admitted as evidence, even after his death, as between the plaintiff and defendant; for this falls under the same consideration, and is in effect not distinguishable from hearsay evidence.

The rejection of hearsay is subject, however, to exception in particular cases. For, first, the declaration of a third person is, in certain instances, admitted as forming part of the res gesta; or, else, as deriving particular credibility from the circumstances under which it was made. Thus, if a question arises, whether a third person committed an act of bankruptcy, by absenting himself from his house, his own declaration made at the time, that he absented himself to avoid a creditor, is good evidence (z). So the books of stewards, or other receivers, though strangers to the suit, are admitted in evidence after their death, so far as the entries therein tend to charge them with the receipt of money; because such acknowledgments, having been made against their own interest, are entitled on that ground to particular weight (a). Again, declarations or statements in the nature of hearsay are admitted, where evidence of that description happens to constitute the natural and appropriate means of proof; as upon questions of pedigree, custom, boundary, and the like (6). To which we add, as another exception from the general rule, that a statement made by a third person will be receivable as evidence against the plaintiff or defendant in the cause, if the plaintiff or defendant be proved to have been present when the statement was made, and to have heard its import; for it then becomes material to consider whether, by his language or de

(2) 1 Stark. Ev. 48.

(a) See Higham v. Ridgeway, 10 East, 109; Doe v. Coulthred, 7 A. & E. 235; Percival v. Nanson, 7 Exch. 1. As to entries against interest, see 2 Smith's Leading Cases, 193; Fursdon v. Clogg, 10 Mee. & W. 574.

(b) See Davies v. Lowndes, 5 Bing. N. C. 161; Thomas v. Jenkins, 6 A. & E. 525; Barraclough v. Johnson, 8 A. & E. 99; Brisco v. Lomax, ibid. 198; Doe v. Hawkins, 2 Q. B. 212; Bradley v. James, 13 C. B. 822.

meanour on the occasion, it appeared to receive his assent (c).

Lastly, we may notice as a further rule, so far as written instruments are concerned, (and one of recent introduction,) that where the genuineness of a writing is in dispute, evidence on that point may be given, by witnesses speaking on comparison of such writing with any other writing which has been proved to the satisfaction of the judge to be genuine (d).

These rules relate to the admissibility of evidence in different cases (e). As to its effect, we may remark in general, that it may be either positive or circumstantial (f); by the former of which we commonly understand a proof of the very fact in question; by the latter a proof of circumstances from which, according to the ordinary course of human affairs, the existence of that fact may reasonably be presumed (g). And the strength

(c) 1 Stark. Ev. 50.

(d) 17 & 18 Vict. c. 125, s. 27. (e) As to the inadmissibility in evidence of instruments chargeable with duty, if not properly stamped, vide sup. vol. I. p. 484, n. (o).

(f) Blackstone (vol. iii. p. 371) defines "circumstantial evidence" as the proof of such circumstances as "either necessarily or usually attend the fact itself."

(g) It is to be observed that the presumptions here referred to are of a different kind from the presumptions of law before mentioned, (vide sup. pp. 540, 541,) which are in truth mere legal maxims in the abstract, on which, as on other points of law, the jury are to follow implicitly the direction of the judge. But the presumptions now in question arise from special circumstances; and are inferences which in general the jury are at liberty to

VOL. III.

adopt or reject; though even here their discretion is in some instances controlled by precedent, or the manifest reason of the case. Thus (amongst other instances) we have legal decisions upon the sufficiency of the presumption of life, under particular circumstances; see Nepean v. Knight, 2 Mee. & W. 894; In re Benham's Trust, Law Rep., 4 Eq. Ca. 416; In re Beasney's Trusts, ib. 7 Eq. Ca. 498; In re Phené's Trusts, ib. 5 Ch. App. 139; of loss of ship, Green v. Brown, 2 Str. 1199; of seisin in fee, Jayne v. Price, 5 Taunt. 326; Doe v. Williams, 2 Mee. & W. 749; of death without issue, Doe v. Woolley, 8 B. & C. 22; Earl of Roscommon's case, 6 Clark & Fin. 97; of a reconveyance, Fenney v. Jones, 3 M. & Scott, 472; Doe v. Williams, 1 Mee. & W. 749; of unity of possession, Clayton v. Corby, 2 Gale &

NN

of circumstantial or presumptive evidence varies according to the nature and particular combination of the facts proved. It may either be barely sufficient to decide the question, supposing no evidence to be offered to the contrary; or it may be strong enough to prevail against evidence offered on the other side, or even so violent as not to admit of being repelled by any adverse evidence whatever, except under very particular circumstances.

Such are the general principles of law relative to the evidence; which, it is to be observed, is required (subject to the power of the court, as enlarged, under the Judicature Act, 1873, to allow depositions or affidavits to be read in certain cases) to be given at the time of trial, in open court, in the presence of the judge and jury, as also of the parties, their attorneys, the counsel, and all bystanders (h); each party having liberty to except to its competency; which exceptions are publicly stated, and by the judge are openly and publicly allowed or disallowed in the face of the country; which must curb any secret bias or partiality that might arise in his own breast. And if either in his directions or decisions he mistakes the law by ignorance, inadvertence or design, the counsel on either side have hitherto been allowed to require him publicly to seal a bill of exceptions, stating the point wherein he is supposed to err; and this he was obliged to seal by the Statute of Westminster the second, 13 Edward I. c. 31 (i). This bill of exceptions was in the nature of an appeal and was examinable, not in the court out of which the record issued for the trial at nisi prius, but in the appellate court of Exchequer Chamber, the jurisdiction and powers of which have (as

D. 174; of authority as agent, Owen v. Barrow, 1 N. R. 101; Ward v. Evans, Salk. 442; of payment, Welch v. Seaborn, 1 Stark. Rep. 474; Oswald v. Legh, 1 T. R. 270; R. v. Stephens, 1 Burr. 434; of pay

ment by cheque, Egg v. Barnett, 3 Esp. 196; of due stamping, Doe v. Coombs, 3 Q. B. 687.

(h) See 36 & 37 Vict. c. 66, s. 72, et Sched. r. 36.

(i) 3 Bl. Com. p. 372.

already explained) been transferred by the Judicature Act, 1873, to the court of appeal thereby established (k); and the bill of exceptions itself has accordingly been expressly abolished, by the rules of procedure annexed to the same statute (1). But a demurrer to the evidence is determinable by the court out of which the record is sent. This may arise where a record or other matter is produced in evidence, concerning the legal consequences of which there arises a doubt in law in which case the adverse party may, if he pleases, demur to the whole evidence; and such demurrer admits the truth of every fact which has been alleged, but denies the sufficiency of them all, in point of law, to maintain or overthrow the issue (m); which draws the question of law from the cognizance of the jury to be decided by the court itself. But this proceeding, though not expressly abolished, has become wholly laid aside in modern practice; since the more frequent extension of the discretionary powers of the court in regard to a new trial, which is now commonly granted for the misdirection of the judge at nisi prius (n).

This open examination of witnesses vivâ voce, in the presence of all mankind, is much more conducive to the clearing up of truth than evidence taken down from their mouths in writing elsewhere and read afterwards in court, which, unless in exceptional cases, is not allowed (o); for a witness will often depose that in private which he would not have ventured to testify before a public and solemn tribunal. [In evidence so taken, moreover, an artful or careless scribe may make a witness speak what he never meant, by dressing up the depositions in his own form

(k) As to a bill of exceptions see Davenport v. Tyrrell, 1 W. Bl. 679; Bigge v. Parkinson, 7 H. & N. 955.

(1) 36 & 37 Vict. c. 66, Sched. r. 49.

(m) See Co. Litt. 72; 5 Rep. 104. (n) 3 Bl. Com. p. 373. As to a new trial for misdirection, with regard to evidence, see 36 & 37 Vict. c. 66, Sched. r. 48.

(0) Vide sup. pp. 532, 533.

[and language; but the witness in open court is at liberty to correct and explain his meaning, if misunderstood, which he can never do after his written deposition is once taken. Besides all this, the occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sift out the truth much better than a formal set of interrogatories previously penned and settled; and the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery, which can never be had upon any other method of trial. Nor is the presence of the judge, during the examination, a matter of small importance; for, besides the respect and awe with which his presence will naturally inspire the witness, he is able by use and experience to keep the evidence from wandering from the point in issue. In short, by this public and oral method of examination, and this only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behaviour, and inclinations of the witness; in which points all persons must appear alike when their depositions are reduced to writing, and read to the judge in the absence of those who made them; and yet as much may be frequently collected from the manner in which the evidence is delivered, as from the matter of it (p).]

When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury; recapitulating in greater or less detail, as he may deem necessary, the statements of the witnesses, and the contents of the documents adduced on either side: commenting upon the manner in