viction, see post. As to asking a witness on cross-examination, for the purpose of trying his credit and veracity, whether he has not given an account in writing different from his present testimony, without producing the writing itself, see post. It seems that the general rule, that the best evidence is to be produced which the nature. of the thing admits, is to be understood as applying only to the proof of the issue, or of some fact material to the issue. (ƒ)

Whatever a party says, or his acts amounting to admissions, are evidence against himself, though such admissions may involve what must necessarily be contained in some deed or writing. (g) The reason why such parol statements are admissible, without notice to produce, or accounting for the absence of the written instrument, is that they are not open to the same objection which belongs to parol evidence from other sources where the written evidence might have been produced, for such evidence is excluded from the presumption of its untruth, arising from the very nature of the case, where better evidence is withheld; whereas, what a party himself admits to be true, may reasonably be presumed to be so. (h) And such an admission is legal evidence, not as secondary evidence of the contents of a written instrument, but as original evidence. (i) And the principle is the same, whether the admission is by words or by acts: and a man may by his acts make an admission as clearly and as much in detail as he possibly could by words. (j)

If the fact of the occupation of land is alone in issue, without respect to the terms of the tenancy, this fact may be proved by any competent oral testimony, such as payment of rent, notwithstanding it appears that the occupancy was under an agreement in writing; for here the writing is only collateral to the fact in question. (k) But if any of the terms of the tenancy, as, for example, who is the lessor, or what is the rent, or what rent is due, (7) are in issue, and it appears that there was a written contract for the tenancy, such contract must be produced. (m) But the statements made by a tenant of the terms upon which he is actually holding the premises, are admissible against him in order to prove the terms of his tenancy, though the tenancy was created by adopting the terms of a former demise in writing. (n)

So the fact that a person is employed as a servant under a written agreement may be proved without its production, but not the terms of it. (0)

Inscriptions on walls, and fixed tables, mural monuments, gravestones, surveyors' marks on boundary trees, as they cannot be conveniently produced in court, may be proved by secondary evidence. (p)

(f) Ibid. 301, 7th ed. See Henman v. Lestor, 31 L. J. C. P. 366.

(g) Per Parke, B., Slatterie v. Pooley, 6 M. & W. 664. Tupper v. Folkes, 9 C. B. (N. S.) 797.

(h) Per Parke, B., Slatterie v. Pooley. Erle v. Picken, 5 C. & P. 542, Parke, B.

(i) Per Patteson, J., R. v. Basingstoke, 14 Q. B. 611.

(j) Per Coleridge, J., ibid. In this case it was held that the payment of relief to a pauper whilst resident in one parish by the overseers of another parish for several years, after a threat by the overseers of the

former parish to remove the pauper, unless a certificate was obtained, was an admission that a certificate had been obtained.

(k) Greenl. Ev. 100. R. v. The Holy Trinity, Kingston-upon-Hull, 7 B. & C. 611; 1 M. & R. 444.

(1) Augustien v. Challis, 1 Exch. R. 279. (m) R. v. Rawden, 8 B. & C. 70. R. v. Merthyr, Tidvil, 1 B. & Ad. 29. Doe v. Harvey, 8 Bing. R. 239.

(n) Howard v. Smith, 3 M. & Gr. 255. (0) R. v. Duffield, 5 Cox, C. C. 404. R. v. Rowlands, 5 Cox, C. C. 415 (b).

(p) Greenl. Ev. 106, citing Doe d. Coyle

Such exceptions are in cases where the material on which the document is written is not easily removed; as in the case of things fixed to the ground or to the freehold, for the law does not expect a man to break up his freehold for the purpose of bringing a notice into But that ground of exception does not apply to the case of a notice painted on a board, fastened by a string to a nail in a wall, as there could be no difficulty or inconvenience in removing the board from the nail on which it was hung, and producing it in court. (9) Where on an indictment for murder, the point was very much argued whether the inscription on a coffin-plate could be given in evidence without producing the coffin-plate itself, Maule, J., held that it could not, because the presumption was that it was in existence. (r)

On an indictment for bigamy, it has been held that a photograph taken from the prisoner, who said it was that of her first husband, might be shewn to a witness, and he might be asked whether it represented the man, whom he had seen married. (8)

SEC. III.

Of Hearsay Evidence.

There is no rule in the law of evidence more important or more frequently applied than the general one, that hearsay evidence of a fact is not admissible. If any fact is to be substantiated against a person, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth; and the reason of the rule is, that evidence ought to be given under the sanction of an oath, and that the person who is to be affected by the evidence may have an opportunity of interrogating the witness as to his means of knowledge, and concerning all the particulars of his statement. (†)

6

And the same rule applies to the written statements of either living or deceased persons. Where, therefore, after the death of one Stuart, a tin case containing papers was delivered by a servant to their master; and one of these papers was endorsed in Stuart's handwriting, My own private affairs,' and it contained a paper purporting to be a certificate of the minister and elders of the kirk session at Canongate in Edinburgh, and given by them to Stuart. It was usual for the minister and elders of the kirk session, when a person left the congregation to give a certificate to enable him to be admitted into any other congregation. A book containing the minutes of the kirk session of their transactions was also produced, and the session clerk of Canongate was called to prove that he had learnt the handwriting of the parties who had signed the certificate

v. Cole, 6 C. & P. 359, Patteson, J. R. v. Fursey, 6 C. & P. 81.

(q) Jones v. Tarleton, 1 Dowl. P. R. (N. S.) 625, 9 M. & W. 675.

(r) Anonymous, stated by Maule, J., in R. v. Hinley, 1 Cox, C. C. 12.

(s) R. v. Tolson, 4 F. & F. 103. Willes, J., who said, 'The photograph was admis

sible, because it is only a visible representation of the image or impression made upon the minds of the witnesses by the sight of the person, or the object it represents; and, therefore, is in reality only another species of the evidence, which persons give of identity when they speak merely from memory.' (t) 1 Phil. Ev. 229, 7th ed.; 206, 9th ed.

by looking at the minutes in the book. It was objected that the witness could not be permitted to look at the book in order to become acquainted with the handwriting therein; 2nd, that the book itself was not evidence, and could not be used for any purpose; 3rd, that the certificate itself would not be evidence even if the signatures to it were proved; 4th, that as the servant who delivered the papers to the master was not called, there was no proof that the certificate had ever been in Stuart's possession; 5th, that the endorsement on the paper containing it was inadmissible, and that all it shewed was that one paper had once been in his presence; and it was held that the certificate was inadmissible. (u)

There are, however, certain instances, which it will be the object of this section to point out, where hearsay evidence is admissible, because either the objection does not apply, or from the necessity of the case the rule is relaxed.

Many things which pass in words only are really acts, and are therefore admissible. Such are all contracts by parol. So is a claim to land or goods. (v) So directions given by words are admissible. (w)

When hearsay is part of the res gestæ.1 When hearsay is introduced, not as a medium of proof in order to establish a distinct fact, but as being in itself a part of the transaction in question, it is then admissible; for to exclude it might be to exclude the only evidence of which the nature of the case is capable. (a) Thus in Lord George Gordon's case, on a prosecution for high treason, it was held that the cry of the mob might be received in evidence as part of the transaction. (y) And, generally speaking, declarations accompanying acts are admissible in evidence as shewing the nature, character, and object of such acts. (2) Thus, where a person enters into land in order to take advantage of a forfeiture, to foreclose a mortgage, to defeat a disseisin, or the like; (a) or changes his actual residence, or is upon a journey, or leaves his home, or returns thither, or remains abroad, or secretes himself, or, in fine, does any other act material to be understood; his declarations made at the time of the transaction, and expressive of its character, motive, or object, are regarded as verbal acts indicating a present purpose and intention,' and are

(u) R. v. Barber, 1 C. & K. 434. Gurney, B., Williams and Maule, JJ. The statement in the text is more accurate than that in C. & K. The judges did not intimate the ground on which the certificate was inadmissible.

(v) Ford v. Elliott, 4 Exch. R. 78. Rolfe, B., 'A claim may be manifested by words as well as acts. Whether it be by words or otherwise seems to me to be perfectly immaterial.' Alderson, B., 'If I were to say "Take these goods away," and put them

AMERICAN NOTE.

1 See U. S. v. Craig, 4 Wash. 729. Tompkins v. Saltmarsh, 14 Serg. & R. 275. Tenney. Evans, 14 N. H. 353. Russell v.

Frisbie, 19 Conn. 205. Colquett v. S., 34 Texas, 550. Dukes v. S., 11 Ind. 557. S. v. Davidson, 30 Verm. 377.

therefore admitted in proof like any other material facts. They are part of the res gesta. (b) Thus, where a constable, who was indicted for a forcible entry into a house, had searched the house, having a warrant in his hand, Lord Tenterden, C. J., held that what he said at the time as to who he was searching for, was admissible, although the question was asked by his counsel, and the answer might be in his favour. (c) But where the prisoner, who was indicted for burning a Bible, had employed some boys to take books to a place where they were burnt by his direction, it was held that what a person, who first appeared when the burning was going on, said at the time he tore up a book and threw it into the fire was not admissible, as there was no common object proved between him and the prisoner. (d)

Upon an indictment for the murder of Harriet Louisa Lane, a witness, named Ellen Willmore, was called. The witness was the person who had last seen Harriet Louisa Lane on the afternoon of the 11th of September, 1874, when the latter left her lodgings at 3, Sydney Square, Mile End. After that date Harriet Louisa Lane was not seen again alive, and that was the date fixed upon by the prosecution as the time when the murder was perpetrated. The witness, having described what occurred at the parting between her and Harriet Louisa Lane on that afternoon, was asked whether Harriet Louisa Lane, at the time of her departure from the house, made a statement to her. In answer to an objection made by the prisoner's counsel to a question which he anticipated would follow upon this, Cockburn, C. J., said, 'All that is proposed to ask now is the question, "When going away did she make a statement?" That question can be put, but not the question, "What statement did she make?" The question at present only goes to the extent of ascertaining whether a statement was made, and there it stops; but I agree that if it went further, to the extent of enquiring what was the statement, it would be inadmissible. You are constantly meeting with such a question, "Did so-and-so make a statement to you, and, in consequence of that communication, did you do anything?" The fact that some statement was made is undoubtedly admissible.' The Attorney-General, who appeared for the prosecution, then said, "The woman is leaving her house when she makes a statement, which is a declaration of intention, and it is submitted that that is a statement accompanying an act. It is part of the act of leaving, and on that ground it is proposed to ask the question to which objection has been made.' Cockburn, C. J., 'It was no part of the

(b) Greenl. Ev. 120, citing Bateman v. Bailey, 5 T. R. 512. Rawson v. Haigh, 2 Bingh. R. 99. Newman v. Stretch, M. & M. 338. Ridley v. Gyde, 9 Bing. 349. Smith v. Cramer, 1 Bing. N. C. 585. Gorham v. Canton, 5 Greenl. 266. Fellowes v. Williamson, M. & M. 306. Vacher v. Cocks, M. & M. 353, 1 B. & Ad. 145.

(c) R. v. Smyth, 5 C. & P. 201. And see 1 Stark. Ev. 62, 350, 351. Walters v. Lewis, 7 C. & P. 344. Where an agent paid money into a bank, Littledale, J., held that what he said about the money at the time he paid the money into the bank was

VOL. III.- 25

admissible. R. v. Hall, 8 C. & P. 358. The learned judge admitted the evidence, on the ground that it was a declaration by an agent acting within the scope of his authority; but it seems equally admissible, as a declaration accompanying the act of payment, and explanatory of the purpose of the payment. C. S. G. See R. v. Edwards, 12 Cox, C. C. 230.

(d) R. v. Petcherini, 7 Cox, C. C. 78, Crompton, J., and Greene, B. It seems clear that the acts of the person were inadmissible on the same ground.

386

Of Evidence.

act of leaving, but only an incidental remark. It was only a statement of intention, which might or might not have been carried out. She would have gone away under any circumstances. You may get the fact that on leaving she made a statement, but you must not go beyond it.' (e)

Where the deceased person, who was a constable, had made a verbal report to his superior officer in the course of his duty, and in the absence of the accused, as to where he (the deceased) was going, and what he was going to do, the report was held admissible in evidence against the prisoner, the evidence being material to shew that he intended to watch the prisoner's movements on the occasion in question. (f)

1

Complaints. In an action by a husband and wife for wounding the wife, Holt, C. J., allowed what the wife said immediately upon the hurt received, and before she had time to devise anything for her own advantage, to be given in evidence as part of the res gesta. (g) So on an indictment for manslaughter, in killing a party by driving a cabriolet over him, it has been held that a statement made by the deceased immediately after the accident, as to the cause of the accident, is admissible. (h) And Lawrence, J., said, in Aveson v. Lord Kinnaird, (i) that it is in every day's experience, in actions of assault, that what a man has said of himself to his surgeon is evidence to shew what he suffered by the assault. Enquiries of patients by medical men, with the answers to them, are evidence of the state of health of the patients at the time; and what were the symptoms, what the conduct of the party themselves at the time, are always

(e) R. v. Wainwright, 13 Cox, C. C. 171.
Cockburn, C. J. A similar objection to
the above was taken to certain evidence of
a like kind preferred on behalf of the prose-
cution in the case of R. v. Pook, tried
before Lord Chief Justice Bovill, at the
Old Bailey Sessions, on the 15th of July,
1871, and reported in the Sessions Paper of
that date. There the prisoner was charged
with the wilful murder of Jane Maria
The murder was committed on
Clousen.
the night of the 25th or the morning of the
26th of April, 1871, at Eltham. The de-
ceased was discovered in a dying state in
Kidbrooke Lane. She had lived in the pris-
oner's family, and suspicion attached to
him. One of the witnesses, Fanny Hamil-
ton, who was called by the prosecution,
proved that for ten days prior to the 25th
of April the deceased had lodged in her
house, that on the evening of that day she
went out in her company, and that after
walking about for some time they parted,
when the deceased told her where she was
going. It was proposed by the counsel for
the prosecution to ask the question, 'What
did she say to you?' To this the counsel
for the prisoner objected, on the ground

that whatever was said was said in the prisoner's absence, and he had no means of cross-examining upon it. It was thereupon contended by the counsel for the prosecution that it was a declaration so far accompanying the act itself as to render it part of the res gesta, and he cited in support of his contention the case of Hardley v. Carter, reported, 8 New Hampshire Reports, American Reports; and at the termination of the argument the Lord Chief Justice refused to permit the question to be put. See 13 Cox, C. C. 172,

note.

(f) R. v. Buckley, 13 Cox, C. C. 293, per Lush, J., after consulting Mellor, J. It is rather difficult to reconcile this case with ting the evidence may possibly have been previous decisions, but the reason for admitthat it was an official report in the ordinary course of the business of the deceased.

(g) Thompson v. Trevanion, Skin. 402, Aveson v. Lord Kinnaird, 6 East, 193. cited by Lord Ellenborough, C. J., in

(h) R. v. Foster, 6 C. & P. 325, J. A Park and Patteson, JJ., and Gurney, B. 1 Phill. Ev. 191. (i) 6 East, 193.

AMERICAN NOTE.

1 See S. v. Howard, 32 Verm. 380. Phillips v. Kelly, 29 Ala. 628. Parker, C. R. 569.

Hunt v. P., 3