allowed to the party who neglects to give the usual notice to admit (q). Either party may call on the other to admit, for the purposes of the trial only, any specified facts, with or without qualifications; and, in case of his refusal or neglect to make the admission, he will in general have to bear the costs of proving the facts which he has refused to admit (r). As regards any documents which are referred to in the pleadings of either of the parties, the other party may give him a written notice to produce the same for inspection and perusal, and to permit a copy to be taken thereof, on pain of not being allowed at the trial to put such document in evidence (s). And either party may apply for an order for the production of any document in the possession or power of the other party, relating to any matter in question in the action (t).

No evidence is, of course, admissible except upon the point in issue (u). Thus, in an action of debt, where the defendant denies his bond, and alleges that it is not his deed, and the issue is whether it be his deed or no, he cannot give in evidence a release of the bond; for that does not destroy the bond, but shows only that it is discharged, and therefore does not support the issue, which is that the bond is not his deed. He should have pleaded the release, in order to have made such evidence admissible.

None but the best evidence may be adduced (...), that which is of a secondary kind not being admissible for that which is of a primary kind, where the primary evidence is accessible. Thus, the contents of a private deed or writing, as distinguished from a record or other public document (y), cannot be proved by a copy (still less by mere oral evidence), if the writing be in existence, and

(q) Ord. XXXII. r. 2.

(r) Ibid. r. 4.

(8) Ord. XXXI. r. 15; Quilter v. Heatly (1883), 23 Ch. D. 42.

(t) Ord. XXXI. r. 14.

(u) Bull. N. P. 298; Hey v. Moorhouse (1839), 6 Bing. N. C. 52. (x) 3 Bl. Com. 368; Taylor, Evidence, 9th edit., p. 277. (y) Evidence Act, 1851, s. 7.

can be procured by the party by whom the proof is offered (z). And if, as regards any private document, the law requires proof of its execution by a witness, a proof which is in general not required where the document is thirty years old, and comes out of the proper custody (a), the proof is by calling the attesting witness (), or, if there are several attesting witnesses, by calling one of them, or else, by proving that such attesting witnesses are dead, or otherwise incapable of giving evidence (c), and then adducing secondary evidence of the execution, as by proof of their handwriting (d), which latter proof may even be given by an expert, upon a comparison of the signature in question with any admitted handwriting (e). And this rule was formerly of so strict a nature, that even the admission of the party against whom the instrument was produced, that it was executed by him, (unless such admission were made for the express purpose of the trial,) would not have sufficed to excuse the absence of the attesting witness (ƒ) ; but now, by the Common Law Procedure Act, 1854, section 26, it is unnecessary to prove by the attesting witness, any instrument to the validity of which attestation is not required by law, so that such instrument may now be proved by admission or otherwise, as if there had been no attesting witness thereto. By the express provisions of particular statutes, certified extracts of certain private documents (e.g., extracts under the Bankers' Books Evidence Act, 1879) (g), are made admissible in evidence ; and documents of a public character may be proved by the

(z) M'Gahey v. Alston (1836), 2 M. & W. 206; Jones v. Tarleton (1842), 9 M. & W. 675 ; Howard v. Smith (1841), 3 Man. & Gr. 254 ; Queen v. Llanfaethly (1853), 2 El. & Bl. 940.

(a) Bull. N. P. 255; 2 Phill. on Ev., 10th ed., 245; Doe d. Neale v. Samples (1838), 8 A. & E. 151. (b) Gillett v. Abbott (1838), 7 A. & E. 783.

King's printer's copies thereof (h), or by copies thereof purporting to be printed under the superintendence of his Majesty's Stationery Office (i).

Where the circumstances are such as to entitle either party to give secondary evidence, then (there being no degrees of secondary evidence) he is at liberty to resort to any species of secondary evidence within his power (k); e.g., he may give oral evidence of the contents of a document, and he is not bound to produce a copy, though in fact he should have one (1).

Hearsay, that is, the statement by a witness of what has been said or declared out of court by a person not a party to the suit, is not admissible as evidence; for our law deems it unsafe to rely upon the assertions of any one, unless he be called as a witness in the cause, and deliver his testimony under the sanction of an oath, and under the check which the power of cross-examination imposes (m). And this rule is so absolute, that the death of the person by whom the fact was so asserted out of court, and the consequent impossibility of producing him as a witness, makes no difference; and upon the same principle, no written entry or memorandum, made by a person not a party to the suit, can in general be admitted as evidence, even after his death. But in particular cases hearsay is admissible evidence. For, first, the declaration of a third

(h) Documentary Evidence Act, 1868 (31 & 32 Vict. с 37), amended by the Acts of 1882 and 1895.

(i) Documentary Evidence Act, 1882 (45 & 46 Vict. c. 9); and see (as to entries in parish books) Taylor v. Devey (1837), 7 A. & E. 409; and (as to ancient manorial surveys) Bridgman v. Jennings (1699), 1 Ld. Raym. 734; and (as to a charity treasurer's books) Doe v. Hawkins (1841), 2 Q. B. 212; and (as to judgments)

Christy v. Tancred (1842), 9 M. & W. 438; and (as to public books, not judicial) Jewison v. Dyson (1842), 9 M. & W. 540, and Rowe v. Brenton (1828), 8 B. & C. 737.

(k) Doe v. Ross (1840), 7 M. & W. 102.

(1) Brown v. Woodman (1834), 6 Car. & P. 206, per PARKE, J.

(m) Wright v. Doe (1837), 7 A. & E. 384; Stobart v. Dryden (1836), 1 M. & W. 615.

person may form part of the res gesta, or may otherwise derive particular credibility from the circumstances under which it was made,-e.g., if a question arises, whether a third person committed an act of bankruptcy by absenting himself from his house, his own declaration made at the time, that he so absented himself to avoid a creditor, is good evidence (n). Also the books of stewards (or other receivers), though strangers to the suit, are admitted in evidence after their death, so far as the entries therein tend to charge them with the receipt of moneys; because such acknowledgments, having been made against their own interest, are entitled, on that ground, to particular weight (o). And declarations or statements in the nature of hearsay are admitted, where evidence of that description happens to constitute the natural and appropriate means of proof; as upon questions of pedigree, or of custom, public boundary, and the like (p). Also, a statement made by a third person will, usually, be receivable as evidence against a party to the action, if such party be proved to have been present when the statement was made, and to have heard its import; for it then becomes material to consider whether, by his language or demeanour on the occasion, it appeared to receive his assent (q).

Having said thus much on the admissibility of the evidence at the trial, we are now to consider the effect or weight of the evidence. Now the evidence may be either positive or circumstantial, by the former of which, we commonly understand a proof of the very fact in question, and by the latter, a proof of circumstances from which,

(n) 1 Stark. Er. 48.

(0) Higham v. Ridgway (1808), 10 East, 109; 2 Sm. L. C. (11th ed.) 327; Fursdon v. Clogg (1842), 10 M. & W. 572; Taylor v. Witham (1876), 3 Ch. D. 605; see also Price v. Torrington (1703), 1 Salk. 285; 2 Sm. L. C. (11th ed.) 320.

(p) Davies v. Lowndes (1838), 5 Bing. N. C. 161; Glenister v. Harding (1885), 29 Ch. D. 985; Haines v. Guthrie (1884), 13 Q. B. D. 818.

(2) 1 Stark. Er. 50.

according to the ordinary course of human affairs, the existence of the fact may reasonably be presumed. The strength of circumstantial or presumptive evidence varies, according to the nature and particular combination of the facts proved; for it may either be barely sufficient to decide the question, supposing no evidence to be offered to the contrary, or it may be so strong as to prevail even against the evidence offered on the other side, or so violent. as not to admit of being repelled by any contrary evidence whatever. Presumptions of fact are of this class; but certain presumptions of fact are presumptions of law also, and in this latter case, there are certain accepted rules of law regarding them ().

Summing up and Verdict.-When the evidence is completed on both sides, the judge sums up, recapitulating in greater or less detail (as he may deem necessary) the statements of the witnesses, and the contents of the documents adduced on either side, and commenting upon the manner in which they severally bear upon the issue, and giving his direction upon any matter of law that may arise, but leaving the jury to determine for themselves the credit and weight to which they are respectively entitled, and to decide whether, upon the whole, the preponderance of evidence is in favour of the plaintiff or the defendant (s).

(r) For example, the presumption of life (Nepean v. Knight (1837), 2 M. & W. 894; Rhodes v. Rhodes (1887), 36 Ch. D. 586); or of seisin in fee (Jayne v. Price (1814), 5 Taunt. 326; Doe v. Williams (1837), 2 M. & W. 749); or of death without issue (Doe v. Wolley (1828), 8 B. & C. 22; Earl of Roscommon's Case (1828), 6 C. & F. 97); or of a reconveyance (Tenny v. Jones (1833), 3 Moo. & S. 472; Doe v. Williams (1837), 2 M. & W. 749); or of unity of possession (Clayton v. Corby (1842), 2 Gale & D. 174); or of authority as agent (Owen v. Barrow (1804), 1

Bos. & P. (N.R.) 101; Ward v. Evans (1703), Salk. 442); or of payment (Welch v. Seaborn (1816), 1 Stark. Rep. 474; Oswald v. Legh (1786), 1 T. R. 270; R. v. Stephens (1757), 1 Burr. 434; Egg v. Barnett (1800), 3 Esp. 196); or of due stamping (Doe v. Coombs (1842), 3 Q. B. 687).

(8) As to the duty of the judge, with reference to leaving the case to the jury, or withdrawing it from their decision, see Metropolitan Rail. Co. v. Jackson (1877), 3 App. Ca. 193, and Dublin, Wicklow and Wexford Rail. Co. v. Slattery (1878), ibid. 1155.