when the solution of any legal question depends upon the laws of a foreign state, as, for example, when a contract made in one country is sought to be enforced in another, courts of justice will, in the silence of any positive rule affirming or denying or restraining the operation of such foreign laws, presume the adoption of them by their own government, unless they are repugnant to its policy, or prejudicial to its interest.1

§ 214. PRESUMPTIONS OF FACT, Usually treated as composing the § 163 second general head of presumptive evidence, can hardly be said with propriety to belong to this branch of the law. They are in truth. but mere arguments, of which the major premiss is not a rule of law; they belong equally to any and every subject-matter; and are to be judged by the common and received tests of the truth of propositions, and the validity of arguments. They depend upon their own natural efficacy in generating belief, as derived from those connections, which are shown by experience, irrespective of any legal relations. They differ from presumptions of law in this essential respect, that while those are reduced to fixed rules, and constitute a branch of the system of jurisprudence, these merely natural presumptions are derived wholly and directly from the circumstances of the particular case, by means of the common experience of mankind, without the aid or control of any rules of law. Such, for example, is the inference of guilt, drawn from the discovery of a broken knife in the pocket of the prisoner, the other part of the blade being found sticking in the window of a house, which, by means of such an instrument, had been burglariously entered.3

§ 215. These presumptions remain the same under whatever law § 170

1 Bk. of Augusta v. Earle, 13 Pet. 519, 589; Story, Confl. §§ 36-38; Huber, de Confl. Leg., lib. 1, tit. 2, § 2, p. 538.

2 Gr. Ev. § 44, almost verbatim.

3 See Henry VI., Pt. ii., Act iii., Sc. 2, where Warwick, after contemplating "duke Humphrey's timeless death," is made by our great poet of nature to comment thus:

"Who finds the heifer dead, and bleeding fresh,

And sees fast by a butcher with an axe,

But will suspect 'twas he that made the slaughter?"

See, also, Smollett's "Adventures of Roderick Random," Ch. xx.

the legal effect of the facts, when found, is to be decided.1 They embrace all the relations between the fact requiring proof and the fact or facts actually proved, whether such relations be direct or indirect, and whether they be physical or moral. A single circumstance may raise the inference, as well as a long chain of circumstances. For instance, the decision of King Solomon as to which of the two harlots was the mother of the living child, rested on the general presumption in favour of maternal affection, and on the sole fact that the "bowels" of the real mother "yearned upon her son," and she would in no wise consent to his being slain. So,to pass from history to fiction,-the famous judgment of Sancho Panza acquitting the herdsman charged with rape, was founded on the ascertained fact that the prosecutrix successfully resisted the attempt to take her purse, which the accused made by order of the court. "Sister of mine," said honest Sancho, to the forceful but not forced damsel, "had you shown the same, or but half as much courage and resolution in defending your chastity, as you have shown in defending your money, the strength of Hercules could not have violated you."

4

§ 216.5 Although it is the exclusive province of the jury to fix § 171 the due weight which ought to be given to presumptions of fact, juries are usually aided in their labours by the advice and instruction of the judge, more or less strongly urged, at his discretion.

1 See 3 St. Ev. 932; 6 Law. Mag. 370. This subject has been successfully illustrated in Wills, Cir. Ev. passim.

2 It may deserve notice that, apart from this presumption, the sacred narrative contains not one word to show that, after all, the judgment was right, that is, that it was really in accordance with the fact. The proverbial wisdom of the decision has, all along, been assumed rather than proved.

31 Kings, ch. 3, vv. 16-28. Suetonius, in his life of the Emperor Claudian, ch. 15, states, that that monarch discovered a woman to be the real mother of a young man, whom she refused to acknowledge, by commanding her to marry him; for rather than commit incest she confessed the truth. Diodorus Siculus also speaks of a King of Thrace, who discovered which of three claimants was the son of a deceased king of the Cimmerians, by ordering each of them to shoot an arrow into the dead body. Two obeyed without hesitation, but the other refused. See Baxter's Comprehensive Bible, note B. to v. 25 of ch. 3 of 1 Kings. * Don Quixote, part 2, book 3, ch. 13.

Gr. Ev. § 45, in part.

Indeed, some few general propositions in regard to matters of fact, and the weight of testimony, are now universally taken for granted in the administration of justice, and are sanctioned by the usage of the bench.1 Such, for instance, is the caution given to juries, to regard with distrust the testimony of an accomplice, unless it be materially confirmed by other evidence. There is no rigid presumption of the common law against such testimony; yet experience has shown that it is little worthy of credit; and on this experience the usage is founded. A similar caution should prevail in regard to mere verbal admissions of a party, this kind of evidence being subject to much imperfection and mistake. So, if a witness be detected in telling a falsehood in one part of his testimony, the jury will be advised to place little reliance on the remainder of his narrative.

1 See New York Civ. Code, § 1852.

2 See further as to the corroboration of accomplices, post, §§ 967—971.

3 5 C. & P. 542, n., per Parke, J.; R. v. Simons, 6 C. & P. 541, per Alderson, B.; Williams v. Williams, 1 Hagg. Cons. 304. See post, §§ 861, 862.

PART II.

RULES GOVERNING THE PRODUCTION OF TESTIMONY.

CHAPTER I.

CORRESPONDENCE OF EVIDENCE WITH ALLEGATIONS; SUBSTANCE
OF ISSUE; VARIANCE; AND AMENDMENT.

§ 217. THE production of evidence to the jury is governed by § 172 certain principles, which may be treated under four general rules. First, the evidence must correspond with the allegations, but the substance only of the issues need be proved; secondly, the evidence must be confined to the points in issue; thirdly, the burthen of proving a proposition at issue lies on the party holding the substantial affirmative; and fourthly, the best evidence, of which the case in its nature is susceptible, must always be produced. These rules will now be considered in their order.

§ 218. The pleadings are composed of the written allegations § 173 of the parties, terminating in propositions distinctly affirmed on one side, and denied on the other, called the issues. If these are propositions of fact, they must, as a general rule,3 be tried by the jury, and the first rule, which it is important to remember, is, that the evidence must correspond with the allegations, but that it is sufficient if the substance of the issues be proved. As one of the main objects of pleading is to apprise the parties of the specific nature of the question to be tried, and as this object would be defeated, if either party were at liberty to prove facts essentially

1 Gr. Ev. § 50, slightly. 3 As to when questions of fact may be tried without a jury, see Judicature Act, 1873, §§ 56, 57; and Rules of Sup. Ct., Ord. xxxvi, RR. 2, 3, 5, 6, 26. The defendant has still a right under R. 3, to insist on a trial before a judge and jury, Lugg v. Silber, L. R., 1 Q. B. D. 362; 45 L. J., Q. B. 460, S. C. See, also, Bordier v. Burrell, L. R., 5 Ch. D. 512, per Jessel, M.R.

2 Gr. Ev. § 51, in part, as to first six lines.

different from those which he has stated on the record, as constituting his claim or charge on the one hand, or his defence on the other, the necessity of establishing such a general rule as the present becomes apparent, and the only remaining question concerns its limitation and extent.1 Great strictness was formerly required in the application of this rule; almost every disagreement between the allegation and the proof, except in matters clearly impertinent, being held to constitute what was called a variance, the consequences of which were as fatal to the party on whom the proof lay, as a total failure of evidence.

§ 219. Thus, in an action of assumpsit for the breach of warranty § 173 of a horse, where the declaration stated a general warranty, and the proof was that the defendant had warranted the horse sound everywhere, except a kick on the leg, the plaintiff was nonsuited on account of this variance, although the unsoundness of which he complained, and which he established at the trial, was a dropsy. So, where a declaration in ejectment described the premises as situate in the united parishes of St. Giles-in-the-Fields, and St. George, Bloomsbury, and it appeared that the parishes were united by Act of Parliament for the maintenance of the poor, but for no other purpose, and that the premises in question were in the parish of St. George, Bloomsbury, this was held to be a fatal variance, though it was idle to suppose that the defendant could have been misled by the misdescription. To give but one more instance where hundreds

In the case of Caton v. Caton, 7 Ec. & Mar. Cas. 28, Dr. Lushington very sensibly observed: "The maxim of the Eccles. Courts, and I may say of all other courts, is to decide secundum allegata et probata. There must be both charge and evidence; the party cited is entitled to know the specific charge for the purpose of defence. The difficulty I feel is to avoid the error of adhering to this rule with pedantic strictness, and, on the other hand, not to weaken a rule which is founded on one of the great principles of justice." See Malcomson v. Clayton, 13 Moo. P. C. R. 206, per Ld. Chelmsford; and The Ann, 1 Lush. Adm. R. 55, in which last case little trouble seems to have been taken by the learned judges of the Privy Council to avoid the "pedantic strictness" alluded to by Dr. Lushington. See, also, Tyrer v. Henry, 14 Moo. P. C. R. 83; Kilgour v. Alexander, id. 177; The Haswell, 2 B. & Lush., Adm. R. 247; The Amalia, id. 311.

2 Jones v. Cowley, 4 B. & C. 445, declared most justly by Alderson, B., to be

a great disgrace to the English law," in Hemming v. Parry, 6 C. &. P. 580. 3 Goodtitle v. Lammiman, 2 Camp. 274.