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a certificate of register, and a proper ground for the reception of secondary evidence had been laid; Lord Ellenborough held, that an entry in the register-book at the custom-house, stating that the certificate had been granted on an affidavit of the defendant that he was owner, was not admissible as secondary evidence. The collector's clerk, or some person who had seen the affidavit, and knew that it was made by the defendant, ought to have been called. (w) Where there are two parts of a written agreement, Of lost agreeboth executed at the same time, the one stamped and the other ment, &c., by unstamped, the unstamped part, upon being proved to be correct
counterpart. by a witness, is admissible as secondary evidence of the contents of the stamped part. (X) So where there was a properly stamped agreement under seal, and a counterpart of it unstamped, and the plaintiff proved the loss of the deed itself, and proposed to read a draft copy in evidence, it was held that the unstamped counterpart, which was produced after notice by the defendant might be read as secondary evidence of the contents of the lost deed. () There are some particular cases, where the rule that the best Cases where
the rule is re. possible evidence must be produced has been relaxed. Where it
laxed. is necessary to prove an entry in a public book, the original book
Public books. need not be shown ; but from a principle of general convenience, an examined copy will be admitted. () The post-office marks in Post-office town or country, proved to be such, are evidence that the letters, marks, on which they are, were in the office to which those marks belong at the dates those marks specify;(a) but a mark of double postage on such a letter is not in itself evidence that the letter contained an enclosure, (b) and it has been held that the post-mark is not evidence for the purpose of proving that the letter was put into the post-office at the place mentioned by such post-mark. (c) The muster-books of the King's ships, documented in the navy office, Muster-books. to which returns are regularly made, by the commanders, of the names, &c., of their respective crews, may be admitted as evidence of the persons therein named having served on board the several ships in the capacity there mentioned. (d) So in the case of all Persons acting peace officers, justices of the peace, constables, &c., it is sufficient to in a public
capacity. prove that they acted in those characters, without producing their appointments; (e) and that even in a case of murder. (f) A witness On the voire may be examined on the voire dire as to the contents of a written dire. instrument, without notice having been given to produce it. (9) And where a witness is cross-examined for the purpose of im- On cross
examination peaching his credit, such cross-examination is sometimes allowed to impcach a
(w) Teed v. Martin, 4 Campb. 90. daily book of a prison is good evidence (a) Waller v. Horsfall, 1 Campb. 501. to prove the time of a prisoner's dis.
(y) Munn 1. Godbold, 3 Bing. 292. charge. See also Garnons v. Swift, 1 Taunt. (e) i Phil. Ev. 432. Ante, p. 327. 507.
(f) By Buller, J., in Berryman ?. (-) 1 Phil. Ev. 432.
Wise, 4 T. R. 366. (a) Rex v. Plumer, Russ. & Ry. 264. (9) Howell ». Lockc, 2 Campb. 15. Ante, p. 220.
"An examination on the voire dire is for (6) Ibid.
the purpose of establishing something of (c) Rex v. Watson, 1 Campb. 215. which the court is to be the judge and not Ante, p. 222, and Fletcher v. Braddyll, the jury ; it may well be, therefore, that 3 Stark. N. P. C. 64.
the rule there is not so exclusive as in the (d) Ante, vol. 2, p. 803, Rhodes's case, case of an examination going to a jury.' 1 Leach, 24. And see Aickles's case, i Per Maule, J., Macdonnell v. Evans, 11 Leach, 390, where it was held that the C. B. 930.
to be conducted without regard to the rule under consideration. credit.
As to questioning a witness whether he has been convicted of a
of trying his credit and veracity, whether he has not given an
rule, that the best evidence is to be produced which the nature of material to the the thing admits, is to be understood as applying only to the proof issue.
of the issue, or of some fact material to the issue. (j). Statements
Whatever a party says, or his acts amounting to admissions, are respecting
evidence against himself, though such admissions may involve writings.
what must necessarily be contained in some deed or writing. (k)
by words. (n) Fact of
If the fact of the occupation of land is alone in issue, without tenancy. respect to the terms of the tenancy, this fact may be proved by any
competent oral testimony, such as payment of rent, notwithstanding
of a former demise in writing (1)
written agreement may be proved without its production, but not
(j) Ibid. 301, 7th ed. See Henman v. overseers of the former parish to remove Lestor, 31 L. J. C. P. 366.
the pauper, unless a certificate was ob. (k) Per Parke, B., Slatterie v. Pooley, tained, was an admission that a certificate 6 M. & W. 664. Tupper v. Folkes, 9 had been obtained. C. B. (N. S.) 797.
(0) Greenl. Ev. 100. Rex v. The Holy (1) Per Parke, B., Slatterie r. Pooley. Trinity, Kingston-upon-Hull, 7 B. & c. Erle v. Picken, 5 C. & P. 542, Parke, B. 611; 1 M. & R. 444.
(m) Per Patteson, J., Reg. . Basing- (2) Augustien v. Challis, 1 Exch. R. stoke, 14 Q. B. 611.
279. (n) Per Coleridge, J., ibid. In this (9) Rex v. Rawden, 8 B. & C. 708. case it was held that the payment of Rex v. Merthyr Tidvil, 1 B. & Ad. 29. relief to a pauper whilst resident in one Doe v. Harvey, 8 Bing. R. 239. parish by the overseers of another parish (1) Howard 2. Smith, 3 M. & Gr. 255. for several years, after a threat by the (s) Reg. 1. Duffield, 5 Cox, C. C.
Inscriptions on walls, and fixed tables, mural monuments, grave- Inscriptions stones, surveyors' marks on boundary trees, as they cannot be on walls, &c. conveniently produced in court, may be proved by secondary evidence. (t) 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 court. 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. (U) 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. (v).
On an indictment for bigamy, it has been held that a photograph Photograph. taken from the prisoner, who said it was that of her first husband, might be shown to a witness, and he might be asked whether it represented the man, whom he had seen married. (w)
Of Hearsay Evidence. There is no rule in the law of evidence more important or more General rule frequently applied than the general one, that hearsay evidence of that hearsay a fact is not admissible. If any fact is to be substantiated against inadmissible.
evidence is 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. (x)
And the same rule applies to the written statements of either And so also living or deceased persons. Where, therefore, after the death of are written
statements. one Stuart, a tin case containing papers was delivered by a servant to their master; and one of these papers was indorsed 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 404. Reg. v. Rowlands, 5 Cox, C. C. was admissible, because it is only a visible 415 (6).
representation of the image or impression (t) Greenl. Ev. 106, citing Doe d. made upon the minds of the witnesses by Coyle v. Cole, 6 C. & P. 359, Patteson, the sight of the person, or the object it J. Rex v. Fursey, 6 C. & P. 81.
represents; and, therefore, is in reality (u) Jones v. Tarleton, 1 Dowl. P. R. only another species of the evidence, (N. S.) 625, 9 M. & W. 675.
which persons give of identity when they (c) Anonymous, stated by Maule, J., speak merely from memory.' in Reg. v. Hinley, 1 Cox, C. C. 12.
(.r) i Phil. Ev. 229, 7th ed. ; 206, 9th (w) Reg. v. Tolson, 4 F. & F. 103.
ed. Willes, J., who said, “The photograph
Where words amount to acts.
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 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 indorsement on the paper containing it was inadmissible, and that all it showed was that one paper had once been in his presence; and it was held that the certificate was inadmssible. (y)
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. (2) So directions given by words are admissible. (a)
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. (6) 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. (c) And, generally speaking, declarations accompanying acts are admissible in evidence as showing the nature, character, and object of such acts. (d) 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; (@) 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 therefore admitted in proof like any other material facts. They are part of the res gestae. (f) Thus, where a constable, who
Hearsay part of the transaction, or res yesta.
(!) Reg. v. Barber, 1 ('. & K. 434. Gurney, B., Williains, J., and Maule, J. The statement in the text is more accu. rate than that in C. & K.
The judges did not intimate the ground on which the certificate was inadmissible.
(2) Ford 1. 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 into your hand, that would clearly be an act.'
(a) Reg. v. Wilkins, 4 Cox, C. C. 92, where Erle held that a witness might
prove that he made inquiries, and in con-
(6) Rosc. Ev. 30.
(c) Co. Litt. 49 b, 245 b. Robinson l'. Swett, 3 Greenl. 316. 3 Bl. Com. 174, 175.
(f) Greenl. Ev. 120, citing Bateman t. Bailey, 5 T. R. 512. Rawson ". Haigh, 2 Bingh. R. 99. Newman r. Stretch, M. & M. 338. Ridley v. Gyde, Bing. 349. Smith r'. ('ramer,
Bing. N. . 585. Gorham . Canton, 5 Greenl. 266.
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. (f) 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. (9)
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 inquiring 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 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.' (99) Fellowes v. Williamson, M. & M. 306. the scope of his authority ; but it seems Vacher v. Cocks, M. & M. 353, 1 B. & equally admissible, as a declaration acAd. 115.
companying the act of payment, and ex(f) Rex v. Smyth, 5 C. & P. 201. planatory of the purpose of the payment. And see 1 Stark. Ev. 62, 350, 351. Wal- C. S. G. See R. v. Edwards, 12 Cox, C. ters v. Lewis, 7 C. & P. 344. Where an C. 230. agent paid money into a bank, Littledale, (g) Reg. 1. Petcherini, 7 Cox, C. C. J., held that what he said about the money 78, Crampton, J., and Greene, B. It at the time he paid the money into the seems clear that the acts of the person bank was admissible. Reg. v. Hall, 8 C. were inadmissible on the same ground. & P. 358. The learned judge admitted (99) R. v. Wainwright, 13 Cox, C. C. the evidence, on the ground that it was 171, Cockburn, C. J. A similar objec. a declaration by an agent acting within tion to the above was taken to certain