons for Directions.
1.—(a) Subject as hereinafter mentioned, in every action a
summons for directions shall be taken out by the plaintiff return
able in not less than four days.
(b) Such summons shall be taken out after appearance and
before the plaintiff takes any fresh step in the action other than
application for an injunction, or for a receiver, or for summary judg
ment under Order XIV., or to enter judgment in default of defence
under Order XXVII., Rule 2.
7. On the hearing of the summons, the court or a judge may
order that evidence of any particular fact, to be specified in the
order, shall be given by statement on oath of information and belief,
or by production of documents or entries in books, or by copies
of documents or entries or otherwise as the court or judge may
direct (a).
ORDER XXXVII.
I. Evidence Generally.
1. In the absence of any agreement in writing between the
solicitors of all parties, and subject to these rules, the witnesses
at the trial of any action or at any assessment of damages shall
be examined rivd voce and in open court, but the court or a
judge may at any time for sufficient reason order that any
particular fact or facts may be proved by affidavit, or that the

(«) The object of this Kule is to dispense, to a certain limited extent,

with the technical rules of evidence (Baerlein v. Chartered Mercantile
Bank, [1895] 2 Ch. 488).
566 Appendix.

affidavit of any witness may be read at the hearing or trial, on

such conditions as the court or judge may think reasonable, or
that any witness whose attendance in court ought for some
sufficient cause to be dispensed with be examined by interro
gatories or otherwise before a commissioner or examiner ; provided
that, where it appears to the court or judge that the other party
bond fide desires the production of a witness for cross-examination,
and that such witness can be produced, an order shall not be made
authorising the evidence of such witness to be given by
affidavit.
2. In default actions in rem, and in references in admiralty
actions, evidence may be given by affidavit.
3. An order to read evidence taken in another cause or matter
shall not be necessary, but such evidence may, saving all just
exceptions, be read on ex parte applications by leave of the court
or a judge, to be obtained at the time of making any such applica
tion, and in any other case upon the party desiring to use such
evidence giving two days' previous notice to the other parties of
his intention to read such evidence.
4. Office copies of all writs, records, pleadings, and docu
ments filed in the High Court of Justice shall be admissible
in evidence in all causes and matters and between all
persons or parties, to the same extent as the original would be
admissible.
II. Examination of Witnesses.
5. The court or a judge may, in any cause or matter where
it shall appear necessary for the purposes of justice, make any
order for the examination upon oath before the court or judge
or any officer of the court, or any other person and at any
place of any witness or person, and may empower any party
to any such cause or matter to give such deposition in evidence
therein on such terms, if any, as the court or a judge may
direct.
6. [Provides the form of an order for a commission to examine
witnesses.]
6a. If in any case the court or a judge shall so order, there
shall be issued a request to examine witnesses in lieu of a
commission.
7. The court or a judge may in any cause or matter at any
stage of the proceedings order the attendance of any person
for the purpose of producing any writings or other documents
named in the order which the court or judge may think fit to
be produced : Provided that no person shall be compelled to
produce under any such order any writing or other document
which he could not be compelled to produce at the hearing or
trial.
 Bules of the Supreme Court, 1883. 567

8. Any person wilfully disobeying any order requiring his

attendance for the purpose of being examined or producing any
document shall be deemed guilty of contempt of court, and may
be dealt with accordingly.
9. Any person required to attend for the purpose of being
examined or of producing any document, shall be entitled to the
like conduct money and payment for expenses and loss of time as
upon attendance at a trial in court.
10. Where any witness or person is ordered to be examined
before any officer of the court, or before any person appointed for
the purpose, the person taking the examination shall be furnished
by the party on whose application the order was made with a copy
of the writ and pleadings, if any, or with a copy of the documents
necessary to inform the person taking the examination of the
questions at issue between the parties.
11. The ' examination shall take place in the presence of the
parties, their counsel, solicitors, or agents, and the witnesses shall
be subject to cross-examination and re-examination.
12. The depositions taken before an officer of the court, or
before any other person appointed to take the examination, shall
be taken down in writing by or in the presence of the examiner,
not ordinarily by question and answer, but so as to represent as
nearly as may be the statement of the witness, and when com
pleted shall be read over to the witness and signed by him in
the presence of the parties, or such of them as may think fit to
attend. If the witness shall refuse to sign the depositions, the
examiner shall sign the same. The examiner may put down any
particular question or answer if there should appear any special
reason for doing so, and may put any question to the witness as
to the meaning of any answer, or as to any matter arising in the
course of the examination. Any questions which may be objected
to may be taken down by the examiner in the depositions, and he
shall state his opinion thereon to the counsel, solicitors, or parties,
and shall refer to such statement in the depositions, but he shall
not have power to decide upon the materiality or relevancy of any
question.
13. If any person duly summoned by subpona to attend for
examination shall refuse to attend, or if, having attended, he shall
refuse to be sworn or to answer any lawful question, a certificate
of such refusal, signed by the examiner, shall be filed at the central
office, and thereupon the party requiring the attendance of the
witness may apply to the court or a judge ex parte or on notice for
an order directing the witness to attend, or to be sworn, or to
answer any question, as the case may be.
14. If any witness shall object to any question which maybe put
to him before an examiner, the question so put, and the objection
of the witness thereto, shall be taken down by the examiner and
transmitted by him to the central office to be there filed, and
568 Appendix.

the validity of the objection shall be decided by the court or a

judge.
15. In any case under the two last preceding Rules, the court or
a judge shall have power to order the witness to pay any costs
occasioned by his refusal or objection.
16. When the examination of any witness before any examiner
shall have been concluded, the original depositions, authenticated
by the signature of the examiner, shall be transmitted by him to
the central office, and there filed.
17. The person taking the examination of a witness under these
Rules may, and if need be shall, make a special report to the court
touching such examination, and the conduct or absence of any
witness or other persons thereon, and the court or a judge may
direct such proceedings and make such order as upon the report
they or he may think just.
18. Except where by this Order otherwise provided, or
directed by the court or a judge, no deposition shall be given
in evidence at the hearing or trial of the cause or matter with
out the consent of the party against whom the same may- be
offered, unless the court or judge is satisfied that the deponent
is dead, or beyond the jurisdiction of the court, or unable
from sickness or other infirmity to attend the hearing or trial,
in any of which cases the depositions certified under the hand
of the person taking the examination shall be admissible in
evidence saving all just exceptions without proof of the signature
to such certificate.
19. Any officer of the court, or other person directed to take
the examination of any witness or person, may administer
oaths.
20. Any party in any cause or matter may by sitbpirtia
ad testificandum or duces tecum require the attendance of any
witness before an officer of the court, or other person appointed
to take the examination, for the purpose of using his evidence
upon any proceeding in the cause or matter in like manner as
such witness would be bound to attend and be examined at the
hearing or trial ; and any party or witness having made an
affidavit to be used or which shall be used on any proceeding
in the cause or matter shall be bound on being served with
such subpcena to attend before such officer or person for cross-
examination.
21. Evidence taken subsequently to the hearing or trial of any
cnuse or matter shall be taken as nearly as may be in the same
manner as evidence taken at or with a view to a trial.
22. The practice with reference to the examination, cross-
examination, and re-examination of witnesses at a trial shall
extend and be applicable to evidence taken in any cause or matter
at any stage.
23. The practice of the court with respect to evidence at a
 Rules of the Supreme Court, 1883. 569

trial, when applied to evidence to be taken before an officer of

the court or other person in any cause or matter after the hearing
or trial, shall be subject to any special directions which may be
given in any case.
24. No affidavit or deposition filed or made before issue
joined in any cause or matter shall without special leave of the
court or a judge be received at the hearing or trial thereof, unless
within one month after issue joined, or within such longer time
as may be allowed by special leave of the court or a judge,
notice in writing shall have been given by the party intending
to use the same to the opposite party of his intention in that
behalf.
25. All evidence taken at the hearing or trial of any cause or
matter may be used in any subsequent proceedings in the same
cause or matter.
III. SUDP<ENA.
26 to 34 [dial with the issuing, form, and service, of a
subpoena].

ORDER XXXVIII.
I. Affidavits and Depositions.
1. Upon any motion, petition, or summons, evidence may be
given by affidavit ; but the court or a judge may, on the appli
cation of either party, order the attendance for cross-examination
of the person making any such affidavit.
2. Every affidavit shall be intituled in the cause or matter
in which it is sworn ; but in every case in which there are
more than one plaintiff or defendant, it shall be sufficient to
state the full name of the first plaintiff or defendant respec
tively, and that there are other plaintiffs or defendants, as the
case may be ; and the costs occasioned by any unnecessary
prolixity in any such title shall be disallowed by the taxing
officer.
3. Affidavits shall be confined to such facts as the witness is
able of his own knowledge to prove, except on interlocutory
motions, on which statements as to his belief, with the grounds
thereof, may be admitted. The costs of every affidavit which
shall unnecessarily set forth matters of hearsay, or argumentative
matter, or copies of or extracts from documents, shall be paid by
the party filing the same (a).
4. Affidavits sworn in England shall be sworn before a judge,
district registrar, commissioner to administer oaths, or officer
empowered under these rules to administer oaths.

(«) See ante, p. 515.

L. E.
.570 Appendix.

5. Every commissioner to administer oaths shall express the

time when and the place where he shall take any affidavit, or the
acknowledgment of any deed, or recognizance ; otherwise the same
shall not be held authentic, nor be admitted to be filed or enrolled
without the leave of the court or a judge ; and every auch com
missioner shall express the time when, and the place where, he
shall do any other act incident to his office.
6. All examinations, affidavits, declarations, affirmations, and
attestations of honour in causes or matters depending in the
High Court, and also acknowledgments required for the purpose
of enrolling any deed in the central office, may be sworn and
taken in Scotland or Ireland or the Channel Islands, or in any
colony, island, plantation, or place under the dominion of her
Majesty in foreign parts, before any judge, court, notary public,
or person lawfully authorised to administer oaths in such country,
colony, island, plantation, or place respectively, or before any
of her Majesty's consuls or vice-consuls in any foreign parts
out of her Majesty's dominions ; and the judges and other officers
of the High Court shall take judicial notice of the seal or
signature, as the case may be, of any such court, judge, notary
public, person, consul, or vice-consul, attached, appended, or
subscribed to any such examinations, affidavits, affirmations,
attestations of honour, declarations, acknowledgments, or to any
other deed or document.
7. Every affidavit shall be drawn up in the first person, and
shall be divided into paragraphs, and every paragraph shall be
numbered consecutively, and as nearly as may be shall be confined
to a distinct portion of the subject. Every affidavit shall be
written or printed bookwise. No costs shall be allowed for
any affidavit or part of an affidavit substantially departing from
this rule.
8. Every affidavit shall state the description and true place of
abode of the deponent.
9. In every affidavit made by two or more deponents the
names of the several persons making the affidavit shall be inserted
in the jurat, except that if the affidavit of all the deponents
is taken at one time by the same officer it shall be sufficient
to state that it was sworn by both (or all) of the " above-named "
deponents.
10. Even' affidavit or other proof used in admiralty actions
shall be filed in the admiralty registry : every affidavit used in
probate actions shall be filed in the probate registry : every
affidavit used on the Crown side of the Queen's Bench Division
shall be filed in the Crown Office Department : every affidavit used
in a cause or matter proceeding in a district registry shall be
filed there : and every other affidavit used shall be filed in the
central office. There shall be indorsed on every affidavit a note
showing on whose behalf it is filed, and no affidavit shall be filed
 KULES OF THE SUPREME COURT, 1883. 571.

or used without such note, unless the court or a judge shall

otherwise direct.
11. The court or a judge may order to be struck out from any
affidavit any matter which is scandalous, and may order the costs
of any application to strike out such matter to be paid as between
solicitor and client.
12. No affidavit having in the jurat or body thereof any
interlineation, alteration, or erasure, shall without leave of the
court or a judge be read or made use of in any matter depend
ing in court unless the interlineation or alteration (other than
by erasure) is authenticated by the initials of the officer taking
the affidavit, or, if taken at the central office, either by his initials
or by the stamp of that office, nor in the case of an erasure,
unless the words or figures appearing at the time of taking
the affidavit to be written on the erasure are re-written and
signed or initialled in the margin of the affidavit by the officer
taking it.
13. Where an affidavit is sworn by any person who appears
to the officer taking the affidavit to be illiterate or blind, the
officer shall certify in the jurat that the affidavit was read in his
presence to the deponent, that the deponent seemed perfectly to
understand it, and that the deponent made his signature in
the presence of the officer. No such affidavit shall be used
in evidence in the absence of this certificate, unless the
court or a judge is otherwise satisfied that the affidavit was
read over to and appeared to be perfectly understood by the
deponent.
14. The court or a judge may receive any affidavit sworn for
the purpose of being used in any cause or matter, notwithstanding
any defect by misdescription of parties or otherwise in the title or
jurat, or any other irregularity in the form thereof, and may direct
a memorandum to be made on the document that it has been so
received.
15. In cases in which by the present practice an original
affidavit is allowed to be used, it shall before it is used be stamped
with a proper filing stamp, and shall at the time when it is
used be delivered to and left with the proper officer in court or
in chambers, who shall send it to be filed. An office copy of an
affidavit may in all cases be used, the original affidavit having been
previously filed, and the copy duly authenticated with the seal of
the office.
16. No affidavit shall be sufficient if sworn before the solicitor
acting for the party on whose behalf the affidavit is to be used, or
before any agent or correspondent of such solicitor, or before the
party himself (a).
17. Any affidavit which would be insufficient if sworn before

(a) See now Commissioners for Oaths Act, 1889 (52 Vict. c. 10), 8. 1.
2r 2
572 Appendix.

the solicitor himself shall be insufficient if sworn before his clerk,

or partner.
18. Where a special time is limited for filing affidavits, no
affidavit filed after that time shall be used, unless by leave of the
court or a judge.
19. Except by leave of the court or a judge no order mad*
ex, parte in court founded on any affidavit shall be of any force
unless the affidavit on which the application was made was
actually made before the order was applied for, and produced or
filed at the time of making the motion.
19a. The consent of a new trustee to act shall be sufficiently
evidenced by a written consent signed by him and verified by the
signature of his solicitor. . . .

II. Affidavits and Evidence in Chambers.

20. The party intending to use any affidavit in support of any
application made by him in chambers in the Chancery Division
shall give notice to the other parties concerned of his intention in
that behalf.
21. All affidavits which have been previously made and read in
court upon any proceeding in a cause or matter may be used
before the judge in chambers.
22. Every alteration in an account verified by affidavit to be
left at chambers shall be marked with the initials of the com
missioner or officer before whom the affidavit is sworn, and such
alterations shall not be made by erasure.
23. Accounts, extracts from parish registers, particulars of
creditors' debts, and other documents referred to by affidavit, shall
not be annexed to the affidavit, or referred to in the affidavit as
annexed, but shall be referred to as exhibits.
24. Every certificate on an exhibit referred to in an affidavit
signed by the commissioner or officer before whom the affidavit
is sworn shall be marked with the short title of the cause or
matter.
III. Trial on Affidavit.
25. Within fourteen days after a consent for taking evidence by
affidavit as between the parties has been given, or within such
times as the parties may agree upon, or the court or a judge mar
allow, the plaintiff shall file his affidavits and deliver to the
defendant or his solicitor a list thereof.
26. The defendant, within fourteen days after delivery of such
list, or within such time as the parties may agree upon, or the
court or a judge may allow, shall file his affidavits and deliver to
the plaintiff or his solicitor a list thereof.
27. Within seven days after the expiration of the last-men
tioned fourteen days, or such other time as aforesaid, the plaintiff
 EULES OF THE SUPREME COURT. 1883. 573

shall file his affidavits in reply, which affidavits shall be confined

to matters strictly in reply, and shall deliver to the defendant or
his solicitor a list thereof.
28. When the evidence is taken by affidavit, any party desiring
to cross-examine a deponent who has made an affidavit filed on
behalf of the opposite party may serve upon the party by whom
such affidavit has been filed a notice in writing, requiring the
production of the deponent for cross-examination at the trial,
such notice to be served at any time before the expiration of
fourteen days next after the end of the time allowed for filing
affidavits in reply, or within such time as in any case the court
or a judge may specially appoint ; and unless such deponent is
produced accordingly, his affidavit shall not be used as evidence
unless by the special leave of the court or a judge. The party
producing such deponent for cross-examination shall not be
entitled to demand the expenses thereof in the first instance from
the party requiring such production.
29. The party to whom such notice as is mentioned in the
last preceding Rule is given shall be entitled to compel the
attendance of the deponent for cross-examination in the same
way as he might compel the attendance of a witness to be
examined.
30. When the evidence under this Order is taken by affidavit,
such evidence shall be printed, and the notice of trial shall be
given at the same time after the close of the evidence as in other
cases is by these Rules provided after the close of the plead
ings : provided that other affidavits may be printed if all the
parties interested consent thereto, or the court or a judge so order :
provided also that this Rule shall not apply in the Probate,
Divorce and Admiralty Division to default actions in rem, or
references in actions, or actions for limitation of liability, unless
the court or a judge shall otherwise order.

COUNTY COURT RULES, 1903.

ORDER XVI.
Discovery and Inspection.
1. Any party to any action or matter may, without filing an
affidavit, by leave of the court (a), deliver interrogatories in
writing for the examination of any one or more of the opposite
parties ; and such interrogatories when delivered shall have a
note at the foot thereof, stating which of such interrogatories

(a) By Order LV. " court " includes a judge or registrar exercising the
powers of the court in chambers as well as in open court.
574 Appendix.

each of such parties is to answer : Provided that interroga

tories which do not relate to any question in the action
or matter shall be deemed irrelevant, notwithstanding that
they might be admissible on the oral cross-examination of a
witness.
2. If leave is granted, an order shall be drawn up by the
registrar and served by the applicant on the party against whom
the order is made. Such order shall be according to the form in
the Appendix, and shall specify the number of days within which
the interrogatories are to be delivered by the applicant, and
also the time within which the affidavit in answer is to be
filed.
3. On an application for leave to deliver interrogatories the
particular interrogatories proposed to be delivered shall be submitted
to the court. In deciding upon such application, the court shall
take into account any offer which may be made by the party
sought to be interrogated, to deliver particulars, or to make
admissions, or to produce documents relating to the subject in
question, or any of them ; and shall also consider whether the
application has been made too early in the proceedings in the
action or matter, or too late to allow of the answers being used
at the hearing ; and leave shall be given as to such only of the
interrogatories submitted as the court considers necessary either
for disposing fairly of the action or matter, or for saving costs.
4. In adjusting the costs of the action or matter inquiry shall,
at the instance of any party, be made into the propriety of
exhibiting interrogatories ; and if it is the opinion of the registrar
on taxation, or of the judge, either with or without an application
for inquiry, that such interrogatories have been exhibited un
reasonably, vexatiously, or at improper length, the costs occasioned
by the said interrogatories and the answers thereto shall be paid
in any event by the party in fault.
5. Interrogatories shall be according to the form in the
Appendix, with such variations as circumstances may require.
6. If any party to an action or matter be a body corporate
or a joint stock company, whether incorporated or not, or any
other body of persons empowered by law to sue or be sued,
whether in its own name or in the name of any officer or other
person, any opposite party may apply for an order allowing
him to deliver interrogatories to any member or officer of such
corporation, company, or body, and an order may be made
accordingly.
7. Any objection to answer any one or more of several inter
rogatories, on the ground that it or they is or are scandalous or
irrelevant, or not bund fide for the purpose of the action or matter,
or that the matters inquired into are not sufficiently material at
that stage, or on any other ground, may be taken in the affidavit
in answer.
 County Court Rules, 1903. 575

8. Interrogatories shall be answered by affidavit according to the

•form in the Appendix, with such variations as circumstances may
require. Such affidavit shall be filed and a copy thereof delivered
to the party interrogating within the time named in the order
giving leave to interrogate.
9. If any person interrogated omits to answer, or answers
insufficiently, the party interrogating, after giving to such person
two clear days' notice of the time and place at which he intends
to apply, may apply to the court for an order requiring him to
answer, or to answer further, as the case may be. And an order
may be made requiring him to answer, or to answer further, either
by affidavit or viva voce examination before the court, as the court
may direct.
10. Any party to any action or matter may, without filing any
affidavit, apply to the court for an order directing any other party
to the action or matter to make discovery on oath of the docu
ments which are or have been in his possession or power relating
to any question therein. On the hearing of such application the
court may either refuse or adjourn the same, if satisfied that such
discovery is not necessary or not necessary at that stage of the
action or matter, or make such order, either generally or limited
to certain classes of documents, as the court miy, in its discretion,
think fit. Provided that discovery shall not Be ordered when and
so far as the court is of opinion that it is not necessary either
for disposing fairly of the action or matter, or for saving costs.
If an order is made it shall be drawn up by the registrar and served
by the applicant on the party against whom the order is made.
Such order shall be according to the form in the Appendix, and
shall specify the time within which the affidavit in answer is to be
filed.
11. The affidavit to be made by a party against whom such
order as is mentioned in the last preceding Rule has been made
shall specify which, if any, of the documents therein mentioned he
objects to produce, and on what grounds, and it shall be according
to the form in the Appendix, with such variations as circumstances
may require. Such affidavit shall be filed, and a copy thereof
delivered to the party who obtains the order within the time
named in the order.
12. The court may, at any time during the pendency of any
action or matter, order the production upon oath, by any party
thereto, of such of the documents in his possession or power
relating to any question in such action or matter as the court may
direct ; and the court may deal with such documents, when
produced, in such manner as may be just.
13. Any party to an action or matter may at any time give
notice in writing to any other party in whose particulars, notices,
or affidavits reference is made to any document, to produce such
document for the inspection of the party giving such notice, and
576 Appendix.

to permit him to take copies thereof ; and any party not com
plying with such notice shall not afterwards be at liberty to put
any such document in evidence on his behalf in such action or
matter, unless he satisfies the court that such document relates
only to his own title, he being a defendant to the action or
matter, or that he had some other cause or excuse which the
court deems sufficient for not complying with such notice ; in
which case the court may allow the same to be put in evidence
on such terms as to costs and otherwise as the court may think
fit.
14. Notice to any party to produce any documents under the
last preceding Rule shall be according to the form in the Appendix,
with such variations as circumstances may require.
15. The party to whom such notice is given shall, within two
days from the receipt of such notice, if all the documents therein
referred to have been set forth by him in such affidavit as is
mentioned in Rule 1 1 of this Order, or if any of the documents
referred to in such notice have not been set forth by him in any
such affidavit, then within four days from the receipt of such
notice, deliver to the party giving the same a notice stating a
time within three days from the delivery thereof at which the
documents, or such of them as he does not object to produce,
may be inspected at the office of his solicitor, or in the case of
bankers' books or other books of account, or books in constant
use for the purposes of any trade or business, or in case the
party is not acting by a solicitor, at their usual place of custody,
and stating which (if any) of the documents he objects to produce,
and on what grounds. Such notice shall be according to the
form in the Appendix, with such variations as circumstances may
require.
lfi.—(1) If any party served with notice under Rule 13 of
this Order omits to give such notice of a time for inspection, or
objects to give inspection, or offers inspection elsewhere than is
provided by Rule 15, the court may, on the application of the
party desiring it, make an order for inspection at such place and
in such manner as the court may think fit : Provided that the
order shall not be made when and so far as the court is of opinion
that it is not necessary either for disposing fairly of the action or
matter, or for saving costs.
(2) Any application to inspect documents, except such as
are referred to in the particulars, notices, or affidavits of the
party against whom the application is made, or disclosed in
his affidavit of documents, shall be founded upon an affidavit
showing of what documents inspection is sought, that the
party applying is entitled to inspect them, and that they
are in the possession or power of the other party. The
court shall not make an order for inspection of such docu
ments when and so far as the court is of opinion that it is not
 County Coubt Bules, 1903. 577

necessary either for disposing fairly of the action or matter, or

for saving costs.
17. In any pending action or matter an order upon the lord
of a manor to allow limited inspection of the court rolls may be
made on the application of a copyhold tenant supported by an
affidavit that he has applied for inspection, and that the same
has been refused.
18. In any action against or by a sheriff or high bailiff or other
officer discharging the like functions, in respect of any matters
connected with the execution of his office, the court may, on the
application of either party, order that the affidavit to be made in
answer either to interrogatories or to an order for discovery shall
be made by the officer actually concerned.
19.—(1) Where inspection of any business books is applied
for, the court may, if it thinks fit, instead of ordering inspection
of the original books, order a copy of any entries therein to be
furnished and verified by the affidavit of some person who has
examined the copy with the original entries, and such affidavit
shall state whether or not there are in the original book any
and what erasures, interlineations, or alterations. Provided
that, notwithstanding that such copy has been supplied, the
court may order inspection of the book from which the copy
was made.
(2) Where on an application for an order for inspection
privilege is claimed for any document, the court may inspect
the document for the purpose of deciding as to the validity of
the claim of privilege.
(3) The court may, on the application of any party to an
action or matter at any time, and whether an affidavit of docu
ments has or has not been already ordered or made, make an
order requiring any other party to state by affidavit whether any
specific documents, to be specified in the application, are or
have at any time been in his possession or power ; and if not
then in his posssession, when he parted with the same, and what
has become thereof. Such application shall be made on affidavit
stating that in the belief of the deponent the party against
whom the application is made has or has at some time had in his
possession or power the documents specified in the application,
and that they relate to the matters in question in the action or
matter, or to some of them.
20. If a party from whom discovery of any kind or inspection
is sought objects to the same, or any part thereof, the court may,
if satisfied that the right to the discovery or inspection sought
depends on the determination of any issue or question in dispute
in the action or matter, or that for any other reason it is
desirable that any issue or question in dispute in the action or
matter should be determined before deciding upon the right to
the discovery or inspection, order that such issue or question be
578 Appendix.

determined first, and reserve the question as to the discovery or

inspection.
21. If any party fails to comply with an order to answer inter
rogatories, or for discovery or inspection of documents, he shall be
liable to attachment.
22. In every action or matter the costs of discovery, by
interrogatories or otherwise, shall, unless otherwise ordered by
the court, be secured in the first instance as provided by Role
23 of this Order, by the party seeking such discovery, and
shall be allowed as part of his costs, where, and only where,
such discovery appears to the judge at the trial, or, if there is
no trial, to the registrar on taxation, to have been reasonably
asked for.
23 and 24. [Are as to amount of security to be paid into court
and payment out of amount paid in.]

ORDER XVIII.
Evidence.
1. Except where otherwise provided by these rules, the
evidence of witnesses on the trial of any action or hearing of
any matter shall be taken orally on oath "; and where by these
rules evidence is required or permitted to be taken by affidavit,
such evidence shall nevertheless be taken orally on oath if the
court, on any application before or at the trial or hearing, so
directs.
2. The judge may at any time for sufficient reason order that
any particular fact or facts may be proved by affidavit, or that
the affidavit of any witness may be read at the trial or hearing, on
such conditions as he may think reasonable, or that any witness
whose attendance in court ought for some sufficient cause to
be dispensed with be examined by interrogatories or otherwise
before an examiner : Provided that, where it appears to the
judge that the other party bond fide desires the production of
a witness for cross-examination, and that such witness can be
produced, an order shall not be made authorising the evidence of
such witness to be given by affidavit.
3 and 4. [Deal with the issue and service of summonses to
witnesses.]
5. Where a witness served with a summons containing a
direction for the production of any documents at the trial does
not produce the same, the judge may, upon admission or proof
that the summons was served within a reasonable time, and that
such documents are in the possession or power or under the
control of the party so served, and that they relate to the matter
then pending before him, make an order for their production by
the witness, and may deal with them, when produced, and with
 County Court Bulks, 1903. 579

all costs occasioned by their non-production, as may be just :

Provided that nothing herein shall prevent the receiving of
secondary evidence where admissible.
6. Where a party desires to give in evidence any document,
he may, not less than five clear days before the trial, give notice
to any other party in the action or matter who is competent
to make admissions requiring him to inspect and admit such
document ; and if such other party does not within three days
after receiving such notice make such admission, any expense
of proving the same at the trial shall be paid by him, whatever
may be the result, unless the court otherwise orders ; and no
costs of proving any document shall be allowed unless such notice
has been given, except in cases where, in the opinion of the judge
at the trial, or the registrar on taxation, the omission to give
such notice has been a saving of expense. ,
7. Notices to admit or to produce documents shall be according
to the forms in the Appendix, with such variations as circum
stances may require.
An affidavit of the party, or his solicitor, or of some person in
the permanent and exclusive employ of either of them, of the
service of any notice to admit or to produce, and of the time
when it was served, with a copy of the notice to admit or to
produce, shall in all cases be sufficient evidence of the service of
the notice, and of the time when it was served.
8. If a notice to admit or produce comprises documents which
are not necessary, the costs occasioned thereby shall be borne by
the party giving such notice.
9. Where any documents which would, if duly proved, be
admissible in evidence are produced to the court from proper
custody they shall be read without further proof, if in the
opinion of the court they appear genuine, and if no objection is
taken thereto ; and if the admission of any documents so pro
duced is objected to, the court may adjourn the hearing for the
proof of the documents, and the party objecting shall pay the
costs caused by such objection, in case the documents shall
afterwards be proved, unless the court otherwise orders.
10. Where an instrument which may be legally stamped after
its execution is produced as evidence, and the same is unstamped
or insufficiently stamped, it shall not be received in evidence until
the party desirous of giving the instrument in evidence produces
to the court the receipt of the registrar for the amount of the
unpaid duty, and the penalty payable by law on stamping the
same, and the sum of one pound.
11. Where a party desires to use at the trial an affidavit by
any particular witness, or an affidavit as to particular facts as
to which no order has been made under Rule 2 of this Order, he
may, not less than four clear days before the trial, give a notice,
with a copy of such affidavit annexed, to the party against whom
580 Appendix.

such affidavit is to be used ; and unless such last-mentioned

party shall two clear days, at least before the trial give notice
to the other party that he objects to the use of such affidavit, he
shall be taken to have consented to the use thereof, unless the
judge otherwise orders ; and the judge may make such order as
he may think fit as to the costs of or incidental to any such
objection.
12. All documentary evidence taken at the trial of any action
or matter may be used in any subsequent proceedings in the same
action or matter.
13. Evidence taken subsequently to the trial or hearing of
any action or matter shall be taken as nearly as may be in the
same manner as evidence taken at or with a view to a trial or
hearing.
14. The practice •with reference to the examination, cross-
examination, and re-examination of witnesses at a trial shall
extend and be applicable to evidence taken in any action or
matter at any stage.
15. The practice of the court with respect to evidence at a
trial, when applied to evidence to be taken before an officer of
the court or other person in any action or matter after the trial or
hearing, shall be subject to any special directions which may be
given in any case.
16. Any party may, at the trial of an action or matter, use in
evidence any one or more of the answers, or any part of an
answer, of the opposite party to interrogatories, without putting
in the others, or the whole of such answer : Provided that in
such case the judge may look at the whole of the answers, and
if he is of opinion that any others of them are so connected with
those put in that the last-mentioned answers ought not to be used
without them, he may direct them to be put in.
17. Affidavits and depositions shall be read as the evidence of
the person by whom they are used.

Examinations.
18. The court may in any action or matter, where it appears
necessary for the purposes of justice, make an order for the
examination upon oath before the court or any officer of the
court, or any other person, and at any place in England or Wales,
of any witness or person, and may empower any party to any such
action or matter to give such deposition in evidence therein on
such terms, if any, as the court may direct.
19. Where any witness or person mentioned in the last pre
ceding rule resides out of the district of the court, the judge may
appoint the registrar of the court in the district of which such
witness or person resides to take the examination.
20. The court may in any action or matter, at any stage of
 County Court Kules, 1903. 581

the proceedings, order the attendance of any person for the

purpose of being examined or of producing to or before any
examiner any writings or other documents which the court may
think fit to be produced, and any person served with any such
order shall be bound to attend accordingly : Provided that no
person shall be compelled to produce under any such order any
writing or other document which he could not be compelled to
produce at the trial. [The rule goes on to provide the method of
service.]
21. Any person wilfully disobeying any order requiring his
attendance for the purpose of being examined or producing any
document to or before an examiner shall be deemed guilty of
contempt of court, and may be dealt with accordingly.
22. Any person required to attend before an examiner for the
purpose of being examined or of producing any document shall be
entitled to the like conduct money and payment for expenses and
loss of time as upon attendance at a trial in court.
23. [Provides that the examiner is to be furnished with certain
documents."]
24. The examination shall take place in the presence of the
parties, or their counsel or solicitors, or the agents of such
solicitors, and the witnesses shall be subject to cross-examination
and re-examination.
25. The depositions taken before an officer of a county court, or
before any other person appointed to take the examination, shall
be taken down in writing by or in the presence of the examiner,
not ordinarily by question and answer, but so as to represent as
nearly as may be the statements of the witness, and when com
pleted shall be read over to the witness and signed by him in the
presence of the parties, or such of them as may think fit to attend.
If the witness refuses to sign the depositions, the examiner shall
sign the same. The examiner may put down any particular
question or answer if there appears to be any special reason for
doing so, and may put any question to the witness as to the
meaning of any answer, or as to any matter arising in the course
of the examination. Any questions which are objected to shall
be taken down by the examiner in the depositions, and he shall
state his opinion thereon to the counsel, solicitors, or parties,
and shall refer to such statement in the depositions, but he shall
not have power to decide upon the materiality or relevancy of any
question.
26. If any person duly summoned to attend for examination
or to produce any document refuses to attend, or, if having
attended, he refuses to be sworn or to answer any lawful question,
or to produce such document, a certificate of such refusal, signed
by the examiner, shall be filed with the registrar, and thereupon
the party requiring the attendance of the witness may apply to
the judge for an order directing the witness to attend, or to be
582 Appendix.

sworn, or to answer any question, or to produce such document, as

the case may be.
27. If any witness objects to any question which may be put to
him before an examiner, the question so put, and the objection of
the witness thereto, shall be taken down by the examiner, and
transmitted by him to the registrar to be filed, and the validity of
the objection shall be decided by the judge.
28. In any case under the two last preceding rules, the judge
may order the witness to pay any costs occasioned by his refusal
or objection.
29. When the examination of any witness before any examiner
has been concluded, the original depositions, authenticated by the
signature of the examiner, shall be transmitted by him to the
registrar to be filed.
30. The person taking the examination of a witness under these
rules may, and if need be shall, make a special report to the court
touching such examination and the conduct or absence of any
witness or other person thereon ; and the judge may direct such
proceedings and make such order as upon the report he may think
just.
31. Except where otherwise provided by this Order, or directed
by the judge, no deposition shall be given in evidence at the trial
of the action or matter without the consent of the party against
whom the same may be offered, unless the judge is satisfied that
the deponent is dead, or out of England and Wales, or unable
from sickness or other infirmity to attend the trial, in any of
which cases the depositions certified under the hand of the
examiner shall be admissible in evidence, saving all just exceptions,
without proof of the signature to such certificate.
32. Any officer of the court, or other person directed to take
the examination of any witness or person, may administer oaths.

ORDER XIX.
Affidavits.
1. All affidavits shall be expressed in the first person and shall
be drawn up in paragraphs and numbered.
2. All affidavits, other than those for which forms are given
in the Appendix, shall state the deponent's occupation, quality,
and place of residence, and also what facte or circumstances
deposed to are within the deponent's own knowledge, and hi*
means of knowledge, and what facts or circumstances deposed
to are known to or believed by him by reason of information
derived from other sources than his own knowledge, and what
such sources are. The costs of every affidavit which unnecessarily
sets forth matters of hearsay, or argumentative matter, or copies
 County Court Eules, 1903. 583

of or extracts from documents, shall be paid by the party filing

the same.
3. [States how affidavits are to be intituled.]
4. It shall be stated in a note at the foot of every affidavit filed
on whose behalf it is so filed, and such note shall be copied on
every office or other copy furnished to a party.
5. The costs of affidavits not in conformity with the preceding
rules of this Order shall be disallowed on taxation, unless the
court otherwise directs.
6. [Makes provision as to the jurat where an affidavit is made by
two or more deponents.]
7. Before any affidavit is used it shall be filed in the office of
the registrar ; but this rule shall not hinder a judge from making
an order in an urgent case upon the undertaking of the applicant
to file any affidavit sworn before the making of such order, pro
vided that such order shall not issue until such affidavit has been
filed.
8. [Provides that an affidavit shall not be filed if sworn be/ore the
party tendering the same or his solicitor, etc.]
9. No affidavit or other document shall be filed or used in any
action or matter, unless the court otherwise orders, which is
blotted so as to obliterate any word, or which is illegibly written,
or so altered as to cause it to be illegible, or in the body or jurat
of which there is any interlineation, alteration, or erasure, unless
the person before whom the same is sworn has duly initialled
such interlineation or alteration, and in the case of an erasure
has re-written and signed m the margin of the affidavit or docu
ment the words or figures appearing to be written on the erasure,
or which is so imperfect upon the face thereof by reason of
having blanks thereon or otherwise that it cannot easily be read
or understood.
10. Where an affidavit is sworn by any person who appears
to the officer taking the affidavit to be illiterate or blind, the
officer shall certify in the jurat that the affidavit was read in his
presence to the deponent, that the deponent seemed perfectly to
understand it, and that the deponent made his signature in the
presence of the officer. No such affidavit shall be used in evidence
in the absence of this certificate, unless the court is otherwise
satisfied that the affidavit was read over to and appeared to be
perfectly understood by the deponent.
 INDEX.

A.
ABSENT WITNESSES,
statements by, when admissible, 184.
ACCEPTANCE
of contract, by post, 71.
must be unqualified, 337.
goods, within Statute of Frauds, may be implied, 317.
ACCOMPLICE
is a competent witness, 31.
evidence of, must be corroborated, 42.
corroboration should go to identity of prisoner, 43.
rule as to corroboration one of practice, not law, 43.
dying declaration by, is admissible, 169.
confession is not evidence against, 254.
ACCOUNT,
when ordered by court, books areprhnd facie evidence, 183, 229.
presumption of accuracy of, when objected to, 225.
right to, proof of, 428.
fraudulent item in, is ground for reopening, 428.
must be set out, by executor answering interrogatories, 481.
ACCOUNT BOOKS,
entries in, made iu course of business, 173.
of deceased solicitors, 181.
tradesmen, 181.
when primd facie evidence, 183.
bunkers' pass books, 225.
by executor, 352.
ACKNOWLEDGMENT,
sufficiency of, within Statutes of Limitation, is a question for judge, 18.
of receipt of rent, is not evidence of title, 153.
landlord's title, is evidence against subsequent tenants, 176.
in deed, of payment of consideration is conclusive, 228, 366.
of wills to attesting witnesses, 349.
debt barred by limitation must be in writing, 350.
unconditional, 351.
speciality debt must be in writing, 352.
ACQUIESCENCE,
admission by, 215, 224.
mere omission to take legal proceedings is not, 226.
by not answering letters, 227.
in contracts by corporations, 327.
L.E. 2 Q [ 1 ]
 Index.

act,
evidence of, and of conduct, may be objectionable as hearsay, 128.
admission by, 217, 276.
ACT OF BANKRUPTCY,
hearsay evidence of, 131.
ACT OF PARLIAMENT,
construction of, is for judge, 17.
public, will be judicially noticed, 279.
private, proof of, under Documentary Evidence Acts, 279.
ACTION
when separate action will lie for one injurious act, 197.
ADEMPTION,
presumption of, 82.
ADMINISTRATION,
grant of, is not proof of death, 75.
ADMISSION
dispenses with proof, 190.
may not be made in criminal proceedings, 190.
not operating as an estoppel, may be rebutted, 190, 239.
need not be pleaded, 190.
binds only parties and privies, 190.
by party to record, 191.
cexttii que trust, 191.
between landlord and tenant, 191.
by act, conduct, or acquiescence, 217.
is not evidence against maker in another character, 222.
as to partnership, 223.
by acquiescence, 224.
soliciting false evidence, 224.
from unanswered letters, 227.
in divorce proceedings, 227.
by partners, 229.
between principal and agent, 231.
parties having a joint interest, 136, 229, 231.
by executors, 230.
within Statute of Limitations, 230.
is not admissible against another person without proof of joint in
terest, 231.
by co-defendants in tort, 231.
guardian or next friend of infant, 235.
solicitors, 235.
counsel, 237.
between husband and wife, 237.
principal and surety, 238.
conclusive against, but not in favourof maker, 239.
by payment into court, 240.
without prejudice, 241.
upon notice to admit, 242.
leave may be given to withdraw, 243.
See also Estoppel.
ADULTERY,
parties to proceedings in consequence of, are competent witnesses, 27.
proceedings in consequence of, definition of, 29.
[ 2 ]
 Index.
ADULTERY—continued.
evidence of, by wife in action for necessaries, 38.
presumption of, 52.
evidence of, by admissions, 227.
committed after latest act charged in petition, 447.
ADVANCEMENT,
presumption of, 84.
AFFIDAVIT,
admissibility of, in subsequent proceedings, 188.
in bankruptcy, sworn abroad, 271.
answer to interrogatories, 473, 494.
of documents, 483, 494, 495.
trial by, 513.
cannot be used at trial if party entitled to cross-examine objects, 514.
when filed, cannot be withdrawn to prevent cross-examination, 514.
on information and belief must state grounds thereof, 515.
appeal, 516.
in proceedings to perpetuate testimony, 550.
AFFIRMATION
in lieu of oath, 23.
false, is punishable as perjury, 24.
See also Oath.
AGENT,
declaration or admission by, is evidence against principal, 136, 229, 231.
cannot deny principal's title, 214.
render principal criminally liable, 235.
can be subpoenaed to produce his principal's documents, 498.
in answering interrogatories knowledge of agent is knowledge of
principal, 478.
of foreign principal suing here, defendant entitled to same discovery
as if the principal was a party, 478.
See Principal.
ALMANACK,
judicial notice of, 268.
ALTERATIONS
in documents, presumption as to, 66.
bills of exchange or promissory notes, effect of, 67, 389.
extrinsic evidence when admissible to explain, 389.
in wilU, 390.
AMBASSADORS'
seals, how proved, 271.
AMBIGUITY,
patent and latent, definition of, 374.
latent, jnay be explained by parol evidence, 374, 376.
AMENDMENT
of pleadings, existing rules as to, 431.
powers of Court of Appeal as to, 432.
what the court is bound to allow, 433.
in criminal cases, 433.
of indictment, cannot be made after prisoner's counsel has addressed
jury, 439.
2 Q 2 t 3 ]
 Index.

ANCIENT DOCUMENTS,
admissibility of, 149.
must be produced from proper custody, 149, 151.
proof of handwriting of, 315.
See also MAP.
ANCIENT POSSESSION,
evidence of, 149.
APPEAL,
function of Court of, 10.
evidence on, 516.
amendment on, 516.
use of judge's notes on, 517.
ARBITRATOR,
competency of, as a witness, 187.
ATTENDANCE OF WITNESSES,
mode of enforcing, 391.
under commission, 468.
ATTESTATION,
of what instruments necessary, 317.
bills of sale, 308.
wills, 349.
ATTESTING WITNESS,
to will,.cvidcnce of, 292.
may be contradicted, 293.
need not be called, if attestation is unnecessary, 316.
practice as to, in Chancery and Lunacy petitions, 317.
on proof of deed in ex parte applications, 317.
need not lie called, if document is thirty years old, 318.
not produced after notice, 318.
deceased, handwriting of, may be proved, 318.
blind, may give evidence from recollection, 319.
AUCTIONEER,
as agent, 340.
AWARD,
evidence of arbitrator as to, 187.

B.
BAILEE,
presumption against, 77.
cannot deny bailor's title, 213.
BANKER,
when bound to disclose customer's account, 117.
duty of customer to, 209 n, 216.
BANKERS' BOOKS EVIDENCE ACT,
provisions of, 117.
order under, may be made ex parte, 117.
may issue to Ireland or Scotland, and vice rersd, 118.
is discretionary, 118.
accounts of non-parties may be inspected under, 118.
not to be subject to roving inspection, 119.
r 4 1
 Index.
BANKRUPTCY,
examination of bankrupt, 99.
statements in, to what extent admissible, 99.
statements on, how proved, 1 05.
act of, hearsay evidence as to, 131.
ronrt of, effect of judgment of, 193.
affidavits in, sworn abroad, 271.
proceedings in, proof of, 289.
practice in, as to summoning and examining witnesses, 394.
BAPTISM,
register of, proof of, 297.
BASE COIN,
uttering, proof of guilty knowledge, 450.
BASTARDY,
putative father is a competent witness, 35.
evidence of mother must be corroborated, 40.
husband or wife cannot give evidence to establish, 59.
dismissal of summons in, creates no estoppel, 203.
BEST EVIDENCE
required, 5.
what is meant, by, 46
BETTING AND LOANS (INFANTS) ACT,
charges under, burden of proof, 264, 265.
BIBLE,
entry in, admissibility of, 151.
may be proved by oral evidence, 156.
BIGAMY,
evidence in cases of, 54.
BILL OF EXCHANGE,
presumption as to date of, 62.
effect of alteration in, 67, 389.
possession of, by drawer is primd faeie evidence of payment, 79.
estoppel against acceptor and drawer of, 214.
when binding on a company, 329.
BILL OF LADING,
cause of loss of goods, burden of proof, 258.
to what extent conclusive evidence, 307.
parol evidence to explain, 387.
BILL OF SALE,
registration of, 308.
office copies of, 308.
affidavit of execution need not be proved, 309.
execution of, must be attested, 308.
ships must be transferred by, 331.
BIRTH.
register of, proof of, 296.
t 5 ]
 Index.

BONA FIDES,
is a question for jury, 15.
evidence of, in actions for false imprisonment, 444.
BOOKS
are admissible evidence as to sense of words, 92.
BOUNDARIES,
presumptions as to, 80.
where island in river, 80.
of metalled road, 80.
declarations of deceased persons as to, 143.
presentments as to, 148.
of foreign states, 268.
BREACH OF PROMISE OF MARRIAGE,
parties to actions for, are competent witnesses, 27,
evidence of plaintiff in action for, must be corroborated, 27. 41
corroboration, what is, 41.
BROKER,
personal liability of, may be proved by evidence of custom, :*87
BURDEN OF PROOF,
in prosecutions for bigamy, 54.
as to stamping of documents, 66.
survivorship, 77.
general rule as to, 256.
lies on the party stating the affirmative in substance, 25(>.
in actions of covenant, 257.
bankruptcy proceedings, 257.
actions on bills of exchange, 259.
misrepresentations, 260.
covenants in restraint of trade, 260.
actions of libel, 260.
malicious prosecution, 260.
to rebut undue influence, 261.
in patent proceedings, 260, 266.
criminal proceedings generally, 262.
murder and manslaughter, 262.
charges of coining, 263.
under Merchandise Marks Act, 263.
Summary Jurisdiction Act, 263.
as to infancy, 264.
legitimacy, 264.
in cases of cruelty to children, 263.
as to insanity, 264.
facts within a party's knowledge, 264.
under Betting Loans Infants Act, 264, 265.
in proceedings under the Game Act, 265.
Licensing Acts, 265.
Foreign Enlistment Act, 265.
Education Acts, 265.
trade mark cases, 266.
as to stamps, 506.
BURIAL,
register of, proof of, 297.
[ 6 ]
 Index.

byelaws,
validity of, generally, 305.
proof of, generally, 305.
validity of railway byelaws, 306.
proof of railway byelaws, 306.
of corporation, proof of, 306.
under Salmon Fishery Acts, proof of, 306.

C.
CERTIFICATE,
proof of, 286.
CESTUI QUE TRUS1,
admission by, 191.
CHARACTER,
evidence as to, in criminal cases, 87.
representation as to, must be in writing, 856.
impeaching character of witness, 418.
of witness, cannot be impeached by party calling him, 412.
may be impeached in cross-examination. 415.
answer of witness as to, is generally conclusive, 418.
of witness, may be re-established by evidence of good character, 421.
witness as to, may be cross-examined, 421.
evidence as to, may be rebutted, 421.
in actions for seduction, 447.
defamation, 447.
CHARITABLE TRUSTS,
reports of Charity Commissioners primA facie evidence, 304.
CHARTEU,
may be proved by examined or certified copy, 375.
CHILD-BEARING,
presumption as to, 76.
CHILDREN. See also Illegitimate Children.
evidence of, 22, 42.
presumption of legitimacy of, 59.
CHILDREN, ACT FOR PROTECTION OF,
charges under, bnrden of proof, 263.
CIRCUMSTANTIAL EVIDENCE,
value of, 5.
CIVIL PROCEEDING,
definition of, 34.
CLERGYMEN,
communications to, 116.
CODICIL,
may be shown not to be intended to operate, 372.
COHABITATION
is presumptive evidence of marriage, except in cases of bigamy, 59.
[ 7 ]
 Index.

COINING TOOLS,
charge of possessing, burden of proof, 263.
COLONIAL PROBATES, 290.
COMMISSION,
evidence by, 462.
may be issued to foreign court, 465, 469.
examination de bene e»se, 464.
request to foreign court in lieu of, 465.
will not be granted unless witness's evidence is material, 466.
to ascertain foreign law, 467.
objection to evidence upon, must be taken at once, 468.
granting of, entirely in discretion of court, 468.
may be issued to Scotch or colonial court, 469.
COMPANY,
estoppel against shareholder, 218.
on share certificate, 218.
in respect of securities irregularly issued, 220.
when bound by admissions of directors or agents, 233.
proceedings of, proof of, 303.
seal of, proof of, 303.
contracts by, proof of, 328.
when bound by bill of exchange or promissory note, 329.
transfer of shares in, proof of, 330.
winding-up, attendance and examination of witnesses, 398.
public examination under Act of 1890. ..399.
COMPETENCY
of witness is a question for judge, 9, 20.
infamous character, competent, 26.
parties to civil proceedings, 26.
proceedings in consequence of adultery, 7, 30.
in actions for breach of promise, 27.
prosecutor in criminal proceedings, 31.
putative father in bastardy proceedings, 35.
husband and wife in civil proceedings, 36.
accomplices, 42.
thief against receiver of stolen goods, 43.
judges, 186.
arbitrators, 187.
See Incompetency.
CONDUCT,
evidence of, may be hearsay. 128.
pedigree, 159.
operating as admission, 217.
evidence as to, relevancy of, 444. 448.
CONFESSION,
admissibility of, 246.
must not have been obtained by threats or promises. 247.
be proved to be voluntary, 249.
inducement to confess, 248, 252.
may be implied, 248.
is not admissible against a fellow prisoner, 254, 460.
need not be corroborated, 255.
voluntary, made before magistrates, is admissible, 255, 460.
before magistrate, is not excluded by want of statutory caution, 460.
See Police.
[ 8 ]
 Index.

CONFLICTING EVIDENCE,
how weighed, 4.
CONFLICTING PRESUMPTIONS,
rules as to, 53.
CONSENT
to waive strict rules of evidence, 8.
CONSIDERATION,
additional, for deed, may be proved, 366.
CONSPIRATOR,
conspiracy act or letter of one, is evidence against all, 135, 453.
limitation to this, 135.
CONTRACT,
meaning of, is a question for judge, 17.
particular words in, is a question for jury, 17, 19.
foreign, 18.
whether contract is an escrow, is a question for jury, 19.
acceptance of, by letter, 70, 71.
procured by misrepresentation, may be avoided, 217.
by corporation, requisites of, 324.
executed, is binding on corporation, 36.
liability, if ultra viret, 327.
by companies, requisites of, 328.
urban authorities, requisites of, 331.
industrial and provident societies, 332.
for sale of land, must be in writing, 334.
under Statute of Frauds may be proved by separate papers, 336, 348.
by correspondence, 336.
parties to, description of, 337.
part performance of, effect of in contracts as to land, 341.
by executors, 341.
upon consideration of marriage, must be in writing, 343.
not to be performed within a year, must be in writing. 344.
for sale of goods of the value of £10, requisites of, 346.
written, cannot be varied by extrinsic evidence. 358.
must be strictly construed, 359.
may be waived, and a new contract substituted, 359.
agreement to waive may be implied, 361.
required to be in writing, may be waived or rescinded by parol, 359,
completion of, may be proved by parol evidence, 364. 361.
discharge from performance of, may be proved by parol evidence, 364.
invalidity of, may be proved by parol evidence, 365.
want of consideration for, may be proved by parol evidence, 366.
may be varied by collateral oral agreement, 373.
as principal, cannot be proved to be made as agent, 370.
may be explained by extrinsic evidence, 372.
foreign and technical words in, may be explained by parol
evidence, 376.
usage or custom controlling contract, 384.
cannot be contradicted by evidence of usage or custom, 388.

CONVEYANCING ACT, •
provisions of, as to receipt contained in a deed, 228.
[ 9 ]
 Index.
conviction,
proof of, 284.
is conclusive, if unappealed against, 285.
of witness may be proved, 419.
previous, evidence of, under Prevention of Crimes Act, 453.
COPIES,
of documents when admissible, 311.
copies, 312.
COPYRIGHT,
infringement of, in picture, evidence of, 49.
proof of, 300.
international, 301.
CORONER,
deposition before, admissibility of, 461.
CORPORATION,
proceedings of, proof of, 302.
books of, proof of, 303.
byelaws of, proof of, 305, 306.
can in general contract only by seal, 324.
make minor contracts by parol, 325.
is liable for tort of servant not appointed under seal, 326.
bound by executed contract, 326.
acquiescence in part performance of contract, 327.
when bound by contract ultra rires, 327.
representation to bind must be under seal, 357.
CORROBORATION,
when necessary, 89.
in cases of treason, 39.
perjury, 40.
bastardy proceedings, 40.
actions for breach of promise of marriage, 41.
divorce proceedings, 41.
of claims against deceased persons, 41.
donatio iiiortu cavm, 42.
evidence of accomplices, 42.
rule as to, one of practice only, 43.
of witness by previous statements, 129.
See Accomplice.
COUNSEL,
authority of, to make admissions in civil cases, 237.
criminal cases. 237.
COUNTY COURT,
judgments of, conclusiveness of, 194.
seal of, 281.
attendance of witnesses in, 396.
depositions in, 471.
practice of, as to inspection and production, 498.
COVENANT,
does not create estoppel, 208.
breach of, must be proved by party alleging it, 257.
CREDIT,
cross-examination to, 100, 413, 416, 422.
[ 10 ]
 Index.

CRIMINAL EVIDENCE ACT, 1898,

provisions of, 33, 537.
practice under, 33, 34, 537.
CRIMINAL PROCEEDINGS,
prosecutor is a competent witness, 31.
defendant in, was formerly an incompetent witness, 31 .
now competent to give evidence for the defence, 33.
definition of, 34. 35.
bnrden of proof in, 262.
right of reply in, 424.
proof of substance of issue in, 429.
amendments in, 433.
rules as to relevancy of evidence in, 449.
depositions in, 455.
■See Accomplice ; Admissions; Competency; Depositions
Dying Declaration ; Incompetency.
CRIMINATING QUESTIONS,
privilege in respect of, 94.
CRITICISM ON PUBLIC MATTERS, 15.
CROSS-EXAMINATION,
necessity for, 3.
of parties to proceedings in consequence of adultery, 29.
criminating questions need not generally be answered in, 94.
teem, under the Criminal Evidence Act, 1898. ..33.
of prosecutrix on charge of rape, 100.
fellow prisoner, 418.
to credit, 100, 413,416, 422.
rules as to, 413.
leading questions may be asked in, 414.
irrelevant questions in, will be disallowed by judge, 415.
questions as to crime or conviction may be asked in, 418.
witness not examined in chief when cross-examined, 417.
of witness called by judge, 417.
questions to sbow partiality may be asked in, 421.
as to former statements in writing may be asked in, 421.
of witnesses to character, practice as to, 421.
upon affidavit of documents is not permitted, 495.
on affidavits generally, 514.
CUSTODY,
proper, of ancient documents, 149.
is sufficient, if reasonably explained, 152.
proper, of public documents, 294.
CUSTOM,
as a rule to be proved, 269.
judicial notice of, 269.
of city of London, 269.
is admissible to explain writing, 384.
inadmissible to contradict writing, 384.
to explain ambiguous term of country, 384.
contract, 384.
determine what law applies to charterparty, 385.
add incident to written contract, 385.
is admissible to prove personal liability of broker, 387.
evidence as to, relevancy of, in case of manors, 445.
[ " ]
 Index.

D.
DAMAGES,
defendant may interrogate as to, when paying into court, 478.
DATE,
presumptions as to, in case of documents, 62.
mistake as to, in documents, may be proved by parol evidence. 36-5.
BE BENE ESSE,
examination of witnesses, 463.
DEATH,
presumption of, 75.
without issue, presumption of, 76.
register of, proof of, 298.
DEBENTURE,
estoppel against company in respect of, 220,
DEBT,
release of, by voluntary declaration of creditor, 365.
in equity, 365.
DECEASED PERSON,
claim against, 41.
declaration by, must have been made ante litem motam, 161.
definition, at former trial when received in civil proceedings, 184.
in criminal proceedings, 185.
how proved, 185.
deposition of, admissibility of, 455, 462.
See Declaration ; Dying Declaration.
DECLARATION,
not upon oath, is generally inadmissible, 128.
by tenant for life, 132.
a deceased vendor, 132.
accompanying acts, when admissible; ?■/■* gestte, 131.
by trustees, 136.
in support of prescriptive rights, 139.
as to pedigree, 154.
dying, 163.
against interest, 169.
in course of duty, 178.
See Dying Declaration; Declaration against Interest;
Declaration in Course of Duty; Rape; Accomplice.
DECLARATION AGAINST INTEREST,
admissibility of, 169.
must be against pecuniary or proprietary interest. 169.
risk of prosecution is not ground for admission of, 171.
is evidence of facts contained in it, 171.
oral or written, is equally admissible, 171.
is admissible, though declarant received facts on hearsay, 173.
not evidence during life of declarant, 174.
by person in possession, is admissible to cut down interest, 177.
must have been made ante litem motam, 177.
See Entry against Interest.
t 12 ]
 Index.

DECLARATION IN COURSE OF DUTY,

admissibility of, 178.
mast be contemporaneous, 180.
confined to matters within duty of declarant to record, 180.
is inadmissible, if made on hearsay, 182.
oral or written, is equally admissible, 182.
is not evidence during life of declarant, 183.
DECREE,
in Chancery, relevancy of, 447.
DEED,
construction of, is for judge, 17.
presumption as to execution of, 65.
delivery of, 66.
alterations in, 66.
ancient, admissibility of, 149.
rules of construction, 206.
estoppel by, 206.
recitals in, effect of, 207.
acknowledgment of consideration in, is conclusive, 228, 366.
receipt for consideration in, effect of, under Conveyancing Act, 228.
lost, may be proved by attested or examined copy or by oral evidence,
312.
rectification of, on the ground of mistake, 362.
cannot be avoided by parol, 365.
additional consideration for, may be proved, 367.
DEFAMATION,
definition of, evidence, 1.
duty of jndge in actions for, 15, 16.
See Character.
DEPOSITIONS
of deceased or absent witnesses, admissibility of, 184.
in criminal cases, 455.
must be taken in prisoner's presence, 456.
signed by witness and magistrate, 456, 458.
is admissible, if deponent is kept out of the way by the prisoner, 458.
though deponent's illness is not permanent, 457.
of witnesses for defence, 460.
before coroners, 461.
in civil cases, 461.
cannot be read except by consent, if deponent is able to attend, 464.
of aged witnesses, 463.
in county courts, 471.
extradition proceedings, 471.
under Fugitive Offenders Act, 471.
DESIGN,
register of, proof of, 299.
DICTIONARY,
admissibility of, to prove sense of words, 92.
DISCOVERY,
against, but not by the Crown, 473.
what is meant by, 473, 475.
by interrogatories by leave, 473, 475.
[ 13]

s
 Index.

DISCOVERY—continued.
question of right to, may be reserved till issue has been determined,
475, 480, 483.
in Probate, etc. Division, 482.
of documents, practice as to, 483.
See Interrogatories ; Production of Documents ; In
spection.
DIVISION OF EVIDENCE, 7.
DIVORCE. See Adultery ; Competence ; Husband ; Wife.
DOCUMENT,
question of existence of, is for jury, 9.
proper custody of, is for judge, 9.
sufficiency of stamp on, is for judge, 9.
construction of, is for judge, 17.
sometimes in criminal cases, for jury, 18.
production of original, when necessary, 47.
presumption as to date of, 62.
execution of, 64, 65.
stamping of, 66.
alterations in, 66.
presumptions from possession on, 79.
when privileged from production, 95, 101, 104.
copies of, when privileged, 105, 107.
ancient, must be produced from proper custody, 149, 151.
entry in public, presumed to be true, 162.
public judicial, proof of, 279.
non-judicial, proof of, 294.
ancient, proof of handwriting, 315.
use of, to refresh memory. 319.
to refresh memory, requisites of, 319.
unstamped, may be used to refresh memory, 320, 509.
cannot be contradicted or varied by parol evidence, 358r
mistake in date of, may be proved by parol evidence, 368.
may be explained by parol evidence, 372.
foreign, how construed by court, 18, 376.
may be explained by usage or custom, 384.
alteration in, may be explained by parol evidence, 389.
production of, practice as to, 497, 498.
relating exclusively to title of party, need not be produced, 480.
relevant, what is, 488. m
in custody of agent, must be produced, 488.
confidential, rule as to production of, 491.
sealing up, 491.
unstamped or insufficiently stamped, is inadmissible, except in criminal
proceedings, 505.
stamping of, at the trial, 505.
after execution, 506.
unstamped, may be evidence of independent fact, 508,
account stated, 509.
act of bankruptcy, 509.
See also Escrow ; Inspection ; Production.
DOCUMENTARY EVIDENCE ACTS,
provisions of, as to Royal proclamations, 269.
Orders in Council, 269.
private statutes, 279.
r 14 ]
 Index.

domicile,
presumptions as to, 78.
DUTY, DECLARATION IN COURSE OF. See Declaration.
DYING DECLARATION,

ground of admissibility of, 163.

rule as to, 164.
may be written by another person, 165.
must have been made in actual danger, 165.
hope of recovery, 166.
death of declarant must be subject of charge, 167.
is admissible only in cases of homicide, 167.
of accomplice, is admissible, 168.
in favour of accused, is admissible, 168.

E.
EASEMENT,
must be proved by deed, 324.
creation of, by twenty years' enjoyment, 356.
ENTRY AGAINST INTEREST,
admissibility of, 169.
must be against pecuniary or proprietary interest, 170.
is evidence of all facts which it contains, 171.
not evidence during life of declarant, 174.
proof of handwriting of, is unnecessary after thirty years, 176.
must have been made ante litem nuttam. 177.
And tec DECLARATION AGAINST INTEREST.
ENTRY IN BIBLE,
admissibility of, 151.
to prove pedigree, 156.
ENTRY IN COURSE OF DUTY,
See Declaration in Course of Duty.
EQUITY,
presumptions in, 81.
ESCROW, 19, 372.
ESTOPPEL,
definition of, 190.
action not founded on, 192.
by matter of record, 192.
ves judicata, tests of, 196.
matters not brought forward, 197.
extent of, 198.
matters not essential to decision, 200.
in criminal proceedings, 202.
foreign judgment*, 204.
does not operate where judgment was obtained by fraud, 193, 204, 205.
by deed, 206, 306.
must be certain, 207.
does not operate where execution of deed was obtained by fraud or
duress, 208.
[ 15 ]
 Index.

ESTOPPEL—continued.
infants and married women, 208.
by matter of pah, 209.
illustrations, 210.
against tenants, 212. ,
bailees, 213.
licensees, 213.
agents, 2H.
acceptor and drawer of bill of exchange, 215.
by acquiescence, 215, 224.
from holding out, 223.
in favour of deed or will under which land is claimed, 216.
against companies, 218.
admission not operating as, may be rebutted, 228.
See Deed ; Judgment.
EVIDENCE,
technical rules of, when dispensed with, 8.
of a particular fact under Rule 7 of Order XXX., 8.
EXAMINATION OF WITNESSES.
See Commission; Cross-examination; Deposition; Wit
nesses.
EXAMINED COPIES,
public records may be proved by, 64, 280.
EXECUTION
of documents, presumption as to, 65.
EXECUTOR,
admission by, is evidence against co-executors, 230.
contracts by, requisites of, 341.
answers by, to interrogatories, 481.
EXPERTS
as to insanity, 86.
evidence of, generally. 89, 91.
competency is, for judge, 89.
in patent cases, 91.
foreign law, 272.
EXTRADITION ACTS,
evidence under, 471.
EXTRINSIC EVIDENCE
is inadmissible to contradict or vary writing, 358.
admissible to prove substitution or annexation of new contract. 360.
prove mistake in a document, 362, 368.
rebut, but not to raise, a presumption, 363.
prove invalidity of written contract, 365.
prove want of consideration for written contract, 366.
explain writing, 372. . •.
prove collateral oral agreement, 373.
show when agreement was to take effect, 373.
inadmissible to explain patent ambiguity, 374.
admissible to explain latent ambiguity, 374.
words in foreign language, 376.
technical words, 376.
[16]
 Index.
EXTRINSIC EVIDENCE—continued.
of testator's intention, is inadmissible to construe will, 379.
is admissible to annex incidents to contract, 385.
explain alteration in document. 389.
See Custom.
EYE-WITNESSES,
evidence of, contrasted with that of others, 3.

F.
FALSE IMPRISONMENT,
question of reasonable canse for, is for judge, 12.
evidence of bona fide* in actions for, 444.
FALSE PRETENCES,
evidence in prosecution for, 89.
of guilty knowledge, 450.
FELONY,
evidence of several to convict of one, 450.
FIDUCIARY POSITION,
presumptions arising from, 56.
FISHERY,
presumption as to legal origin of, 68.
evidence of public right of, 147.
prescriptive right of, 150.
decree in former possessory suit admissible, 447.
FLAGS,
evidence of inscriptions on, 130.
FOREIGN CONTRACT,
rules for construing, 18, 376.
FOREIGN COURT,
request to, for examination of witness, 469.
FOREIGN ENLISTMENT ACTS,
burden of proof under, 265.
FOREIGN JUDGMENT,
effect of, as an estoppel. 204.
may be impeached for fraud, 204.
proof of, 283.
FOREIGN LAW,
is a question for jury, 19.
must be proved by skilled witnesses, 272.
text books of, 273.
commission to ascertain, 467.
FOREIGN MARRIAGE,
proof of, 298.
FOREIGN PROCLAMATION,
how proved, 283.
L.E. 2 R [ 17 ]
 Index.

FORI, LEX,
govern* evidence, 8.
FOX'S ACT,
provisions of, as to evidence of libel, 15.
FRAUD,
will not be presumed, 55.
prevents judgment from operating as an estoppel, 193, 204.
deed from operating as an estoppel, 208.
FRAUDS, STATUTE OF,
object and scope, 333.
provisions of, as to creation of interest in land, 334.
contracts for sale of land, 335.
contract may be comprised in separate documents, 336.
essential elements of contract, 337.
when parol evidence is admissible to supplement contract, 338.
signature, what suffices, 339.
specific performance, where no sufficient memorandum, 340.
part performance excludes operation of, in contracts relating to
land, 341.
provisions of, as to contracts by executors, 341.
guarantees, 342.
promise to indemnify, outside statute, 342.
provisions of, as to contracts made upon consideration of marriage, 343.
not to be performed within a year, 344.
trusts, 344.
wills, 349.
agreement within, cannot be rescinded by agreement invalid within
the statute, 361.
parol evidence is admissible to identify parties to contract under, 382.
FUGITIVE OFFENDERS ACT,
depositions taken under, 471.

G,
GAZETTE,
London, judicial notice of, 268.
GENERAL PRINCIPLES OF EVIDENCE, 1.
GENEALOGY,
admissibility of, 156, 158.
GUARANTEE,
must be in writing, 342.
consideration for, may be proved by parol, 343.
person signing for principal may be shown to have signed on own
behalf as well, 373.
GUARDIAN,
admission by, effect of, 235.
GUILTY KNOWLEDGE,
evidence of, 450.
See also Babe Coin ; Conspiracy ; False Pretences ; Forged
Documents ; Larceny ; Murder ; Receiving.
[ 18]
 Index.

H.
HANDWRITING,
modes of proving, 49, 314.
disputed, comparison of, 314.
not necessarily by professional expert, 314.
statutory provisions as to, 315.
HEARSAY EVIDENCE,
definition of, 126.
general rule as to exclusion of, 126.
is unobjectionable where question is for judge, 127.
of previous statements by witness, 129.
as to ret geiUe, 129.
inscriptions, 130.
to prove act of bankruptcy, 131. ■
statement as to capacity of signatory to contract, 131.
as to bodily or mental feelings, 133.
in conspiracy, 135.
when rule may be dispensed with by the court or a judge, 136.
as to matters of public interest, 137.
boundaries, 141, 143.
public highways, 145.
right of fishery, 147.
ancient possession, 149.
pedigree, 154.
(if dying declarations, 163.
declarations against interest, 169.
in the course of duty, 178.
HERALD,
communications with, are not privileged, 115.
HIGHWAY,
presumption as to dedication of, 68.
ownership of soil of, 80.
evidence of reputation as to, 145.
HISTORY,
admissibility of, 309.
HOMICIDE,
presumption of malice in, 60.
burden of proof in, 262.
HOSTILE WITNESS
may be asked leading questions, 413.
when may be discredited by party calling him, 412.
HUSBAND
is generally an incompetent witness against wife in criminal pro
ceedings, 36.
statutory exceptions to this rule, 37.
common law exceptions, 37.
is not compellable to disclose communications made during marriage,
evidence of, as to non-access, 124. 36.
is not bound by admissions of wife, except within scope of her
authority, 237.
See alto Adultery; Marriage; Married Women's Pro
perty Acts ; Necessaries ; Wife.
2R2 [ 19 ]
 Index.

I.
IDENTIFICATION,
opinion or belief is evidence of, 88.
IDIOCY,
incompetency of witness from, 21.
ILLEGITIMATE CHILDREN. See also Legitimacy.
meaning of in will, 383.
INCOMPETENCY OF WITNESS,
evidence given may be withdrawn, 21.'
from want of understanding, 20.
immaturity of intelligence, 22.
defect of religions belief, 23.
of defendants in criminal proceedings, 31.
husband and wife in criminal proceedings, 36.
INCORPOREAL RIGHT,
must be proved by deed, 324.
INDECENCY,
exclusion of evidence on account of, 124.
evidence as to non-access after marriage, 125.
INDICTMENT,
substantial averments in, must be proved, 429, 435.
amendment of, practice as to, 433.
material omission in, cannot be supplied, 438.
cannot be amended after prisoner's counsel has addressed jury, 43S).
INDUCEMENT. See Confession.
INDIRECT EVIDENCE,
what is, 5.
INFANCY,
burden of proof as to, 264.
INFANT,
evidence that goods are necessaries for, 17.
is not necessarily an incompetent witness, 22.
bound by recitals in deed executed by guardian, 208.
admissions by guardian or next friend, 235.
rules of court as to discovery, apply to, 493.
INNOCENCE,
presumption of, 53.
INNUENDO,
evidence, of, in action for slander, 87.
INQUISITIONS,
proof of, 285.
admissibility of coroners', 461.
INSANITY,
proof of, 86.
evidence of experts us to, 86.
[20]
 Index.

INSCRIPTIONS
may be proved by secondary evidence, 49, 130, 156.
INSPECTION
of documents in lunacy, 123.
practice as to, 483.
of mortgagee's deeds, 490.
confidential documents, 491.
business books, 485.
privileged documents, 487.
sealed as well as unsealed documents may be inspected by judge, 487,
will be granted notwithstanding lien, 488. 491.
who to inspect, 492.
will not be ordered against stranger to suit, 493, 496.
documents referred to in pleadings and affidavits, 493.
of pauper's case, 495.
documents not disclosed, 495.
in county courts, 498.
INTERLINEATION
in will, presumption as to, 67, 390.
document, may be explained by extrinsic evidence, 389.
INTERROGATORIES,
answers to, are evidence in subsequent proceedings, 227.
in bankruptcy proceedings, 391.
practice as to, in the High Court, 473.
unreasonable or vexatious, costs of, may be disallowed, 471.
may be set aside, 474.
must be answered by affidavit, 474.
party not answering may be examined rird cnee, 475.
cannot be delivered without leave, 475.
object and limitation of, 475.
must not seek to discover opponent's evidence or witnesses, 476
principal answers, on agent's knowledge, 477.
must be answered as to information and belief, 477.
where agent sues for foreign principal, 478.
for the purpose of payment into court, 478.
as to mitigation of damages in defamation, 479.
irrelevant, need not be answered, 479.
scandalous, need not be answered, 479.
answer to, by executors, 481.
mortgagee, 481.
use of answer to, at trial, 482.
in county courts, 482.
ISSUE,
substance of, must be proved, 426.

J.
JOINT DEBTOR,
judgment against one, 195.
JUDGE,
functions of, generally, 9.
decide on admissibility of evidence, 9.
may withdraw evidence from jury, 11.
[21 ]
 Index.

JUDGE—continued.
must say whether there is any evidence for jury, 11.
dnty of, in actions for negligence, 11, 14.
should not non-snit without hearing evidence, 12.
must explain the law and rules of evidence to jury, 9, 12.
decide as to competency and sanity of witnesses, 10.
is not concerned with credibility of evidence, 10.
competency of witnesses is a question for, 9, 20, 21.
duty of, in summing up, 11.
probable cause when a question for, 12.
duty of, in actions for defamation, 15, 16.
must construe written documents, 17.
duty of, as regards secondary evidence of documents, 19.
must decide objection to taking an oath, 22—25.
competency of, as a witness, 186.
signature of, judicial notice of, 270.
may stop irrelevant cross-examination, 418.
originality of document is a question for, 499.
cannot decide question of existence of stamped original if denied on
pleadings, 500.
reasonable time of service of notice to produce is a question for. 501.
must decide questions as to stamps, 506.
See Jury.
JUDGE'S NOTES,
how far evidence, 185, 186.
use of, on appeal, 187.
JUDGMENT,
estoppel by, 192.
different kinds of, 192.
»« rem, binds all the world, 192.
in personam, binds only parties and privies, 193.
obtained by fraud, is not binding, 193, 201.
of county court, effect of, 194.
by consent works an estoppel, 195.
verdict without judgment is not, 196.
in civil action, is not evidence in criminal proceedings, 197.
extent of estoppel, 198.
judgment-roll incorrect, no estoppel, 201.
of court of summary jurisdiction, effect of, 194, 203.
foreign court, effect of, 204.
how proved, 291.
JUDICATURE ACT, 1894,
provisions as to method of proof, 8.
JUDICIAL NOTICE,
what is the subject of, 268.
of public statutes, 268.
rules of practice, 268.
almanacks, 268.
the London Gazette, 268.
status and territories of foreign sovereigns, 268.
customs, when, 269.
documents of companies, 270.
signatures of judges, 270.
seals and signatures of British ambassadors, 271.
seals of notaries public abroad, 271.
[ 22 ]
 Index.

JUDICIAL PROCEEDINGS,
proof of, 281.
JURY,
function of generally, 9.
existence of document is question for, 9.
must take law from judge, 9, 11.
to decide as to credibility of evidence, 10.
judge to non-suit if no evidence for, 11, 12.
reasonable and probable cause generally for, 12.
skill and due diligence are questions for, 13.
functions of, in questions of negligence, 14.
bona fide* is a question for, 15.
express malice is a question for, 15.
knowledge and intention are questions for, 15.
libel or no libel is a question for, 15.
construe technical phrases, 17.
foreign law is a question for, 19.
may find verdict on evidence of one witness, 89, 43.
See alto Judge.

E.
KNOWLEDGE
is a question for jury, 15.
See Guilty Knowledge.

LAND,
interest in, how created and transferred, 334, 335.
contract as to, must be in writing, 335.
trust of, must be evidenced by writing, 344.
Statutes of Limitation, as to, 353.
LANDLORD
cannot buy goods distrained, 56.
admission by tenant is not binding upon, 191.
See alto TENANT.
LARCENY.
evidence of other larcenies, 500.
LATENT AMBIGUITY. See Ambiguity.
LEADING QUESTIONS,
general rule in examination in chief, 408.
may be put to hostile witness by leave, 410.
in cross-examination, 413.
LEASE,
when must be by deed, 334.
rectification of, on the ground of mistake, 362.
LEGACY,
presumptions as to, 81, 82, 83.
revival of right to sue for, by part payment or acknowledgment, 355.
[ 23 ]
 Index.
LEGITIMACY,
presumption in favonr of, 59.
conduct of parents, may rebnt or snpport, 59, 132, 159.
evidence of access and non-access, 125.
recognition of, by father, 159.
burden of proof as to, 264.
LETTERS,
presumptions as to, 70.
between co-defendants, when privileged, 115.
to testator, how far evidence of sanity, 128.
of mother, evidence of legitimacy of child, 132.
not answering, effect of, 227.
without prejudice, 241.
contracts entered into by, 337.
material, must be produced, though marked " private and confidential,"
LEX FORI, 491.
rules of, in matters of evidence, 8.
LIBEL,
duty of judge in actions for, 15, 16, 61.
provisions of Fox's Act as to, 15.
burden of proof in actions for, 260.
evidence as to character in actions for, 447.
LICENSEE
cannot deny licensor's title, 213.
LICENSING SESSIONS,
evidence not necessarily on oath, 26.
LIEN,
of solicitor upon document, will not exclude right to inspection, 488.
LIMITATIONS, STATUTE OF,
sufficiency of acknowledgment within, when a question for jury and
when for judge, 18.
acknowledgment of debt barred by, must be in writing, 350.
unconditional, 351.
right to real property liarred by, must be in
writing, 353.
provisions of, as to mortgages, 354.
prescriptive rights, 356.
LIS MOTA,
commencement of, 148.
LONG POSSESSION.
presumptions arising from, 68.
LOST DOCUMENTS,
proof of, 311.
LOST GRANT,
presumption as to, 69.
not in contravention of Act of Parliament, 69.
LOST WILL,
verbal statement by testator as to, is admissible, 379.
[ 24]
 Index.

lunacy,
incompetency of witness from, 21.
Lunacy Act, 1890, presumptions under, 69.
to proof of posting, under, 72.
inspection of documents in, 123.

M.
MAGISTRATE,
presumption as to acts of, 62.
estoppel in favour of, 198.
depositions must be taken in presence of, 455.
must sign depositions, 456.
MALICE
is a question for jury, 12, 15.
presumed in cases of homicide, 60.
actions for libel, 60.
MALICIOUS PROSECUTION,
question of reasonable cause for, is for judge, 12.
MANOR,
hearsay evidence as to boundaries of, 142.
evidence as to custom of, 445.
MANSLAUGHTER,
prisoner charged with murder may be convicted of, 429.
MAP,
admissibility of, as evidence of reputation, 141.
to prove road or highway, 141.
manorial rights, 141.
general rules as to admissibility of, 310.
MARINE INSURANCE,
policy of, cannot be contradicted by antecedent agreement, 368.
MARRIAGE,
presumption in favour of, 63.
proof of, by general reputation, 134.
declaration by deceased clergyman as to, 158, 171,
register of, proof of, 296.
in case of marriages abroad, 298.
contract in consideration of, must be in writing, 343.
MARRIED WOMEN'S PROPERTY ACTS,
evidence of husband and wife under, 38.
MEANING OP " EVIDENCE," 7.
MEMORANDUM,
use of, to refresh memory, 319.
need not have been made by witness, 320.
be produced, 321.
absolutely contemporaneous, 322.
must have been made ante litem viotam, 322.
[ 25 ]
 Index.

MEMORANDUM—continued.
within Statute of Frauds, must contain names or descriptions of
parties, 337.
need be signed only bv partT to be
charged, 339.
may be signed by agent, 338.
printed signature sufficient, 339.
auctioneer, when agent of both parties, 340.
MEMORY
of witness, may be refreshed or challenged by document otherwise
inadmissible, 319, 509.
MISREPRESENTATION,
relief against, in equity and law, 211, 217.
contract procured by, may be avoided, 217.
MISTAKE,
rectification of, in deed, 362.
parol evidence of, as to date of document, is admissible, 368.
MORTGAGE,
action to redeem, may be revived by acknowledgment, 353.
production of deeds by mortgagee, 490.
MOTIVE,
evidence as to, relevancy of, 444, 450.
MUNICIPAL CORPORATIONS ACT,
evidence of byelaws under, 306.
MURDER.
prisoner indicted for, may be convicted of manslaughter, 421».
evidence of other murders, 451.

N.
NATURALIZATION, 309.
NECESSARIES,
for infant, is a question for jury, 17.
evidence of wife as to her adultery in actions for, 38.
NEGLIGENCE,
when presumed, 14.
how far a question for jury, 14.
NOTARY PUBLIC,
seal of, judicial notice of, 271.
NOTICE TO ADMIT,
practice as to, 242.
NOTICE TO PRODUCE
need not be given in action to recover a document, 49, 503.
practice as to, 498.
must be in writing, 500.
may be served on solicitor, 502.
form of, 500.
[ 26 ]
 Index.

NOTICE TO PRODUCE—continued.
must be served within a reasonable time before trial, 501.
question of reasonable time for serving, is for judge, 501.
need not be given by party holding counterpart or duplicate, 502.
to produce notice, 503.
if loss of original is admitted, 504,
nor where original is immovable, 504.
agreement with master of ship need not be given by sailor, 504.
NOTICE TO QUIT,
service of, by post, 71.
is evidence of time of commencement of tenancy, 226.
notice to produce, is unnecessary, 503.

o.
OATH,
necessity for knowledge as to obligation of, 23.
affirmation in lieu of, 24.
solemn promise and declaration in lieu of, 24.
binding in form which deponent declares to be so, 25.
OATHS ACT, 1888.. .25.
swearing with up-lifted hand, 25.
OPINION,
evidence of, 86.
on questions of identification, 88.
as to condition of person or thing, 88.
of prosecutor as to meaning of false representation, 89.
experts, 89.
ORDERS OF THE COURTS,
how proved, 286, 288.
ORIGINAL DOCUMENT,
production of, when necessary, 46.

P.
PARLIAMENT,
journals of, proof of, 288.
PAROL EVIDENCE,
as to lost documents, 311.
See aim Ambiguity ; Document; Mistake; Waiver.
PART PAYMENT,
to satisfy Sale of Goods Act, 346.
revival of charge or legacy by, 353.
PART PERFORMANCE
of contract as to land, excludes operation of Statute of Frauds', 340.
PARTNER,
Sresumption as to authority of, 78.
eclaration or admission by one, is evidence against all, 136, 22!l.
liability by estoppel, 223.
I 27 ]
 Index.
PARTY,
competency of in civil proceeding)!, 31.
criminal proceedings, 33.
PASSING OFF GOODS,
description, proof of, 91.
PATENT,
construction of specification of, is a question for judge, 18.
novelty and infringement of, when questions for judge, 18.
cases, evidence of experts in, 91.
on petition for revocation, patentee not estopped by previous
ment, 197.
burden of proof in cases of infringement of, 260.
registers of, proof of, 299.
particulars in actions for infringement of, 448.
PATENT AMBIGUITY. See Ambiguity.
PATENT OFFICE,
seal of, is judicially noticed, 299.
PAYMENT INTO COURT,
effect of, as an admission, 240.
interrogatories for purpose of, 478.
PEDIGREE,
hearsay evidence of, 154.
conduct, evidence of, 159.
definition of, 160.
declarations, as to, mnst be made ante litem motnm, 161.
does not include age, 161.
entries in public documents, 162.
PENALTY,
action for, what is, 95 n (i).
PERJURY,
one witness cannot prove, 39.
PERPETUATING TESTIMONY,
procedure as to, 518.
PLKADINGS,
amendment of, rules as to, 430.
POACHING ACT, 1862,
evidence in cases under, 54.
POLICE,
statements to or in the presence of, when admissible, 248, 251.
POLITICAL DOCUMENTS,
production of, 121.
POST LETTERS,
presumptions as to, 70.
POSTMARK,
proof of, 296.
[28]
 Index.

prejudice,
statements made without, 211.
admissible to prove act of bankruptcy, 242.
PRESCRIPTIVE RIGHTS,
proof of. 139, 149, 356.
PRESUMPTION,
different kinds of, 53.
conflicting, 53.
of innocence, 53.
in cases of bigamy, 54.
under Poaching Act. 1862. ..54.
in case of betting circulars, 65.
against fraud, 55.
as to unseaworthiness of ships when overloaded, 55.
against trustees for sale, 56.
those having influence over others, 56.
of intent to defraud creditors, 58.
in favour of marriage and legitimacy, 58, 59.
as to bond given during cohabitation, 60.
consequence of acts, 60.
of malice in cases of homicide, 60.
in cases of libel, 61 .
omnia rite acta, 61.
as to persons acting in a public capacity, 61.
dates of documents, 62.
execution of deeds and wills, 65.
lost wills, 66.
stamping of documents not produced, 66, 313, 508.
alterations in deeds, wills, and bills of exchange, 66.
from long enjoyment of property, 68.
as to dedication of highway, 68.
legal origin of right, 69.
as to post letters, 70.
against a spoliator, 73.
refusal to produce documents on notice raises no presumption as to
contents, 74.
of continuance of existing state of things, 74.
death, 75.
death without issue, 76.
as to child-bearing, 76.
of survivorship, 77.
against bailees, 77.
as to authority of partners, 78.
domicil, 78.
charges on settled estates, 79.
arising from receipts for rent, 79.
possession of documents, 79.
as to boundaries, 80.
property in soil of highway, 80.
bed of a stream, 80.
against double portions, 81.
as to ademption, 82.
in ease of legacy to creditor, 83.
as to cumulation of legacies, 83.
resulting trusts, 83.
of advancement, 84.
no adverse presumption arises from a claim of privilege, 94.
[ 29 ]
 Index.

PRESUMPTION—continued.
as to authority of solicitors, 235.
disputable, burden of proof in cases of, 259.
as to matter of intention in a will, may be rebutted by extrinsic
evidence, 363.
as to stamps, 508.
PRESUMPTIVE EVIDENCE,
definition of, 5, 51.
admissibility of, 51.
PREVENTION OF CRIMES ACT,
evidence under, 453.
PRIMARY EVIDENCE,
definition of, 47.
PRINCIPAL,
declaration or admission by agent is evidence against, 136, 229.
judgment against, does not bind surety, 198.
confession by agent is not evidence against, 254.
person contracting as, cannot show that he was an agent, 370.
admission by, not evidence against surety, 238.
See also Agent.
PRIVILEGE,
general rules as to, 94.
claim of, creates no unfavourable presumption, 94.
as to criminating questions or documents, 94.
cannot be claimed until witness is sworn, 96.
may be waived, when, 97, 114.
of wife not to criminate her husband, 97.
extent of this privilege, 97.
under the Larceny Act, 97.
Merchandise Marks Act, 98.
Corrupt Practices Act, 98.
Criminal Evidence Act, 33, 99.
in bankruptcy proceedings, 98, 100.
degrading questions, 100.
ceases when reason for it ceases, 124.
as to professional communications, 101.
without litigation, 102.
communications to solicitor acting for co-adventurer, 102.
letters, when privileged, 103.
documents laid or intended to be laid before solicitors, 104.
copies of documents, 105.
evidence obtained for litigation, 105.
extent of professional, 109.
opinions of foreign lawyers, 109.
does not exist where solicitor is party to a fraud, 112.
extend to communications with illegal purpose, 113.
clergymen, patent agents, medical men, bankers,
heralds, etc., 115.
on grounds of public interest, 119.
is client's, not solicitor's, 114.
"once privileged, always privileged," 124.
of witness against action for defamation, 424.
[30]
 Index.

PRIVILEGED COMMUNICATIONS
is a question for judge, 15.
between husband and wife, 36.
with legal advisers, 101.
PRIVILEGED DOCUMENTS,
inspection of, by court, 485, 487.
production of, cannot be enforced, 486.
PRIVITY,
different kinds of, 190.
PROBATE,
constitutes executor's title, 289.
when lost, 290.
Court of, can correct a mistake in a will, 364.
PROBATE, etc. DIVISION,
discovery in, 482.
PRODUCTION OF DOCUMENTS,
practice as to, 483.
judge may inspect document for which privilege is claimed, 485,487.
cannot be enforced, where documents are privileged or relate exclu
sively to holder's title, 486.
document in possession of agent or solicitor, 488.
when document is in joint possession with a stranger to the action, 489.
mortgagee's deeds, 490.
documents marked "confidential," 491.
sealing up parts of books and documents, 491.
by co-defendants and third parties, 493.
defendant entitled to, though in contempt, 493.
documents mentioned in pleadings and affidavits, 493.
further affidavit of documents, 495.
production by strangers to action, 496.
in county courts, 498.
at the trial and after notice, 498.
notice to produce before giving secondary evidence, 498.
form of such notice, 500.
to what extent it should be specific, 500.
when to be served, 501.
when notice unnecessary, 502.
PROFESSIONAL COMMUNICATIONS,
privilege of, 101.
PROMISSORY NOTE,
presumption as to date of, 62.
effect of alteration in, 67.
possession of, by maker, is primdfacie evidence of payment, 79.
admission by joint maker, effect of, 230.
when binding on a company, 829.
PROPER CUSTODY OF DOCUMENTS
is a question for judge, 9.
ancient documents admissible, if produced from, 149, 151.
PROSECUTOR
is a competent witness, 31.
[ 31 ]
 Index.

PUBLIC DOCUMENTS,
entries in, admissible in evidence and presumed true, 162.
public judicial, proof of, 279.
non-jndicial, proof of, 294.
proper custody of, 291.
PUBLIC FISHERY,
evidence of right of, in tidal river, 117.
PUBLIC HEALTH ACT,
provisions of, as to contracts by urban authorities, 331.
PUBLIC INTEREST,
exclusion of evidence on grounds of, 119.
question of, is for head of department, not for judge, 120.
hearsay evidence in matters of, 137.
declaration as to, must be made ante litem motam, 137, 148.
PUBLIC RECORDS
are evidence of their own authenticity, 64.
may be proved by examined copies, 64.
PUBLIC SERVANTS,
presumptions as to acts of, 61.
PUNCTUATION
disregarded in wills, 382.

B.
RAPE,
cross-examination of prosecutrix on charge of, rules as to, 100.
statements made by prosecutrix, when admissible, 133.
REASONABLENESS
as to cause, time, etc., whether for judge or jury, 12, 13.
RECEIPT
inprinid facie evidence of payment, 48, 229.
for rent, presumption of former payments from, 79.
not evidence of title, 153.
of goods, within Sale of Goods Act, may be constructive, 348.
RECEIVING STOLEN GOODS,
evidence of previous acts and convictions, 453.
RECITAL
effect of, as estoppel, 206.
rules as to construing, 207.
RECORD,
estop|K)l by, 192.
RECTIFICATION
of deed on the ground of mistake, 362.
REDEMPTION,
limitation of action for, 354.
right of, revived by acknowledgment, 354.
[ 32 ]
 Index.
re-examination,
rales as to, 422.
questions asked in, must arise out of cross-examination, 422.
REGISTER
of births, marriages, and deaths, proof of, 296.
baptisms and burials, proof of, 297.
patents, designs, and trade marks, proof of, 299.
copyright, proof of, 300.
newspapers, proof of, 301.
voters, proof of, 302.
shipping, proof of, 302.
joint stork companies, 303.
bills of sale, proof of, 308.
RELEASE
of debt in equity, 365.
at law, may not be good in equity, 365.
RELEVANCY
of evidence of experts, 89.
rules as to, 441.
documents, for production, 488.
RELIGIOUS KNOWLEDGE,
how far necessary to competency of witness, 23.
REMOVAL,
order for, how proved, 285.
RENT,
receipt for, is evidence of former payments. 79.
revival of action for, by acknowledgment, 353.
REPLY,
right to, 424.
REPRESENTATIONS OF CHARACTER,
actions to charge upon, 356.
REPUTATION,
evidence of marriage, 134.
in support of public right, 137.
prescriptive right, 138.
as to public right of fishery, 147.
declaration as to matter of, must be made ante litem motam. 147.
RES QESTJE,
admissibility of evidence as part of, 129, 442.
statements after transaction complete, 132.
ItES INTER ALIOS ACTA,
generally irrelevant, 442.
See alto Custom ; Guilty Knowledge ; Manor.
RES JUDICATA. See ESTOPPEL.
RESTRAINT OF TRADE,
contracts in, 13.
RESULTING TRUST,
presumption as to, 83.
L.B. 2 s [ 33 ]
 Index.

REVERSIONER,
declaration by deceased tenant is not evidence against, 177.
REVIVAL
of debts barred by Statute of Limitations, 350.
rights to real property, 353.
charges and legacies, 353.
RIVERS POLLUTION ACT,
evidence of repeated pollutions, 449.

s.
SALE OF GOODS ACT,
contract under, 346.
SALM< >N FISHERY ACT,
evidence of byelaws under, 306.
SCANDAL,
what is, in the case of interrogatories, 471).
SCIENTIFIC WITNESSES,
evidence of, 89.
SCINTILLA OF EVIDENCE,
duty of judge, 14.
SCOTCH LAW,
judicial notice taken of, in House of Lords, 273.
SEAL,
great and privy, judicial notice of, 268.
of British ambassador, etc., judicial notice of, 271.
notary public in British possessions abroad, judicial notice of, 271
latent office, judicial notice of, 271.
foreign notary, not judicially noticed, 271.
county court, 281.
corporation, when necessary to validity of contract, 324.
urban authority, when necessary to validity of contract. 331.
SEARCH
for lost document, 311.
SECRETARY OF COMPANY,
how far agent, 233.
SECONDARY EVIDENCE,
generally inadmissible, 5.
definition of, 47.
when inscription may be proved by, 49, 130, 156.
no degrees in, 48, 311.
of document, when admissible, 311.
where production of document is refused on the ground of privi
lege, 107, 314.
admissibility of. 31 1.
is inadmissible if document is not properly stamped, 313. .">i>8.
of lost will, 313.
becomes inadmissible if original document is tendered, 49!'.
[ 34 ]
 Index.

SECURITIES IRREGULARLY ISSUED,

estoppel in respect of, 220.
SEDUCTION,
evidence as to character in actions for, 100, 447.
SETTLEMENT,
when avoided by bankruptcy, 58.
rectification of, 362.
SHARES,
estoppel in respect of share certificates, 218.
transfer of, proof of, 330.
SHIPPING REGISTERS,
proof of, 302.
SHORTHAND NOTES,
agreement to use, 187.
SKILLED WITNESSES,
evidence of, 89.
SLANDER,
evidence of innuendo in, 87.
privilege of witness against action for, 424.
material words in, must be proved, 428.
evidence as to character in actions for, 447.
SOLICITOR,
unwritten retainer of, must be corroborated, 42.
presumption against, in case of gift to, or to his wife. 57.
professional communications with, are privileged, 101.
compellable to divulge client's name, but not address, 102.
information obtained by, when privileged, 104, 105.
copies of documents obtained by, 106.
participation of, in fraud, excludes privilege, 112.
communications with, for an illegal purpose, are not privileged, 112.
waiver of privilege by client, 114.
entry in diary by deceased, not admissible, 181.
presumption as to authority of, 235.
admission by, 235.
lien of, will not exclude right to inspection of documents, 488.
books of, not producible by client, 488.
SPECIALTY DEBT,
may be revived by written acknowledgment or part payment, 352.
SPECIFIC PERFORMANCE,
of parol contracts as to land, 340.
SPOLIATOR,
presumptions against, 73.
STAMP,
sufficiency of, is a question for judge, 9.
presumption as to, on document not produced, 66, 313, 508.
unstamped agreement, secondary evidence of inadmissible, 313, 508.
writing inadmissible for want of, may be used to refresh memory, 320.
after execution, subject to penalty, 606.
[ 35 ]
 Index.

STAMP—continued.
absence or defect of, will not exclude document in criminal pro
ceedings, 505.
payment of duty at trial, 505._
party objecting to want or insufficiency of, must prove it, 506.
objection as to, cannot be waived, 508.
document inadmissible for want of, may be evidence of independent
fact, 508.
time for objection as to want of, 511.
ruling of judge as to, cannot be ground for new trial, 511.
STATE, DOCUMENTS OF,
production contrary to public interest, 119.
duty of judge as to, 120.
STATUTE,
construction of, is for judge, 17.
public, is judicially noticed, 268.
STATUTE OF FRAUDS. See Frauds, Statute of.
STATUTE OF LIMITATIONS. See Limitations, Statute op.
STOLEN PROPERTY,
evidence of receiving, under Prevention of Crimes Act, 453.
STREET,
decision as to when, judgment in rem, 192.
SUBP(ENA,
may be issued without leave of court, but not oppressively, 391.
penalty for disobedience of, 392.
SUFFICIENT EVIDENCE,
definition of, 38.
exceptions to rule that single witness is, 38.
SURETY,
admission by principal is not binding against, 238.
TECHNICAL WORDS,
construction of, is for jury, 17.
may be explained by parol evidence, 376.
TENANT,
admission of landlord's title by deceased tenant is evidence against
subsequent tenants. 176.
declaration by, is not evidence against reversioner, 177, 191.
cannot derogate from landlord's title, 191.
dispnte landlord's title, 212.
TENDER,
proof of, 427.
TESTATOR,
destruction of will by, 66.
declaration by, when admissible, 379.
use of nicknames by, 381.
TRADE,
technical words of, may be explained by parol evidence, 376.
custom of, may govern contract, 385.
r se ]
 Index.

TRADE MARK,
deception with regard to, proof of, 91.
proof of, by register, 299.
TREASON,
evidence of wife against husband, 38.
necessity for two witnesses in cases of, 39.
TRUST,
resulting, presumption as to, 84.
creation of, provisions of Statute of Frauds as to, 344.
TRUSTEE,
sale by, to himself, when void, 56.
receipt by, is evidence against co-trustee, 230.

u.
ULTRA VIRES,
contracts by directors which are, 233.
UNDUE INFLUENCE,
burden of proof as to, 261.
URBAN AUTHORITY,
contract by, for amount exceeding £50 must be under seal, 331.
USAGE
is admissible to explain written instrument, 384.
inadmissible to contradict, 384.
inconsistent with contract is inadmissible, 388.
must be known to contracting party to bind him, 388.
See Custom.

V.
VERDICT,
evidence of, 283.
VOIR DIRE,
examination on, 20.
VOLUNTARY SETTLEMENTS,
when voided by bankruptcy, 58.
bond Jide sales not affected, 58.
VOTERS,
register of, proof of, 302.

w.
WAIVER OF CONTRACT,
agreement of, may be inferred from conduct, 361.
principles of, 361, 362.
WAIVER OF PRIVILEGE
by witness, 97.
client, 114.
[ 37 ]
 Index.

WARRANT OF ATTORNEY,
requisites of attestation in the case of, 333.
WIFE,
evidence of, in proceedings relating to adultery, 27.
is generally an incompetent witness against husband in criminal
proceedings, 36.
not compellable to disclose communications made daring marriage,
answer question criminating husband, 97. 36.
evidence of, as to non-access, 124 .
admission by, is not binding on husband, except within scope of
authority, 237.
See also Adultery ; Competency ; Estoppel ; Husband ;
Marriage ; Necessaries.
WILLS,
presumption as to due execution of, 65, 293.
may be rebutted by attesting witnesses, 65, 293.
as to destruction of, 66.
alterations in, 67.
burden of proof in respect of, 262.
ip not evidence without probate, 290.
original, when looked at, 291.
evidence of attesting witnesses where necessary, 292.
how proved, 292.
secondary evidence of lost, 313, 380.
what proof necessary to obtain probate of lost, 313.
mistake in, 364.
provisions of Statute of Frauds as to, 349.
Wills Act as to, 349.
memorandum after date of, unattested, 351.
declarations of testato* when admissible, 379.
punctuation in, disregarded, 382.
WILLS ACT
cannot be set up to oust a trust, 210.
provisions of, 349.
WITNESS.
conduct of. inconsistent with testimony, 4.
sanity of, is a question for judge, 9.
competency of, is a question for judge, 9, 20.
who are competent, 20.
as to religious belief of, 23.
incompetency of, from defect of understanding, 21.
idiots, lunatics, and children, 21.
of infamous character, 26.
as to competency of defendant in criminal proceedings, 31.
party to civil proceedings is not incompetent, 26.
parties to proceedings in consequence of adultery, 27.
plaintiff in action for breach of promise of marriage must be corro
borated, 27.
matters which cannot be proved by one witness, 38.
corroboration of, when necessary, 39.
in matters of opinion, 88.
as to condition of person or thing, 88.
experts, evidence of, 89.
claim of privilege creates no presumption against, 94.
cannot claim privilege until sworn, 96.
degrading questions, when witness may refuse to answer, 100.
[38]
 Index.

WITNESS—continued.
at former trial evidence of statements by, 184.
kept away by collusion, 185.
attesting wills, evidence of, 292.
proof of documents by attesting witnesses, 316.
may refresh memory by document otherwise inadmissible, 319.
attendance of, how enforced, 391.
binding over, in criminal proceedings, 393.
for defence, expenses of, may be allowed, 394.
summons to, in bankruptcy proceedings, 394.
county courts, 396.
before magistrates, 397.
attendance of, in winding up of company, 398.
in Houses of Parliament, 401.
at election petitions, 401.
beyond the jurisdiction, 401.
in prison, mode of procuring attendance of, 402.
privilege of, from arrest, 403.
expenses of, 404.
when may be arrested for contempt of court, 404.
rules for examination of, 407.
may be ordered to leave the court, 409.
character of cannot be impeached by party calling him, 412.
hostile, may be discredited by party calling him, 412.
rules for cross-examination of, 413.
cross-examination of witness not examined in chief, 417.
called by judge, 417.
evidence of bad character of, is generally inadmissible, 418.
may be questioned as to conviction, 418.
recalled to prove inconsistent statement by subsequent witness,
420.
evidence of particular acts of falsehood or dishonesty by, is inadmis
sible, 420.
character of, may be re-established by evidence of good character, 421.
acceptance of bribe by, may be proved, 421.
may lie questioned as to former statements in writing, 421.
to character, may be cross-examined, 421.
rules for re-examination of, 422.
is privileged from action for defamation, 424.
before magistrate, must sign deposition, 450.
absent, admissibility of depositions by, in criminal proceedings, 457.
for prisoners, examination of, by magistrate, 460.
commission for examination of, 462.
request to foreign court to examine, 465.
See also ATTESTING WITNESS ; WILL.
WORD,
defamatory, 16.
foreign, 376.
strict sense is legtil sense, 383.
See. also Technical Words.
WHIT.
proof of, 288.
amendment of, rules as to, 481.

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