A DIGEST OF THE LAW OF EVIDENCE

ON

The Trial of Causes

IN THE

COURT OF DIVORCE AND MATRIMONIAL CAUSES.

INTRODUCTION.

By section 48, of the statute 20 & 21 Vict. c. 85, the rules of evidence observed in the Superior Courts of Common Law, at Westminster, shall be applicable to, and observed in the trial of all questions of fact in this Court, and false evidence is punishable as perjury, (20 & 21 Vict. c. 85, s. 50.) But in all suits and proceedings, other than proceedings to dissolve any marriage, the said Court shall proceed, and act, and give relief on principles and rules, which, in the opinion of the Court, shall be as nearly as may be, conformable to the principles and rules on which the Ecclesi astical Courts have heretofore acted, and given

relief, but subject to the provisions therein contained, and to the rules and orders under that Act, 20 & 21 Vict. c. 85, s. 22.

This being so, it will be unnecessary to enlarge here upon the nature of the evidence generally, but the following remarks may be found useful.

Where a petition is presented by the wife for dissolution of marriage for adultery coupled with cruelty or desertion, the husband is compellable to give evidence of or relating to such cruelty or desertion, 22 & 23 Vict. c. 61, s. 6.

In a suit for dissolution of marriage on the wife's petition, the wife is, since the statute 22 & 23 Vict. c. 61, a competent witness to prove desertion or cruelty, though the suit be a proceeding instituted in consequence of adultery, see Pyne v. Pyne, 27 L. J., P. & M. 54.

The only differences in principle between the evidence in civil and in criminal cases, are those produced by the C. L. P. Act, 1854, s. 103. The Court naturally looks with great care into the nature of the evidence, and will require in cases of such importance as those which form the very essence of its business, the most satisfactory evidence to be produced before it, otherwise it will refuse to act: in fact, the same observations which may be made with regard to evidence in criminal cases, apply here with equal force; inasmuch as here character is as much at stake as

on the trial of a criminal charge. It is said that all presumptive evidence of felony should be admitted cautiously, 4 Black. Com. 359, but per Mounteroy, B., "circumstances are, in many cases, of greater force, and more to be depended upon than the testimony of living witnesses; inasmuch, as witnesses may either be mistaken themselves, or wickedly intend to deceive others; whereas, circumstances and presumptions naturally and necessarily arising out of a given fact, cannot lie." Annesley v. Lord Anglesea, 17 How. St. Tri. 1430. And Bentham says that the nature of circumstantial evidence is to assemble more facts for the jury, which, if any be untrue, may more easily be disproved, 3 Rationale of Jud. Evid. 251,

It may also be remarked, that the fact of suspicion often leads witnesses to exaggerate, and prejudices juries. Mr. Phillips says, "not unfrequently a presumption is formed from circumstances which would not have existed as a ground of crimination, but for the accusation itself; such are the conduct, demeanour, and expressions of a suspected person, when scrutinized by those who suspect him. And it may be observed that circumstantial evidence, which must in general be submitted to a court of justice through the means of witnesses, is capable of being perverted in like manner as direct evidence, and that, moreover, it is composed of inferences, each of which may be fallacious, 1 Phill. Evid. 458, 8th edit. For various

presumptions of guilt, from the conduct of the accused party, see Roscoe's Criminal Digest, 4th edit. No presumption of guilt arises from the silence of a prisoner when charged by another, who is also alleged to have been implicated, with having been joined in the commission of the offence, R. v Appleby, 3 Stark, N. P. 38.

And in the New Court the same doctrine would probably be held to apply to remarks made by a respondent with respect to a co-respondent in his presence, or vice versa, so as to draw any inference of guilt from silence.

It has been held by the House of Lords that a witness to foreign law must be a person peritus virtute professionis or officii. A Roman Catholic eccclesiastic holding in this country the office of coadjutor to a vicar apostolic, and as such authorised to decide on cases arising out of marriages affected by the law of Rome, was held, in virtue of his office, to be a witness admissible to prove the law of Rome as to marriages, Sussex Peerage Case, 11 Cl. & Fin. 134. So, where a woman was called as a witness who proved that she was present at a marriage in Scotland, performed in a private house by a minister of religion, that she herself was married in that way, and that that was the usual mode of marriage in Scotland, this was held insufficient, Reg. v. Povey, 1 Dears, C. C. R. 39; and in the Sussex Peerage Case, it was said by the Lord Chancellor, that the decision in Reg v.

Dent, 1 C & K. 97, in which an unprofessional person who said he was born and educated in Scotland, and was acquainted with the law of that country, was not law, 11 Cl. & Fin. 134.

To show the validity of a foreign marriage, evidence must be given of the law of the state in which the fact of marriage took place. For this purpose, a person skilled in the laws of that country should be called, Lindo v. Belisario, 2 Hagg. 248, Middleton v. Janverin 2 Hagg. 441; but see Harford v. Morris, 2 Hagg. 431

It seems that the written law of a foreign state must be proved by a copy duly authenticated, Clegg v. Levy, 3 Camp. 166. In one case the law of France was authenticated by the production of a copy of the Cinq Codes by the French vice-consul, which, he stated, contained the customary and written laws of France, and was printed under the authority of the French Government; Sir Thomas Picton's Case, 30 How. St. Tr. 514, was then referred to, to support this mode of proof; but it seems that, in that case, the evidence was received by consent, 30 St. Tr. 494. Abbott, J., said, that the general rule was, that the written law of a foreign country must be proved by an examined copy; but, according to his recollection, a printed book on the law of Spain was referred to and acted on in argument, in Sir Thomas Picton's Case, as evidence of the law of that country, and he should therefore rule in favour of the reception