of the court, leave any issue of fact to the decision of a judge without the intervention of a jury: "and such issue of fact may thereupon be tried and determined, and damages assessed, where necessary, in open court, either in term or vacation, by any judge who might otherwise have presided at the trial thereof by jury, either with or without the assistance of any other judge or judges of the same court, or included in the same commission at the assizes: and the verdict of such judge or judges shall be of the same effect as the verdict of a jury, save that it shall not be questioned as being against the weight of evidence."

DAMAGES AT EQUITY.

A large power of awarding damages was given to the Court of Chancery by the Chancery Amendment Act, 1858 (m), in all cases in which it "has jurisdiction to entertain an application for an injunction against any breach of any covenant, contract or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract or agreement": and such damages are to be "either in addition to or in substitution for such injunction or specific performance." It follows, therefore, that the Court of Chancery will never grant damages except in cases which fall within its jurisdiction independently of the question of damages, as, for

(m) 21 & 22 Vict. c. 27, s. 2.

example, no damages will be given in respect of a contract of which the court could not compel specific performance (n). The object of the act is to relieve the plaintiff from the necessity of proceeding both in equity and at law in order to obtain complete relief, and therefore a plaintiff cannot now obtain specific performance of an agreement in equity and then sue for damages at law for the breach of the agreement complained of in the bill, although when there has been an order for specific performance the plaintiff cannot in the same suit obtain damages for delay in complying with the order (o). The damages are granted in addition to an injunction or decree for specific performance, when the relief would be incomplete without (p): or in substitution, when they form the more appropriate remedy, as where the plaintiff has been guilty of laches, or has offered to accept pecuniary compensation (q); and the court has power to grant damages where they are not prayed for in the bill (r). The damages may be assessed by the court itself(s), either with or without a jury, such jury being either common or special; or the Court may direct an inquiry in chambers, or order the damages to be assessed before a court of common law at Nisi Prius, or at the assizes, or before the sheriff of any county or city. In one case the parties by agreement left the damages

(n) Norris v. Jackson, 1 J. & H. 319.

(o) Corporation of Hythe v. East, L. R. 1 Eq. 621. (p) Hindley v. Emery, L. R. 1 Eq. 52.

(q) Senior v. Pawson, L. R. 3 Eq. 330.

(r) Caton v. Wyld, 32 Bea. 266.

(s) Isenberg v. East India House Estate Company, 13 W. R.

to be assessed by the Lord Chancellor (t). In any such assessment before the court itself or in chambers, the principles observed as to the measure thereof are very similar to those adopted by the courts of common law.

(t) Jackson v. Duke of Newcastle, 13 W. R. 1066.

PART II.

ON WRITTEN EVIDENCE.

CHAPTER I.

In the first part of this work the general principles of evidence, and their application to the issue, have been considered, chiefly in the form of oral depositions. In this second part, the principles of written, or documentary evidence, will be stated and illustrated. But it may be first desirable to elucidate more fully a branch of the subject which has been already touched upon; and to show generally in what cases written instruments are treated as primary and best evidence, and in what cases as secondary and inferior evidence.

When a writing purports to be in the nature of a public or judicial record, the deliberate solemnities with which its settlement and recognition are presumed to have been accompanied render it clearly the best and primary evidence of the matters to which it refers. So, where a contract has been voluntarily confirmed by deed or writing between the parties, all controversy as to its purport and intention ought clearly to be determined by the inspection of the written instrument, in which both parties have pro

fessed to express all that bears substantially on the contract. It is therefore a fundamental principle that, although oral evidence may be given to explain such a written contract, it cannot be given to vary it, except when in equity relief is sought on the ground of mistake or surprise (a). Similarly, where a writing is the very matter in issue, as in libel, oral evidence of the words of the libel is inadmissible as long as the writing, or print, is producible. So, where it appears that a representation or statement by a witness was made in writing, his own act operates against him in the nature of an estoppel in pais; and he will not be allowed to say what the statement was, but the writing must be produced, and declare it. Thus, a witness cannot be asked whether his name is written in a book; but the book must be produced, or its non-production be excused according to the principles under which secondary evidence is admissible (b). Neither can he be examined as to its contents, but the whole of a letter must be read (c). In all such cases oral evidence will be inadmissible, until it be proved that every endeavour has been used, without success, to produce the writing.

An anomalous exception to the rule that parol secondary evidence is inadmissible where there is parol primary evidence which ought strictly to be produced, is found in the principle that, "whatever a party says, or his acts amounting to admissions, are evidence against himself, though such admissions must

(a) Price v. Ley, 32 L. J. Ch. 530; cf. infra, Chap. X. (b) Darby v. Ouseley, 1 H. & N. 1.

(c) Queen's case, 2 B. & B. 286.