11 & 12 Vict. c. 46, s. 4.

14 & 15 Vict. c. 100.

§ 283. It will be observed that, while the 9 Geo. IV. c. 15 extends to trials for misdemeanors, the 3 & 4 Will. IV. c. 42, s. 23, and the 15 & 16 Vict. c. 76, are altogether restricted to civil cases. But the 11 & 12 Vict. c. 46, s. 4, after reciting that "a failure of justice frequently takes place in criminal trials by reason of variances between writings produced in evidence and the recital or setting forth thereof in the indictment or information, and the same cannot now be amended at the trial, except in cases of misdemeanor:" enacts, that "it shall and may be lawful for any court of oyer and terminer and general gaol delivery, if such court shall see fit so to do, to cause the indictment or information for any offence whatever, when any variance or variances shall appear between any matter in writing or in print produced in evidence and the recital or setting forth thereof in the indictment or information whereon the trial is pending, to be forthwith amended in such particular or particulars by some officer of the court, and after such amendment the trial shall proceed in the same manner in all respects, both with regard to the liability of witnesses to be indicted for perjury and otherwise, as if no such variance or variances had appeared."

§ 284. A far greater alteration in the law on this part of the subject has however been effected by the 14 & 15 Vict. c. 100, some portions of which have been already referred to (1). This statute, which is entitled "An Act for further Improving the Administration of Criminal Justice," after reciting that "offenders frequently escape conviction on their trials by reason of the technical strictness of criminal proceedings in matters not material to the merits of the case: and that such technical strictness may safely be relaxed in many instances, so

(1) Supra, § 277.

as to insure the punishment of the guilty, without depriving the accused of any just means of defence: and that a failure of justice often takes place on the trial of persons charged with felony and misdemeanour by reason of variances between the statement in the indictment on which the trial is had and the proof of names, dates, matters, and circumstances therein mentioned, not material to the merits of the case, and by the mis-statement whereof the person on trial cannot have been prejudiced in his defence:" enacts in its first section, that "Whenever on the trial of any indictment for any felony or misdemeanour there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof, in the name of any county, riding, division, city, borough, town corporate, parish, township, or place mentioned or described in any such indictment, or in the name or description of any person or persons, or body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offence charged therein, or in the name or description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged or intended to be injured or damaged by the commission of such offence, or in the christian name or surname, or both christian name and surname, or other description whatsoever, of any person or persons whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or described therein, it shall and may be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defence on such merits, to order such indictment to be amended, according to the proof, by some officer of the court or other person, both

in that part of the indictment where such variance occurs and in every other part of the indictment which it may become necessary to amend, on such terms as to postponing the trial to be had before the same or another jury, as such court shall think reasonable; and after any such amendment the trial shall proceed, whenever the same shall be proceeded with, in the same manner in all respects, and with the same consequences, both with respect to the liability of witnesses to be indicted for perjury and otherwise, as if no such variance had occurred; and in case such trial shall be had at Nisi Prius the order for the amendment shall be indorsed on the postea, and returned together with the record, and thereupon such papers, rolls, or other records of the court from which such record issued as it may be necessary to amend shall be amended accordingly by the proper officer, and in all other cases the order for the amendment shall either be indorsed on the indictment or shall be ingrossed on parchment, and filed, together with the indictment, among the records of the court: provided that in all such cases where the trial shall be so postponed as aforesaid, it shall be lawful for such court to respite the recognizances of the prosecutor and witnesses, and of the defendant, and his surety or sureties, if any, accordingly, in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence respectively, and the defendant shall be bound to attend to be tried, at the time and place to which such trial shall be postponed, without entering into any fresh recognizances for that purpose, in such and the same manner as if they were originally bound by their recognizances to appear and prosecute or give evidence at the time and place to which such trial shall have been so postponed: provided also, that where any such trial shall be to be had before another jury, the crown and the defendant shall respectively be entitled to the same challenges as they

were respectively entitled to before the first jury was sworn." By the second section, "Every verdict and judgment which shall be given after the making of any amendment under the provisions of this act shall be of the same force and effect in all respects as if the indictment had originally been in the same form in which it was after such amendment was made." And by the third section, "If it shall become necessary at any time for any purpose whatsoever to draw up a formal record in any case where any amendment shall have been made under the provisions of this act, such record shall be drawn up in the form in which the indictment was after such amendment was made, without taking any notice of the fact of such amendment having been made." This statute has not yet been expounded by judicial decision. See however the cases of R. v. Vincent, 2 Den. C. C. 464; 2 Cox, Cr. Cas. 537; and R. v. Baroise, 2 Cox, Cr. Cas. 559.

1

BOOK II.

SECONDARY RULES OF EVIDENCE.

The secondary

rules of evi. dence.

§ 285. THE SECONDARY rules of evidence, as has been already stated, are those rules which relate to the modus probandi, or mode of proving the matters that require proof (a), and for the most part only affect evidence in causâ (b). The fundamental principle of the common law on the subject is, that THE BEst evidence must be GIVEN-a maxim the general meaning of which has been explained in a former part of this work (c). In certain cases, however, peculiar forms of proof are either prescribed or authorized by statute. We propose to treat the whole matter in the following order :

1. Direct and circumstantial evidence; including presumptions of law and fact.

2. Primary and secondary evidence.

3. Derivative evidence in general.

4. Res inter alios acta alteri nocere non debet.

5. Opinion evidence.

6. Self-regarding evidence.

7. Quantity of evidence required.

8. Evidence rejected on grounds of public policy.

9. Authority of res judicata.

(a) Supra, § 243.

(b) Part 1, ch. 1, § 86.

(c) Part 1, ch. 1, § 87.