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 synonyms; 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.3 The true question, therefore, in trials of fact is not, whether it is possible

1 Gr. Ev. 1, in great part.

2 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,

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.2 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

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§ 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.

21 St. Ev. 578.

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

CHAPTER II. .

MATTERS JUDICIALLY NOTICED, WITHOUT PROOF.1

§4. ALL civilised nations, being alike members of the great 4 family of sovereignties, may well be supposed to recognise each other's existence, and general public and external relations. Every sovereign therefore recognises, and, of course, the public tribunals and functionaries of every nation notice, the existence and titles of all the other sovereign powers in the civilised world. If, however, upon a civil war in any country, one part of the nation should separate from the other, and establish for itself an independent government, the newly formed nation cannot be recognised as such by the judicial tribunals of other nations, until it has been acknowledged by the sovereign power under which those tribunals are constituted. Still the judges are bound, ex officio, to know whether or not the government has recognised such nation as an independent state."

1 See N. York Civ. Code, ?? 1705, 1706.

Gr. Ev. 4, in great part.

3 United States of America v. Wagner, 2 Law Rep. Ch. Ap. 585, per Ld. Chelmsford, Ch.; 36 L. J., Ch. 628, S. C. From Yrisarri v. Clement, 11 Moore, 314, 315; 2 C. & P. 225, S. C., it seems that the existence of States unacknowledged by the government must be proved by evidence, showing that they are associations formed for mutual defence, supporting their own independence, making laws, and having courts of justice. The two Reports somewhat differ, but the latter lays down the soundest law. reported in 3 Bing. 432.

4 City of Berne v. Bk. of Eng., 9 Ves. 347.

This case is also

5 Taylor v. Barclay, 2 Sim. 213. In that case it was falsely alleged in the bill, with the view of preventing a demurrer, that Guatemala, a revolted colony of Spain, had been recognised by Great Britain as an independent state; but the V.-Ch. took judicial notice that the allegation was false. See, however, Dolder ». Bk. of Eng., 10 Ves. 354, where Ld. Eldon observed, “I cannot affect to be ignorant of the fact, that the revolutions in Switzerland have not been recognised by the government of this country; but as a judge, I cannot take notice of that.” It may well be doubted whether this last case is law.

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§ 5. In like manner the judges will recognise, without proof, 5 the common and statute law, and all legal claims, demands, estates, titles, rights, duties, obligations, and liabilities existing by the common law, or by any custom, or created by any statute; the rules of equity, and all equitable estates, titles, rights, duties, and liabilities; the cardinal doctrine that, whenever the rules of equity and of the common law differ, those of equity must prevail; 5 the law of nations; the law and custom of parliament, and the privileges and course of proceedings of each branch of the legislature; the prerogatives of the crown,' and the privileges of the royal palaces; the maritime law; the ecclesiastical law; 10 the articles of war, whether in the naval," the marine, or the land

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1 Hein. ad Pand., L. xxii. t. iii. 119.

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2 R. v. Sutton, 4 M. & S. 542; 13 & 14 V., c. 21, 7. As to private Acts of Parl., see 8 & 9 V., c. 113, 3, cited post, ? 7.

3 36 & 37 V., c. 66, ? 24, subs. 6; 40 & 41 V., c. 57, 27, subs. 6, Ir.

* 36 & 37 V., c. 66, 24, subs. 4, enacts, that the High Court of Justice and the Court of Appeal "respectively, and every judge thereof, shall recognise and take notice of all equitable estates, titles, and rights, and all equitable duties and liabilities appearing incidentally in the course of any cause or matter, in the same manner in which the Court of Chancery would have recognised and taken notice of the same in any suit or proceeding duly instituted therein before the passing of this Act." See, also, 40 & 41 V., c 57, 27, subs. 4, Ir.

536 & 37 V., c. 66, 25, subs. 11, enacts, that generally in all matters, "in which there is any conflict or variance between the Rules of Equity and the Rules of the Common Law with reference to the same matter, the Rules of Equity shall prevail." See Bustros v. White, 45 L. J., Q. B. 642, per Ct. of App.; L. R., 1 Q. B. D. 423; S. C. See, also, 40 & 41 V., c. 57, 28, subs. 11, Ir.

Lake v. King, 1 Wms. Saund. 131 a; Stockdale v. Hansard, 7 C. & P. 731; 9 A. & E. 1, and 2 P. & D. 1, S. C.; Wason v. Walter, 8 B. & S. 671; 38 L. J., Q. B. 34; 4 Law Rep., Q. B. 73, S. C.; Cassidy v. Steuart, 2 M. & Gr. 437; Case of the Sheff. of Middlx., 11 A. & E. 273; Sims v. Marryat, 17 Q. B. 292. Bradlaugh v. Gosset, 53 L. J., Q. B. 209; L. R. 12; Q. B. D. 271, S. C. 7 R. v. Elderton, 2 Ld. Ray. 980.

8 Id. Reported, also, in 3 Salk. 91, 284; 6 Mod. 73; and Holt, 590; Winter v. Miles, 10 East, 578; 1 Camp. 475, S. C.; Att.-Gen. v. Donaldson, 10 M. & W. 117. Hampton Court has ceased to have privileges as a royal palace, Att.-Gen. v. Dakin, 36 L. J., Ex. 167; and 2 Law Rep., Ex. 290; S. C., per Ex. Ch., 3 Law Rep., Ex. 288; and 37 L. J., Ex. 150; S. C. in Dom. Proc. 4 Law Rep., H. L. 338; and 39 L. J., Ex. 113; R. v. Ponsonby, 3 Q. B. 14. 9 Chandler v. Grieves, 2 H. Bl. 606 n.

10 1 Roll. Abr. 526; 6 Vin. Abr. 496; Sims v. Marryat, 17 Q. B. 292, per Ld. Campbell. 11 29 & 30 V., c. 109.

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service,' including those made for the government of the forces in India, as well as the auxiliary forces, that is, the militia, the yeomanry, and the volunteers, and also the reserve forces;* the rules of procedure made in pursuance of § 70 of the Army Act, 1881, "whether signified under the hand of a secretary of state' in relation to the army, or promulgated by the admiralty with respect to the marines; royal proclamations, such being acts of State; the general practice of conveyancers; the custom of merchants, at least where such custom has been settled by judicial determinations, 10-such, for example, as the lien which a vendor has

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1 By69 of the Army Act, 1881, 44 & 45 V., c. 58, the Queen is empowered "to make articles of war for the better government of officers and soldiers, and such articles shall be judicially taken notice of by all judges, and in all courts whatsoever;" and by 179, subs. 1, and 20, of the same Act, power is reserved to the Ld. High Admiral, or any two of the commissioners for executing his office, to "make articles of war for the Royal Marines;" and such articles it is presumed—though the Act is silent on the subjectmust also be judicially noticed.

2 Id., ¿ 180.

* Id.,

190, subs. 9.

" Id., 179, subs. 6.

3 Id., 28 175-178.
5 Id., 70, subs. 1 & 3.

7 There exists some doubt upon this point. In Dupays v. Shepherd 12 Mod. 216, Ld. Holt held that a proclamation in print was of as public a nature as a public act of parliament; but in Van Omeron v. Dowick, 2 Camp. 44, Ld. Ellenborough refused to take notice of a proclamation, on the ground that the Gazette containing it was not produced. The marginal note to this last case is calculated to mislead, as it asserts broadly, that "a judge at Nisi Prius will not take judicial notice of the king's proclamations." The case does not go this length, which is tantamount to saying that royal proclamations must be laid before the jury, but simply decides that, when a judge's memory is at fault, some document must be at hand to establish the fact which he is called upon to notice. Copies of royal proclamations, if purporting to be printed by the Queen's printer, are rendered admissible by 8 & 9 V., c. 113, 3; see post, They may be proved also in a variety of other ways. See 31 & 32 V., c. 37, 2, cited post, 1527. Willoughby v. Willoughby, 1 T. R. 772, per Ld. Hardwicke; Doe v. Hilder, 2 B. & Al. 793; Doe v. Plowman, 2 B. & Ad. 577; Rowe v. Grenfel, Ry. & M. 398, per Ld. Tenterden. Ld. St. Leonards observes, in 3 V. & P. 28, "It matters very little what is the opinion of any individual conveyancer; but the opinion of the conveyancers, as a class, is of the deepest importance to every individual of property in the state. Their settled rule of practice has, accordingly, in several instances been adopted as the law of the land, not out of respect for them, but out of tenderness to the numerous purchasers who have bought estates under their advice." See also Howard v. Ducane, 1 Turn. & R. 86, per Ld. Eldon. In Re Rosher 53 L. J., Ch. 722, 731, per Pearson, J.

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'Eriskine v. Murray, 2 Ld. Ray. 1542; Soper v. Dibble, 1 Ld. Ray. 175; Carter v. Downish, Carth. 83; Williams v. Williams, id. 269.

10 Barnett v. Brandao, 6 M. & Gr. 630. In that case, where judicial notice