patent, obtain such an order for an inspection' as the court or a judge may think fit to grant.

§ 562. All these powers to order views of places or inspection of å 505 property, whether granted by statute or rule, give to the courts and judges, by implication, authority to order all things ancillary to the view or 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.2

§ 564. The Admiralty Court Act, 1861, contains in § 18 an 5058 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."

§ 565. Under the Rules of the Supreme Court, 1883, "where any canse 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."5

§ 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, or inspection, which,-except in the special cases of County Courts, Barmote Courts' and Courts

1 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.

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

324 & 25 V., c. 10. See, also, 30 & 31 V., c. 114, 66, Ir.

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

5 Ord. XXXVI., R. 48.

6

Cy. Ct. Rules, 1875, Ord. XI.

See 14 & 15 V., c. 94, 1 Sch.,

22-28, and 2 Sch. Form.

2

martial,'-is at present confined, both in England and in Ireland, to the judges of the Supreme Court, and to proceedings in one or other of the Divisions of that Court, might with great advantage be extended to every court of record. It must also be borne in mind that, as the law now stands, the New Rules, cited in § 560, simply apply to civil proceedings in the Supreme Court, and consequently, in all criminal proceedings, the practice respecting views still rests on the inadequate provisions of the Acts of 1825 and 1852.3 It further 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.

36 G. 4, c. 50, 23 and 24; 15 & 16 V., c. 76, 114, both cited ante, p. 501.

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.

CHAPTER VII.

HEARSAY.

§ 567.' As evidence afforded by our own senses is seldom at- § 507 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;"2 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

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.'

§ 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

3

1 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:—

6

"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, an 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.'

646

Wery good, my lord,' replied Sam."

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

31 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; Dysart Peer., L. R., 6 App. Cas. 489. In this last case the extent of the rule and the exceptions to which it is subject, are discussed at some length. It seems that even where 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 will still be 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.

was committed, could not be received in evidence. So, also, a declaration, though made on oath, and in the course of a judicial proceeding, cannot be received, if the litigating parties are not the same; because, in such case, the party against whom the evidence is offered, has had no opportunity of cross-examining the declarant. The deposition therefore of a pauper as to the place of his settlement, taken ex parte before a magistrate, will be rejected, though the pauper himself has since absconded or died.2

3

§ 569. The rule will even exclude declarations of a deceased & 509 subscribing witness to a deed or will, in disparagement of the evidence afforded by his signature. In the case of Stobart v. Dryden, the admissibility of such declarations was strenuously urged on two grounds; first, that since the party offering the deed used the declaration of the witness, as evidenced by his signature to prove the execution, the other party might well be permitted to use any other declaration of the same witness, to disprove it; and, secondly, that such declaration was in the nature of a substitute for the loss of the benefit of a cross-examination of the subscribing witness; by which either the fact confessed would have been proved, or the witness might have been contradicted, and his credit impeached. Both these grounds

were overruled by the Court; the first, because the evidence of the handwriting in the attestation is not used as a declaration by the witness, but is offered merely to show the fact that he put his name there, in the manner in which attestations are usually placed to genuine signatures; and the second, chiefly because of the mischiefs which would ensue, if the general rule excluding hearsay were thus broken in upon. For the security of solemn instruments would thereby become much impaired, and the rights

1 R. v. Brasier, 1 Lea. 199; 1 East, P. C. 443, S. C.; R. v. Nicholas, 2 C. & Kir. 246, per Pollock, C. B.

2 PR. v. Nuneham Courtney, 1 East, 373; R. v. Ferry Frystone, 2 East, 54; R. v. Abergwilly, id. 63; Mima Queen v. Hepburn, 7 Cranch, 296.

31 M, & W, 615, 623, 624, 627.