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not expressly warn the jury to place no reliance upon it.' Thirdly, where evidence is objected to at the trial, the nature of the objections must be distinctly stated, whether a bill of exceptions be tendered or not; and on either moving for a new trial on account of its improper admission, or on arguing the exceptions, the counsel will not be permitted to rely on any other objections than those taken at Nisi Prius.2

§ 1682. Fourthly, where evidence is tendered at the trial on an untenable ground, and is consequently rejected, the Court will not grant a new trial merely because it has since been discovered that the evidence was admissible on another ground; but the party must go much further, and show, first, that he could not by due diligence have offered the evidence on the proper ground at the trial, and next, that manifest injustice will ensue from its rejection. His position, at the best, is that of a party who has discovered fresh evidence since the trial.' Fifthly, where evidence is rejected at the trial, the party proposing it should formally tender it to the judge, and request him to make a note of the fact; and, if this request be refused, he should then tender a bill of exceptions. If this course has not been pursued, and the judge has no note on the subject, the counsel cannot afterwards complain of the rejection of the evidence. Lastly, where evidence has been improperly admitted or rejected at Nisi Prius, the Court will grant a new trial, unless it be clear beyond all doubt, that the error of the judge could have had no possible effect upon the verdict, in which case they will not enable the defeated party to protract the litigation.' It may

1 Goslin v. Corry, 7 M. & Gr. 342; Doe v. Benjamin, 9 A. & E. 644. Williams v. Wilcox, 8 A. & E. 314, 337; Ferrand v. Milligan, 7 Q. B. 730; Bain v. Whitehaven & Furness Junct. Rail Co., 3 H. of L. Cas. 1, 15-17, per Lord Brougham.

3 Doe v. Beviss, 18 L. J., C. P., 128; 7 Com. B. 456, S. C. Gibbs v. Pike, 9 M. & W. 351, 360, 361.

Wright v. Doe d. Tatham, 7 A. & E. 330; Baron de Rutzen v. Farr, 4 A. & E. 53, 57; Crease v. Barrett, 1 C. M. & R. 919, 933; Doe v. Langfield, 16 M. & W. 497. These cases overrule Doe v. Tyler, 6 Bing. 561; 4 M. & P. 377, S. C.; a dictum of Lord Tenterden in Tyrwhitt v. Wynne, 2 B. & A. 559; and one by Sir James Mansfield in Horford v.

further be stated, that the wrongful reception of evidence will not furnish less available ground for a new trial, although the jury accompany their verdict with a distinct and positive statement that they have arrived at it independently of the obnoxious evidence.'

§ 1683. Having now completed the design of this Treatise, in presenting a general view of the principles and rules of the Law of Evidence, the work is here properly brought to a close. The student will not fail to observe the symmetry and beauty of this branch of the law, under whatever disadvantages it may labour from the manner of treatment; and will rise from the study of its principles, convinced, with Lord Erskine, that, with some few exceptions, "they are founded in the charities of religion,-in the philosophy of nature,-in the truths of history,-and in the experience of common life."

3

75; Edwards

Wilson, 1 Taunt. 14. See Mortimer v. M'Callan, 6 M. & W. v. Evans, 3 East, 451. The Scotch law on this subject is embodied in § 45 of 13 & 14 Vict., c. 36, which enacts that "a bill of exceptions shall not be allowed in any cause before the Court of Session, upon the ground of the undue admission of evidence, if in the opinion of the Court the exclusion of such evidence could not have led to a different verdict than that actually pronounced; and it shall not be imperative on the Court to sustain a bill of exceptions, on the ground of the undue rejection of documentary evidence, when it shall appear from the documents themselves that they ought not to have affected the result at which the jury by their verdict have arrived." 1 Bailey v. Haines, 19 L. J., Q. B., 73, 78.

2 Gr. Ev., § 584, in great part.

3 See Index, tit., Suggestions for amending the Law of Evidence. 4 24 How. St. Tr. 966.

INDEX.

PAGE

ABATEMENT, plea in, of non-joinder of co-defendants not divisible

689

effect of plea in, as an admission

688

of legacies rateably, when presumed

152

1354

ABBEY. (See Monasteries)

1106

1006

pendency of former suits, when pleadable in, by one joint debtor

ABDUCTION, wife competent to prove

on trial for, costs of witness may be allowed, when
ABORTION, on charge of procuring, dying declarations of woman, inadmissible 588
ABROAD, when witness is, his former depositions admissible

416

his examination taken under commission admissible 443
ABSENCE, presumption of death from

ABSTRACTS of old deeds, when admissible

ABUTTALS, description by, in tresspass, quare cl. fregit

in indictment for non-repair of highway
for night poaching

ACCEPTANCE of bill, what it admits. (See Bill of Exchange)

must be by signed writing on bill
in blank, effect of

of goods, what sufficient to satisfy St. of Frauds

whether sufficient, question for jury

of rent, inference from

ACCEPTOR. (See Bill of Exchange)

ACCESS, of husband and wife, when presumed

176

510

296

239

239

699-701

893

1459

854-857

51

657

113

783

cannot be disproved by husband or wife

to papers, raises inference of knowledge of, & acquies. in, contents, when 661
ACCESSORY, confession by principal felon, no evidence against

747

1355, 1356

record of conviction of principal, no evid. of his guilt, as against
acquittal as principal, bar to indict. as accessory before the fact
acquittal as principal in rape, no bar to indict. for aiding others
ACCIDENT, action for compensation to families of persons killed by, must

be brought within twelve months after death
material alteration of instrument by, effect of
ACCOMPLICE, presumption against testimony of
confirmation of, not strictly necessary

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ACCORD & SATISFACTION must be specially pleaded even in trover
ACCOUCHEUR, entry of a confinement in book of, marked "paid," evi-

dence of child's age

ACCOUNT, action for, must be brought within six years

ACCOUNT RENDERED, effect of, as an admission

in name of a person, admission that goods were supplied to his credit

PAGE

ACCOUNT RENDERED (Continued)

effect of not objecting to, as an admission

effect of objecting to one item of, as an admission of the rest
ACCOUNT-BOOKS, contents of, cannot be primarily proved by parol

when balance of, may be proved by witness who has examined them
entries in, sometimes admissible as between master and servant,
tradesman and shopman, banker and customer, and partners
of merchants and tradesmen admissible for them in America
so in France and Scotland

so in taking accounts in Court of Chancery

not admissible at common law

should be

entries in, by shopmen in course of business, when admissible.

(See Course of office or business)

660

659

370

409

662

582

585, 586

584

588

586

574-581

reading one entry in, does not warrant opponent in reading distinct entries 601

entries in, by deceased agents, &c., when evid. as against inter.
Interest)

ACCOUNT STATED, effect of "never indebted" to count for

admission made under compulsory examination, whether evid. of
admission made to stranger, not evid. of

award not evidence of, between parties to submission

will not lie, when balance of debt secured by deed has been struck
production of I. O. U. evidence of

ACCUSED. (See Prisoner)

ACKNOWLEDGMENT of will by testator, what sufficient

of deeds by married women, certificates of, how proved

(See

550-562

262

651

652

1404

929

128

861, 863, 864

1237

610, 611, 878-883

892
890-892

54

533-540

550-565

136

658-664

748

of debt, what sufficient to bar St. of Limit. (See Lord Tenterden's
Act)

of debt on specialty, what sufficient

of title, what sufficient. (See Limitations)

of debt or title, sufficiency of, question for Court

by family, good hearsay evidence in pedigree cases

against interest. (See Interest)

when evidence as an admission. (See Admissions)

as a confession

ACQUIESCENCE in claim for long period, raises presumption of title

ACQUITTAL. (See Autrefois acquit and Certificates)

of deft. in crim. trial makes him competent witn. for or against his co-defts. 1097
of husband, makes wife competent witness against his co-defendants 1102
copy of record of, when demandable

in Exchequer, is it conclusive as to illegality of seizure?

ACT OF GOD relieves carrier from liability
ACT OF PARLIAMENT. (See Statutes)
ACT-BOOK, of Prerogative Court, proveable by copy

admissibility of, to prove title of exor. or admor.
to prove revocation of probate

ACTING IN OFFICE, when admission of appointment
appointment to office, when presumed from

1204

1378, 1379
168

381, 1269, 1270, 1282

ACTION, question subjecting witnesses to, he is bound to answer
documents subjecting witness to, he is bound to produce

this rule does not include title deeds

effect of being made party to, without knowledge or consent
judgment in a prosecution, no evidence in an

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ACTION (Continued)

judgment in an, no evidence in a prosecution

ACTOR, no presumption as to yearly hiring

ACTS OF AUTHOR, ancient documents may be explained by

ACTS OF OWNERSHIP, presumptive evidence of grant

in one part of waste, river, or mine, when evid. of title to another
when proof of, not necessary

ACTS OF STATE, how proved

of foreign governments, how proved

secrets of state, excluded on grounds of public policy. (See Privi-
leged Communications)

ADDRESS of either House of Parliament. (See Parliament)

1355

162

965

131

306-308

125

4, 1227

17, 1228

776-778, 781

on letter, what sufficient to raise inference of delivery by post
ADEMPTION OF LEGACY, distinction between, and revocation of will

total or partial, may be proved by parol

163

928

928

presumption that portionment of legatee by parent is an
may be rebutted by parol, or by declarations of intention

983

982

ADJOINING LANDS OR HOUSES when entitled to mutual support
ADJUDICATION. (See Public Records and Documents)

ADJUSTMENT OF LOSS, when and how far conclusive as an admission
ADMINISTRATION, letters of, how proved

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granted to child's effects, how far evidence that it was born alive

to next of kin of woman, not evidence of her dying unmarried

by diocesan, how defeated before 11th Jan. 1858

may be defeated by showing intestate still alive

calendars of grants of, where deposited

how inspected

ADMINISTRATOR, character of, cannot be disputed under general issue

title of, how proved

entitled by foreign letters, cannot sue in this country

part paym. by one does not take debt out of St. of Limit. as to others
nor does written acknowledgment by one

1344

1344

1369

1370, 1371

1371

1201

1201

254

381, 1270

1389

493, 612

493, 610, 611

how judgment to be given and costs allowed, in such case
promise by, to pay out of own estate, must be by signed writing

611

831

the consideration must appear expressly or impliedly in the writing

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inventory exhibited by, how far evidence of assets

ADMIRALTY COURT, attendance of witnesses before, how enforced

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