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866. n. 3.

869. n. 6.

871. n. 3.

888. n. 5. 893. n. 9.

after "Ungley v. Ungley," add "S. C., 46 L. J. Ch. 854, per Ct. of App." add "Ronayne v. Sherrard, I. R., 11 C. L. 146."

add "Again, stock to which the Colonial Stock Act, 1877, applies, is personal estate, 40 & 41 V. c. 59, § 22."

add "In re Jones, 46 L. J., P. D. & A. 80."

add "A verbal authority given by a Hindu testator to another person to destroy his will will revoke the instrument, even though it be not destroyed; Maharajah Pertab Narain Singh v. Maharanee Subhao Kooer, L. R., 4 Ind. App. 228."

896. n. 9. add "But see In re Harris, Cheese v. Lovejoy, 46 L. J., P. D. & A., 66, per Sir R. Phillimore; L. R., 2 P. D. 251, S. C. nom. Cheese v. Lovejoy, per Ct. of App."

898. n. 2.

930. n. 5.

943. n. 1.

add "In re Harris, Cheese v. Lovejoy, 46 L. J., P. D. & A. 66, per Sir R. Phillimore; L. R., 2 P. D. 251, S. C. nom. Cheese v. Lovejoy, per Ct. of App."

add "Walsh v. Nally, I. R., 11 C. L. 337."

add "See Bathurst v. Errington, L. R., 2 App. Cas. 698, per Dom. Proc."

986. n. 1. after "Ward v. Hobbs," add "This decision has been reversed in the Ct. of App., 47 L. J., Q. B. 90, but the reasoning of the Lds. Js. appears to be very unsatisfactory. Therefore qu."

987. n. 5. after "Conway v. Belfast, &c.," add "S. C. aff. on App., I. R., 11 C.

988. n. 4.

1014. n. 2.

L. 345."

add "Skerritt v. Scallan, I. R., 11 C. L. 389."

add "Dooley v. Mahon, I. R., 11 Eq. 299."

1018. n. 2.

1024. n. 2.

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add "Travers v. Blundell, L. R., 6 C. D. 436, per Ct. of App.'
add "Edgeworth v. Johnston, I. R., 11 Eq. 326; Curtis v. Mackenzie
W. N., No. 45 of 1877, Ch. D. 213, per Jessel, M. R."

1083. n. 4. add "See Reg. Gen. of 1877, for Consist. Ct. of Lond., Ord. IX., r. 4, and Forms cited L. R., 2 P. D. 379, 382."

1083. n. 5. add "See same Reg. Gen., Ord. XI., r. 1, cited L. R., 2 P. D. 380.” 1090. 1. 13. after "reasonable sum," add note, "The witness so summoned is not entitled to the costs of employing a solicitor or counsel, Ex p, Waddell, In re Lutscher, L. R., 6 C. D. 328, per Ct. of App." 1096. n. 1. add This Act is now repealed by 18 & 19 V. c. 122, § 109, and the office of official referees of Metropolitan Buildings is abolished." 1121. n. 7. For 34 & 35 V. c. 9, § 13; id. c. 10, § 17,” read “ 40 & 41 V. c. 7, § 13; id. c. 8, § 18."

66

1172. n. 1. add "Where affidavits had been used on an interlocutory application the Court would not allow them, in opposition to the defendant's wishes, to be read at the hearing, and to be supplemented by the oral evidence of the deponents and by their cross-examination. Blackburn Union v. Brooks, 26 W. R. 57, in Ch. D. per Fry, J. ; L. R., 7 Ch. D. 68, S. C."

1172. n. 3. add "and this right to cross-examine the deponent will continue, though the affidavit be subsequently withdrawn by the party who has filed it. Keogh v. Leonard, I. R., 11 Eq. 365."

1172. n. 4. after " 27 & 28 V. c. 54, § 37, Ir.," add "Now repealed by 32 & 33 V. c. 42, § 21, Ir." Also add, at end, "See, too, Reg. Gen. of 1877 for Consist. Ct. of Lond., Ord. IX., r. 1, cited L. R. 2 P. D. 378."

1173. n. 6. At end add "See also Taylor v. Shrubb, Times, 7 Dec. 1877, where this question was much discussed in C. P. D. of High Court, but left undecided."

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1223. n. 10. after "Ld. Uxbridge v. Staveland," add "Bp. of Cork v. Porter,

1224. n. 3. 1229. n. 6.

I. R., 11 C. L. 94."

add " Bp. of Cork v. Porter, I. R., 11 C. L. 94."

add "But a mere witness, summoned under § 96 of the Act, is not bound to answer criminative questions, In re Firth, Ex p. Schofield, per Ct. of App., 46 L. J., Bk. 112; L. R., 6 C. D. 230, S. C., nom. Ex p. Schofield, In re Firth."

1237. n. 1. after "Davies v. Otty," add "S. P., Elias v. Criffith, 46 L. J., Ch. 806, per Hall, V.-C."

1278. n. 4. add "This Act is now repealed by 18 & 19 V. c. 122, § 109, and the offices of official referees and of registrar of Metropolitan Buildings are abolished."

1322. n. 5. 1424. n. 6,

add "13 Cox, 594, S. C."

of p. 1423. For "§ 296 of 17 & 18 V. c. 104; for by § 298 of that Act," read "the regulations for preventing collision made under the Merchant Shipping Acts 1854 to 1873; for, by § 17 of 36 & 37 V. c. 85."

1489. 1. 4. after “each description of document,” add note, “But see West of Eng. Bk. v. Canton Ins. Co., L. R., 2 Ex. D. 472, as to the discovery of documents in cases relating to Marine Insurance."

1500. n. 1, c. 3. add "A statement by the Secretary of the Board of Trade that he has divers official documents in his control, but that he declines to give any further information with regard to them on the ground of public policy,' is not a sufficient compliance with the rule. Kain v. Farrer, decided by C. P. D. on 8 Dec. 1877."

1505. n. 1. add "In re Leigh's Estate, Rowcliffe v. Leigh, L. R., 6 C. D. 256, per Ct. of App."

A

PRACTICAL TREATISE

ON THE

LAW OF EVIDENCE.

PART I.

NATURE AND PRINCIPLES OF EVIDENCE.

CHAPTER I.

PRELIMINARY OBSERVATIONS.

§ 1. THE word EVIDENCE, considered in relation to Law, § 1 includes all the legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the truth of which is submitted to judicial investigation. This term and the word proof are often used as synonymes; but the latter is applied by accurate logicians, rather to the effect of evidence, than to evidence itself. None but mathematical truth is susceptible of that high degree of evidence called demonstration, which excludes all possibility of error. In the investigation of matters of fact such evidence cannot be obtained; and the most that can be said is, that there is no reasonable doubt concerning them. The true question, therefore, in trials of fact is not, whether it is possible

1 Gr. Ev. § 1, in great part.

3

See Wills Cir. Ev. 2; Whately's Log. B. ii. c. iii. § 1; N. York Civ. Code, § 1660.

See Gamb. Guide, 121. Even of mathematical truths this writer justly remarks, that, though capable of demonstration, they are admitted by most men solely on the moral evidence of general notoriety. Id. 196. See N. York Civ. Code, § 1662.

го

B

that the testimony may be false, but whether there is sufficient probability of its truth; that is, whether the facts are proved by competent and satisfactory evidence.

§ 2. By competent evidence is meant that which the law § 2 requires, as the fit and appropriate proof in the particular case, such as the production of a writing, where its contents are the subject of inquiry. By satisfactory evidence, which is sometimes called sufficient evidence, is intended that amount of proof which ordinarily satisfies an unprejudiced mind beyond reasonable doubt. The circumstances which will amount to this degree of proof can never be previously defined; the only legal test of which they are susceptible is their sufficiency to satisfy the mind and conscience of an ordinary man; and so to convince him, that he would venture to act upon that conviction in matters of important personal interest. Questions respecting the competency or admissibility of evidence are entirely distinct from those which respect its sufficiency or effect; the former being exclusively within the province of the court; the latter belonging exclusively to the jury.3

4

2

§ 3. This branch of the law may be considered under three § 3 general heads, namely, First, The Nature and Principles of Evidence; Secondly, The Object of Evidence, and the Rules which govern its production ;-And, Thirdly, The Means of Proof, or the Instruments by which facts are established. This order will be followed in the present Treatise; but before proceeding further, it will be convenient, first, to consider what matters the courts will of themselves notice without proof, and next, to offer a few observations respecting the functions of the judge, as distinguished from those of the jury.

1 Gr. Ev. § 2, almost verbatim.

2 1 St. Ev. 578.

3 1 Ph. Ev. 2; Carpenters' Co. v. Hayward, 1 Doug. 375, per Buller, J. 4 Gr. Ev. § 3, in great part.

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