be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted."

§ 122. The statutes containing incidental enactments as to evidence are very numerous. Mr. Taylor, in the sixth edition (published in 1878) of his valuable and exhaustive work on evidence, cites more than seven hundred and fifty. On the other hand, the statutes dealing with evidence generally or concerned with evidence alone are comparatively very few in number, as appears from the following table (h): —

5 Eliz. c. 9.-Punishment of perjury. - Penalty on person summoned to give evidence and failing to attend.

19 Car. 2, c. 6. - Persons for whose lives leases have been granted who absent themselves for seven years, and who cannot be proved to be alive, are to be presumed to be dead.

29 Car. 2, c. 3 (Statute of Frauds). - Leases for three years or more, assignments, surrenders (1), promises of executor to be personally liable, guaranties, agreements upon consideration of marriage, contracts for sale of land, agreements not to be performed within a year, and contracts (in the absence of acceptance or part payment) for sale of goods for ten pounds or more, required to be in writing, signed by the party to be charged.

6 Ann. c. 18.

Where infant or married tenant for life is believed to be dead, and the death believed to be fraudulently concealed, the remainderman may obtain an order for their being produced to some person named therein; failing production of which tenants for life, remainderman may enter into possession.

2 Geo. 2, c. 25, s. 2.- Punishment of perjury ().

5 Geo. 2, c. 7. - Proof of debts in American Colonies by affidavit sworn before magistrate in Great Britain.

13 Geo. 3, c. 63. — Examination of witnesses in India on commission. 46 Geo. 3, c. 37. Witness may not refuse to answer on the ground of submitting himself to suit for debt for damages.

51 Geo. 3, c. 15. - Proof of debts in New South Wales by affidavit sworn before magistrate in Great Britain.

1 Will. 4, c. 22. — Examination of witnesses abroad upon commission.

(h) This table is partly taken from that prefixed to the statutes collected under tit. "Evidence" in Chitty's Statutes, 4th ed., vol. 2, p. 794.

(i) By virtue of this act, and 8 & 9 Vict. c. 106, s. 3, these leases, and also assign

ments, and also surrenders of a more than three years' term, are "void at law, unless made by deed."

(j) By virtue of this act, and 20 & 21 Vict. c. 3, perjury is punishable by seven years' penal servitude.

1 & 2 Vict. c. 105.- Persons bound by oath administered in any form which they consider binding.

5 & 6 Vict. c. 69.- Power to persons claiming property, &c. contingent on future events to file bill to "perpetuate any testimony which may be material for establishing such claims."

6 & 7 Vict. c. 85. - Abolition of the rule excluding witnesses from giving evidence by reason of incapacity from crime or interest (with proviso excepting parties to the record).

8 & 9 Vict. c. 113. - Official documents receivable in evidence without proof of seal or signature.—Courts to take judicial notice of sig nature of judges. - Local and personal act provable by Queen's Printers' copy.

14 & 15 Vict. c. 99. Parties in civil proceedings competent and compellable to give evidence. - Foreign and Colonial acts of state and judgments provable by certified copies. Conviction or acquittal provable by certificate. - Admissibility of examined or certified copies of public documents generally. - Every court which may hear evidence may also administer an oath.

16 & 17 Vict. c. 83. Husbands and wives of parties in civil proceedings competent and compellable to give evidence. Neither husband nor wife competent or compellable to disclose communication made during marriage.

17 & 18 Vict. c. 34.

Courts in England, Ireland, and Scotland may issue process to compel the attendance of witnesses out of their jurisdic

tion.

17 & 18 Vict. c. 125 (Common Law Procedure Act, 1854, ss. 20-22).Witness in civil proceedings refusing from conscientious motives to be sworn may affirm.

Sects. 23-27. Party may discredit his own witness. - Proof may be given that witness has made statements inconsistent with his present testimony. Witness may be cross-examined as to previous statements in writing. - Proof of conviction of witness for crime may be given. Attesting witness need not be called unless attestation required by law. Disputed writing may be compared with writing proved to be genuine.

19 & 20 Vict. c. 113. - Power for British court, upon certificate of foreign minister, to order the examination, in this country, of witnesses in relation to civil matters pending before foreign tribunals.

22 Vict. c. 20. - Power for British and Colonial courts to order the examination, within their jurisdiction, of witnesses in suits out of their jurisdiction.

22 & 23 Vict. c. 63.

Ascertainment of the law administered in one part of her Majesty's dominions when pleaded in the courts of another part.

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24 Vict. c. 11 (Foreign Law Ascertainment Act, 1861). This act, which empowers British courts to obtain, by transmission of a case, the opinion of foreign courts upon points of foreign law, and correspondingly empowers foreign courts to obtain the opinion of British courts upon points of British law, does not come into force until a convention has been entered into between British and foreign governments; and as no such convention has yet been entered into, the act has as yet proved wholly abortive (k).

24 & 25 Vict. c. 66.

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-Witness in criminal proceedings refusing from conscientious motives to be sworn may affirm.

28 Vict. c. 18. Assimilation of law of evidence in criminal, to law in civil proceedings, as laid down by ss. 22-27 of the Common Law Procedure Act, 1854, supra.

31 & 32 Vict. c. 37 (Documentary Evidence Act, 1868). Proof of Order in Council or of public offices by copy of London Gazette, or Queen's Printers' copy of Order, or by certified copy.

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32 & 33 Vict. c. 68 (Evidence Further Amendment Act, 1869). - Parties in action for breach of promise of marriage may give evidence, but must be corroborated. Parties to any proceedings instituted in consequence of adultery may give evidence. - Persons objecting to take an oath in any "court," or objected to as incompetent to take an oath, may make declaration.

33 & 34 Vict. c. 49 (Evidence Amendment Act, 1870). The word "court" in the Act of 1869 extended to any person having authority to administer an oath.

40 & 41 Vict. c. 14. Defendant and husband and wife of defendant competent and compellable to give evidence on the trial of any indictment instituted for the purpose of trying a civil right only. 42 Vict. c. 11 (Bankers' Books Evidence Act, 1879). — Examined copy of entry in bankers' books to be received as prima facie evidence of such entry.

45 Vict. c. 9 (Documentary Evidence Act, 1882). - Proof of public documents by copy purporting to be printed under superintendence of the Stationery Office.

This is believed to be a complete list of the statutes dealing with evidence generally, or concerned with evidence alone. They show very conspicuously the national habit of proceeding by gradual, in preference to sudden, reforms of the law. A consolidating bill, proposing also a variety of amendments of the law, was introduced by the present Lord Chief Justice of England, Lord Coleridge, when

(k) See Chit. Stat. vol. 3, p. 827, note (a), tit. Evidence.

Attorney-General, late in the session of 1873, but it was not printed, and has not since been proceeded with The bill was drawn by the present Mr. Justice Stephen when at the bar, upon the model of the Indian Evidence Act Act 1 of 1872, which had been previously drawn by him, and appears to be generally understood, and to have required little judicial commentary or exposition (). There has been considerable controversy of late years whether accused persons should be competent or compellable to give evidence, the preponder ance of opinion, as shown by the Criminal Code Bill of 1878, and other measures, being in favor of an alteration of the law.

With that exception, no very important amendment of the law of evidence appears to be in prospect. It may be hoped, therefore, that a consolidation of the above statutes, if not a codification of the whole law of evidence, is not very far distant.

(?) See Introduction to Sir James Stephen's Digest of the Law of Evidence.

BOOK II.

INSTRUMENTS OF EVIDENCE.1

§ 123. By "Instruments of Evidence" are meant the media through which the evidence of facts, either disputed or required to be proved, is conveyed to the mind of a judicial tribunal (a). The word "instrument" has, however, both with ourselves and the civilians, a secondary sense, i. e. denoting a particular kind of document (b). These instruments of evidence are of three kinds :

1. "Witnesses," persons who inform the tribunal respecting facts.

2. "Real Evidence," — evidence from things.

3. "Documents," evidence supplied by material substances, on which the existence of things is recorded by conventional marks or symbols.

Although, in natural order, the subject of real evidence precedes that of witnesses, it will be more convenient to treat of the latter first, as it is by means of witnesses that both real and documentary evidence are usually presented to the tribunal.

(a) "Instrumentorum nomine ea omnia accipienda sunt, quibus causa instrui potest: et ideo tam testimonia, quam per

sonæ instrumentorum loco habentur." Dig. lib. 22, tit. 4, 1. 1.

(b) See infra, pt. 3, and Heinec. ad Pand. pars 4, § 126.

The Media of Evidence. Aside from real evidence, of which the court or jury are the original percipient witnesses (§ 196, n. 1, infra), and evidence of matters of which judicial cognizance is taken (§ 253, n. 1, infra), all evidence comes to the tribunal either (a.) as the statement of a witness, or (b.) as the statement of a document. (a.) It is not necessary that the statement of a witness should be oral. Any method of communicating thought which the circumstances of the case or the physical condition of the witness demand, may, in the discretion of the court, be employed. Thus, a deaf mute may testify by signs, by writing, or through an interpreter. State v. DeWolf, 8 Conn. 93; Com. v. Hill, 14 Mass. 207; Snyder v. Nations, 5 Black f. 295; People 7. McGee, 1 Denio, 19. For an interesting instance, where a dying woman, conscious, but without power of articulation, on being asked whether the defendant was her assailant, and if so to squeeze the hand of the questioner, the question and the fact of her affirmative pressure were held admissible in evidence, see Com. v. Casey, 11 Cush. 417.

(b.) For some consideration of the rules regulating documentary evidence, see § 215, n. 1, infra.