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sation the night inspector, in reply to the plaintiff's question,
" How is it you did not send my cattle on ? " had said that he
had forgotten them.

Held, on appeal, that such evidence was not admissible,
as the " night inspector is not to be presumed to have been
authorized by the company to make admissions on their
behalf of things gone byP



A Confession must be Free and Voluntary to be admissible.

E, v. THOMPSON. [1893]

(62 L. J. M. C. 93 ; (1893) 2 Q. B. 12 ; 5 E. 392 ; 69 L. T. 22 ;
41 W. E, 525 ; 17 Cox, C. C. 641 ; 57 J. P. 312.)

Upon a prosecution for embezzlement it was sought to prove
a confession by the prisoner. Prior to the alleged confession
the prosecutor had had an interview with the prisoner's brother
and brother-in-law, and said, " It will be the right thing for
Marcellus " (the prisoner) " to make a clean breast of it," but
made no threat or promise to induce the prisoner to confess.
The details of the interview were communicated to the prisoner.



a-14 EVIDENCE.

Held, by the Court for Crown Caws Reserved, that the

confession was not free and voluntary, unci not admissible
in evidence.

A confession, in order to be admissible, must be free and
voluntary, that is, it must not be extracted by ana sort of
threats or violence, no)- obtained by any direct or implied
promise however slight, nor by the exertion of any improper
influence.



An Entry made by a Deceased Person against Interest is
admissible for all purposes.

TAYLOR v. WITHAM. [1876]
(45 L. J. Ch. 798 ; L. E. 3 Oh. 1). 605.)

The question iu this action was whether a sum of 2,000/.
advanced by William Taylor, who had since died, to "Witham
was a loan or a gift iu the nature of a marriage portion. It
was sought to put in evidence certain entries in the deceased's
private cash-book which showed that payments had been made
by way of interest and principal by Witham to Taylor.

Held, by the Court of Appeal, that the evidence was
admissible.

There is an established rule in the Courts of this country
that an entry against the interest of the man wJio makes it
is receivable for all purposes. . . . Of course if you show
aliunde that the man had a particular reason for making
it, and that it was for his interest., you may destroy the
value of the evidence altogether; but the question of admissi-
bility is not a question of value. The entry may be utterly
worthless whi n you get it in if you show any reason to
believe that he had a motive for making it, and that though
apparently against his interest, it really was for it. But



HEARSAY EVIDENCE. 345

that is a matter for subsequent consideration when you
consider the value of the testimony.

Note. — Higham v. Ridgway, 10 East, 109, is an oft-quoted
instance of this rule. In that case the entry of a surgeon's
attendance at a confinement, the fee for which was marked as
•'paid," was held to be admissible as evidence of the date of birth
of the infant.



Parol Evidence may be given of the Contents of a Will or any lost
Document. All Statements made by a Testator prior or
subsequent to the execution of a Will are admissible as
Evidence of its Contents.

SUUDEN v. ST. LEONAEDS. [1876]
(45 L. J. P. 49 ; L. E. 1 P. D. 154 ; 34 L. T. 372 ; 24 W. R. 800.)

Lord St. Leonards, who was possessed of considerable real and
personal estate, duly made and executed a holograph will, to
which at different times he added eight codicils. The will and
codicils were kept in a common box accessible to the inmates of
the house. Upon the testator's death the will was missiug, and
was never found. Thereupon a daughter of the testator wrote
out the contents of the will from memory, there being no draft
or copy of it. The daughter had lived with the testator all her
life ; he had constantly consulted her about the will, and
explained its provisions to her, and she had from time to time
assisted him to make and alter it. It was admitted that there
were some ulterior limitations of the real estate, and some small
legacies which the daughter could not remember, but her
veracity and honesty of purpose were not impugned by those
who opposed probate. By the will the daughter took a con-
siderable share in the testator's property, and particularly in the
residuary personal estate. Her statement of the will was in
some degree corroborated as to the realty by the codicils, and as
to the personalty by other papers of the testator found in the



346 EVIDENCE.

box, and also by his verbal declarations made after the execu-
tion of the will to his friends and relatives, but there was no
direct corroboration of the residuary bequest to the daughter.

Held, by the Court of Appeal, that being satisfied that
there was sufficient evidence to rebut the presumption of the
testator's having destroyed the will u animo revocandi,"
and being also satisfied that the contents of the will were
substantially as stated by the daughter, that probate of the
will as written down by the daughter should be granted.

That declarations made by the testator, whether before or
after the execution of the ivill, were admissible as evidence
of its contents.



Hearsay Evidence is admissible of Reputation in Matters of
Public Interest, but not of Individual Rights.

R. v. BERGER.

(63 L. J. Q. B. 529 ; (1894) 1 Q. B. 823 ; 10 E. 245; 70 L. T. 807 ;
42 W. R. 541 ; 17 Cox, C. C. 761 ; 58 J. P. 416.)

The defendant was indicted for obstructing a highway,
namely, the Great North Road, in the parish of Finchley, in
the county of Middlesex, by enclosing a strip of land previously
unenclosed and lying between his own laud and the public
footpath. The case was tried iu the Queen's Bench Division.

In addition to other evidence given on behalf of the prosecu-
tion, a map attached to an enclosure award made in 1814 was
tendered and also an enlarged drawing of a part of the map.

It was not disputed that the Great North Road was a high-
way, and the map was not tendered in order to prove this, but
for the purpose of showing the boundary of the highway at that
time, and that the strip of land in dispute then formed part of it.



HEARSAY EVIDENCE. 347

The admission of the map in evidence was objected to on the
part of the defendant, but the judge overruled the objection
and admitted it.

Held, by the Divisional Court, that the evidence had
been tvrongly admitted, and directed a new trial.

The map was made by one of the public, and therefore
it could not have been excluded if it had been put in
evidence upon the point as to tvhether the road teas a high-
way, inasmuch as that is a matter of public interest. But
that point was not in dispute, and the authorities referred to
show that, although hearsay evidence is admissible as
evidence of reputation in matters of public and general
interest, it is not admissible as evidence of particular facts
from which an inference may be drawn in respect of indi-
vidual rights. If the contest had been whether the road
was a public highway or not, the map would have been
admissible as evidence of reputation to show that there was
a public highway there, but it is not admissible to show the
boundaries of the highway.



In "Pedigree Cases" Evidence of the Conduct or a Statement of
a Relative made ante litem motam are admissible. On this
principle an entry in a Bible of the Birth of a Child is
admissible.

BERKELEY PEERAGE CASE. [1811]

(4 Campbell, 401 ; 14 R, R. 782.)

William Fitzharding Berkeley, the claimant, was born on
the 26th December, 1786. He alleged that his father and
mother were married in the parish of Berkeley on the 30th of
March, 1785. They were likewise married in the parish of



348 EVIDENCE.

St. Mary, Lambeth, on the 10th of May, 1796, till which time
Lady Berkeley did not appear as his lordship's wife ; nor was
the claimant till some time after treated as their legitimate son.
They had several children after the second marriage. The
only question before the House of Lords respected the legiti-
macy of the claimant ; and that depended entirely upon the
reality of the first marriage alleged to have taken place between
his parents.

Thereupon the judges were summoned, and upon three
questions submitted by the House of Lords for their considera-
tion came to the conclusion that upon the trial of an ejectment
respecting Black Acre between W. F. Berkeley and B., in which
it was necessary for W. F. Berkeley to prove that he was the
legitimate son of the Earl of Berkeley —

(1) That W. F. Berkeley could not give in evidence a depo-
sition made by the Earl of Berkeley in a cause in a Chancery
action instituted by W. F. Berkeley against a third party in order
to perpetuate testimony to the alleged fact, disputed by that third
party, that he was the legitimate son of the Earl of Berkeley, in
which case he claimed an estate in remainder in Whiteacre,
which was also claimed in remainder by the third party. B.,
the defendaut in the ejectment, did not claim Black Acre under
either W. F. Berkeley or the defendant to the Chancery suit.

(2) That in a matter of pedigree W. F. Berkeley could give in
evidence an entry in a Bible in which Bible the Earl of Berkeley
had made an entry in his own handwriting that W. F. Berkeley
was his eldest son born in lawful wedlock, by his wife, on the
1 st day of May, 1778, and signed by the Earl of Berkeley himself.

(3) That in a matter of pedigree such an entry may be given
in evidence even though the Earl of Berkeley had declared that
he had made the entry for the express purpose of establishing
the legitimacy and the time of the birth of his eldest son,
"W. F. Berkeley, in case the same should be called in question
in anj r case or in any cause whatsoever by any persm after the
death of him, the said Earl of Berkeley.

The House of Lords, acting on the opinion of the judges,



HEARSAY EVIDENCE. 349

rejected the deposition of Lord Berkeley made in the Chancery
action on the ground that, being a declaration made after a
previous dispute, it was made post litem motam, and could not be
received.

As regards the entries in the Bible, the House of Lords
agreed to the admissibility of such entries, whether made in a
Bible or in any other book, for, iu the words of Eldon, L. C,
" if the entry be the ordinary act of a man in the ordinary
course of life, without interest or particular motive, this, as the
spontaneous effusion of his own mind, may be looked at without
suspicion and received without objection. Such is the contem-
poraneous entry in a family Bible by a father of the birth of a
child. But a doubt had been entertained upon this point, and
it was fit that it should be solemnly decided. I agree to the
admissibility of similar entries in other books. There is a great
difference between the competency of evidence and the credit
to which it is entitled."

On the 28th June, 1811, the Committee of Privileges
resolved, nemine dissentiente, that the claimant had not
made good his claim to the Berkeley Peerage.



A Declaration in a Pedigree Case may consist of a Statement of
Family Reputation.

DOE v. GEIFFIN. [1812]
(15 East, 293; 13 E. B, 474.)

In a trial for ejectment evidence was given by one of the
family that, many years before, Thomas Griffin, a younger
brother of the person last seised, had gone abroad, and that the
repute of the family was that he had died there. The witness
said she had never heard in the family of his having been
married.



350 EVIDENCE.



field, this was primfi facie evidence that Thomas Griffin
ivas dead without lawful issue, to entitle the next claimant
by descent to recover in ejectment.



Evidence given in a former Suit is admissible in a subsequent
Action, provided the issue is the same and the parties in the
subsequent Action are privies to the parties in the first
Action.

LLANOVEE v. HOMFEAY. [1881]
(L. E. 19 Ch. D. 224 ; 30 W. E. 557.)

In 1815 a bill was filed by four customary tenants of the
Manor of Abercarne for and on behalf of themselves and all
other the customary tenants against Benjamin Hall, the lord of
the manor, claiming the right to work minerals on the land
they held as tenants. In these proceedings certain witnesses
were examined dc bene esse. No further steps were taken. In
1871 a similar bill was filed by Messrs. Phillips on behalf of
themselves and all the customary tenants against the heirs of
Benjamin Hall. The plaintiffs in the second action did not
derive title from any of the plaintiffs in the first action.

It was sought to give in evidence the depositions taken in the
first proceedings.

Held, that this evidence was admissible in the present
action. The previous suit was a suit by persons who were
privies in estate with the present tenants ; they zvere not
indeed owners of the same estate, but, as the suit was on
behalf of all the tenants, it included the then owners of the
estate, now belonging to the Messrs. Phillips^ and on the
other side there was a lord of /he manor, who is now repre-
sented by the present lord of the manor. Therefore it was
a suit between persons privy in estate to the parties in the



OPINIONS. 351

present action. The issue in that suit zvas the same as that
in the present action, and the evidence in one is, therefore,
admissible in the other. Why should the evidence not be
admissible ? The lord had an opportunity of cross-exam-
ining, and the evidence answers every condition of admissi-
bility, the last condition being that the witnesses must be
dead or not producible, which, of course, is the case now
with these old witnesses.



OPINIONS.



The Opinion of a Person is not as a rule admissible in Evidence.
Expert Witnesses may give their Opinions in matters of
Science or Art.

FOLKE8 v. CHADD. [1782]
(3 Douglas, 157.)

This was an action of trespass for cutting a bank, where the
question was whether the bank, which had been erected for the
purpose of preventing the overflowing of the sea, had caused the
choking up of a harbour. It was sought to give the opinions
of scientific men as to the effect of such an embankment upon
the harbour. This evidence was objected to on the ground that
the verdict of the jury must be built entirely on facts and not
on opinions.

Held, per Mansfield, C. J., I In' widence was admissible
as being evidence of a matter of science. The expert witness
called understands the construction of harbours, the causes
of their destruction, and how remedied. In matters of
science no other tvitnesses can be called. An instance fre-



:}52 EVIDENCE.

quently occurs in actions for unskilfully navigating ships,
and when such questions come before me I always send for
some of the brethren of the Trinity House. I cannot
believe that where the question is whether a defect arises
from a natural or an artificial cause, the opinions of men
of science are not to be received. Handwriting is proved
every day by opinion ; and for false evidence on such
questions a man may be indicted for perjury.



Evidence as to comparison of Handwriting is admissible if given
by a Witness who from past experience is skilled in com-
parison of Handwriting. He need not have gained his skill
professionally.

R. v. SILYERLOCK. [1894]

(63 L. J. M. C. 233 ; (1894) 2 Q. B. 766 ; 10 R. 431 ; 72 L. T. 298 ;

43 W. R. 14; 18 Cox, C. 0. 104; 58 J. R. 788.)

In the course of the trial it was proposed to prove a certain
draft advertisement and certain letters alleged to be in the prisoner's
handwriting by comparison of the handwriting in such docu-
ments with that of admitted handwriting of the prisoner ; and
the solicitor for the prosecution was called as an expert for this
purpose.

Counsel for the prisoner objected that the solicitor was not an
expert. The objection was overruled and the evidence admitted.

Held, by the Court for Crown Cases Reserved, per Lord
Russell, C. J. : —

" This is an illustration of evidence as to opinion, and it
is quite clear thai the tvitness must be skilled (peritus). But
I cannot assent to the proposition that he must be skilled in
the ivay of his business. The question is, Is he peritus ?
/ know of no case ivhich requires /hat a man who is skilled



CHARACTER. 353

in comparison of handwriting, who, from past experience, is
able to give an opinion upon a question of handwriting, is to
he excluded because he has not gained that skill in the ivay
of his profession. But in tJtis particular case it is un-
necessary to consider this point, for the man ivas peritus,
and peritus in the wag of his business. The case states
that l he had, quite apart from his professional tvork, for
some gears — that is, since 1884 — given considerable atten-
tion and study to handwriting, and especially to old
parish registers and wills.' He said he had on several
occasions professionallg compared evidence in handivriting,
but said he had never before given evidence as to hand-
writing. He stated that he had formed an opinion that the
prisoner was guilty before he began to compare the hand-
writing.

11 When it is determined that evidence is admissible, the
rest is a (question of what vjeight is to be given to UP



CHARACTER.



If a Prisoner on his Trial gives evidence that his Character is
good, it is open for the Prosecution, by way of reply, to
prove that the prisoner's Character is bad. Evidence of
Character must not be evidence of Particular Facts but
of General Reputation only having reference to the nature
of the charge.

E. v. EOWTON. [1865J

(34 L. J.M.C.57; 11L.T.745; 13W.E. L3G; 11 Jur. (N. S.) 325 ;

10 Cox, 0. C. 25; L. & C. 520.)

On a trial for an indecent assault where the defendant had
given evidence of his good character, a witness called by the
J. a a



354 EVIDENCE.

prosecution to rebut such evidence was asked : " What is the
defendant's general character for decency and morality of con-
duct ? " The witness said : " I know nothing of the neigh-
bourhood's opinion, because I was only a boy at school when I
knew him ; but my own opinion, and the opinion of my
brothers, who were also pupils of his, is that his character is
that of a man capable of the grossest indecency and the most
flagrant immorality."

Held, by the Court for Crotvn Cases Reserved, that this
answer was not admissible in evidence.

If a prisoner on his trial gives evidence that his character
is good, it is open for the prosecution, by way of reply, to
prove that the prisoner's character is bad. Evidence of
character must not be evidence of particular facts, but
must be evidence of general reputation only having reference
to the nature of the charge.



JUDICIAL NOTICE.



General Customs are judicially noticed.

BRANDAO v. BARNETT. [1846]
(3 C. B. 519 ; 12 C. & F. 787 ; 69 E. R. 204.)

One Edward Burn bought on behalf of the plaintiff, and
with the plaintiff's money, certain exchequer bills, which Burn
deposited in a box that he kept at his bankers, and himself
retained the key. Whenever it became necessary to receive
interest on the exchequer bills, and to exchange them for new
ones, Burn used to take them out of the box and, in the usual
course of business, hand them to the bank. As soon as the
bank obtained the new bills they would credit Burn's account



JUDICIAL NOTICE. 355

with the interest, give the bills over to Burn, who replaced them
in the box, which he handed back to the bank. The exchequer
bills were never entered to Burn's account, nor had the bankers
any notice or knowledge that they were not the property of
Burn.

On the last occasion the bills were handed over to the bank
by Burn in the usual way, and on account of his illness the
new bills remained in their hands for nearly two months right
up to the time of Burn's failure. Burn's account being con-
siderably overdrawn the bank, on his failure, claimed a lien on
the bills.

Held, in an action by the plaintiff, that the general lien
of bankers is part of the laiv merchant, and is to be
judicially noticed, for when a general usage has been
ascertained and established it becomes part of the law mer-
chant which courts of justice are bound to know and
recognise, and, therefore, bankers most undoubtedly have a
general lien on all securities deposited with them as bankers
by a customer, unless there be an express contract or cir-
cumstances that show an implied contract inconsistent with
lien.

In this case the exchequer bills were not deposited with
the defendants as bankers, and there was an implied agree-
ment on the part of the defendants inconsistent with the
right of lien, which the defendants claimed. The plaintiff
was therefore entitled to judgment for the return of the
bills.

Note. — Particular customs must be proved.



A A 2



356 EVIDENCE.

DOCUMENTARY EVIDENCE.



In order to prove a Document which has been attested the
Attesting Witness must be called if his attsndance can be
procured. Proof of Acknowledgment of Obligor does not do
away with the Obligation.

ABBOT v. PLUMBE. [1779]
(1 Douglas, 216.)

In this action, to prove the petitioning creditor's debt which
arose by bond, a witness was called, who swore that the bankrupt
had acknowledged to him that he owed the debt. The sub-
scribing witness was an attorney who lived in Somerset. He
was not called, nor was there any proof that he had been
required to attend or that he could not have been procured.

Held, that it was necessary, in order to recover on a
bond, to call the subscribing witness. His attendance
cannot be dispensed with, unless it appears that his attend-
ance could not be procured. It was formerly dot/bird
whether, if the subscribing witness denies the deed, you can
call other witnesses to prove it. But it has now been deter-
mined that in such a case other witnesses mag be examined.



Secondary Evidence of the Contents of a Document of which no
Notice to produce has been given is inadmissible.

E. v. ELWOETHY. [1867]

(37 L. J. M. C. 3 ; L. E. 1 C. C. E. 103 ; 17 L. T. 293 ;

16 W. E. 207 ; 10 Cox, C. C. 579.)

Kl worthy Avas tried for perjury by Willes, J., and a jury at
the Old Bailey. It was alleged by the prosecution that a state-



DOCUMENTARY EVIDENCE. 357

ment Elworthy had made at the trial of one Cannon that there
was not a draft of a certain statutory declaration was false, and
that in making such a statement he had committed perjury.
No notice to produce had been given, nor was there any subpoena
duces tecum to the prisoner's partner to produce the alleged
draft, and the prisoner's counsel objected that secondary
evidence could not be given thereof. Secondary evidence of
the document was admitted subject to the opinion of the Court
for Crown Cases Reserved as to the propriety of that course, and
the prisoner was convicted.

Held, by the Court for Crown Cases Reserved, the prose-
cutor might have contented himself with giving evidence of
the existence of the document, but he chose to go farther
and give evidence of its contents. No notice to produce
having been served upon the prisoner, and there being nothing
on the indictment to give notice to the prisoner that he tvould
be required to produce the original draft, secondary evidence
of its contents tvas not admissible, and the conviction must,
therefore, be quashed.



Secondary Evidence of the Contents of a Document may be given
where a Document has been lost or destroyed and a proper
Search has been made for it. The amount of Search neces-
sary depends on Value of Document.

BREWSTER v. SEWELL. [1820]

(3 B. & Aid. 296; 22 B. R. 395.)

This was an action brought by the plaintiff to recover damages
for libel by the defendant. Some six years before the action
the plaintiff, under a fire policy, had recovered for the loss he
had sustained by a fire. The libel alleged that he had made a
fraudulent claim with regard to this fire. The policy had
been returned to the insurance company after the fire, and



358 EVIDENCE.

when paid had become useless paper, which the agent of the
company believed he had returned to the plaintiff. The clerk
to the plaintiffs solicitor proved that he went to the plaintiff's
house to search for the policy, when the plaintiff showed him
every drawer where he usually kept his papers ; that he examined
such drawers, and every other place where he thought it likely
to find such a paper, without finding it.

Held, that this was sufficient to entitle the plaintiff to
give secondary evidence of the contents of the policy.

In a case of this kind, where the document in question is
practically ivaste paper, very slight evidence of its destruction
is necessary ; but where the document is an important one,
or if there be reason to suspect that the party not producing



Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 26 of 29)