time of the disputed act (g). As, if the question arise, whether a particular security were given by way of fraudulent preference, the material inquiry will be, what was the situation, conduct, and language of the bankrupt with reference to the whole transaction (h).

So, in cases of treason and conspiracy, it is an established rule, that, where several persons are proved to have combined together for the same illegal purpose, any act done by one of the party in pursuance of the plan originally concerted, and with reference to the common object, is, in the contemplation of law, the act of the whole party (i); though, where a question arises as to the admissibility of documentary evidence, for the purpose of implicating a party, and shewing his acquiescence in such illegal purpose and common object, it will always be necessary to consider whether the rule scribere est agere (k) applies, or whether the evidence in question is merely the narrative of some third party of a particular occurrence, and therefore in its nature hearsay, and not original evidence.

The substance of the preceding remarks, shewing the more important limitations of the general rule, res inter clios acta alteri nocere non debet, may be thus stated in the words of a learned judge:-One great principle in the law of evidence is, that all such facts as have not been admitted by the party against whom they are offered, or some one under whom he claims, ought to be proved under the sanction of an oath, (or its equivalent introduced by statutea solemn affirmation), either on the trial of the issue, or some other issue involving the same question, between the same parties, or those to whom they are privy. To this rule certain exceptions have been recognised, some from

(g) Per Tindal, C. J., Ridley v. Gyde, 9 Bing. 352; Rawson v. Haigh, 2 Bing. 99. See Smith v. Cramer, 1 B. N. C. 585.

(h) Per Bosanquet, J., 9 Bing. 355. (i) Per Bayley, J., Watson's case, 32 Howell, State Trials, 7. (k) Ante, p. 146.

very early times, on the ground of necessity or convenience; such as the proof of the quality and intention of acts by declarations accompanying them, of pedigrees and of public rights by the statement of deceased persons presumably well acquainted with the subject, as inhabitants of the district, in the one case, or relations, within certain limits, in the other; and another exception occurs, where proof of possession is allowed to be given, by the entries of deceased stewards or receivers charging themselves, or proof of facts of a public nature by public documents (1).

HAVING thus briefly touched upon some few rules relating chiefly to the admissibility of evidence, and having considerably exceeded the limits which I originally prescribed to myself, I now feel compelled reluctantly to take leave of the reader, trusting, that, however slight or disproportioned this attempt may appear, when compared with the extent and importance of the subject, I have yet, in the language of Lord Bacon, applied myself, not to that which might seem most for the ostentation of mine own wit or knowledge, but to that which may yield most use and profit to the student; and have, at least, afforded some materials for acquiring an insight into those conclusions of reasonthose legum leges-which are essential to the true understanding and application of the law.

(1) Per Parke, B., 7 A. & E. 384, 385.

INDEX.

ABATEMENT. See ERROR.
by death of party, 115.

ACCESSORY. See CRIMINAL LAW.

ACTION AT LAW. See CASE, CONTRACT, DEBT, LIMITATION, TRES-
PASS, TROVER, Venue.

consolidation of actions, 136.

intention of defendant, how immaterial, 154.

Actio personalis moritur cum personâ, 400. See EXECUTOR.

ADMINISTRATOR. See EXECUTOR.

where trespass lies against, 56.

power as to contracts made after intestate's death, 381.

ADVOWSON. See LAPSE, QUARE IMPEDIT.

appendant to a manor.

AGENT. See PRINCIPAL AND AGENT.

ALIEN. See ALLEGIANCE.

plea of alien enemy, 87.

ALLEGIANCE

defined, 33.

release from, by act of Legislature, 34.
of aliens, ib.

ALLUVION.

where it belongs to the owner of the land, 72.

ANCESTOR. See HEIR, SEISINA.

ANNUITY,

grant of, after cohabitation, when valid, 304.

APICES JURIS, 88.

APPEAL OF DEATH, 139.

ARREST

on Sunday illegal, 19.

where a second arrest for the same cause is legal, 137.

ARSON. See CRIMINAL LAW.

ATTAINDER. See ERROR, HEIR.

AUTREFOIS ACQUIT. See CRIMINAL LAW.

stolen, not recoverable from bonâ fide holder, 370.

BANKRUPT. See CONTRACT, SHERIFF.

trover by assignees of, 55, 392.

discharged from his liabilities as lessee, 119.

whether his assignees can repudiate his contract, 381.

BILL OF EXCHANGE. See DEBT, NUDUM PACTUM.

act of God making condition impossible, 111.

effect of the condition becoming otherwise impossible, 118, 119,

319.

illegality a good defence to action on, 350.
how discharged, 408.

BOROUGH ENGLISH, 331, 417.

BROKER. See LIEN, PRINCIPAL AND AGENT.

CARRIER. See CASE, PRINCIPAL AND AGENT.
for what damage he is liable, 106, 112.
how bound by his notices, 256.