2

§ 561. The Irish Act of 16 & 17 V., c. 113, contains a clause, § 5041 which, though differently worded, and quite sufficiently wordy, is the same in effect as that just cited; for § 47 provides, that "in any case in which it shall appear to the court or a judge, that it would be necessary, for the purpose of ascertaining the truth of any matter in dispute between the parties in the action, that an inspection or examination of any premises or chattels in the possession or power of either party, and in respect of which, or some right or injury connected with which, the said action shall be brought, should be had by the opposite party, his attorney, agent, witnesses, or by the jury, it shall be lawful for such court or judge to order that the party, in whose possession or power the same shall be, shall permit an inspection and examination of the said premises or chattels by the jury, or by such person or persons on behalf of the party applying, and at such times and under such regulations, as to the said court or judge shall seem fit." The Patent Law Amendment Act, 1852,1 which extends equally to England and Ireland, recognises the same principle; and under § 42 of that statute, either party may, in an action for the infringement of letters patent, obtain such an order for an inspection as the court or a judge may think fit to grant.

§ 562. All these statutory powers to order the inspection of § 505 property, give to the courts and judges, by implication, authority to order all things ancillary to the inspection required. Where, therefore, a wall had recently been erected in a mine, so as to obstruct a complete inspection of the workings, the court, on a question of encroachment, ordered the removal of such obstruction.3

§ 563. Again, under the "Chancery Amendment Act, 1858,"4 § 505A which enabled the old courts of equity to call in the assistance of juries for the purpose of assessing damages, and trying questions of fact, certain orders have been promulgated, which authorise

1 15 & 16 V., c. 83.

2 See Vidi v. Smith, 3 E. & B. 969, 974; Patent Type Found. Co. v. Lloyd, 5 H. & N. 192; Patent Type Found. Co. v. Walter, 1 V. John. 727.

3 Bennett v. Griffiths, 3 E. & E. 467.

4 21 & 22 V., c. 27.

either party "to apply by summons to an equity judge at chambers for a view by the jury,"-regulate the mode in which the view is to be conducted, and fix the scale of fees for remunerating respectively the under-sheriff, the showers, and the jurymen.2

§ 564. The Admiralty Court Act, 1861,3 contains in § 18 an 6 enactment on the same subject, which enables any party to apply to that court" for an order for the inspection by the Trinity Masters or others appointed for the trial of the cause, or by the party himself or his witnesses, of any ship or other personal or real property, the inspection of which may be material to the issue of the cause; and the court may make such order in respect of the costs arising thereout as to it shall seem fit."4

§ 565. Under the New Rules of the Supreme Court, "where any cause or matter, or any question in any cause or matter, is referred to a Referee, he may, subject to the order of the court or a judge," (among other things) "have any inspection or view, either by himself or with his assessors, if any, which he may deem expedient for the better disposal of the controversy before him."

§ 566. These are admirable provisions so far as they extend, but 506 as a question of policy it will scarcely admit of a doubt, that the power of granting a view, which,-except in the special case of Barmote Courts,-is at present confined, both in England and in Ireland, to the judges of the Superior Courts, and to proceedings in those courts, might with great advantage be extended to every court

1 According to Sir George Jessel, as his judgment is recently reported in Leech v. Schweder, 43 Law J., Ch. 232, a judge of the Court of Chancery ought not himself to make a personal inspection of premises; for,—to adopt the language of that learned judge,—" he may not be a person of ordinary knowledge and capacity, or he may be an old man with defective vision, or he may be colour blind." Some lawyers may regard this reasoning as not quite satisfactory.

2 Cons. Ord. Ch., 1860, Ord. xli., rr. 36-38, and Sch. N. Form 5.

3 24 & 25 V., c. 10. See, also, 30 & 31 V., c. 114, § 66, Ir.

4 See The Germania, 37 L. J., Adm. 59.

5 Ord. xxxvi. R. 30.

• See 14 & 15 V., c. 94, 1 Sch., §§ 22-28, and 2 Sch. Form.

of record. One practical result of thus enlarging the sphere of its operation would be to obviate, in a great measure, the necessity which now obtains, of adopting the costly and uncertain course of removing proceedings from the Central Criminal Court, the Crown Courts at the Assizes, and the Sessions, into the Queen's Bench Division by certiorari, whenever it is essential to the ends of justice that a view should be granted. It also deserves consideration, whether it be not expedient to empower the presiding judge at any trial to order a view, even after the evidence may have been heard, if in his opinion such a step is necessary for the purposes of justice.

1 In R. v. Martin, 1 Law Rep., C. C. 378; 12 Cox, 204; 41 L. J., M. C. 113, S. C.; the Court of Crim. Appeal is reported to have held, that the Deputy Assistant Judge for the Middlesex Sessions, on the trial of a misdemeanor, was empowered to allow the jury to have a view of the premises in question, after he had summed up the evidence to them. In this case, however, there was no argument heard, and the attention of the judges was not directed to any of the statutes on the subject. 2 Id.

CHAPTER VII.

HEARSAY.

§ 567. As evidence afforded by our own senses is seldom at- § 537 tainable in judicial trials, the law is satisfied with requiring the next best evidence, namely, the testimony of those who can speak from their own personal knowledge. It is not requisite that the witness should have personal knowledge of the main fact in controversy; for this may not be provable by direct testimony, but only by inference from other facts shown to exist. But it is requisite that, whatever facts the witness may speak to, he should be confined to those lying within his own knowledge, whether they be things said or done, and should not testify from information given by others, however worthy of credit they may be. For it is deemed indispensable to the proper administration of justice, -first, that every witness should give his testimony under the sanction of an oath, or its equivalent, a solemn affirmation,-and secondly, that he should be subject to the ordeal of a crossexamination by the party against whom he is called, so that it may appear, if necessary, what were his powers of perception, his opportunities for observation, his attentiveness in observing, the strength of his recollection, and his disposition to speak the truth. But testimony from the relation of third persons, even where the informant is known, cannot be subjected to these tests; for, as Mr. Justice Buller observes, "If the first speech were without oath, another oath that there was such speech makes it no more than a mere speaking, and so of no value in a court of justice; besides, it is often impossible to ascertain through whom, or how many persons, the narrative has been transmitted, from the original witness of the fact. It is this, which constitutes that sort of second-hand evidence, termed hearsay; a species of proof

1 Gr. Ev. § 98, in great part.

2 B. N. P. 294, b.

which, with a few exceptions that will be presently noticed, cannot be received in judicial investigations.1

§ 568. This rule of exclusion has been recognised as a funda- § 508 mental principle of the law of evidence ever since the time of Charles the Second; and so strictly is it enforced that it is even held applicable to cases, in which, if the declaration be rejected, no other evidence can possibly be obtained; as, for example, where the declaration purports to be that of the only eye-witness of the transaction, and he is since dead. So, it has several times been held, where prisoners have been indicted for ravishing children, who were too young to be admissible witnesses, that statements made by the children to their mothers shortly after the offence

The rule excluding hearsay evidence, or rather the mode in which that rule is frequently misunderstood in courts of justice, is amusingly caricatured by Mr. Dickens in his report of the case of Bardell v. Pickwick, p. 367 :—

"I believe you are in the service of Mr. Pickwick, the defendant in this case. Speak up if you please, Mr. Weller.'

"I mean to speak up, sir,' replied Sam. I am in the service o' that 'ere gen'l'man, and wery good service it is.'

"Little to do, and plenty to get, I suppose?' said Serjeant Buzfuz, with jocularity.

"Oh quite enough to get, sir, as the soldier said ven they ordered him three hundred and fifty lashes,' replied Sam.

"You must not tell us what the soldier, or any other man, said, sir,' interposed the judge, 'it's not evidence.'

"Wery good, my lord,' replied Sam."

2 One of the earliest cases in which the rule was acted upon, is Sampson v. Yardley, 2 Keb. 223, Pl. 74, 19 Car. 2.

3 1 Ph. Ev. 209. In Scotland the rule is otherwise; evidence on the relation of others being admitted, where the relator is since dead, and would, if living, have been a competent witness.-1 Dickson, Ev. 66, 67. And if the relation has been handed down to the witness at second hand, and through several successive relators, each only stating what he received from the intermediate relator, it seems to be still admissible, if the original and intermediate relators are all dead, and would have been competent witnesses if living. Tait, Ev. 430, 431; but see 1 Dickson, Ev. 70. The reason for receiving hearsay evidence in cases, where, as is often the case in Scotland, the judges determine upon the facts in dispute, as well as upon the law, is stated and vindicated by Sir J. Mansfield, in the Berkeley Peer., 4 Camp. 415. It is observable, that, according to the practice of the English courts, hearsay evidence is often admitted and acted upon in affidavits, which are submitted to the judges only.