Philip Bertie Petrides.

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Held, that the pardon took away the privilege of the
witness so far as any risk of prosecution at the suit of the
Crown was concerned ; and that though the witness might
still be liable to an impeachment by the House of Commons
notwithstanding the pardon, by reason of the 12 6r 13
Will. 3, c. 2, an impeachment tvas so unlikely that the
witness could not be said to be in any real danger, and he
was rightly compelled to answer.

In order to entitle a witness to the privilege of not
answering a Question as tending to criminate him, the Court



374 EVIDENCE.

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 amiver. But if the fact of the
ivitness being in danger be once made to appear, great lati-
tude should be alloived to him in judging of the effect of any
particular question. The danger to be apprehended must be
real and appreciable with reference to the ordinary operation
of law in the ordinary course of things, and not a danger of
an imaginary character, having reference to some barely
possible contingency.



The uncorroborated Evidence of an Accomplice implicating
another Prisoner is not admissible against him.

EEX v. DIBBLE, ALIAS CORCOEAN. [1908]
(72 J. E. 498.)

Dibble and White were indicted for burglary, which it was
alleged by the prosecution they had committed in the company
of Williams. Williams and White both made confessions, and
in a written statement implicated Dibble. There was no other
evidence against Dibble except the circumstance that Dibble,
although he at first denied knowing Williams and White, sub-
sequently admitted he knew them. At the trial Dibble and
White pleaded not guilty. White went into the witness box
and was cross-examined about his confession which he now said
was false. Williams, who admitted that he was guilty, swore
that neither Dibble nor White were guilty, thereupon his con-
fession was put to him in cross-examination.

The two confessions implicating Dibble thus came to the
notice of the jury, and although the judge in summing up told
the jury to disregard these confessions, and advised tliem to



EXAMINATION OF WITNESSES. 375

acquit Dibble, they nevertheless found him guilty. Dibble
appealed.

Held, by the Court of Criminal Appeal, the appeal must
be allowed and the conviction quashed.

u The difficulty arises in part from the fact that White
and the appellant were tried together, and evidence against
White was heard by the Jury which, though it concerned the

appellant, ivas not admissible in evidence against him

The learned Recorder cautioned the jury, and did his best
to prevent them acting on those statements to the prejudice
of the appellant. But the fact remains, these statements
did come to the minds of the jury. We cannot help feeling
that the jury may have thought that Williams and White
told the truth about the appellant in their written statements.
All this is beside the point if there was substantial evidence
apart from those statements. . . . But we do not think that
this evidence, apart Jrom the written statements, is such that
a jury could convict upon it."



EXAMINATION OF WITNESSES.



Any question may be put to a Witness in cross-examination as to
Credit, but where the question is collateral to the matter in
issue the answer must be taken as conclusive, and other
Witnesses cannot be called to contradict him.

HAEEIS v. TIPPETT. [1811]
(2 Campbell, 637; 1 1 P. E. 767.)

A witness for the defendant was asked in cross-examination
whether he had not attempted to dissuade a witness examined



376 EVIDENCE.

for the plaintiff from attending the trial. He swore positively
that he had not.

The counsel for the plaintiff then proposed to call back the
other to contradict him.

Held, by Lawrence, J. : " That cannot be done. You must
hike his answer. Had this been a matter in issue, I would
have alloived you to call witnesses to contradict what the
last witness has sworn ; but it is entirely collateral, and
you must take his answer. 1 will permit questions to be
put to a witness as to any improper conduct of which he
may have been guilty for the purpose of trying his credit ;
hut when these questions are irrelevant to the issue on the
record, you cannot call other witnesses to contradict the
answers he gives. JS T o witness can be prepared to support
his character as to particular facts, and such collateral
inquiries tvould lead to endless confusion."



Where a Witness is asked if he has made a certain statement
which is material to the issue and at variance with other
parts of his Evidence, and he denies that he has made such
statement, Evidence may be given to show that he did in fact
make the statement. Where a witness is examined as to a
fact with a view to show that he is biassed and he denies the
fact, Evidence may be offered in contradiction to prove the
fact.

ATTOENEY-GENEEAL v. HITCHCOCK. [1847]
(16 L. J. Ex. 259; 11 Jur. 478; 1 Ex. 91 ; 74 E. E. 592.)

In an information against the defendant for using a cistern
in the making of malt, without making an entry thereof, as
required by the Act of Parliament, a witness was asked by the
defendant's counsel if he had not stated to one Cook that the



EXAMINATION OF WITNESSES. 377

Excise officers had offered him 20/. to say the cistern had heen
used. The witness having denied the alleged statement —

Held, that evidence could not be given to shoiv that he
had, in fact, made the statement.

When the answer given is not material to the issue, public
convenience requires that it be taken as decisive, and that
no contradiction be alloived. In the present case the witness
was asked whether he had been offered a bribe to say the
cistern had been used. This was not material, nor did it
qualify what had gone be/ore, for his being offered a bribe
did not show that he was not a fair and credible witness.

Where, however, a witness is asked if he has made a
certain statement which is material to the issue and at
variance with other parts of his evidence, and he denies that
he has made such statement, evidence mag be given to shoiv
that he did, in fact, make the statement.

Where a witness is examined as to a fact with a
view to show that he is biassed as to the cause, and he
denies the fact, evidence mag be offered in contradiction to
prove the fact.



A Witness called by one Party may not be cross-examined by
that Party unless the Judge decides that the Witness is so
hostile that the Party who called him should be allowed to
cross-examine him. This rule applies even where one Party
calls his Opponent as a Witness.

PRICE v. MANNING. [1889]

(58 L. J. Ch. 649 ; L. E. 42 Ch. D. 372 ; 61 L. T. 537 ;
37 W. R. 785.)

At the trial of this action before Kay, J., counsel for the
plaintiff called the defendant to prove certain correspondence.



378 EVIDENCE.

The defendant was then cross-examined by his own counsel,
and on re-examination plaintiff's counsel desired to treat the
defendant as a hostile witness and to cross-examine him.
Kay, J., refused to allow him to do so.

Held, hi) lite Court of Appeal, that the learned judge was
right. It is a matter of discretion of the judge who sees
the witness, and can determine from Ins manner whether he
is so hostile that the plaintiff should be allowed to cross-
examine him. The judge having exercised his discretion,
the Court of Appeal ought not to interfere with the exercise
of that discretion.

Note. — 28 Vict. c. 18, s. 3, lays down : — " A party producing a
witness shall not be allowed to impeach his credit by general evi-
dence 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 j udge, 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 occa-
sion must be mentioned tu the witness, and he must be asked
whether or not he has made such statement."



A Witness may refresh his Memory by referring to Entries made
either by himself at the time the events occurred or where
written by another in cases where he regularly examined
the Entries soon after they were written.

BUEEOUGH v. MAETIN. [1809]
(2 Campbell, 112 ; 11 B. B, 679.)

In an action on a charter-party, a witness was called to give
an account of the voyage, and the log-book was laid before him
for the purpose of refreshing his memory. Being asked whether
he had written it himself he said that he had not, but that from



DEPOSITIONS. 379

time to time he examined the entries in it while the events were
fresh in his recollection, and that he always found the entries
accurate.
This evidence, though objected to, was admitted.

Held, by Lord Ellenborough : " If the witness looked at
the log-book from time to time while the occurrences men-
tioned in it ivere recent and fresh in his recollection, it is as
good as if he had written the whole with his own hand.
This collation gave him an ample opportunity to ascertain
the correctness oj the entries ; and he may, therefore, refer
to these, on the same principles that witnesses are allowed
to refresh their memories by reading letters and other docu-
ments which they themselves have written"



DEPOSITIONS.



The Deposition of a Witness taken before a Magistrate upon a
criminal charge is admissible in case the Deponent is dead or
so ill as not to be able to travel, or kept out of the way by
the procurement of the Prisoner.

E. v. SOAIFE. [1851]

(20 L. J. M. C. 229 ; 15 Jur. 607 ; 17 Q. B. 242 ; 2 Den. 281 ;
5 Cox, 243.)

Scaife, Rooke and Smith were indicted for felony. At the
trial, before Cress well, J., the deposition of a witness, Ann
Garnett, which appeared to be regularly taken under 11 & 12
Vict. c. 42, s. 17, was tendered in evidence against the prisoner
Smith under the following circumstances : —

Garnett had been placed in lodgings by the police, in order
to secure her attendance at the trial, and while there some
persons had called upon her and given her money, and she had
afterwards disappeared and could not be found when the trial



380 EVIDENCE.

took place. There was evidence to connect Smith with these
persons, but none to show that either Scaife or Kooke was
aware of the circumstances.

The learned judge admitted the deposition to be read in
evidence against the prisoners, on the ground that the witness
had been kept out of the way by the prisoner Smith. The jury
found Scaife and Rooke guilty, but acquitted Smith.

A rule nisi for a new trial was afterwards obtained by Scaife
and Rooke on the ground that this evidence was improperly
admitted.

Held, by the Court for Crown Cases Reserved, that the
rule must be made absolute as the evidence against Scaife
and Rooke was improperly admitted.

The prisoner Smith having resorted to a contrivance to
keep the witness out of the way, the evidence would be ad-
missible against him, but it would not be admissible on
that ground against the other prisoners.



( 381 )



INDEX.



ABROAD,

liability for torts committed. 154.

ACCEPTANCE,

may be express or tacit, 1.
mode of, if none indicated, 17.
where indicated, 18.
must be communicated, 19.

made within reasonable time, 21.
need not reach offeror, 23.
must be unqualified, 23.
qualified, equivalent to refusal, 25.

what constitutes, 26.
inquiry as to offer is not a refusal, 27.
place of, governs contract, 29.
of goods delivered on sale or return, 30.
subject to execution of formal contract, 44.

ACCORD AND SATISFACTION.

payment of smaller in satisfaction of larg - er sum, 59.

ACCOUNTS,

surcharging and falsifying settled, 249.

ACT ADOPTING TRANSACTION, 30.
ACT OF GOD. See God.
ADEMPTION, 240, 241

ADMINISTRATION,

executor de son tort, 251.

primary liability of personalty, 252.

ADMIRALTY,

salvage, 119, 294.

collision where compulsory pilotage, 295.
jettison, general average, 296.
collision, contributory negligence, 296.

AGENCY, 129-143.

See Principal and Agent.

AIR THROUGH DEFINED CHANNEL,

right to, 200.



3«2 INDEX.

ALTERATION OF WRITTEN INSTRUMENT,

effect of, 128.

ANIMALS,

wild and domestic, owner's liability, 118.
cannot generally be stolen, 319.

ASSIGNMENT OF CONTRACT, 98—103.

executoiy contract generally unassignable, 98.
absolute assignment, assignor cannot sue after, 99.
Judicature Act, 99.

AUCTION,

sale without reserve, 16.
owner of goods may not bid, 16.
liability of auctioneer, 16.

AUCTIONEER,

agent for vendor and purchaser, 136.
signature to memorandum of clerk of, 136.

AUTHORITY

coupled with interest is irrevocable, 143.

AVERAGE. See Admiralty.



BAILEE,

liability of, 61.

BANK NOTE,

material alteration avoids, 128.

BANKRUPTCY,

discharge of bankrupt releases all debts, 129.
married woman, restraint on anticipation, 243.
"reputed owner," " order and disposition," 273, 274.
mutual credits may be set off, 275.
onerous lease may be disclaimed by trustee in, 276.
fraudulent conveyance by bankrupt, 277.

preference, what is, 277.
Court may inquire into consideration for judgment, 278.

not a debt-collecting ageucy, 279.
refusing to make receiving order for " sufficient cause," 279.
annulment of bankruptcy is discretionary, 280.
undischarged bankrupt, power over after-acquired property, 281,

282.
debts incurred after notice of act of bankruptcy, 283.
married women, 283.

BIGAMY. See Criminal Law.

BILLS OF EXCHANGE. See Negotiable Instruments.
payment of vrager by, 85.
lost, indemnity by loser, 102.



INDEX. 383



BILLS OF LADING,

stoppage in transitu defeated, 102.

BLASPHEMOUS LIBEL. See Criminal Law.

BURGLARY. See Ceiminal Law.



CAPACITY OF PARTIES, 62—66. See Infants ; Lunatics.
foreign sovereigns are extra jurisdiction, 62.
corporations suing for libel, 156.
as witnesses, 371 — 374.

CARRIERS. See Railway Company.

special contracts, "just and reasonable," 54.

liability of, 106, 107.

doctrine of identity of passengers with, 180.

CHAMPERTY, 87.

CHARITIES,

cy-pres doctrine, 235.

rule against perpetuities does not apply to, 237.

COERCION,

producing breach of contract by, 175.

inducing persons by coercion not to contract, 175.

COLLISION AT SEA,

contributory negligence, 180.

identity of passenger with carrier, 180.

COMPANY,

person contracting on behalf of company before incorporation, 134.

one-man company is legal, 259.

memorandum limits powers of, 260, 261.

acts ultra vires the, 260.

shareholders' rights contained in memorandum, 261.

persons dealing with, duty to see transaction not inconsistent with

powers of, 262.
preference shares, right to create, 263.
liability for torts of agent, 264.
certificate may act as estoppel, 265.
forged by secretary, 266.
when Court will interfere with internal administration of, 267.
rescission, innocent misrepresentation, reasonable time, 268.

after winding-up, 269.
debentures, 270.
shares for other than cash consideration, 271.

CONDITIONS AND WARRANTIES, 114-119.
breach of condition, remedies for, 111.
implied, on letting furnished house, 114.
warranty must be made during negotiations, 114.
railway companies are not insurers of passengers, 115.

insurers of luggage, 116, 117.
goods sold by description, 118.
chartered ship must not deviate, 119.



384 INDEX.

CONSENT IN CONTRACT,

reality of, 67—80.

CONSIDERATION, 55—62.

necessary in simple contracts, 55.

adequacy of, 55, 271.

definition of, 56.

must move from promisee, 56.

stranger to, may not sue, 57.

past consideration is no, 57.

forbearance to sue when a good, 58.

promise to perform existing contract is no, 59.

payment of smaller in satisfaction of larger sum, 59.

compositions, 60.

gratuitous bailee, liability for negligence, 61.

illegal or immoral, 62.

illegal contracts by deed, 92.

past illicit cohabitation, 94.

originally unlawful, fresh consideration, 96.

promise by discharged bankrupt to pay debts, 129.

for fraudulent conveyance by bankrupt, 277.

CONTINGENT REMAINDERS. See Real Peopeety.

CONTRACT, 1—143.

CONTRACT, BREACH OF,

breach of condition, effect of, 111.

suing before date of performance for, 112.

right of other party to broken contract to fulfil it, 113.

CONTRIBUTION BETWEEN JOINT TORT-FEASORS,
permissible only where one party is innocent, 173.

CONTRIBUTORY NEGLIGENCE. See Negligence.

CONVERSION,

equitable, 237.

CONVEYANCE,

fee simple, words necessary to convey, 187.

CONVEYANCING. See Real Peopeety and Conveyancing.

CORPORATIONS,

when contract under seal not necessary, 35.
urban authorities, contracts over 50?. . .36.
libel actions by, 156.
liability for misfeasance, not non-feasance, 157.

COVENANTS. See Land.

CRIMINAL LAW,

agreements to stifle criminal proceedings, 87.

mem rea necessary to constitute crime, 307.

bigamy, 307.

insanity as a defence, 308.

murder, necessity of hunger does not excuse, 310.

homicide in deb nee of life is excusable, 310.

burglary, 311—313.



INDEX. 385



CRIMINAL LAW— continued.
forgery, 313, 314.
larceny, 315—321, 323.

a person cannot steal his own property, 315.
taking under bona fide claim of right, 316, 317.
wife cannot generally steal from husband, 318.
larceny by bailee, 319.
wild animals cannot be stolen, 319.
finder of lost article, 320.
stealing by finding, 320.
receiving, 322, 323.
embezzlement, 323.
false pretences, 324 — 328.

must be of existing fact, 324.

by silent conduct, 325.

by implication, 325.

by drawing cheque, 326.

must induce, 327.

difference between larceny and, 328.
blasphemous libel, 329.
riot and unlawful assembly, 330.

CY-PRES DOCTRINE, 235.



DAMAGES,

measure of, 120.

penalty or liquidated, 121, 122.

must not be too remote, 149, 151.

be natural and probable result of wrongful act, 149, 151.
caused by mental shock, 174.
for not conveying land, 210.
rescission not granted in addition to, 244.

DANGEROUS THINGS,

liability for bringing them on to one's premises, 147, 148, 149.

premises, 178, 179.

shifting on to land of another, 183.

DEARIE v. HALL,
rule in, 218.

DEATH,

discharge of personal contract by, 103, 127.

DECEIT. See Fraud.

DEED,

delivery may be constructive, 34.
contracts by corporation, 35.

urban authorities over 50?., 36.
may be rescinded or varied by parol, 37, 38, 359.
consideration must not be illegal or immoral, 62.

.T. C C



386 INDEX.

DEFAMATION,

slander of title, 155.

libel, death of libeller before action, 155.

when corporations may sue. 156.
privilege, report of legal proceedings, 165.
newspaper reports of legal proceedings, 165.
malice, 165, 166.
innuendo, 167.

publication to wife of libel on husband, 168.
innocent disseminators of libel, 169, 300.
criticism of public work, 169.
fair comment, 169.
consolidations of actions for, 300.

DISCHARGE OF CONTRACT, 104-113, 123—129.

DIVORCE,

adultery by both parties, 285.
desertion for two years by husband, 285.
condoned adultery may be revived, 286.
condoning adultery after decree nisi, 287.
conduct conducing to adultery, 288.
remarriage before decree absolute, 289.
nullity, 290.

lex loci contractus governs marriage, 291.
children, custody of, 293.



EASEMENTS

to support of land, 194.

prescriptive title to, 194.

reservation in favour of owner's unsold land, 196.

of necessity, 196.

pass to purchaser of land, 197.

light, 195, 197, 198, 199.

how lost, 199.
air, 200.

ELECTION,

doctrine of, 238, 239.

EMBEZZLEMENT. See Ckiminal Law.

EQUITY,

acts in personam, property out of jurisdiction, 213.

where the equities are equal the law prevails, 214, 215.

when legal estate postponed to subsequent equitable estate, 215.

failure to require production of title deeds, constructive notice of

equitable charge, 216, 217.
legal estate once subject to equitable charge, effect of knowledge of

purchaser, 218.
priority by notice of assignment, 218.
rule in Dearie v. Rail, 218.
Qui prior est tempore potior est jure, 219.
rule in Rowe v. Dartmouth, 220.
perishable property to be enjoyed in succession, 220.
voluntary settlements, 13 Eliz., 221.



INDEX. 387

EQUITY— continued.

family compositions favoured, 222.

time of essence of contract, 222.

power improperly exercised, relief against, 223.

trusts and trustees, 225 — 235.

charitable trusts, 235.

conversion, 237.

election, 238, 239.

ademption and satisfaction, 240, 241.

equitable lien, 242.

married women's property, 243.

rescission, 244.

specific performance, 244.

injunctions, 245, 247, 248.

accounts, 249.

receivers and managers, 250.

administration, 251, 252.

ESTATES. See Eee Simple.
life estate, 187, 189, 190.
in tail, 188.

equitable estates, 188, 191.
life estate, waste, 189.
life estate, sale of heirlooms, 190.
future estates, 191.

devise to a person and his children, 192.
leaseholds, 201, 203.

ESTOPPEL. See Evidence.

EVIDENCE,

connecting documents by parol evidence, 47, 48, 49.

latent ambiguity, parol evidence to explain, 70.

province of judge and jury, 331, 332, 334.

relevancy to issue, 335 — 339.

conspirators, things said and done by, 335.

motive, preparation for crime and subsequent conduct, 337.

res gestce, 338.

dying declaration, 338.

hearsay, when admissible, 339, 346, 347, 349.

complaints of prosecutrix in sexual offences, 339.

facts showing system, 340, 341.

prisoner's failure to give evidence, comment on, 340.

similar offences showing scheme of fraud, 340.

declaration of a deceased person, 341, 344.

acts done in ordinary course of business, 341.

secondary evidence, 341, 345, 357, 358.

hearsay, generally inadmissible, 342.

admissions, 343.

confessions, 343.

declaration against interest, 344.

will, parol evidence of contents and statements of testator prior to

execution, 345.
pedigree cases, 347, 349.
perpetuation of testimony, 347, 350.
when evidence given in former suit admissible, 350.
opinions not usually admissible, 351.
experts, 351, 352.
handwriting, 352.

cc2



388 INDEX.

EVIDENCE— con tin ued.
character, 353.

general customs are judicially noticed, 354.
particular customs must be proved, 355.
secondary evidence, no degrees of, 358.
variation and abandonment of written agreements, 369.
written agreements,

incorporating custom into, 362.

explaining latent ambiguity in, 362.

incorporating collateral parol agreement, 363.

subject to unfulfilled condition, 364.
presumptions as to documents,

documents thirty years old, 365.

alterations in deeds and wills, 366.
presumptions,

death after seven years' absence, 367.

where sevei-al persons die in same calamity, 368.
estoppel,

misrepresentation acts as, 78.

certificate of company may act as, 265.

deed acts as, 369.

tenant may not deny landlord's title, 369.

judgment creates, 370.
competency of witnesses,

lunatics, 371.

solicitors and privileged communications, 372.

witness need not incriminate himself, 373.

accomplices must be corroborated, 374.
witnesses, examination of,

cross-examination as to credit, 375.
to show bias, 376.

as to previous inconsistent statement, 376.
of own witness, when hostile, 377.

witness may refresh his memory, 378.

depositions taken before magistrate, when admissible, 379.

EXECUTOR BE SON TOUT, 251.



FAIR COMMENT. See Defamation.

FALSE IMPRISONMENT,

railway company's liability, 160, 161.

FAMILY COMPOSITIONS

will be upheld, if no fraud, 222.

FEE SIMPLE

in legal estates. Words necessary in deed, 187.

in equitable estates. "Words of limitation not essential, 188.

FINDER OF GOODS,
title of, 184.
stealing by finding, 320.

FOREIGNER,
agent for, 138.



INDEX. 389

FORGERY. See Ceiminal Law.

FORM, 34-54.

See Deed ; Statute of Frauds.

FRAUD,

contracts induced by innocent third party, 67, 68.

signature to negotiable instrument obtained by, 67.

innocent misrepresentation, effect of, 73, 76, 268, 269.

constructive, 73.

motive immaterial of person guilty of, 73.

what constitutes, 74, 153, 171, 269.

statement of honest opinion not, 75.

innocent misrepresentation, contracts uberrima fidei, 75, 268.

non-disclosure is not usually, 77.

estoppel by wilful misrepresentation, 78.

deceit must deceive, 79.

In pari delicto, potior est conditio possidentis, 93.

innocent misrepresentation of the law, 93.

innocent misrepresentation of agent induced by fraud of principal,



Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 28 of 29)