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Analytical Digest of Cases: Law of Evidence.

Where a commission issues for the examina-ence the belief of the jury as to the whole case. tion of witnesses in a foreign country, the oath of the Commissioners may, under special circumstances, be dispensed with. Boelen v. Melladew, 10 C. B. 898.

3. Form of oath of witnesses in Denmark.By the law of Denmark, none but burgomasters have power to administer oaths; and the mode of administering an oath to a witness, is, by causing him to hold up three fingers of his right hand, and declare that he will speak the truth. A commission having failed, for want of the observance of there formalities.the Court, on payment of all costs, allowed a second commission to go, addressed to burgomasters. Boelen v. Melladew, 10 C. B. 898.

4. Amendment of return.-The return of a commision from Jamaica, which omitted to state that the Commissioners and their clerks had

Thus, if the plaintiff's first witness denies a material fact, and states that persons connected with the plaintiff have offered him money to assert it, the plaintiff may call those persons, not only to prove the fact, but to disprove the attempt at subornation.

In an action for assaulting, and thereby injuring, the plaintiff, if the plaintiff's witness deposes that plaintiff, in conversation, ascribed the injury to an accident, the plaintiff may afterwards prove that, in fact, no such accident occurred. Melhuish v. Collier, 15 Q. B. 878. Cases cited in the judgment: Holdsworth v. Mayor of Dartmouth, 2 M. & Rob. 153; Wright v. Beckett, 1 M. & Rob. 414; Winter v. Butt, 2 M. & Rob. 357.

INSPECTION OF DOCUMENTS.

taken the oaths, ordered to be amended, and to late to party's title.-The assignee of certain 14 & 15 Vict. c. 99, s. 6.—Where deeds rebe received in evidence, though, in addition, the signature of the Commissioners had not been premises for the residue of a term of years, beaffixed to the interrogatories. Davis v. Bar-came seised in fee of other premises immedirett, 14 Beav. 25.

Case cited: Brydges v. Branfill, 12 Sim. 334.
See Witness.

COMPETENCY.

ately adjoining, and demised both to R. and S. She subsequently assigned her interest in the first-mentioned premises to the defendant, and conveyed to him the freehold premises. After the determination of the term granted to R. What amounts to waiver of witness's compe- and S., defendant occupied the leasehold as tency. The cross-examination of a defendant, well as the freehold premises. Upon the detendered as a witness, is a waiver of his incom- termination of the first-mentioned term of years, petency, where the objection must be assumed the reversioner of the premises comprised in it to have been known at the time of the cross- brought ejectment for a parcel of land, conexamination. Triston v. Hardey, 14 Beav. 21. tending that it was part of the lands comprised Case cited in the judgment: Ellis v. Deane, S., and afterwards the defendant, had during in the term of years, and alleging that R. and Beatty, 5. their occupations, obliterated the boundaries of the freehold and leasehold land, and had en

DEFENDANT.

Evidence for co-defendant.—Stat. 6 & 7 Vict.

c. 85.-The evidence of a defendant in favour of a co-defendant is inadmissible under the 6

& 7 Vict. c. 85, if it proves the case of the witness himself. Triston v. Hardey, 14 Beav. 21.

DISCREDITING OWN WITNESS.

Denial of material fact.-Relevancy to issue. -Although the general rule is, that, on the trial of a cause, a party shall not discredit his own witness, yet, if the witness unexpectedly gives adverse evidence, the party may ask him if he has not, on a particular occasion, made a contrary statement. And the question and answer may be stated by the Judge to the jury with the rest of the evidence; the Judge cautioning them not to infer, merely from the question, that the fact suggested by it is true. Quare, whether, in such case, the party may contradict the witness by evidence as to such former statement.

If a witness called in support of a case unexpectedly gives evidence in opposition to it, the party calling him may go on to prove the case by other witnesses, and it will be no objection to the proof of any relevant fact that the statement of it contradicts, and thereby indirectly discredits, the first witness.

The fact is relevant, though it be not part of the transactions on which the issue turns, if the truth or falsehood of it may fairly influ

croached on the latter.

Upon a rule under the 14 & 15 Vict. c. 99, s. 6, stating the above facts, and alleging that an to inspect documents, supported by an affidavit inspection of the deeds of assignment and of conveyance to the defendant of both premises would enable the lessor of the plaintiff to prove his title to the parcel in question :

Held, that the lessor of the plaintiff was entitled to inspect the assignment of the term, but not the deed conveying the freehold here

ditaments.

Held, also, that the lessor of the plaintiff might, even independently of the 14 & 15 Vict. c. 99, s. 6, upon an affidavit of the loss or nonexistence of the counterpart, inspect the deed creating the term. Doe dem Avery v. Langford, 1 L. & M. 37.

Case cited in the judgment: Bolton v. Mayor, &c., of Liverpool, 1 Myl. & K. 88.

INSURANCE.

Total loss.-Possibility of saving ship.Drunkenness of captain.-Copy of former deposition.-On an issue, between the owner of a ship and the insurer, whether the ship had been totally lost, it appeared that she had gone on shore, and, when on shore, had been sold by the captain to a party who succeeded in get. ting her off. The defendant's case being that, if a good judgment had been exercised, total

Analytical Digest of Cases: Law of Evidence.

oss might have been avoided: Held, that he might give evidence that the captain, within a short time before the vessel sailed was addicted to drunkenness.

181

taken upon liberum tenementum, the question being, whether the locus in quo was parcel or no parcel of an estate purchased by and conveyed to an ancestor of the alleged freeholder, On a commission to examine witnesses, a an agreement preliminary to the conveyance, witness, after giving oral evidence, put in a and in which the locus in quo was expressly document which he called a "legalised copy "named as part of the land to be sold, is not

of a deposition which he stated himself to have made 18 months earlier, before the British consul at the foreign port near which the loss occurred, and which document purported to contain evidence of his opinion as to the circumstances of the vessel at the time of the loss; and the witness stated that he now confirmed such deposition, and that any discrepancy between that and his present testimony must be attributed to the lapse of time: Held, that the document was not admissible in evidence. Alcock v. Royal Exchange Assurance Company, 13 Q. B. 292.

Cases cited in the judgment: Attorney-General v. Hitchcock, 1 Exch. R. 91; Fanny and Elmira, Edwards's Adm. Rep. 117; Maeburn v. Leckie, Abbott on Shipping, p. 10, n. g.; Freeman v. East India Company, 5 B. & Ald. 617; Idle v. Royal Exchange Assurance Company, 8 Taunt. 755; Read v. Bonham, 3 Br. & B. 147; Somes v. Sugrue, 4 Car. & P. 276; Doyle v. Dallas, 1 Moo. & R. 48.

INTERESTED DEPONENT.

Credit to be given to. It is not of necessity to disbelieve or to attribute error to an affidavit, because the deponent is interested, and because a witness not interested deposes in a different manner; and the Court, believing the the whole of the affidavit of an interested deponent, decided the case in his favour, though the testimony of a witness not interested was different. In re Direct Exeter, Plymouth, and Devonport Railway Company, exparte Hall, 3 De G. & S. 214.

JOINT-STOCK COMPANY.

Character sustained by directors.-Evidence which, in a suit by some on behalf of the others of the members of a joint-stock company, is necessary to show that the plaintiffs are the managing directors of the company, and that, in such character, they represent the within the rule of the Court, which allows some members of a partnership to represent others who are absent.

company

Case in which the Court will, at the hearing, give the plaintiffs in such a suit the opportunity of supplying the deficiency of the evidence as to the character which they sustain. Clay v. Rufford, 8 Hare, 281.

PARTNERSHIP,

Number of persons forming partnership, Suing on behalf, &c.-Evidence of the number of persons constituting a partnership, for the purpose of proving that they are so numerous as to bring the case within the rule of the Court allowing a few partners to sue on behalf of themselves and others. Clay v. Rufford, 8 Hare, 286.

admissible evidence for the purpose of showing what was conveyed. Williams v. Morgan, 15 Q. B. 782.

PRESUMPTION.

- Where A. effects a

Policy of assurance. policy, in his own name, upon the life of B., declaring he is interested in B.'s life, such policy, prima facie, belongs to A., and the mere proof that some of the premiums were paid by B., does not rebut that presumption. Triston v. Hardey, 14 Beav. 232.

PRODUCTION OF DOCUMENTS.

Stamped copy, where original lost.-Power of Judge at Chambers to order admission of evidence at Nisi Prius.-In an action founded upon a document in which both parties have an interest, and which was in the possession of one, but is said by him to have been lost, a Judge cannot order that, if such party does not produce the document to be stamped, a copy duly stamped shall be read in evidence at the trial, and that the original shall not then be produced on the other side, nor objection taken to the want of a stamp on the original.

The Court rescinded such an order, after it had been enforced by the Judge at Nisi Prius, and made a rule of Court. Rankin v. Hamilton, 15 Q. B. 187.

Cases cited in the judgment: Legh v. Legb, 1 B. & P. 447; Innell v. Newman, + B. & Ald. 419; Alner v. George, 1 Campb. 392; Travis v. Collins, 2 C. & J. 625; 2 Tyr. 726; Bousfield v. Godfrey, 5 Bing. 418.

PROCHEIN AMY.

Stat. 6 & 7 Vict. c. 85.-Party named on record.-A prochein amy, suing on behalf of an infant, is not precluded from giving evidence by Stat. 6 & 7 Vict. c. 85, s. 1, as a party individually named on the record. Melhuish v. Collier, 15 Q. B. 878.

PUBLIC DOCUMENT.

Master's report of burthen of ship.—Custom House certificate of register.-The master of a foreign vessel arriving in the port of London, delivered to the Custom House officers a report of the burthen of his ship, and the number of his crew; and it was filed at the Custom House: Held, that the provisions of Stat. 8 & 9 Vict. c. 86, ss. 2, 7, 18, did not give this the character of a public document so as to make it evidence of the burthen of the ship.

A certificate was produced from the Custom House, where it had been filed, signed by a party who certified that he had measured the vessel, and stated the amount of the tonnage.

Held (it not being shown that this was an act prescribed by Statute), that the certificate could not be received in evidence as a public document to prove the burthen of the ship. To explain subsequent deed.-On an issue Huntley v. Donovan, 15 Q. B. 96.

PRELIMINARY AGREEMENT.

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Analytical Digest of Cases: Law of Evidence.-Law of Costs.

REPUTATION.

Quare, whether the question, if so confined, could have been put. Thompson v. Nye, 16 Q. B. 175.

Case cited in the judgment: Jones v. Stevens, 11 Price, 235,

SECONDARY EVIDENCE.

1. Right of common.-Verdict in former action.-Semble, that, on an issue whether the occupier of close T. had, as appurtenant to it, right of common in a tract called M., the party asserting such right cannot give in evidence the verdict in an action between stranOf contents of written document, when admisgers to the depending suit, where the issue sible.-Where a written document is in the was, whether the occupier of B., another close possession of a witness who is not compellable belonging to the owner of T., had a right of to produce it, and he refuses to do so, secommon in M., and the jury found for the condary evidence of the contents is admissible. commoner. Williams v. Morgan, 15 Q. B. 782. Newton v. Chaplin, 10 C. B. 356. 2. Boundary of waste. Manor.- On an See Attorney. issue, whether close C. was or was not plaintiff's close, the following evidence was rejected :

That the close was in the manor of O.: and

SPECIFIC GIFT.

Evidence of state of property admissible.Where a gift is prima facie specific, evidence of the state of the property at the date of the will is admissible. Innes v. Sayer, 3 MN. & G. 606.

Cases cited in the judgment: Shuttleworth v. Greaves, 4 Myl. & C. 37; Mackinley v. Sison, 8 Sim. 561.

STAMP.

plaintiff, by lease from the lord, was possessed of the manor and all the common and waste lands within the same: that M. was immemorially common and waste of and in the manor, and of great extent: that, adjoining to and surrounding M., and within the manor, were and immemorially had been "very many distinct messuages, lands, and tenements, severally held of the same manor by several tenants Acknowledgment of payment.-When a rethereof, respectively, which said tenants, for ceipt stamp is necessary.-Debt for iron-work the time being, of the said messuages," &c., "re- sold and delivered. Plea: payment. Defendspectively had, in respect thereof, severally and ant, in support of the plea, offered in evidence respectively, always had, exercised and enjoyed, an unstamped document signed by plaintiffs, and been entitled to have," &c., rights of in these words :-" Memorandum, That any common for all their commonable cattle in and demand we may have against W." (defendant) upon and throughout M. ;" and that, ante litem" for iron-work, &c., is this day settled and motam, certain of such tenants, deceased, well discharged in consideration of services renacquainted with M. and its neighbourhood, and dered by him to us. N. B. Particulars of our the manor, and who "as such tenants," had account shall be delivered with a stamped realways had, &c., and been entitled to have, &c., ceipt." such rights of common, did, while they were such tenants, and were in the exercise, &c., and so entitled, declare that C. was parcel of M., and waste of the manor.

On bill of exceptions, stating as above: Held, that the evidence was rightly rejected, for that the rights to which the declarations referred were not of a public nature.

But Held, that the evidence was not the less admissible because no evidence had been been offered of actual exercise of the right of common on the locus in quo;

And that there was no objection to it on the ground that the parties making the declaration had not competent knowledge, or were interested. Lord Dunraven v. Llewellyn, 15 Q. B. 791.

RUMOUR.

Slander.-Evidence of rumour in mitigation of damages. Action for words imputing unnatural practices. The declaration alleged, at the conclusion, that by means of the comraitting of the grievances plaintiff had been in jured in his good name, and brought into public infamy, and was shunned by divers persons (not named). Plea, not guilty.

Held, that, upon this issue, defendant could not ask a witness whether he had heard that the plaintiff was addicted to such practices; the question being general, and not confined to reports existing at the time of the slander.

Held, that the document was not admissible for this purpose without a receipt stamp. Livingstone v. Whiting, 15 Q. B. 722.

WITNESS ABROAD.

Examination of, under a mandamus.-Distance, and the smallness of the amount of the plaintiff's claim, form no ground for refusing a writ in the nature of a mandamus for the examination of witnesses abroad, on behalf of the defendant, under the 1 Wm. 4, c. 22. Dye v. Bennett, 9 C. B. 281.

See Commission to Examine Witnesses.

LAW OF COSTS.

ADMINISTRATION SUITS.

Staying proceedings. A creditor's suit against a personal representative for the administration of a testator's estate, proceeded to replication, when a decree was obtained, in another creditor's suit, against the same personal representative for the same object. After the defendant had given the plaintiff in the first suit notice of the decree, the plaintiff threatened to proceed; and thereupon the defendant, upon a notice of motion, intitled only in the former cause, asked that the proceedings might be stayed. The Court made an order in both suits, granting the injunction, and giving the restrained plaintiff liberty to tax his costs of the first suit and on the motion, and to go in

Analytical Digest of Cases: Law of Costs.

and prove his debt, and such costs in the second suit, but declined to direct that the costs should be paid out of the first assets. Ladbroke v. Sloane, 3 De G. & S. 291.

AMENDMENT.

183

tained upon materials which were not before the Master, the appellant was ordered to pay the costs of the motion. James v. Grissell, 3 De G. & S. 290.

APPEAL FROM SESSIONS.

AUCTIONEER.

Dismissal for want of prosecution.-Re- Costs as between party and party.—Where quiring answer.-Where a plaintiff amended upon appeal to the quarter sessions under the his bill, and thereby required an answer to 6 & 7 Vict. c. 36, a case is stated for the the amendments from four of the defend- opinion of one of the Superior Courts, under ants who had answered, and to the ori- the 12 & 13 Vict. c. 45, s. 11, costs are taxed ginal and amended bill from two defendants as between party and party. Earl of Clarenwho had not answered, and from defendants don v. Rector, &c., of St. James's, Westminster, newly added, but did not serve on the four 10 C. B. 806. first-mentioned defendants any subpoena to answer the amended bill: Held, that the plaintiff ought to have paid 20s. costs, if he required those defendants to answer the amendments, and ought to have served them with a subpoena, or filed a replication, and that his not having taken either of these steps, entitled those defendants to move to dismiss for want of prosecution, under the 39th Article of the 16th Rule of May, 1845. Raistrick v. Elsworth, 2 De G. & S. 95.

Cases cited: Cooke v. Davis, T. & R. 509;

Bramston v. Carter, 2 Sim. 458.

APPEAL.

Action against for deposits.-Security for costs. An auctioneer was employed to sell land by auction: the purchaser of a lot paid a deposit, but, not being satisfied with the title, refused to complete the purchase, and sued the gave the auctioneer for the deposit: the vendor defendant notice to hold the money for her as forfeited. The defendant applied to have the vendor made defendant.

The Court, the solvency of the vendor appearing doubtful, made the rule absolute, on the money being brought into Court and security for costs being given to plaintiff; but refused to order that the costs of the original defendant should be paid out of the money. Deller v. Prickett, 15 Q. B. 1081.

CERTIORARI.

1. A creditor's bill was filed after notice of a decree in a simple administration suit, by one of the next of kin of the intestate, but the decree was at that time imperfect in not containing the usual preliminary inquiries: the frame. 5 & 6 Wm. and M. c. 11, s. 3. Party of the creditor's suit was also different in making the heir-at-law a party, and in containing "grieved."—Indictment for perjury.-The decharges as to real estate, and as to the destruc-fendant having committed perjury, upon a retion of documents. The creditor's suit having ference to a Master in Chancery to ascertain been brought to a hearing, the Vice-Chancellor the amount of A.'s estate, in a suit brought by made an order directing the plaintiff to pay a 4.'s executors, was prosecuted by the executors,

stated sum to the heir-at-law in lieu of costs, and ordered the administratrix to pay the plaintiff's costs of suit: Held, that inasmuch as the creditor might have obtained all the relief to which she was entitled in the former suit, the bill ought to have been dismissed with costs; and that, under the circumstances, the appeal to the Lord Chancellor did not fall within the rule precluding an appeal for costs. Menzies v. Connor, 3 M'N. & G. 648.

Cases cited in the judgment: Owen v. Griffith, Ambl. 521; Angell v. Davis, 4 Myl. & Cr. 360; Chappell v. Purday, 2 Phill. 227.

and convicted.

Held. that they were entitled to costs as parties "grieved or injured," within the meaning of 5 & 6 Wm. and M., c. 11, s. 3. Regina V. Major, 1 L. & M. 68.

CONTRIBUTORY.

This Court will make the usual order for winding up the affairs of a company on the petition of a plaintiff in a suit against the directors for a similar object, without requiring the petitioner to pay the costs of the suit, leaving the question of the costs of the suit to be In re Bastenne Bituconsidered in the suit. men Company, 3 De G. & S. 265.

DISMISSING BILL.

2. Inadvertent defect in decree. - When a decree is affirmed upon the general merits of the case, an objection founded on an obvious On offer of relief specifically sought by bill.inadvertency in such decree, and which might A defendant, offering the plaintiff all the relief have been taken in the Court below, ought not to affect the costs of the appeal, if taken for the specifically sought by his bill, moved to disfirst time in the appellate Court. Smith v. Pin-miss the bill without costs, or that the plaintiff combe, 3 M'N. & G. 653.

APPEAL FROM MASTER.

New facts.-Upon a motion, by way of appeal from the Master's decision, refusing to enlarge publication, the Court received in evidence new facts not before the Master, on which the Court directed the publication to stand enlarged; but, as the order was ob

might apply respecting them. The plaintiff
then insisted on a further demand, which
might be had under the prayer for general
relief or by amendment. The Court refused
the motion with costs, but intimated, that this
proceeding must be considered at the hearing.
The decision in Sivell v. Abraham, 8 Beav.
Hennet v. Luard, 12 Beav.
598, adhered to.
479.

A verdict was found for plaintiff on never indebted to the extent of 107., and for defendTRAVELLING EXPENSES OF WITNESSES. ant on the plea of payment, so that plaintiff recovered nothing beyond the money paid into for the travelling expenses of witnesses a greater The Master taxing costs ought not to allow Court. On a rule to review the Master's tax-amount than is reasonable, though it does not Held, that plaintiff was entitled to the costs actually paid by the party bringing them. exceed 1s. a mile, and though it has been as to the causes of action relating to the 10l. Hunter v. Liddell, 16 Q. B. 402.