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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.

§ 170. These presumptions remain the same under whatever law the legal effect of the facts, when found, is to be decided.' 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 fictionthe 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."

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

21 Kings, ch. 3, v. 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.

§ 171. Although it is the exclusive province of the jury to fix 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. 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. 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 evi dence. 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 Gr. Ev. § 45, in part.

See N. York Civ. Code, § 1852.

3 See further as to the corroboration of accomplices, post, §§ 887-891.

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

§ 788.

PART II.

RULES GOVERNING THE PRODUCTION OF TESTIMONY.

CHAPTER I.

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

§ 172. THE production of evidence to the jury is governed by 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 affimative; 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.

3

§ 173. The pleadings, at common law, are composed of the written allegations 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, 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

1 Gr. Ev., § 50, slightly. Gr. Ev., § 51, in part, as to first six lines. As to when the judge may try questions of fact without the intervention of a jury, see 17 & 18 Vict., c. 125, § 1; and 19 & 20 Vict.

c. 102, § 4, Ir.

prove facts essentially 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.' 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. Thus, in an action of assumpsit for the breach of warranty 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 might easily be furnished, a plaintiff was nonsuited in an action for defamation, because the libel, as set out on the record, imputed to him "mismanagement or ignorance," while, according

1 In the case of Caton v. Caton, 7 Ec. & Mar. Cas. 28, Dr. Lushington very sensibly observed: "The maxim of the Ecclesiastical 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."

* *

Jones . 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.

to the evidence, the expressions really used in the libel, which had been destroyed, were "ignorance or inattention."

§174. The attention of the Legislature being at length drawn to the flagrant injustice which was thus constantly occasioned, a partial remedy was provided in 1828 by the Act of 9 Geo. 4, c. 15," which enacts, that every court of record in civil actions, any judge at Nisi Prius, and any court of oyer and terminer and general gaol delivery, may cause the record, on which any trial may be pending in a civil action," or in an indictment or information for any misdemeanor'—when a variance shall appear between

'Brooks v. Blanshard, 1 C. & M. 779; 3 Tyr. 844, S. C.

This Act, after reciting that "great expense is often incurred, and delay or failure of justice takes place at trials, by reason of variances between writings produced in evidence and the recital or setting forth thereof upon the record on which the trial is had, in matters not material to the merits of the case, and such record cannot now, in any case, be amended at the trial, and in some cases cannot be amended at any time:" for remedy thereof, enacts, "that it shall and may be lawful for every court of record holding plea in civil actions, any judge sitting at Nisi Prius, and any court of oyer and terminer, and general gaol delivery in England, Wales, Berwick-uponTweed, and Ireland, if such court or judge shall sec fit so to do, to cause the record on which any trial may be pending before any such judge or court in any civil action, or in any indictment or information for any misdemeanor, when any variance shall appear between any matter in writing or in print produced in evidence, and the recital or setting forth thereof upon the record whereon the trial is pending, to be forthwith amended in such particular by some officer of the court, on payment of such costs (if any) to the other party, as such judge or Court shall think reasonable; and thereupon the trial shall proceed as if no such variance had appeared; and, in case such trial shall be had at Nisi Prius, the order for the amendment shall be indorsed on the postea, and returned together with the record; and thereupon the papers, rolls, and other records of the court from which such record issued, shall be amended accordingly." This Act is now repealed so far as relates to personal actions and actions of ejectment in the superior Courts of Common Law in Ireland, by 16 & 17 Vict., c. 113, § 3, and Sched. A.

3 As to the amendment of variances in civil actions under this Act, see Smith c. Brandram, 2 M. & Gr. 244, 250; Briant v. Eicke, M. & M. 359; Brooks v. Blanshard, 1 C. & M. 779; 3 Tyr. 844, S. C.; Lamey v. Bishop, 4 B. & Ad. 472; 1 N. & M. 332, S. C.; Masterman v. Judson, 8 Bing. 224; 1 M. & Scott, 307, S. C.; Jaff v. Oriel, 4 C. & P. 22; Whitehead v. Scott, 1 M. & Rob. 137, n.

As to the amendment of variances in indictments for misdemeanors

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