that on this evidence alone they are bound to convict, unless they are satisfied with the prisoner's explanation of the manner in which he obtained the goods. In dealing with this class of evidence it is necessary to consider the weight which is to be given to the united force of all the circumstances put together (i). And, as has been remarked by a learned writer (k) (and the remark is universally applicable to all presumptive evidence), it must be admitted that, like every other rule of human institution, it will sometimes fail to guide rightly. Lord Hale mentions a case which he says was tried before a very learned and wary judge, where a man was condemned and executed for horse-stealing, upon proof of his having been apprehended with the horse shortly after it was stolen; and afterwards it came out that the real thief, being closely pursued, had overtaken the man upon the road, and asked him to hold the horse for him for a few minutes. The thief escaped, and the innocent man was apprehended with the horse (1). In such cases, and generally, it is well to bear in mind, that "where it is sought to establish a theory by circumstantial evidence, all the facts proved must be consistent with the theory; but there must also be some one substantial, credible fact inconsistent with the contrary" (m). Hence it has been decided,

(i) Per Lord Cairns, Bellhaven Peerage Case, L. R., 1 App. Cas. 279.

(k) Russell on Crimes, by Greaves; note by editor.

(7) 2 Hale, P. C. 289.

(m) Per Willes, J., Great Western Railway Co. v. Rimmell, 18 C. B. 575.

that since there can be no larceny of goods unless there be a felonious intention in the taker's mind at the time of the taking, a mere fraudulent conversion of goods by the taker after the taking is no evidence that he had a felonious intention at the time of taking, because such a misappropriation is consistent with the theory that he had no felonious intention at the time of the taking, but that he conceived the intention subsequently (n).

What, then, is meant by the term evidence? In the first place it must be borne in mind that there is a wide distinction between evidence and proof, which is the effect of evidence. "When the result of evidence is undoubting assent to the certainty of the event or proposition which is the subject-matter of the inquiry, such event or proposition is said to be proved" (o). Evidence, then, "includes all legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the truth of which is submitted to judicial investigation " (p). There are several divisions of evidence, of which the most important are the divisions into (1) primary and secondary, (2) sufficient and satisfactory, (3) direct and inferential, (4) original and second-hand, or hearsay, (5) oral, documentary and real. The first four divisions will be discussed elsewhere. The fifth, which is a threefold division, explains itself; but an illustration may convey a clearer notion of real

(n) R. v. Christopher, Bell, 27.

(0) Whately's Logic, Book iv. ch. iii. s. 1.
(p) Taylor on Evidence, s. 1.

evidence to the student: When a knife, covered with blood, is found close to the body of a murdered man, the production of the knife in court is offering real evidence.

Finally, it may be remarked that the law of evidence applicable in every case is that of the lex fori. To quote the words of Lord Brougham: "The law of evidence is the lex fori which governs the courts whether a witness is competent or not, whether a certain matter requires to be proved by writing or not, whether certain evidence proves a certain fact or not; these and the like questions must be determined, not lege loci contractûs, but by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it" (2).

(2) Bain v. Whitehaven Railway Co., 10 H. L. Cas. 1.

CHAPTER II.

THE FUNCTIONS OF JUDGE AND JURY.

Ad quæstionem juris non respondent juratores; ad quæstionem facti non respondent judices. Whether there is any reasonable evidence is a question for the judge; but whether the evidence is satisfactory is a question for the jury (a).

THE meaning of this rule, which may be regarded as fundamental, is, that it is for the judge to decide on the character of all evidence that may be tendered, and to admit or reject it according to its consistency or inconsistency with the established rules of courts. The ancient rule is, however, exploded, by which a judge was bound to leave a case to a jury if there were any evidence for their consideration. Where there is merely a scintilla of evidence a judge ought not to leave it to a jury(); and the test whether any evidence only amounts to a scintilla is to assume that there is no evidence to contradict such evidence, and then to inquire whether there would be evidence which would justify a jury in finding a verdict (c).

(a) Avery v. Bowden, 6 E. & B. 953; Wheelton v. Hardisty, 8 E. & B. 232.

(b) Per cur. Avery v. Bowden, sup.

(c) Per Mellish, L. J., Ex parte Morgan, L. R., 2 Ch. D. 90; 45 L. J., Bank. 43; 24 W. R. 418.

It is of course a very delicate function for a judge to withdraw a case from a jury on the ground either that there is no evidence, or merely a scintilla; and it seems that when there is any sort of primâ facie presumption in a case (d), or a condition of facts which does not clearly negative the supposition that there is some evidence, the decision is for the jury, and not for the judge (e), and the evidence has never been held to amount to a scintilla only in a case where a witness has positively sworn to something having taken place within his own knowledge, by which, if it did take place, the case was proved (ƒ).

It was laid down by the House of Lords in Metropolitan Railway Co. v. Jackson (g) that in actions for negligence it is for the judge to say whether from any given state of facts negligence can legitimately be inferred, and it is for the jury to say whether it ought to be inferred. In such actions it has been held by the Court of Exchequer Chamber that there are some accidents which imply negligence from the very nature of the circumstances, as where the plaintiff was struck by a brick which unexpectedly fell from a railway viaduct immediately after a train had passed (h); though when there is no such pre

(d) Dare v. Heathcote, 25 L. J., Ex. 245.

(e) Jewsbury v. Newbold, 26 L. J., Ex. 247.

(f) Per Mellish, L. J., Ex parte Morgan, ubi supra.

(9) L. R., 3 App. Cas. 193; 47 L. J., C. P. 303; 26 W. R. 175.

(h) Scott v. London Dock Co., 3 H. & C. 596; Kearney v. London, Brighton & South Coast Railway Co., L. R., 6 Q. B. 759; 40 L. J., Q. B. 285; 18 W. R. 1006.